Date: 19981130
Docket: IMM-5332-97
Between:
EBER ISAAC GARCIA ESPINA
EBER VINICIO GARCIA MARTINEZ
CRISTIAN ESTUAR GARCIA MARTINEZ
CAROLIA PATRICIA MARTINEZ MOTTA DEGARCIA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application under section 82.1 of the Immigration Act for judicial review of a decision dated November 27, 1997, in files M97-01119, M97-01121, M97-01122 and M97-01124, by Kofi Sordzi and Jean Prévost, members of the Convention Refugee Determination Division.
FACTS
[2] The principal applicant, Mr. Eber Isaac Garcia Espina, alleges that he has a well-founded fear of persecution in his country for reasons of imputed political opinion and membership in a particular social group: people who are victims of extortion and/or blackmail. His wife and two children, as family members, base their application on his application.
[3] The principal applicant was designated to represent his son, Cristian Estuar.
[4] The applicants are citizens of Guatemala, and the applicant essentially alleged that he had been a victim of extortion by members of the Revolutionary Organization of the People in Arms (ORPA), a guerrilla group.
[5] After considering the evidence presented by the applicants and the documentary evidence, the Refugee Division found that the applicant's testimony was not credible, and furthermore, that his alleged extortion problems were not related to his political opinion or membership in a particular social group.
[6] As a result, the Refugee Division dismissed the applicants' claim and determined under subsection 69.1(9.1) of the Immigration Act that there was no credible basis for the claim.
[7] It is important to read the reasons given by the panel:
[TRANSLATION] In the panel's opinion, the applicant did not establish that there was any nexus between the extortion of which he, his father and godfather were allegedly victims and membership in a particular social group. The applicant was a victim of extortion because, by his account, he was wealthy. He owned buses and a farm. He was a victim of extortion because of the money he made from business. The panel is also of the opinion that the applicant was by no means subjected to extortion because of his political opinion, but rather because of his financial success.[1]
[8] In its decision, the panel conducted a detailed analysis of the facts presented to it by the applicants, and made the following finding:
[TRANSLATION] In this case, the applicants' evidence is full of inconsistencies and elements that make it impossible for the panel to find them to be credible witnesses.[2]
[9] Since the panel was of the opinion-after referring to the three categories of social group listed by the Supreme Court in Ward-that the applicants had not established any nexus between the extortion and membership in a particular social group, the panel held that there was no credible basis for the claims.
[10] Counsel for the applicants argued that although the Board found that [TRANSLATION] "In this case, the applicants' evidence is full of inconsistencies and elements that make it impossible for the panel to find them to be credible witnesses", the Board did not explain what the inconsistencies were nor on what elements they based their finding that the claims were not credible.
[11] Counsel for the applicants also argued that during the hearing, the Board members were biased against the claimants' testimony and made glaring errors in assessing the evidence before them, including the documentary evidence filed by the refugee hearing officer, particularly the [TRANSLATION] "Country Reports on Human Rights Practices for 1996 and Amnesty International's 1997 Report".
[12] Counsel for the applicants later cited Ahortor v. Canada (Min. of Employment & Immigration).[3] In that decision, the Federal Court ruled that "the Board is under a duty to state in clear, unambiguous terms the reason for casting doubt upon a claimant's credibility. Further, the Board acts arbitrarily in choosing to disbelieve an applicant's testimony where there exists no valid reason to doubt the truthfulness of it".
[13] Last, counsel for the applicants argued that the Board members erred with respect to the reasons for the extortion, and in that regard, counsel was referring to the claimant's allegations that he was subjected to extortion by the guerrillas [TRANSLATION] "to keep up the struggle" and that [TRANSLATION] "it is well known that the guerrillas are made up of military groups with a political agenda, their goal being to seize power from the Government. In general, their political leaning is to the left. Resisting them is tantamount to having a political opinion".
[14] Counsel for the respondent began by asserting that some of the evidence supported the panel's finding that the applicants were not credible.
[15] Counsel for the respondent argued, first, that the applicants had stayed in the United States for eight days and, although that country is a signatory to the 1967 Protocol relating to the Status of Refugees, they did not claim refugee status there.
[16] Counsel for the respondent later reviewed some of the evidence presented by the applicants and the documentary evidence, and analysed it to show that the Refugee Division had not erred in its assessment of the evidence before it and was justified in finding that there were a number of inconsistencies.
[17] In fact, the Refugee Division has the prerogative of assessing the evidence before it; counsel for the respondent referred to Owusu[4] and the Honourable Mr. Justice Wetston's comment at page 2 of his decision:
While the applicant argues that the Board misconstrued documentary evidence, erred in fact, and erred by requiring that the applicant's testimony be corroborated by documentary evidence, I am of the opinion that there is no basis which warrants this court's intervention. The Board is entitled to assess and weigh the evidence before them. While an applicant's sworn viva voce testimony gives rise to a presumption of validity, in the appropriate case, that presumption can be rebutted. Given the nature and timing of the applicant's political activity and subsequent detention, and given the nature of the documentary evidence, in this instance, the Board was of the opinion that it was reasonable to expect that corroborating reports might be available to substantiate the applicant's allegations. While the board did not make explicit findings regarding implausibility or contradictory statements regarding the applicant's evidence, the board did find that the applicant's testimony was not consistent with the documentary evidence that it relied upon in making its decision. Despite the fact that the board could have been clearer from the perspective of assessing the change in country conditions as they relate to a well-founded fear of persecution, the court is of the opinion that no reviewable error was committed by the Board.
[18] On the issue of the witnesses' credibility, counsel for the respondent concluded that the Court's intervention was not warranted since, in counsel's opinion, the applicant had not discharged the heavy burden on him to show that the Division's findings were made in a perverse or capricious manner or without regard for the material before it, as established by the case law.[5]
[19] As for the lack of nexus with the Convention, counsel for the respondent asserted that the Refugee Division was justified in considering that the applicant's problems were not related to his political opinion or membership in a particular social group and that he had been a victim of extortion because he was wealthy.
[20] Counsel for the respondent submitted that according to the case law, victims of extortion do not constitute a particular social group in and of themselves, and that in Soberanis,[6] for example, Madam Justice Tremblay-Lamer held that small business proprietors victimized by extortion in Guatamala did not constitute a social group.
[21] Counsel for the respondent later referred the Court to Mr. Justice LaForest's comment in Ward.[7] In that Supreme Court of Canada decision, the Honourable Mr. Justice LaForest cited a decision by the Supreme Court of the United States that happens to be very relevant to the case at bar, since it also involves a citizen of Guatemala who feared persecution at the hands of anti-government guerrillas:
The appropriateness of the application of this ground to the facts in this case is confirmed when contrasted with a recent United States Supreme Court disposition of a similar issue. In I.N.S. v. Elias-Zacarias, 112 S.Ct. 812 (1992), a Guatemalan claimant sought asylum because of his fear of persecution at the hands of the anti-government guerrillas owing to his refusal to join them. For the majority, Scalia J. was not convinced that the claimant's motive, nor that perceived by the guerrillas to be his motive, was politically based. He stated, at pp. 815-16:
Even a person who supports a guerrilla movement might resist recruitment for a variety of reasons-fear of combat, a desire to remain with one's family and friends, a desire to earn a better living in civilian life, to mention only a few. The record in the present case not only failed to show a political motive on Elias-Zacarias' part; it showed the opposite. He testified that he refused to join the guerrillas because he was afraid that the government would retaliate against him and his family if he did so. Nor is there any indication (assuming, arguendo, it would suffice) that the guerrillas erroneously believed that Elias-Zacarias' refusal was politically based. [Emphasis in original.]
[22] Last, counsel for the respondent reached the conclusion that if the Refugee Division was of the opinion that the applicants were not credible, it was entitled to determine that there was no credible basis for their claim. Counsel referred to Sheikh and Mathiyabaranam.[8]
[23] In addition, counsel for the respondent stated that even if the evidence of the applicants had been credible, there was no nexus between their fear and the Convention grounds.
[24] After reviewing the oral and documentary evidence before the Refugee Division, I am of the view that the findings made by the members of the Refugee Division were not unreasonable.
[25] In that connection, I refer to the Honourable Mr. Justice Robert Décary in Kumar:[9]
It was the tribunal's duty to draw its own conclusions on the contradictions found in the testimony, as it was also responsible for assessing the plausibility of what was said. It did this in a way that does not require intervention by this Court.
[26] With respect to the Convention grounds, I believe it is quite clear that the applicant's problems were not related to his political opinion or membership in a particular social group and that he was a victim of extortion because he was wealthy.
[27] It is important to mention that I must also dismiss counsel for the applicant's argument that when an individual refuses to comply with an extortion demand by members of the guerrilla movement, for that individual to resist people who are pursuing a political objective is tantamount to having a political opinion. In my opinion, that argument must be dismissed.
[28] I think it is important, at this point, to quote the Honourable Mr. Justice Jerome in Karpounin[10] at page 221:
I am not prepared to set aside the Board's decision. It was reasonably open to the Board to find that the applicant was subject to extortion resulting from his financial success and that this was not related to political opinion or membership in a particular social group.
[29] It is interesting to note Madam Justice Reed's comments in Valderrama:[11]
His claim for such status is based on membership in the social group of "successful businessmen opposed to corruption and unwilling to pay bribes". He claims he was persecuted and will face persecution in Venezuela because of his political opinion, which opinion is that he believes in the rule of law and opposes corruption.
. . .
I do not read that decision in the same way that counsel for the applicant does. In my view, there is a fundamental error in counsel's argument when he describes the group to which the applicant belongs as "successful business men who also oppose corruption". The facts disclose that it is "successful businessmen" who are being subjected to persecution (extortion). The group targeted for extortion includes not only those opposed but also those not opposed to corruption (or those who pay even though they may be opposed). The persecutory acts (extortion) are not directed solely or primarily at those opposed to corruption. There is simply no nexus between the class that is the subject of the extortion and a Convention social group. The Board understood that this was the case and that was the essence of its decision.
I turn then to the argument based on persecution as a result of a political opinion. That argument falls on the same ground as that based on being a member of a social group. The evidenciary basis of the claim does not support the argument that the persecution arises because of opposition to corruption. Extortion is visited on all those successful business people who are targeted. One can frame this differently, as counsel for the respondent has done, and say that it was made clear in Ward that the relevant consideration is the perception of the alleged persecutor, not the fact that the applicant considers his stand against violence and corruption to be political. The alleged persecutor is not targeting the applicant because he is opposed to corruption but because he is a successful businessman who has money.
[30] This analysis by the Honourable Madam Justice Reed is very applicable to the instant case and I have reached the same conclusions.
[31] For these reasons, the application for judicial review is dismissed.
[32] As neither counsel suggested any question for certification, no question will be certified.
Pierre Blais Judge
OTTAWA, ONTARIO
November 30, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5332-97
STYLE OF CAUSE: EBER ISAAC GARCIA ESPINA ET AL. V. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 22, 1998
REASONS FOR ORDER AND ORDER OF BLAIS J.
DATED NOVEMBER 30, 1998
APPEARANCES:
SERBAN MIHAI TISMANARIU FOR THE APPLICANTS
SÉBASTIEN DASYLVA FOR THE RESPONDENT
SOLICITORS OF RECORD:
SERBAN MIHAI TISMANARIU FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
NOTE FROM TRANSLATOR
The passage quoted in paragraph 12 of these reasons (and in the applicants' factum) is not from Ahortor, but from a summary of that decision in Marrocco & Goslett's Annotated Immigration Act (Carswell).