Ottawa, Ontario, July 12, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
EDGAR FRANCISCO LEMA ARCENTALES
MARIA FILOMENA GUAMAN YAURI
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Board) rendered on June 13, 2005.
Background
[2] The Applicants are a married couple who came to Canada from Ecuador as visitors on July 18, 2002. They applied for refugee protection when their status as visitors expired. On March 8, 2003, the Applicants became the parents of a Canadian-born daughter. They have a young son still living in Ecuador.
[3] The Applicants sought Convention Refugee protection in Canada and also claimed to be persons in need of protection. The basis of these claims was an allegation of political and ethnic persecution by the Ecuadorian Police.
[4] Both Applicants were members of a government organization called the National Institute of Social Security (Institute) which offers a programme of health insurance to its members. Because of the possibility that the Institute's health care programme could be privatized, its members organized a strike and a protest march which took place in early 2002. Mr. Arcentales was a participant.
[5] Mr. Arcentales testified before the Board that he was assaulted by the Ecuadorian Police as he and others attempted to maintain a street barricade. His evidence was as follows:
The police arrived and they started taking down the blockade. So we started resisting them because we were carrying out a peaceful protest march. Then the police started throwing tear gas at us and they started hitting us.
...
By resisting them and preventing them from lifting the blockades, we were attacked and beaten. Me, personally, I was beaten to the point where I had to be transferred to a clinic, but in order to give me medical attention at this clinic, they required a permit from the family.
...
We tried to defend the barricades. So what they did afterwards was to arrest all of us, myself and my companions. Because of this, that's why we decided to defend ourselves. That's when the police decided to attack us.
...
The police tried to arrest us, but we defended ourselves. We resisted. And that's why they decided to beat us up. Since we resisted their attempts to lift the barricade, it was at that moment when I felt a blow in my back and after that, I can't recall any more.
[6] When the above-noted event took place, Mr. Arcentales had been a member of the Institute for about five years. According to Mr. Arcentales, members of the Institute regularly organized protest marches to oppose government privatization plans but this was the only occasion where he had been victimized. Mr. Arcentales testified that he was a leader of the group of protesters who had erected the street blockade and because of that role, he said that the police came to look for him on three later occasions. Despite the fact that he was able to avoid apprehension, he said that several protestors were arrested at the time of the incident. He claimed these individuals were beaten and released on the following day. He also stated that he had learned that the police had recently stopped in front of his old address, but he had no evidence of the purpose of their visit.
[7] It was shortly after this clash with the police that the Applicants sought protection in Canada. Neither of the Applicants took steps to officially complain about police brutality before leaving Ecuador for Canada.
[8] The Applicants claimed to have been persecuted because of their indigenous ethnicity. Very little was made of this issue during the hearing before the Board, and it does not form a significant component of the Applicants' written narrative. Mr. Arcentales offered the following evidence with respect to that issue:
Member: Okay. Do you personally remember any insulting comments being made?
Claimant: Yes. Yes, they shot at us and called us Indians and that sort of stuff. I can't recall anything further.
[9] Mr. Arcentales' evidence to the Board about his indigenous background was not entirely clear. At various places, he described himself as a native Indian, but in other places he simply referred to himself as a peasant or someone who resided outside of an urban area.
Board Decision
[10] The Board rejected the Applicants'claims on factual grounds. It held that there was insufficient evidence to support a claim to protection on the basis of their indigenous status. The Board also found that it was implausible that the Ecuadorian Police, or any other public authority, would have any continuing interest in the Applicants given the overall context of the events they described.
Issue
1. Were any of the Board's factual or plausibility conclusions patently unreasonable?
Analysis
[11] This application challenges factual and fact-based plausibility findings. The applicable standard of review for factual and fact-based plausibility findings is patent unreasonableness, which includes findings that are perverse, capricious or without regard to the evidence: see Chen v. Canada(Minister of Citizenship and Immigration), [2002] F.C.J. No. 1611, 2002 FCT 1194.
[12] The Board's decision is, in my view, reasonable and in conformity with the evidence it had received. Mr. Arcentales gave evidence of a single incident of police violence where he suffered a transient injury. He said that protest marches by Institute members were frequent occurrences and arrests were fairly common but, in general, the government was fairly tolerant of public protests of this sort.
[13] It is not obvious from a review of the transcript of evidence that the police conduct in connection with the event complained of was unnecessarily or excessively violent. Mr. Arcentales said that the incident escalated when the protesters resisted the efforts of the police to remove their street barricade. But whether the police were justified or not, the Board's conclusion that the Applicants would not be of any continuing interest to the authorities is a reasonable one and it has support in the evidentiary record.
[14] The Board's rejection of the Applicants' claim that they faced persecution on the basis of ethnic discrimination was, given the evidence, also a reasonable conclusion. Mr. Arcentales' evidence indicated only that the police had referred to the protesters as "Indians" during the single violent street clash in which he was involved. His evidence on this particular point was cursory. While the comment in question was undoubtedly derogatory (and referred to by the Board as a racial epithet), it would not support a claim to refugee protection and it was reasonable for the Board to conclude that the Applicants' indigenous background had no relevance to their respective claims.
[15] The Applicants have argued that the Board's factual and plausibility findings were patently unreasonable and that the Board erred in handling the issue of state protection. With respect to the latter issue, I can see nothing in the Board's decision which even addresses state protection beyond a passing reference to the fact that the Applicants made no attempt to seek it.
[16] The Board decision turned completely on factual conclusions and, in particular, on a conclusion that they would not be at risk if they returned to Ecuador. On this issue, I am required to extend considerable deference to the Board's findings. I accept as a correct statement of that duty of judicial deference the following passage from Supramaniam v. Canada(Minister of Employment and Immigration), [1997] F.C.J. No. 622, where Justice Yvon Pinard held:
5 The inferences that the CRDD draws from the evidence before it are generally accorded a significant degree of deference by this Court, but must nonetheless be reasonable. This deference applies equally to the CRDD's findings regarding the plausibility of the claimant's story as to the CRDD's findings with respect to credibility. In Aguebor v. Canada (M.E.I.), 160 N.R. 315, the Federal Court of Appeal explained the considerable deference usually shown to the CRDD in the following terms:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[17] The Applicants also referred to a considerable amount of documentary evidence which was before the Board dealing with country conditions. The focus of much of that evidence was on the difficulties faced by indigenous people in Ecuador. The Applicants are critical of the Board for failing to consider this evidence.
[18] The Board, however, had almost no evidence from the Applicants to support this aspect of their claim and there was, therefore, no foundation upon which this claim of individual discrimination could be built. The Board cannot be faulted for rejecting this theory in the absence of meaningful evidence from Mr. Arcentales. Indeed, Mr. Arcentales failed to clearly establish his indigenous heritage and the record on this point was left in considerable doubt.
[19] In conclusion, I can find nothing about the Board decision which could be described as patently unreasonable or which would otherwise justify the quashing of its decision.
[20] Neither party proposed a certified question and no question of general importance arises.
JUDGMENT
THIS COURT ADJUDGES that this application is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3984-05
STYLE OF CAUSE: EDGAR FRANCISCO LEMA ARCENTALES ET AL
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JUNE 1, 2006
AND JUDGMENT BY: Justice Barnes
APPEARANCES:
Loftus Cuddy FOR THE APPLICANTS
Ladan Shahrooz FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robert Gertler and Associates
Etobicoke, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT