Date: 20010509
Docket: IMM-3787-00
Neutral citation: 2001 FCT 452
BETWEEN:
MARIO GUILLERMO FERNANDEZ DE LA TORRE
RUTH RAQUEL HEREDIA SOTO
MARCOS MOISES HEREDIA SOTO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants seek judicial review of a June 28, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") whereby the Board determined that the applicants were not convention refugees. There were three applicants: a male applicant, his common-law spouse and son, who was a minor applicant.
[2] The female applicant based her application on both her spousal relationship and also made independent claims. The Board clearly erred in making a perverse and unreasonable finding with respect to an April, 1997 incident suffered by the primary female applicant. The Board stated at page 9 of it decision that:
The incident in April 1997 where two women (who happened to be PRI supporters) bumped into [the primary female applicant] while she was inside a toilet cubicle of a movie house appears to be accidental and not deliberate.
This statement is not supported by the primary female applicant's uncontradicted account the she was hit with the cubicle door and punched by her assailants. The Board made no adverse credibility findings against the female applicant, furthermore, the Board went on to hold that the female applicant does not have an independent claim to refugee status because:
There have been no deliberate attacks against her siblings since her brother died in 1992 - eight years ago. I, therefore, find that there is no serious possibility that the female claimant will be persecuted for her being the sister of Guillermo or the daughter of her father. Hence, the female claimant's claim must fail.
Thus, this perverse and unreasonable finding with respect to the April, 1997 incident affects the Board's finding that she did not have an independent claim to refugee status. The matter must be returned to a differently constituted Board to redetermine the matter in a manner not inconsistent with these reasons.
[3] Since the minor applicant's claim is based on its dependent relationship with each of his parents, the minor applicant's claim will also be returned to the Board to be redetermined in a manner not inconsistent with these reasons.
[4] I must now determine the issues with respect to the male applicant. There are four issues: (1) Did the Board make unreasonable findings with respect to credibility?; (2) Is the Board's error in its findings concerning the issue of delay a reviewable error?; (3) Did the Board err in misconstruing the applicant's position?; and (4) Did the Board err in finding that the primary male applicant had not established a nexus to a convention refugee ground, namely membership in a social group or attributable political opinion?
[5] The applicant submits that the Board erred in ignoring the medical and psychological evidence with respect to the applicant's credibility. The applicant submits that had the Board properly considered the medical and psychological reports of Dr. Block and Dr. Pilowski, it would have understood that the primary male applicant suffered from memory lapses, nervousness and had difficulty remembering dates. This would then explain the inconsistencies between his PIF and his answers at the immigration interview. However, the Board did say at pages 3 and 4 of the reasons:
In this connection, I find relevant the medical report by Dr. Block stating he has "trouble concentrating, with short-term memory loss, difficulty remembering events early in his life . . . .
The Board accepted that the applicant had fractured his skull. However, it was unable to ascertain why, when he was interviewed by Canada Immigration, the applicant failed to mention either Dr. Felix, who was his boss, nor the government agency for whom he worked (Liconsa); yet he based his refugee claim on his fear of persecution from Mexican criminal elements whose fraudulent activities he witnessed while working as a chauffeur for Dr. Felix and Liconsa. The Board also notes that in Dr. Block's report there is no mention of Dr. Felix with respect to the applicant's fear of persecution. In his statements to Canada Immigration, the male applicant mentioned a Dr. Rivero Serrano, for whom he worked for only two years, while he makes no mention of Dr. Felix, for whom he worked for approximately three to four years. The Board confronted him with this omission, and, in the Board's words at page 3 of its decision, the applicant replied:
that he was trying to remember all the work he had done for the government, the army, the Senator and the Congresswoman. He added that he remembered Dr. Rivero because it was while working for him that he was beaten for one week.
The Board goes on to find that explanation unacceptable since:
If we believe his PIF narrative, he was beaten more times while working for Dr. Felix than while working for Dr. Rivero.
and he had also worked more recently for Dr. Felix.
[6] As Reed J. stated in Muhammad v. M.C.I., [2000] F.C.J. No. 1058 (T.D.) (Q.L.) at paragraph 7:
The Board explained there were some aspects of the applicant's evidence they could accept he might not be able to recall correctly. It is with respect to central and obviously easily to remember matters that it was not able to accept that he would be unable to recall them correctly.
This reasoning applies in the case before me.
[7] The applicant also submits the Board made a perverse finding with respect to delay. The Board states at page 7 of its reasons:
... the claimant has been in Canada since September 1996, but only made a claim to Convention refugee status in June 1997, nine months after his arrival to Canada.
In reality, the applicant made his application in January, 1997 which was only five months after his arrival in Canada.
[8] The Board went on to say:
The claimant was asked to explain this delay and he replied that this is because he does not know Canada. I do not find this explanation acceptable. He specifically came to Canada to seek protection, but did not make any inquiries about doing so when he was already here. The panel is aware that there is a fairly large Spanish-speaking community in Toronto from whom he could have made these inquiries.
The Board then compounds the nine month delay error by stating:
By staying in this country without any status, the claimant risked deportation. A person running from a well-founded fear of persecution would reasonably seek to secure protection as soon as possible. This he failed to do. Hence, we find his delay in making a claim not consistent with a subjective fear.
The applicant had visitor status when he made his claim for refugee status in January, 1997, and was therefore not at risk of being deported. However, it would still be open to a Board to make the second finding that:
A person running from a well-founded fear of persecution would reasonably seek to secure protection as soon as possible. This he failed to do.
[9] I do not find this error to be a reversible error since the Board concluded:
Taking the totality of all the evidence before us, the panel does not find his evidence with regard to his fear of persecution in Mexico to be credible. Hence, his claim to Convention refugee status must fail.
[10] The applicant's counsel also submits that the Board erred in misconstruing the male applicant's position when he worked for Dr. Felix. The applicant has stated that he was involved in collecting payments and detaining people who failed to pay what they owed to the company. The applicant did not state in his PIF narrative that he acted as a witness in corruption cases involving Liconsa, however he testified to this effect at one of the hearings before the Board. The Board did not believe the applicant's claim that he acted in such a capacity, as the matter only arose when he was questioned by the Refugee Claims Officer, and not during his examination-in-chief. The Board also noted that the male applicant's PIF and his statements to Canada Immigration did not mention that he had been promoted to serve as Dr. Felix's "Management Assistant and Representative". The Board drew a negative inference regarding credibility, as it found this promotion to be central to this applicant's claim.
[11] In my view, the Board's findings are reasonable, given that the male applicant failed to mention key information concerning his alleged position in his PIF narrative and at his immigration interview, and he failed to testify to this effect during his in-chief examination. It seems implausible that such important information would have been omitted from the PIF and would not have been highlighted by the male applicant's counsel during the in-chief examination before the Board. As such, the Board did not err with respect to its findings regarding the applicant's position.
[12] The final issue in this matter is whether or not the Board erred in finding that the male applicant had failed to establish a nexus to the Convention definition by reason of imputed political opinion. The male applicant had claimed that he feared persecution based on his association with prominent anti-corruption figures such as Dr. Felix. The Board found that the male applicant had not himself actually denounced corruption, which distinguished his case from that of the applicant in Klinko v. M.C.I., [2000] 3 F.C. 327 (C.A.). In Klinko, supra, the Court of appeal held that the Board erred with respect to its finding that a Ukrainian citizen's denouncement of corruption did not establish a nexus to the Convention definition. In the matter before me, the Board accepted that, like the Ukraine, Mexico is in a situation where corruption "may have permeated the country". However, at page 8 of its decision, the Board also found that the male applicant was not able to claim that he was a political target because he:
did not denounce the existing corruption in his country. He merely undertook his job: chauffeuring people around, witnessing the reports of the lawyers and the accountants, and reporting them back to his boss, Dr. Felix.
[13] The Board's finding on the issue of "nexus" is a reasonable one, especially in light of the fact that it made a negative credibility finding regarding the applicant's claims to have served as the "Management Assistant and Representative" to Dr. Felix. The Board's view is that the male applicant worked in the capacity of a chauffeur and that he witnessed the reports of lawyers and accountants and reported them back to his boss, Dr. Felix. However, his verbal reports thereto are redundant, since it is reasonable to expect that Dr. Felix, the head of the department, would have had a copy of these reports. As such, the Board's finding as to "nexus" is reasonable.
ORDER
[14] Based on the above reasons, the application for judicial review of the male applicant is dismissed. The applications for judicial review of the female applicant and the minor applicant are sent back for redetermination in a manner not inconsistent with these reasons.
"W. P. McKeown"
J.F.C.C
Toronto, Ontario
May 9, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3787-00
STYLE OF CAUSE: MARIO GUILLERMO FERNANDEZ DE LA TORRE RUTH RAQUEL HEREDIA SOTO
MARCOS MOISES HEREDIA SOTO
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, APRIL 12, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MCKEOWN J.
DATED: WEDNESDAY, MAY 9, 2001
APPEARANCES BY: Mr. Douglas Lehrer
For the Applicants
Mr. Jeremiah A. Eastman
For the Respondent
SOLICITORS OF RECORD: Vander Vennen Lehrer
Barristers & Solicitors
45 Saint Nicholas St.
Toronto, Ontario
M4Y 1W6
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010509
Docket: IMM-3787-00
Between:
MARIO GUILLERMO FERNANDEZ DE LA TORRE RUTH RAQUEL HEREDIA SOTO
MARCOS MOISES HEREDIA SOTO
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER