Date: 20021113
Docket: IMM-4416-01
Neutral Citation: 2002 FCT 1163
Between:
LIGIA INES ARIAS ORTIZ
Applicant(s)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated August 23, 2001, determining her not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
The applicant is a citizen of Ecuador. She fears persecution at the hands of her former employer because, in 1994, she reported irregularities in the accounting department of the company she worked for to government officials in the office of the Inspector of Workers. She is afraid that she will never be able to obtain a reasonable job for which she is experienced nor be able to keep even menial jobs, and that she is at risk of violence from her former employer.
The Board summarized the applicant's allegations at pages 1 and 2 of its decision:
The claimant worked for the family owned Juan Eljuri Company in Cuenca, Ecuador from 1989 to 1995. After she began working in the accounting department, the claimant says she, along with several co-workers, became aware of financial irregularities. The claimant informed the Inspector of Workers about these irregularities in September 1994. Representatives from the Inspector of Workers attended her workplace and conducted an investigation. The claimant alleges that her boss paid a bribe to the government officials and, therefore, the company faced no consequences as a result of the investigation. Following the investigation, the claimant stated that her boss accused her of trying to start a union in the company and threatened her by telling her she should be careful.
The claimant indicated that in November 1994, she was attacked by two men, one of whom she recognized as her boss's driver. She said the attackers told her she should leave her job or she would be killed. She was hit and left unconscious with nose and ear injuries. She did not report this attack to the police.
The claimant stated that her employer told her to leave the country in December 1994. She continued to work at the Juan Eljuri Company for approximately two months after the assault. She stated that she continued to work there because she wanted to collect severance pay, her documents regarding her qualifications, and references. The claimant eventually left her job in January 1995 without receiving final compensation, her documents or references.
The claimant stated that she was unable to find employment in the accounting field after leaving the Juan Eljuri company because she did not have her documents nor references. As an alternative, the claimant secured domestic positions in various towns and cities. The claimant alleged that her former employer would discover where she was, contact her new employer and convince the new employer to fire her.
Eventually, the claimant said that she stopped trying to find work and moved back to La Cuenca at the end of 1995 and remained there until July 1999, when she left Ecuador.
The Board determined the applicant not to be a Convention refugee because she did not provide sufficient credible evidence that the persecution which she feared was well-founded, as she was not able to establish an objective basis for such fear. The Board also found that there is no reasonable chance that the applicant will be persecuted by her former employer if she returns to Ecuador.
The Board supports its conclusions with the following reasons:
- The applicant did not provide a reasonable explanation why the Juan Eljuri company (the "former employer") would have kept her original documents on file after she was hired rather than returning them to her, nor why she could not obtain replacement documents from the issuers if necessary.
- The applicant did not provide a reasonable explanation why she could not have secured work without reference as a receptionist or secretary, which are other positions for which she had experience and qualifications predating her work with the former employer.
- The applicant did not provide sufficient credible evidence that the former employer was, in fact, interfering with her ability to keep various jobs and, thus, she did not establish an objective basis for fearing an ability to earn any livelihood.
- The applicant was not physically harmed again in the four and a half years following the assault in November, 1994.
The applicant submits that the Board erred in law by failing to address the psychological evidence and emotional factors that were a centrepiece of the claim.
In Taher v. Minister of Citizenship and Immigration (September 7, 2000), IMM-5255-99, Denault J. stated the following at paragraph 14, with respect to the consideration of evidence presented to a tribunal:
. . . It is trite law that a tribunal must be presumed to have considered all the evidence that was presented to it. Still, a tribunal is not obliged to mention in its reasons all the elements of evidence it has taken into account before rendering its decision. Furthermore, because certain evidence is not mentioned in the tribunal's decision, it does not mean that such evidence was ignored.
In Taher v. Minister of Citizenship and Immigration (November 25, 1998), IMM-265-98, Rothstein J. found that a panel must explain why it is not persuaded by evidence which is specific and important to the applicant's case, even if it does so only briefly.
In this case, having reviewed the psychological report and the evidence as a whole, I am not convinced that it was a centrepiece of the applicant's claim. The Board was not under an obligation to address it explicitly, given the other evidence and the rest of the Board's reasons. The following statement by the Federal Court of Appeal in Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (QL), applies to the present case:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.
Finally, with respect to the assessment of the facts, it should also be recalled that this Court cannot substitute its decision for that of a tribunal when, as in the instant case, the applicant has failed to establish that the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). The applicant was required to establish that her fear of persecution was well founded. I have reviewed the evidence that was before the Refugee Division and I am not convinced that the inferences drawn by this specialized panel could not reasonably have been drawn (see Aguebor v. M.E.I. (1993), 160 N.R. 315). Finally, as the Federal Court of Appeal stated in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at page 244, a tribunal's perception that a claimant is not credible with respect to a material element of his or her claim for refugee status may effectively amount to a finding that there is no credible evidence for that claim.
The applicant further submits that the Board erred in law by failing to find well-founded persecution based on interference with the ability to earn a livelihood, and by mischaracterizing the evidence with respect thereto.
The fear of persecution must be based on one of the five grounds listed in subsection 2(1) of the Act. Inability to earn a livelihood is not included in the list. The applicant cites two cases to support her claim that inability to earn a livelihood is a valid ground, neither of which is relevant. N.K. v. Canada (Solicitor General) (June 9, 1995), IMM-809-94 (F.C.T.D.), was overturned, [1996] F.C.J. No. 1376 (C.A.) (QL), because the motions judge had substituted her opinion on the evidence for that of the Refugee Division. In He v. Minister of Employment and Immigration (June 1, 1994), IMM-3024-93, Simpson J. found that permanently depriving a teacher of her profession and converting her forever into a farm hand constituted persecution, but that the persecution was based on the applicant's political opinion.
Finally, the applicant submits that the Board erred in law by failing to consider and apply subsection 2(3) of the Act.
Subsection 2(3) of the Act is an exception to the rule regarding cessation of Convention refugee status as set out in subsection 2(2). It cannot be considered unless it is established that there are "changed country circumstances in the absence of which the applicant would be a Convention refugee"(Corrales v. Minister of Citizenship and Immigration (October 3, 1997), IMM-4788-96). This is not the case in this application, therefore, the Board was not required to consider subsection 2(3).
For all the foregoing reasons and in light of all the evidence, I am of the opinion that the Board was justified in determining as it did. Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
November 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4416-01
STYLE OF CAUSE: LIGIA INES ARIAS ORTIZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 16, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 13, 2002
APPEARANCES:
Mr. Daniel M. Fine FOR THE APPLICANT
Mr. Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel M. Fine FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario