Date: 19980424
Docket: IMM-1902-97
Ottawa, Ontario, this 24th day of April 1998
Present: The Honourable Mr. Justice Pinard
Between:
ROBERTO MANUEL OLIVARES VALDES
MARIA ESTRELLA ARANCIBIA PAEZ
DAVID OLIVARES ARANCIBIA
ESTRELLA ANGELI OLIVARES ARANCIBIA,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review of the decision of the Refugee Determination Division dated April 10, 1997, determining that the applicants are not Convention refugees, is dismissed.
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
Date: 19980424
Docket: IMM-1902-97
Between:
ROBERTO MANUEL OLIVARES VALDES
MARIA ESTRELLA ARANCIBIA PAEZ
DAVID OLIVARES ARANCIBIA
ESTRELLA ANGELI OLIVARES ARANCIBIA,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Determination Division dated April 10, 1997, determining that the applicants, Roberto Manuel Olivares Valdes, his wife Maria Estrella Arancibia Paez and their two children, David and Estrella Angeli Olivares Arancibia, are not Convention refugees.
[2] Even though it accepted that the applicants may have suffered [translation] "certain episodes of discrimination by municipal inspectors or the state police", the Refugee Division concluded that the applicants had not used all of the means and remedies available in Chile before seeking protection in Canada, and had thus failed to establish that the state was unable to protect them, as required by Ward v. Canada (A.G.), [1993] S.C.R. 689. In that decision, Mr. Justice La Forest wrote, at pages 724-726:
| ... Moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. |
| Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. |
| ... clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. |
| ... |
| ... A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. ... |
[3] First, it must be recalled that a finding that there was discrimination rather than persecution is a matter that falls squarely within the jurisdiction of the Refugee Division. In Sagharichi v. Canada (M.E.I.) (1993), 182 N.R. 398, Mr. Justice Marceau stated, at page 399:
| It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may well be seen as amounting to persecution. ... It remains, however, that in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this court is not warranted unless the conclusion reached appears to be capricious or unreasonable. |
[4] In addition, it is normally open to the Refugee Division to place more weight on the documentary evidence than on a claimant's testimony. This was confirmed by the Federal Court of Appeal, per Linden J.A., in M.E.I. v. Zhou (July 18, 1994), A-492-91:
| We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed. |
[5] Mr. Justice Noël, of this Court, has written two decisions to the same effect, in Victorov v. M.C.I. (June 14, 1995), IMM-5170-94, and Andrade et al. v. M.C.I. (May 5, 1997), IMM-2361-96. In Victorov, the Court observed:
| I also reject the applicants' argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did. |
[6] In Andrade, in which both applicants were citizens of Chile, Mr. Justice Noël wrote:
| The applicants have not questioned the facts as recounted by the tribunal. However, they contend that the tribunal rejected their claims on the sole basis of the documentary evidence. According to the applicants, the tribunal should have accepted the uncontradicted testimony of the principal applicant. |
| I am not of this opinion. The tribunal's decision is not based solely on the documentary evidence. It was the events recounted by the principal applicant, when considered having regard to the documentary evidence, that led the tribunal to conclude that his account was implausible. After considering the testimony of the principal applicant, I conclude that the tribunal was entitled to draw that conclusion. |
| The applicants also contend that the tribunal ignored the documentary evidence that could have confirmed the events they stated they had experienced. I am rather of the view that the tribunal responded to the invitation extended to them by the officer responsible for verification to assess the logic of the principal claimant's account in light of the conditions suggested by the weight of the documentary evidence. There is nothing to suggest that in so doing the tribunal did not lend an attentive ear to all the evidence that was before it. |
[7] In the instant case, I am of the opinion that the applicants have not discharged their burden of showing that the inferences drawn by the Refugee Division, which is a specialized tribunal, could not reasonably have been drawn (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315). It appears from the evidence as a whole, including the transcript of the hearing before the tribunal, that it based its decision on significant evidence in the record and that it could therefore have reasonably concluded as it did.
[8] Accordingly, the application for judicial review is dismissed. I see no question here to be certified.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
April 24, 1998
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-1902-97
STYLE OF CAUSE: ROBERTO MANUEL OLIVARES VALDES ET AL.
v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 21, 1998
REASONS FOR ORDER OF PINARD J.
DATED: APRIL 24, 1998
APPEARANCES:
Mohammed Lahmoum FOR THE APPLICANTS
Caroline Doyon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANTS
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada