Federal Court Decisions

Date: 20020426

Docket: IMM-2095-01

Neutral citation: 2002 FCT 477

Ottawa, Ontario, this 26th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                           OSCAR MIGUEL ARAYA

MONICA PATRICIA ARAYA LENTZ

MATIAS MAXIMILIANO ARAYA LENTZ

KEVIN EMMANUEL ARAYA LENTZ

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated February 5, 2001 (in chambers) and April 2, 2001 (written reasons) wherein the Board determined that Oscar Miguel Araya, Monica Patricia Araya Lentz, Matias Maximiliano Araya Lentz and Kevin Emmanuel Aray Lentz were not Convention refugees.

[2]                 The applicants seek an order setting aside the decision of the Board, remitting the matter back to the Board for a new hearing before a differently constituted panel.

Background

[3]                 The applicants are citizens of Argentina.

[4]                 The principal applicant, Oscar Miguel Araya (the "applicant"), claims Convention refugee status on the basis of a well-founded fear of persecution on the grounds of perceived political opinion and membership in a particular social group, being a member of the Union Oberera Metalurgica (Metallurgical Workers' Union). The other applicants, namely the applicant's wife and their two Argentina born children, base their claim on membership in a particular social group, being members of the same family as the applicant.

[5]                 In 1988, the applicant, his wife and their first born son, Matias, came to Canada and made a refugee claim. In 1990, the applicant and his wife had two daughters born in Canada. In November, 1990, the applicant abandoned the refugee claim and returned to Argentina.

[6]                 In 1992, the youngest applicant, Kevin, was born in Argentina.

[7]                 The applicants came back to Canada in 1995 and made another refugee claim. On September 17, 1996, they were determined not to be Convention refugees. Following the 1996 determination, the applicants remained in Canada until 1999.

[8]                 In 1999, the applicants left Canada for the United States, stayed for three months, and then came back to Canada and made a further claim to be refugees. The applicants were again determined not to be Convention refugees on April 2, 2001.

[9]                 This is the judicial review of the April 2, 2001 decision.

[10]            The decision of the Board states that in accordance with Vasquez v. M.C.I. (1998) 160 F.T.R. 142 per Rothstein J., the panel heard and considered only new evidence that could not have been reasonably available at the time of the previous hearing.

[11]            The Board stated, in part:

The claimant, having no credible and trustworthy new evidence to provide this panel, nevertheless pursued another refugee claim before this Board. Repeat claims have been called a "revolving door" and the abuse of the system has been voiced by no less than the Federal Court when Madame Justice McGillis stated:

The revolving door approach to refugee claims cases a dark shadow over our immigration system, places an unnecessary burden on Canadian taxpayers, delays the hearing of meritorious refugee claims and constitutes a scandalous abuse of our border.

Furthermore, the panel finds that the claimant's failure to make a claim for asylum in the USA, while he was there for three months, demonstrates a lack of subjective fear. The panel does not accept the claimant's explanation that his right to return to file a new claim relieved him of his obligation to make a claim for asylum in the USA, a country which is a signatory to the Convention.

For the above reasons, the panel finds that the claimant does not have a well-founded fear of persecution, that this, that there is not a "reasonable chance" or a "serious possibility" that he would face persecution should he return to Argentina.

Applicants' Submission

[12]            The applicants submit that under the clear language of paragraph 46.01(1)(c), the applicants were entitled to a new hearing and the Board was not restricted to evidence that post-dated the previous hearing.

[13]            The applicants submit that central to the applicants' Convention refugee claim was a fear of persecution based upon the principal applicant's membership in the union and the deaths of his union associates. This information was the same as at the previous hearing, and the applicants submit that the Board erred by not considering it.

[14]            The applicants submit that by failing to consider the pre-1996 hearing evidence, the Board found the basis of the applicants' claim to be irrelevant.

[15]            The applicants submit that since the new documentary evidence was different than that at the previous hearing, the Board was under a duty to assess the applicants' evidence in light of the new documentary evidence.    The applicants submit that the new documentary evidence is capable of shedding a different light on the applicants' testimony.

[16]            The applicants submit that the relationship between the police and the union members was ongoing and documents after the previous hearing could not be isolated and when found they did not contain enough specific information. The applicants submit that in this respect, Vazquez v. M.C.I., supra should not be followed.

[17]            The panel found that the principal applicant did not have a subjective fear of persecution because he did not make a claim for asylum when he was in the United States for three months in 1999 and 2000. The applicants submit that the above finding was perverse in light of the fact that the principal applicant explained that he did not make a claim because he had a right to come back to Canada to make another claim after three months, which is what he did. The applicants submit that as a result, the Board erred in finding that the principal applicant did not have a subjective fear of persecution.

Respondent's Submissions

[18]            The respondent submits that this Court should not interfere with the findings of fact and the conclusions drawn by the Board unless the Court is satisfied that the Board based its conclusion on irrelevant considerations or that it ignored evidence.

[19]            The respondent submits that unless the decision of the Board is patently unreasonable, or it was made in a "perverse or capricious manner or without regard to the material before it", this Court should not interfere.

[20]            The respondent submits that it was reasonably open to the Board to rely on the principles in Vasquez v. M.C.I., supra to consider evidence which was new.

[21]            The respondent submits that the Board was entitled to rely on the previous finding that the principal applicant's fear of persecution related to incidents prior to the previous determination, including deaths of co-workers, were not credible and not well-founded. The respondent submits that it was reasonably open to the Board to find that the principal applicant lacked credibility and that the Board was not convinced that the applicant's alleged fear of persecution had changed since his last claim.

[22]            The respondent submits that the Board assessed the documentary evidence but found that it did not corroborate the principal applicant's testimony, and based on the totality of the evidence, it was open to the Board to find the principal applicant not to be credible.

[23]            The respondent submits that the applicants have failed to provide any authority for the proposition that an applicant has an unqualified right to come to Canada to make another claim after spending the requisite three month period in another signatory country such as the United States.

[24]            Issues

1.          Did the Board err in law in its interpretation of Vasquez v. M.C.I., supra?

2.          Did the Board err in law in finding the central issues of the applicant's claim not to be credible because those issues were found not to be credible by a previous panel?

3.          Did the Board err in putting too high an onus upon the applicant regarding the documentary evidence?

4.          Did the Board err in law in its assessment of the documentary evidence?

5.          Did the Board err in law in finding that there was no subjective fear of persecution because the applicant did not make an asylum claim in the United States?

Relevant Statutory Provisions, Regulations and Rules

[25]            Paragraph 46.01(1)(c) and subsection 46.01(5) of the Immigration Act, supra state:

46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person . . . (c) has, since last coming into Canada, been determined (i) by the Refugee Division not to be a Convention refugee or to have abandoned the claim, or (ii) by a senior immigration officer not to be eligible to have the claim determined by the Refugee Division;

46.01 (1) La revendication de statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes_: . . . c) depuis sa dernière venue au Canada, il a fait l'objet_: (i) soit d'une décision de la section du statut lui refusant le statut de réfugié au sens de la Convention ou établissant le désistement de sa revendication, (ii) soit d'une décision d'irrecevabilité de sa revendication par un agent principal;

46.01(5) A person who goes to another country and returns to Canada within ninety days shall not, for the purposes of paragraph (1)(c), be considered as coming into Canada on that return.

46.01(5) La rentrée au Canada de l'intéressé après un séjour à l'étranger d'au plus quatre-vingt-dix jours n'est pas, pour l'application de l'alinéa (1)c), prise en compte pour la détermination de la date de la dernière venue de celui-ci au Canada.

Analysis and Decision

[26]            Issue 1

Did the Board err in law in its interpretation of Vasquez v. M.C.I., supra?

The Board referred to Vasquez v. M.C.I. in the following manner:

In accordance with Vasquez, this panel heard and considered only new evidence that could not have been reasonably available at the time of the previous hearing. Accordingly, documents that predated the last hearing date, as well as an amended PIF narrative, were not accepted.

[27]            In Vasquez v.M.C.I., supra on Wednesday, September 16, 1998, Rothstein J. (as he then was) delivered from the Bench the following reasons at paragraphs 11 and 12:

Again, the issue of res judicata is relevant. The applicant cannot, after failing in a Convention refugee claim, make a new application, even under subsection 2(3), based upon evidence that was available for the first Convention refugee application. His time for raising this issue was when he made his first claim. He cannot hold this evidence in reserve as the basis for a second Convention refugee application.

I have no doubt that if the Refugee Division determined that the applicant was not a Convention refugee on April 23, 1992, he would be barred from relying on evidence available at that time in making a new Convention refugee application, even if that evidence relates to a claim under subsection 2(3).

[28]            In the Reasons delivered November 26, 1996 in the case Vasquez v. M.C.I., supra, Rothstein J. wrote the following description of res judicata, at paragraph 8:

The principle is that a party, having received a final decision, is prevented from relitigating the matter notwithstanding that the party has found supplementary arguments that were available at the time of the original litigation. That is what the applicant was attempting before the CRDD. However, the credible basis tribunal found that there was no credible basis for the applicant's Convention refugee claim. In essence, it found he could not be a Convention refugee in Canada, the same issue as before the CRDD in 1997. New arguments relating to subsection 2(3) could have been raised before the credible basis tribunal but were not.

[29]            I am satisfied that the Board did not err in their interpretation of Vasquez v.M.C.I., supra.

[30]            Issue 2

Did the Board err in law in finding the central issues of the applicant's claim not to be credible because those issues were found not to be credible by a previous panel?

The Board is not under an obligation to re-weigh testimony that was provided before the previous panel. The Board found that the claimant did not have credible and trustworthy new evidence to provide to support the claim before them. The Board did not make an error of law with respect to the applicant's credibility.

[31]            Issue 3

Did the Board err in putting too high an onus upon the applicant regarding the documentary evidence?

The decision of the Board included the following:

. . . His new evidence consisted of hearsay from relatives and what he read in the newspaper. When told that the documentary evidence indicates that the "police in Mendoza did not engage in the sort of bloody repression" and that "very little information on the treatment of the trade union member by the police since October 1999 could be found among the documentary sources consulted by the Research Directorate, the claimant responded by saying that the information which he receives through his father is more credible. . . . This documentary evidence, unlike that of the claimant's father, is garnered from sources which have no interest in the outcome of the claim of this claimant.

Counsel cited documentary evidence related to police violence in Argentina, as well as union and police clashes. However, in this instance, the panel finds that the general reference to police violence does not establish a well-founded fear of persecution for this claimant.

The panel finds that the claimant did not discharge the burden of proof for establishing that he has a well-founded fear of persecution based on membership in a particular social group, that is, being a member of a union. . . .

The Board further discusses the documentary evidence in more depth.

[32]            I cannot find that the Board placed too high an onus on the principal applicant with respect to the documentary evidence. The panel found that since there was no "persuasive documentary evidence to support the objective basis of his claim" and there was not "a reasonable chance" or a serious possibility "that the claimant would be persecuted by the police because of his union membership". This is not too high an onus in relation to the documentary evidence.

[33]            Issue 4

Did the Board err in law in its assessment of the documentary evidence?

The Board assessed the documentary evidence including the evidence submitted by the applicants with respect to police violence. I cannot come to any different conclusion than the Board. The Board stated that it preferred the documentary evidence gathered from sources with

no interest in the outcome of the case as compared to the information the principal applicant received from his father and what he read in the newspaper. It was open to the Board to assess the documentary evidence and find that a general reference to police violence does not establish a well-founded fear of persecution for the principal applicant. The Board made no reviewable error with respect to its assessment of the documentary evidence.

[34]            Issue 5

Did the Board err in law in finding that there was no subjective fear of persecution because the applicant did not make an asylum claim in the United States?

It was open to the Board, based on the facts of this case, to find that the principal applicant's failure "to make a claim for asylum, in the USA, while he was there for three months, demonstrates a lack of subjective fear." This is one of the findings the Board could make and it is not the role of this Court to substitute its views for the decision of the Board.

[35]            The application for judicial review is dismissed.

[36]            Neither party wished to propose a serious question of general importance for certification.

ORDER

[37]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 26, 2002