BETWEEN:
JORGE ISAAC MARTINEZ MARTINEZ
EVA LIBERTAD MORALES
(a.k.a. EVA LIBERTAD MORALES DE MARTINEZ)
JORGE ARMANDO MARTINEZMORALES
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1] The Applicants, a father and mother and their son, all citizens of El Salvador, arrived in Canada from El Salvadoron the 12th of November, 2003, and shortly thereafter made claims to Convention refugee protection, or like protection, in Canada. Jorge Armando Martinez Morales, who I will refer to as the "Principal Applicant" was born the 12th of January, 1986 and therefore is now twenty years of age. He and his parents base their claim to protection on fear of a religious leader and that leader's followers who, they allege, demonstrated their intent to silence allegations of impropriety made against one of them.
[2] By decision dated the 5th of January, 2005, the Refugee Protection Division (the "Board") of the Immigration and Refugee Board rejected the Applicants' claims for protection. These reasons follow the hearing of a portion of an application for judicial review of the Board's decision. The Board further found that the Applicants failed to establish that there were compelling reasons arising out of previous persecution, torture, treatment or punishment that would justify the Applicants in refusing to avail themselves of the protection of El Salvador. This latter finding was not challenged before this Court.
BACKGROUND
[3] The Principal Applicant alleges that he was sexually assaulted on the evening of the 28th of September, 2002, by a Roman Catholic priest. At that time, the Principal Applicant was sixteen years of age. The Principal Applicant reported his experience to the Director of the Seminary in which he was enrolled. The Director of the Seminary advised the Bishop and reported back to the Principal Applicant that the Bishop would meet with him after the Principal Applicant had finished his final exams, which would have been between four and six weeks after the event. In fact, the meeting with the Bishop took place almost two months after the date of the sexual assault. In the meantime, the Principal Applicant had advised his parents of the sexual assault. The Principal Applicant alleges that he was advised to go to Canada, where he had relatives, to study English and "forget about the incident". Apparently, the perpetrator of the assault denied that it had taken place and claimed the Principal Applicant had defamed him.
[4] Despite the intervention of the Principal Applicant's parents with the Bishop, the Bishop provided the Principal Applicant and his family with no moral, spiritual or psychological help.
[5] The Principal Applicant alleges that the perpetrator of the sexual assault against him turned the community against him and against his parents. In the result, the Principal Applicant, in January of 2003, enrolled in a university in San Salvador where he spent six months. At the end of the semester, he returned to San Miguel which was the Applicants' home community. There, he was threatened with violence by a young man he knew and who he associated with the perpetrator of the sexual assault. The Principal Applicant told his parents about the threat. The Applicants complained to a higher level in the church. Nothing resulted.
[6] On the 13th of September, 2003, almost a year after the alleged sexual assault, the Principal Applicant's father reported the sexual assault to the police. The police advised that they would follow up. Shortly thereafter, the Bishop sought a meeting with the Principal Applicant. The Principal Applicant refused the invitation. The Principal Applicant concluded that the police had advised the Bishop of the report that had been made to them.
[7] The Principal Applicant's father sought from the police a copy of the report arising out of his complaint to them. The police refused to provide a copy.
[8] The Bishop sought to have the Principal Applicant's parents withdraw the complaint to the police. The complaint was not withdrawn.
[9] On the 16th of October, 2003, the Principal Applicant was threatened with a knife, beaten and robbed. Less than ten days later, the Principal Applicant was again beaten and robbed. Neither of these attacks was reported to the police. Shortly after the second attack, the Applicants fled to Canada.
THE DECISION UNDER REVIEW
[10] The Board determined that state protection was available to the Applicants. Further, the Board concluded that the Applicants had failed to meet the onus on them to provide clear and convincing proof that state protection was not available to them and that they had failed to demonstrate that they had made reasonable efforts to seek protection which was then not forthcoming or adequate.
THE ISSUES
[11] In addition to "reverse order questioning" of Chairperson's Guideline 7 issues, which were argued before a different judge and will be the subject of a separate decision, the Applicants raised two issues in the following terms:
- Did the Board err in finding that state protection was available to the applicants?
- Did the Board made patently unreasonable credibility findings?
I will deal with the two issues in the reverse order from that in which they were identified.
ANALYSIS
a) Standard of Review
[12] The Board based its findings of want of credibility on an implausibility finding, alleged omissions in the port of entry notes and the failure on the part of the Applicants to corroborate an alleged decline in the Principal Applicant's school grades in the period immediately following the alleged sexual assault. I will deal with the first and third bases for the findings of want of credibility together immediately following a brief comment on the appropriate standards of review.
[13] The standard of review relating to a credibility finding by the Board is patent unreasonableness. At paragraph [12] of his reasons in Chowdhury v. Canada (Minister of
Citizenship and Immigration)[1], my colleague Justice Noël wrote a paragraph [12] of his reasons:
The decision of the RPD [here the Board] as to the Applicant's entitlement to refugee protection is primarily based on the credibility of his allegations. It is well established that the standard of review as to the assessment of credibility of an applicant by the RPD is patent unreasonableness (See Thavarathinam v. Canada) (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No.1866 (F.C.A.), at para.10; Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No.732 (F.C.A.), at para.4).
The standard of review in relation to a finding that state protection is available is, I am satisfied, reasonableness simpliciter. In Resulaj v. Canada (Minister of Citizenship and Immigration)[2], my colleague Justice Layden-Stevenson wrote at paragraph [17]:
In Chaves v. Canada (Minister of Citizenship and Immigration) (2005), 45 Imm. L. R. (3d) 58 (F.C.), my colleague Madam Justice Tremblay-Lamer conducted a pragmatic and functional analysis to determine the applicable standard of review in relation to a finding of state protection. I concur with her analysis and I adopt, as she did, the standard of reasonableness simpliciter as the appropriate standard of review.
b) Credibility
[14] The Board found it implausible that the Principal Applicant would continue attending the same school following the sexual assault when the alleged perpetrator of the assault was associated with that school. The Board suggests that the continued attendance was for a period of "...several months".
[15] A careful review of the transcript of the hearing before the Board discloses that the Board did not put this concern to the Principal Applicant and thus did not provide him with an opportunity to respond to its concern. Further, in the Applicants' narrative forming part of their Personal Information Form which was, of course, before the Board, the Applicants wrote:
Father Armando told me that the Bishop would meet with me in about a month's time, after I had finished my final exams. He said that the Bishop did not want to put me under the stress of talking about the incident during my exams.[3]
Clearly, the Board had before it an explanation as to why the Principal Applicant continued to attend the same school. There remained only approximately one month until the Principal Applicant would finish his final exams. It appears clear to the Court to be reasonable to assume, on the basis of the materials before the Board, that, for the Principal Applicant to change schools under the stress that he was already under by reason of the sexual assault and his impending exams, that to switch schools would have further aggravated an already very difficult situation, and might well have cost him his school year.
[16] The Board expressed concerns that the Applicants failed to provide corroboration of allegedly declining academic grades in the period immediately following the alleged sexual assault. In fact, the Applicants placed before the Board a "Psychologist Attestation" from a professional psychologist [4] which attests that, for a period of eight months during the year 2003, the psychologist treated the Principal Applicant. The psychologist writes:
When Jorge came to my clinic, to request psychological support, he was going through an anxiety and frustration crisis, due to everything that happened to him as a result of being sexually abused. I treated him for a period of eight months. During the first months I saw him weekly. Afterwards, I saw him every two weeks.
Surely the psychologist's attestation provides some corroboration for the Applicant's allegation that in the months following the Principal Applicant's sexual assault, his academic grades might well have dropped. The Attestation is an element of the documentary evidence that was before the Board that was specific to the circumstances of the Principal Applicant. The Board failed to acknowledge the existence of the document and thus, made no effort whatsoever to explain why it should have been given effectively no weight as support to the Principal Applicant's evidence regarding the impact of the sexual assault upon him and upon his grades.
[17] Finally, the Board incorrectly suggests that Port of Entry notes made at the time of the Applicants' entry into Canada made no mention of the assaults against the Principal Applicant in October of 2003, shortly before the arrival of the Applicants in Canada. In fact, the Port of Entry notes do acknowledge one of the assaults, albeit that the date noted for that assault does not accord with subsequent evidence provided by the Applicants. The Principal Applicant further provided evidence as to the pressure he was under during the Port of Entry interview and the impact that such pressure had on his ability to recall specific details and dates.
[18] Based upon the brief foregoing analysis, I am satisfied that each of the bases relied on by the Board in support of its finding against the Applicants' credibility is flawed in a material respect. In the result, against a standard of review of patent unreasonableness, I am satisfied that the Board's credibility finding cannot stand.
c) State Protection
[19] A careful reading of the Board's state protection analysis discloses that its state protection finding is integrally interrelated with its conclusion that the Applicants' testimony, involving as it does inferences drawn from the whole series of events between the date of the alleged sexual assault and the date of their leaving to come to Canada, is not credible. Beyond the Board's concerns regarding credibility, the sole remaining basis for its state protection finding is drawn from general findings regarding country conditions in El Salvador.
[20] In Ullah v. Canada (Minister of Citizenship and Immigration)[5], my colleague Justice Phelan refers to Khilji v. Canada (Minister of Citizenship and Immigration)[6], and goes on to write at paragraphs [22] to [24] of his reasons:
...At no time does the PRD [here the Board] attempt to link the general findings of state protection to the specifics of this Applicant's circumstances.
This failure to individualize the analysis of state protection appears to be grounded in the earlier conclusion that the Applicant does not fall within the group of Shias who may be at risk of harm.
Having failed to properly analyze whether the Applicant was personally at risk, the RPD's conclusion as to the availability of state protection for the Applicant was likewise flawed. The conclusion that the Applicant has failed to rebut the presumption of state protection fails to take account of the evidence of risk.
While on the facts of this matter, it cannot be said that the Board failed to take account of the evidence of risk that was before it, it can be said that the Board discounts the evidence of risk based upon a credibility analysis that I have found to be fatally flawed. By analogy to Justice Phelan's words, I am satisfied that the link between the flawed credibility analysis and the state protection analysis is so close that here, as in Ullah, the Board's state protection finding must fail against a standard of review of reasonableness simpliciter.
CONCLUSION
[21] I will set aside the Board's decision that is here under review and refer it back to the Immigration and Refugee Board for rehearing and re-determination by a differently
constituted panel. Given the fact that my decision herein is integrally interrelated with another decision of this Court arising out of the same application for judicial review, I will direct that the further hearing before the Board arising out of this decision be deferred until
any appeal of the decision regarding other aspects of this application for judicial review is disposed of in the Federal Court of Appeal or the time in which a party may file a notice of appeal to that Court has expired, whichever last occurs. Whether any further delay is directed is a matter for the Court of Appeal to determine.
[22] No serious question of general importance arises out of the Court's decision herein that would be determinative on an appeal. No question will be certified.
"Frederick E. Gibson"
JUDGE
Ottawa, Ontario
April 10, 2006.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-470-05
STYLE OF CAUSE: JORGE ISAAC MARTINEZ MARTINEZ ET AL.
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 13, 2006
DATED: April 10, 2006
APPEARANCES:
Hilary Evans Cameron for the Applicants
David Joseph for the Respondent
SOLICITORS OF RECORD:
Hilary Evans Cameron for the Applicants
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C. for the Respondent
Deputy Attorney General of Canada
Toronto, Ontario
[1] 2006 FC 139, February 7, 2006, [2006] F.C.J. No. 187. (not cited before the Court.)
[2] 2006 FC 269 February 28, 2006.
[3] Applicants' application record, page 57.
[4] Applicants' application record, page 98.
[5] 2005 FC 1018, July 22, 2005, [2005] F.C.J. No. 1273.
[6] 2004 FC 667, [2004] F.C.J. No. 811.