Date: 20000602
Docket: IMM-933-99
Ottawa, Ontario, this 2nd day of June 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
DALIA MARIA VIERAS PALOMARES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This a classic case of a person being at the wrong place at the wrong time. Ms. Palomares witnessed a murder in circumstances which suggested the involvement of the Venezuelan military. Attempts were made to silence her. She fled her country in fear, came to Canada where she claimed refugee status. The Convention Refugee Determination Division ("CRDD") found that she was not a refugee. She brought this application seeking to set aside the CRDD"s decision.
[2] The applicant was employed as a receptionist at La Carlota airport in Caracas, Venezuela. In November 1994, she witnessed the theft of an airplane from the airport, in the course of which a co-worker was murdered. The perpetrators, who were members of the military, were masked but the victim was able to unmask one of them before being cut down. The applicant saw the face of the criminal. She and another co-worker were bound, beaten and threatened with death if they said anything about what they had seen.
[3] The next day, the applicant reported what she had seen to the military authorities. In her Personal Information Form, she reports that an investigation was undertaken which disclosed that military personnel were stealing airplanes and selling them in Columbia. This was apparently the third such theft.
[4] In the second week of January 1995, the applicant was interviewed by military investigators who showed her photographs from which she was able to identify the man whose mask had been removed. On January 25, 1995 two men broke into her home and beat her brother for information as to her whereabouts. Fortunately, her brother did not know where she was at the time. On February 19, two masked men broke into her house again, firing their weapons indiscriminately. Her father was killed in the mêlée. The assailants fled when the neighbours appeared on the scene.
[5] The Judicial Technical Police were advised of the murder of the applicant"s father. They interviewed the applicant but, since she was not able to identify the criminals, they simply opened a file and did nothing further.
[6] The applicant left her apartment for more secure accommodation while she made arrangements to leave the country. In April 1995, she left Venezuela for Canada where she claimed refugee status upon her arrival.
[7] CRDD heard the applicant"s claim on November 19, 1998 and rendered a decision dated December 1, 1998 in which they concluded that the applicant was not a refugee because she was not being persecuted for one of the five grounds provided for in the United Nations Convention on Refugees. They found that she was the victim of criminal activity which was unrelated to any of the grounds on which refugee status can be claimed.
[8] The applicant brings this application for judicial review on the basis that the CRDD ought to have considered her claim on the following basis:
| 1- the criminals were members of the military forces. |
| 2- despite the fact that she was able to identify one of them, nothing concrete came of the investigation. |
| 3- after she identified one of the criminals, the attacks on her life began. |
| 4- these two facts suggest that the military were colluding with the criminals so that the applicant is the victim of state action. |
| 5- in circumstances where corruption is endemic, condemning corruption can be a political act. |
| 6- the documentary evidence shows that Venezuela is shot through with corruption at all levels of government. |
| 7- therefore the motivation of those attempting to harm her is political not criminal or, alternatively, they perceive her motivation to be political. |
[9] The applicant relies on the decision of Wetston J. in Berrueta v. Canada (Minister of Citizenship and Immigration) (1996) 109 F.T.R. 159, [1996] F.C.J. No. 354, in which the learned judge set aside a decision in which the CRDD had found that the applicant was the victim of criminal activity when he was targeted following his attack on government corruption. In the circumstances of that case, the applicant was very politically active prior to the allegations of corruption and the evidence established that the individuals he accused of corruption had intimate links with the local administration. In those circumstances, Wetston J. found that attacking corruption can be an attack of a political nature and that the attempts at suppression by those accused of corruption can be political acts. That element is lacking in this case, as the applicant had no prior political involvement and her report to the police of the murder was not made on the basis of a political agenda.
[10] This case is more like that of Becerra v. Canada (Minister of Citizenship and Immigration) (1998) 153 F.T.R. 275, [1998] F.C.J. No. 1201, a decision of Mr. Justice Pinard. In that case, the applicant was persecuted for failing to cover up corruption by an individual who had political connections. Pinard J. referred to the test membership in a particular social group found in the decision of the Supreme Court of Canada in Canada v. Ward, infra, as follows:
| The Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 established that membership in a particular social group should fall into one of the three following categories, which they define at page 739: |
| (1) groups defined by an innate or unchangeable characteristic; |
| (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and |
| (3) groups associated by a former voluntary status, unalterable due to its historical permanence. |
[11] Pinard J. then went on to find that someone who denounces corruption cannot be said to fit into groups 1 and 3. Nor, he found, do they fit into group 2 in the sense that the motivation, while laudable, could not be said to be fundamental to their human dignity.
[12] The same is true here. There is no evidence that the treatment to which the applicant was subjected was because of membership in a group. On the contrary, she is the object of violence because of a very personal characteristic, her ability to give evidence which could lead to a prosecution. Furthermore, there is no issue of association for reasons "fundamental to human dignity" in her conduct.
[13] A similar conclusion was reached in Valderrama v. Canada (Minister of Citizenship and Immigration) (1998) 153 F.T.R. 135, [1998] F.C.J. No. 1125, where Reed J. had before her a claim that a wealthy businessman was the object of extortion because of his imputed political opinion as a wealthy person. She found that there was no nexus between victims of extortion and a social group eligible for refugee status.
[14] The applicant seeks to create that nexus between the murder and state persecution by pointing to evidence which suggests that the authorities are implicated. She draws the Court"s attention to the fact that nothing has happened to the perpetrators in spite of the fact that she was able to identify one of them from photos shown to her by the police. She also highlights the authorities" failure to take action following the death of her father. She points to documentary evidence that corruption is widespread in Venezuela.
[15] It is my view that these elements of proof do not suffice to establish the nexus which is required for refugee status. While denouncing corruption can be a political act, not every brush with corruption amounts to a political act or is perceived by the corrupt as a political act. The risk to which the applicant is exposed arises from her status as a witness to a crime. Even if members of the state apparatus are involved, the fact of making a complaint does not necessarily involve political action, nor does it mean that the complaint will be seen by them as political action. It is difficult to speculate as to why the authorities did not act upon the applicant"s identification but while corruption is one possible reason, mistaken identity is another. As for the attempts on her life, the perpetrators knew where she worked. It would not require official collaboration for them to locate her home. Simple surveillance would do. This is not to minimize the applicant"s fears but to point out that the link with state sanction or collusion is weak. For these reasons, the CRDD"s determination was not unreasonable and the application for judicial review must be dismissed.
[16] This applicant"s situation is like that of the applicants in Garcia v. Canada (Minister of Citizenship and Immigration) , [1999] F.C.J. No. 362, (1999) 163 F.T.R. 144, and Mehrabani v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 427, the fact that she is not a refugee within the meaning of the Convention does not mean that she is not at risk if she returns home. This is a factor which the Minister may wish to consider in the exercise of the discretion given to her under the Act.
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division dated February 8, 1999, reasons for which are dated December 1, 1998 is hereby dismissed.
"J.D. Denis Pelletier"
Judge