Date: 20020508
Docket: IMM-454-01
Neutral citation: 2002 FCT 523
Ottawa, Ontario, the 8th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
LAURA PATRICIA ASCENCIO GALVAN, CHRISTIAN EMMANUEL RIVAS
ASCENCIO (A.K.A. CHRISTIAN EMMAN RIVAS ASCENCIO), AND
DANIEL MICHAEL RIVAS GALVAN
Respondents
[1] The Minister brings this application for judicial review from the January 16, 2001 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which found the respondents to be Convention refugees.
THE FACTS
[2] The respondents are a mother and her two minor children. The adult respondent wrote in her Personal Information Form ("PIF") that while employed in her home country she became aware of corruption which benefited a number of powerful people in her country, including the head of state. She filed a complaint with a government body about that corruption and was told that her complaint would be investigated. Ten days later her husband disappeared. After the police told her that she would have to wait 72 hours to make a complaint to them that her husband was missing, the adult respondent fled to Canada with her children. Two months after being given visitor status in Canada the respondents claimed Convention refugee status.
THE DECISION OF THE CRDD
[3] The CRDD, in reasons delivered orally and then confirmed in writing, found the adult respondent credible, straightforward, cooperative, and consistent in her oral and written testimony. The CRDD applied the three-part test set by the federal Court of Appeal in Klinko v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 327 to conclude that there was a nexus between the adult respondent's fear and a Convention ground due to perceived political opinion. The CRDD also found that the two minor respondents could be used to coerce or intimidate the adult respondent, by example through threats of kidnapping, and therefore they fell within the Convention. The presiding member of the CRDD then stated as follows:
I can only say, personally, that I have been moved by your testimony, ma'am. You are an honest person who, under very difficult circumstances, has tried to do what is right, and you have paid a very severe penalty for doing so.
I therefore, am going to determine that there is a serious possibility of harm that might happen to you for a ground under the Convention. I would therefore determine that [the adult respondent] is a Convention refugee, and that your two sons ... are also Convention refugees.
[4] The presiding member then asked the second panel member for her comments, especially on the issues of internal flight alternative and state protection, notwithstanding the presiding member's prior stated determination that the respondents were Convention refugees.
[5] The second panel member then stated that given the position of power occupied by the agents of persecution, particularly the head of state, and given that the police had not acted on the adult respondent's complaint, the member did not believe that it was reasonable to expect the respondents to receive state protection in their home country. On the issue of an internal flight alternative, it was said that the prominence of the agents of persecution was such that there was no internal flight alternative.
[6] The presiding member then stated his agreement with those reasons and reiterated that the respondents were found to be Convention refugees.
[7] Throughout its reasons no mention was made by the CRDD of the well-foundedness of any fear of persecution.
THE ISSUE
[8] The determinative issue in this application, in my view, is whether the CRDD erred in failing to properly consider the well-foundedness of the respondents' fear of persecution.
ANALYSIS
[9] The Immigration Act, R.S.C. 1985, c. I-2 defines "Convention refugee" in the following way:
| "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act. |
« réfugié au sens de la Convention » Toute personne_: a) 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_: (i) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci don't le texte est reproduit à l'annexe de la présente loi. |
|
[10] The term "well-founded fear" as it appears in this definition requires a claimant to establish both a fear of persecution felt subjectively by the claimant, and the well-foundedness of the fear when tested objectively.
(i) Subjective Fear
[11] The CRDD found the adult respondent to be credible in her testimony, thus establishing the subjective component of the well-founded fear. The Minister points out that the CRDD made no mention of the respondents' delay in applying for refugee status upon their arrival in Canada, and did not consider why the respondents failed to seek refuge in one of the countries contiguous to their home country.
[12] While one would have expected the CRDD to have considered these factors in its assessment of the respondents' subjective fear, that assessment is in substance a matter of credibility. As is often stated, the CRDD is in the better position to determine matters of credibility, and findings of credibility ought not to be interfered with unless made perversely, capriciously, or without regard for the material before the CRDD.
[13] Given that the CRDD considered the adult respondent's evidence and found it to be consistent, straightforward and plausible, I am not satisfied that the CRDD committed a reviewable error in assessing the respondents' subjective fear of persecution simply because it did not in its reasons refer to delay and the failure to claim elsewhere.
(ii) Objective Fear
[14] To satisfy the objective part of the test a claimant must show on a balance of probabilities "good grounds", a "reasonable chance", or a "serious possibility" of persecution.
[15] The thrust of the Minister's submission is that in the present case the CRDD failed to conduct a rational analysis of the evidence before it so as to determine if there was a valid basis for the respondents' fear. After concluding that the adult respondent was a credible witness, the CRDD then proceeded to discuss whether the respondents' fear was for one of the grounds contained in the definition of Convention refugee. The CRDD concluded that there was a nexus to a Convention ground by satisfying itself that the three conditions in Klinko, supra were met. In so doing, the CRDD gave no indication in its reasons that it turned its mind to whether or not there was an objective basis for the adult respondent's stated fear.
[16] While I accept the respondents' submission that as a matter of law documentary evidence is not necessary to corroborate the testimony of a credible witness, the CRDD commits a reviewable error when it does not consider an essential component of the definition of Convention refugee.
[17] As a result of the failure of the CRDD to mention in its reasons the issue of the well-foundedness of the fear, and its failure to even reference the documents before it as to country condition and human rights, I have been satisfied that the CRDD did not properly direct its attention to the objective basis of the respondents' fear of persecution.
[18] While the ultimate finding of the CRDD may have been one open to it, by failing to properly direct its attention to the objective basis of the respondents' fear of persecution, the CRDD erred in a reviewable manner.
[19] The application for judicial review will therefore be allowed.
[20] Counsel posed no question for certification and no question is certified.
ORDER
[21] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated January 16, 2001 is hereby set aside.
This matter is remitted for redetermination by a differently constituted panel of the CRDD.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-454-01
STYLE OF CAUSE: M.C.I. v. Laura Patricia Ascencio Galvan and others
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, December 11. 2001
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MADAM JUSTICE DAWSON
DATED: May 8, 2002
APPEARANCES:
Ms. Leena Jaakkimainen FOR APPLICANT
Mr. Paul VanderVennen FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR APPLICANT
Deputy Attorney General of Canada
Mr. Paul VanderVennen FOR RESPONDENT
Toronto, Ontario