Date: 20030425
Docket: IMM-2912-02
Neutral citation: 2003 FCT 513
BETWEEN:
VERONICA DEL CHAVERO (a.k.a. Veronica Del Va Chavero)
ESTEFANIA VALAZQUEZ (a.k.a. Estefania Velazquez)
PASCUAL ABEL VELAQUEZ (a.k.a. Pascual Abel Velazquez) and
SERGIO DAVID VELAZQUEZ (a.k.a. Sergio David Velazquez)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Veronica Del Chavero ("the applicant") and her three minor children, all citizens of Argentina, seek judicial review of the determination by the Convention Refugee Determination Division that they are not Convention refugees.
[2] The applicants claim to be members of a particular social group as victims of serious threats of domestic violence. The agent of persecution is said to be Gustavo Arias, the former common-law spouse of Norma Beatriz Chavero, the applicant's sister. The common-law relationship between Gustavo and Norma ended in 1993. One year later, he was sentenced to a prison term of eight years for robbery, assault and other related crimes. His abuse of Norma and her family members continued during three periods when he escaped from prison.
[3] In 2001, a panel of the Convention Refugee Determination Division accepted the credibility of Norma Chavero and found her to be a Convention refugee on the basis of domestic violence from Mr. Arias.
[4] In 2002, the applicant and her sister testified at the refugee hearing in this case. The documentary evidence included Norma's personal information form and the decision confirming her status as a Convention refugee.
[5] In the decision now under review, the panel made two principal findings in reaching its negative determination: (a) there was "insufficient trustworthy evidence" that the agent of persecution in respect of Norma Chavero had a serious interest in harming these applicants; and (b) it was implausible ("it defies plausibility") that the applicant would file a complaint with the police only after four years of allegedly having received threats of violence.
[6] Counsel for both parties agree that the panel made no negative finding of credibility concerning the testimony of either of the two witnesses.
[7] It is also common ground that the panel's concern, as expressed in its reasons for decision, is based substantially on the applicant's answers to the refugee claims officer concerning the time period when the domestic abuse commenced.
[8] In her two-page personal information form, the applicant included the following paragraph:
While in prison, Gustavo frequently called our home and threatened us. He threatened me, and also my mother, as well as Norma. Many times, he told me that he would kill me and the rest of my family, and that he had ways to do it. He said the same things to my sister and my mother. We changed our number, but he kept calling.
[9] The refugee claims officer questioned the applicant concerning this passage from her personal information form:
RCO: Approximately what month and year did you directly start receiving threats from Gustavo?
CLAIMANT: On the more or less the 7th of March, 2001.
RCO: I'm referring to line 29 of your PIF narrative, where you say the following: "well, in person Gustavo frequently called our home and threatened us. He threatened me and also my mother, as well, as well as Norma."
And in the next paragraph goes on to say that Norma finally decided to flee Argentina.
So in your PIF narrative, it appears that you were receiving threats from Gustavo, even before Norma left Argentina, is that correct?
CLAIMANT: Yes, it's correct.
RCO: Okay, so the threats directly against you did not start in March 2001, they started much earlier, is that right?
CLAIMANT: Yes.
RCO: And Norma came to Canada in July 2000. So when approximately did these phone threats against you begin from Gustavo?
CLAIMANT: More or less in '97.
RCO: So, since 1997 Gustavo has been threatening you personally, to harm you in some way.
CLAIMANT: Yeah, but not as well, because my sister was over there, so he was not directly coming to one.
RCO: I didn't ask that. I'm just asking about the threats. Not whether you actually, he actually hurt you or harmed you, but actually started threatening.
CLAIMANT: And in '97, is when everything started. But he began to focus on me personally, only until after my sister left Argentina.
...
PRESIDING MEMBER: So why was he threatening you for a couple, maybe three years, when Norma was still in the country?
CLAIMANT: Yeah, he was threatening, but as I said earlier, he was not toward me, it was Norma he was threatening.
[10] It was on the basis of this testimony, which the panel described as "wavering", that it found "... there is insufficient trustworthy evidence on which it may be determined that the agent of persecution has a type or seriousness of interest in these claimants as has been alleged."
[11] The applicants argue that it was an error for the panel to focus its decision solely on any discrepancy as to whether the threats of violence began in 1997 or 2001, without further analysing other aspects of the evidence. Upon my review of the record, I agree with this submission for the following reasons.
[12] In my view, the discrepancy may well have resulted from the use of the word "directly" by the refugee claims officer in his first question. The applicant responded that she started receiving threats in March 2001. When confronted with the paragraph from her personal information form that suggested otherwise, she acknowledged that the threats may have begun as early as 1997 but immediately completed her responses by stating that she was only the focus of direct threats after her sister left Argentina.
[13] It is trite law that a reviewing Court should not merely substitute its view for that of the tribunal concerning the assessment of factual evidence. However, in my opinion, there is other relevant evidence which the panel ignored. In particular, I have in mind the oral and documentary evidence of the applicant's sister.
[14] The applicant's sister confirmed that her former common-law spouse was still seeking her out, as recently as 2001, some eight years subsequent to the end of their relationship by writing to government authorities in Ontario concerning one of their children.
[15] Also, the applicant's sister noted in her personal information form that her common-law spouse "... threatened that if I did not reconcile with him he would kill my family and me". This statement appears to be consistent with the applicant's version that the family members were generally being threatened prior to her sister's departure from Argentina.
[16] Similarly, the panel ignored the evidence of the applicant's sister that she went to the police as early as November 1999 when it found implausible that the applicant would wait four years before reporting the threats of violence to the police.
[17] It was open to the panel to characterize the applicant's above-noted responses to the refugee claims officers as "wavering testimony". However, it could not properly limit the scope of its inquiry and its negative determination to that issue alone without an analysis in its reasons of the oral testimony of the applicant's sister, her personal information form and the finding of credibility by another panel. The panel in this case does not even mention in its decision that it received the testimony of the applicant's sister.
[18] In my opinion, therefore, this decision must be set aside because it was made without regard to the material before the panel. The matter will be remitted for redetermination by a differently constituted panel. Neither party suggested the certification of a serious question and none will be certified.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
April 25, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2912-02
STYLE OF CAUSE: Veronica Del Chavero et al.
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto
DATE OF HEARING: April, 8, 2003
REASONS FOR Order : Lutfy A.C.J.
DATED: April 25, 2003
APPEARANCES:
Daniel Kingwell FOR PLAINTIFF / APPLICANT
Lorne McClenaghan FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Daniel Kingwell FOR PLAINTIFF/APPLICANT
Mamann & Associates
303 - 74 Victoria Street
Toronto, M5C 2A5
Lorne McClenaghan FOR DEFENDANT/
Department of Justice RESPONDENT
130 King Street West
3400 - Exchange Tower, Box 36
Toronto, M5X 1K6