PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated June 27, 2005, which determined that the applicant is neither a Convention refugee nor a person in need of protection.
[2] The applicant seeks an order setting aside the Board's decision and referring the matter for re-determination by a differently constituted panel.
Background
[3] The applicant claims a well-founded fear of persecution in his country of nationality, El Salvador, because of his perceived political opinions. In the narrative of his Personal Information Form (PIF), the applicant related the following events.
[4] The applicant served in the Salvadoran military from 1983 until 1993. He began his service as a military police officer and subsequently worked as a nurse in military hospitals.
[5] The applicant was demobilized in 1993 following the peace accord of 1992. He then studied for a medical diploma at the University Nueva San Salvador.
[6] While he was studying medicine, he became involved in trade union activities. In 1998, the applicant became a member of a trade union at the hospital where he worked, the Hospital San Rafael. In November 1999, the applicant supported the Salvadoran Institute Social Security for Workers and Doctors and demonstrated against the privatization of the health sector. A prolonged strike began on November 14, 1999, and the government responded by dismissing over 200 of the applicant's colleagues.
[7] On March 6, 2000, a demonstration was organized to try to force the government to negotiate with health workers. A special police unit responded by attacking the protestors with batons, rubber bullets and tear gas. The applicant was attacked by a group of armed individuals not wearing police uniforms. He recognized one of his attackers as Mr. Cornejo, who is believed to be a member of the death squads in El Salvador. The applicant stated that Mr. Cornejo threatened him and accused him of betraying his country.
[8] In May 2000, the applicant received a death threat by way of an anonymous letter.
[9] On August 10, 2001, at about 1 a.m., a group of armed, masked individuals entered the applicant's home and demanded that he treat an injured person who was bleeding profusely from multiple gunshot wounds. The applicant persuaded them that it would be best to take the injured person to the hospital. The applicant was blindfolded and taken into a vehicle with the injured person. During the trip, the injured person suffered a cardio-respiratory failure and died, despite the applicant's attempts to resuscitate him. The armed individuals left the applicant by the road side and warned him not to report the incident to the authorities. Fearing for his life, the applicant told no one about this incident except for his spouse.
[10] On August 24, 2001, at about 9 p.m., the applicant was heading home from the hospital where he worked when he was abducted by a group of armed individuals and forced to treat the wounds of a person who was badly injured by a sharp object, perhaps a machete. After attending to the victim, the applicant was blindfolded and taken to a deserted road. His captors threatened him and left him. The applicant reported the incident to the police the next day.
[11] In September 2001, the applicant moved to the home of his spouse's parents in Mejicanos, San Salvador, hoping that it would be a safer place.
[12] On September 3, 2001, while he was working at the hospital, the applicant received a threatening telephone call accusing him of being a traitor. The applicant suspected that the caller was Mr. Cornejo.
[13] On September 16, 2001, the applicant was confronted by Mr. Cornejo on his way home from work. In his struggle to escape, the applicant's head was wounded. He was taken to the Hospital San Rafael where he received stitches to his head.
[14] The applicant felt that he was being watched and followed. His brothers were threatened with consequences if he did not cooperate. His brothers and parents feared for their security and moved to a new home in October 2001.
[15] The applicant stated that he rushed to get his documents in order so that he could leave as soon as possible, but had to delay leaving while awaiting the birth of his child.
[16] The applicant fled to the United States where he spent two weeks. He then entered Canada and made a claim for refugee protection in February 2002.
[17] On October 21, 2004 and March 31, 2005, the Board heard the applicant's claim. The Board denied his claim on June 27, 2005, finding that the applicant was not a Convention refugee or person in need of protection. This is the judicial review of the Board's decision.
Reasons for the Board's Decision
[18] The Board began by stating that there were two facets to the applicant's claim. First, there were the applicant's alleged problems with Mr. Cornejo and his involvement in a trade union, giving rise to persecution for his political opinion. Second, there was the applicant's allegation that he was targeted by gangs who forced him to provide medical treatment.
[19] The Board reviewed the documentary evidence regarding trade union activity in El Salvador. According to this evidence, the constitution prohibits discrimination against unions and provides rights for workers to form unions. Also, the law prohibits anti-union actions before a union is registered legally and prohibits the dismissal of workers whose names appear on a union application. There are unions in both the private and public sectors in El Salvador. Public agencies that provide essential services have the right to form unions but not to strike. The Board noted that in September 2002, there was a strike by the Salvadoran Social Security Institute to pressure the government to stop purchasing health care services from private companies. This strike lasted for at least three months and resulted in some union officials receiving threatening phone calls, however, the government was unable to trace the calls. The Board noted that generally the government turns a blind eye to strikes in the public sector.
[20] The Board found that the documentary evidence did not support the applicant's allegation that in November 1999, an indefinite strike began and the government responded by dismissing 200 of the applicant's colleagues. The Board was therefore not persuaded that the applicant's membership in a trade union or even his participation in a strike would be perceived as being contrary to the official government position.
[21] The Board also did not accept the applicant's explanation for his failure to seek police help immediately following the altercation with Mr. Cornejo on September 16, 2001. The applicant had testified that he did not report this to police because he thought Mr. Cornejo was with the police. The Board stated that even if Mr. Cornejo was with the police, he was acting in a manner inconsistent with Salvadoran laws, and authorities have jailed police officers for misdeeds.
[22] The Board stated that if the events of March 6, 2000 were credible, it would be expected that the letter from the union dated December 6, 2002 would have at least mentioned this demonstration and the fact that authorities had been called in to attack the unionists. The Board also noted that this letter mentioned that the applicant is a member of the National Executive, whereas, the applicant in his PIF made no mention of being in an advanced position in the union.
[23] The Board concluded that there was no credible basis to the applicant's claim because of the inconsistencies in the applicant's evidence as well as the improbabilities evident from the documentary evidence.
[24] The Board stated that the applicant has failed to establish any link between Mr. Cornejo and the armed, masked abductors who forced the applicant to administer medical aid to their injured colleagues. The Board determined that the abductors were gang members. The Board accepted that kidnappings can take place in El Salvador, however, the Board placed considerable weight on documents indicating that the police is taking a strong-handed approach in dealing with gangs. Given this evidence, the Board stated that it is extremely difficult to support the applicant's position that the state is either unable or unwilling to provide effective protection to victims of gang violence.
[25] The Board found that the applicant failed to discharge his onus to provide clear and convincing evidence that there is a serious possibility that state protection would not be reasonably forthcoming. The Board also found that the applicant failed to make reasonable efforts to seek protection. The Board therefore concluded that there was an insufficient objective basis to the applicant's claim.
[26] Further, the Board commented on the applicant's delay in seeking asylum. The applicant had a Salvadorian passport since August 2001 and a United States visa since November 2001. The Board found that the applicant's delay in leaving his country and his failure to seek protection in the United States are further indications that there is neither a subjective nor an objective basis to his claim.
[27] The Board, in its closing comments, stated that the applicant's desire to live in Canada must be addressed through immigration law. The Board stated that the applicant's position is based on a fundamental misconception of Canada's refugee determination system, as the system is not intended to provide a quick and convenient route to landed status for immigrants who cannot or will not obtain it in the usual way.
Issue
[28] In his memorandum of argument, the applicant submitted the following issue for consideration: Did the Board make its finding in a perverse or capricious manner or without regard for the material before it?
Applicant's Submissions
[29] The applicant submitted that the Board's perverse approach to his refugee claim is apparent from the Board's closing comments which suggested that the applicant is an economic migrant who is abusing the refugee system. The applicant submitted that he changed careers from medical doctor in El Salvador to construction worker in Canada, and therefore, it is perverse to find that he came to Canada for better economic opportunities.
[30] The applicant submitted that there is no rational basis for the Board's conclusion that he would not be perceived as holding an anti-government political opinion. The applicant submitted that he presented evidence that the government was minding the anti-privatization efforts of the applicant's union. In particular, a response to information request confirmed that an anti-privatization strike began in November 1999 and the government dismissed over 200 employees who participated in the strike on the ground that it was an illegal strike. This same document mentioned the demonstration of March 2000. The applicant referred to various other documents before the Board, which revealed that striking doctors and health care workers have been subjected to threats and arrests. It was submitted that all of this information is consistent with the applicant's own evidence and the Board must provide reasons for not accepting documents that are directly on point.
Respondent's Submissions
[31] The respondent submitted that based on the evidence before it, it was open to the Board to find that the applicant failed to establish that he would be persecuted or harmed based on his being a union activist.
[32] The respondent submitted that the applicant has failed to rebut the presumption that state protection is available to him in El Salvador. It was submitted that when the state in question is a democratic state, as in this case, the applicant must do more than simply show that he or she went to see some member of the police force and that his or her efforts were unsuccessful. It was submitted that the burden of proof that rests on the applicant is directly proportional to the level of the democracy in the state in question (see Kadenko v. Canada(Solicitor General) (1996), 206 N.R. 272, 143 D.L.R. (4th) 532 (F.C.A.)).
Analysis and Decision
[33] The issue that I shall deal with is:
Did the Board err in disbelieving the applicant's story regarding his fear of persecution for his trade union activities?
[34] The Board's findings of credibility are findings of fact which are reviewable on a standard of patent unreasonableness (see, for example, Weng v. Canada(Minister of Citizenship and Immigration), 2006 FC 238 at paragraph 6).
[35] The Board disbelieved much of the applicant's story on the first facet of his claim (i.e. persecution for trade union activities) because it found that his statements were not supported by the documentary evidence. The Board stated:
The claimant's position in the medical field in El Salvador allegedly put him at odds with a government intent on privatizing health care. Two of his statements are not borne out in reliable documentary evidence. First, he states, "Since November 1999, an indefinite strike was begun". He goes on to state "the government responded by dismissing 200 colleagues". Neither of these statements are borne out by the evidence. The documents tell us that, "Public agencies that provide essential services have the right to form unions but not to strike". And goes on to tell us "The law prohibits anti-union actions before a union is registered legally and prohibits the dismissal of workers whose names appear on a union application".
[36] The documentary evidence presented to the Board by the applicant included a response to information request which contained the following:
From: Research Directorate, Immigration and Refugee Board, Ottawa
Several sources report that the administrative workers, doctors and nurses of the Salvadoran Social Security Institute (Instituto Salvadoreño del Seguro Social, ISSS) began a strike in November 1999 to demand a stop to government privatization plans for the country's health care facilities and to demand that government keep its promise of salary hikes (Campaign for Labor Rights 25 Nov. 1999; La Prensa de Honduras 11 Mar. 2000; The Militant 10 Apr. 2000).
Using the grounds that it was an illegal strike, the ISSS fired 226 administrative employees who had participated in the strike (Proceso 1 Dec. 1999). . . .
[37] The applicant's counsel, before the Board, made reference to this documentary evidence in his written submissions. This evidence was directly relevant to and completely supported the applicant's story, and it should have been considered by the Board. If the Board did not accept this evidence, it should have given a reason for its rejection. I am of the opinion that the Board made a patently unreasonable error in not addressing this documentary evidence when deciding whether or not the applicant was credible.
[38] The application for judicial review is therefore allowed and the matter is referred to a differently constituted panel for re-determination.
[39] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[40] IT IS ORDERED that the application for judicial review is allowed, the decision of the Board is set aside and the matter is referred to a differently constituted panel of the Board for re-determination.
ANNEX
Relevant Legislation
Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or
. . . |
95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas:
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger;
. . . |
Section 96 and subsection 97(1) define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4390-05
STYLE OF CAUSE: JOSE ALFREDO RAMIREZ SIGUENZA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT AND JUDGMENT: O'KEEFE J.
APPEARANCES:
| John Guoba
|
|
| Catherine Vasilaros
|
SOLICITORS OF RECORD:
| John Guoba Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|