Date: 200505016
Docket: IMM-5238-04
Citation: 2005 FC 708
BETWEEN:
RAFAEL JOSE RENGEL CONTRERAS
NATALIA CAROLINA UREA DE RENGEL
MARIA FERNANDA RENGEL UREA
PEDRO EMILIO RENGEL UREA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] This is an application for a judicial review of a decision by the Refugee Protection Division (RPD), dated May 19, 2004, wherein the claim of Rafael Jose Renguel Contreras, Natalia Carolina Urea De Rengel, Maria Fernanda Rengel Urea and Pedro Emilio Rengel Urea, the Applicants, was rejected, the RPD having concluded that they were neither Convention refugees nor persons in need of protection.
FACTS
[2] The Applicants are citizens of Venezuela. Rafael Jose and Natalia Carolina are husband and wife; Maria Fernanda and Emilio Rengel are their minor children. The male Applicant acted as designated representative for the minor Applicants.
[3] The male Applicant claimed a well-founded fear for reasons of his political opinion and the other Applicants' claims are based on their membership in a particular social group (the Applicant's family). The Applicants also claim to be persons in need of protection pursuant to sections 97(1)(a) and/or (b) of the Immigration and Refugee Protection Act.
[4] The male Applicant was a dentist, working for the military (with the rank of captain in the air force) and in private practice. They lived in Maracay.
[5] The Applicant alleged that there was a bomb threat against a neighbouring brigade in his neighbourhood on April 12, 2002. The Applicants were evacuated for a few days. The Applicant alleged there was an increase of tensions at his workplace when the President, Hugo Chavez, was reelected, because he did not support the government openly. He was handed a work overload and activities not related to his profession. He was ordered to go to political gatherings and to change his schedule. This last change forced him to close his private practice.
[6] On September 2, 2002, he received a call from an Army colonel, informing him that he was on a list of opponents to the government and that he and his family were in danger. Since then, he alleged he had received threatening phone calls.
[7] On October 18, 2002, the Applicant was detained for 48 hours without reasons given to him. When he went back to work after his detention, he was notified that he was relocated to another post in another city (Caracas). His family stayed in Maracay. The Applicant alleged he was detained and relocated because he refused to attend political gatherings.
[8] From November 11 to 15, a black van was seen near the children's school, the Applicant alleged they were filming and taking pictures. The Applicant received calls on his cellular threatening to kidnap his children.
[9] During a demonstration against the government, the Applicant was on duty and he ordered the National Guard, who prepared to disperse the demonstration, to leave. That was reported and he was reprimanded by his base commander.
[10] On December 13, 2002, as the threatening calls were increasing, the Applicant changed his number. The calls stopped for ten days and then increased. On February 12, 2003 and on March 14 his wife was followed when she picked the children at school. On March 14, the wife and the children left Maracay for Caracas where they stayed with the wife's family.
[11] The Applicant was denied placement in a post-graduate course and was ordered to give up the house in which he was previously assigned. He deserted the armed forces. The Applicants left Venezuela on April 4th and they arrived in Canada on April 30th (via the USA).
RPD'S DECISION
[12] The rationale for the Board's decision is well captured in the following paragraph:
The panel considered the evidence before it. It finds that given that the claimant was not a member of any political party, and because he was not politically active in any way, that there is no more than a mere possibility that he would face persecution were he now to return to Venezuela for reasons of his political opinion. The panel finds that it is implausible that the claimant would be on a list of opponents of the government. By refusing to attend political meetings, the claimant followed military protocol in that as a military officer, he could not attend such meetings. The panel finds that his refusal to attend meetings was a matter of following military protocol. The panel finds that in following military protocol, it is implausible that he would appear on a list of opponents to the government, given that he was not politically active in any way. The panel finds that there is no more than a mere possibility that the claimant would face persecution were he now to return to Venezuela.
[13] Given his lack of political profile, the RPD found that the Applicant have no well-founded fear of persecution. There is no evidence that indicates that a person supporting the democracy but not expressing his opposition publicly to the Chavez regime would face persecution. The Applicant's detention and reprimand cannot be considered as persecution, it is rather harassment.
[14] The RPD concluded that given the passage of time, and the lack of political profile, the threats would be reduced. Consequently, the RPD found that there is no serious possibility that the Applicant will face a risk to his life or cruel and unusual treatment if he returns to Venezuela.
[15] Finally, the RPD explained that the applicant had an Internal Flight Alternative (IFA) in Caracas because he faced no serious harm while in Caracas prior to his departure. Given his profession, and considering that there are no cultural or linguistic or other impediments to the claimant's relocation to Caracas, the panel found that it would not be unreasonable for the claimant and his family to relocate to Caracas.
APPLICANTS' SUBMISSIONS
[16] At the outset, the Applicants explain that the RPD did not express any concerns with respect to the credibility of the Applicant's evidence.
[17] The Applicants submit that the RPD erred in relying on the fact that the main Applicant was not a member of any political party and was not politically active in any way to conclude that there was not more than a mere possibility that he would face persecution for reasons of his political opinion. The Refugee Convention provides that political opinion, not political membership or activity, is the nexus for Convention refugee status. Though membership in a political party or political activity in the traditional sense may be indicia of political opinion, they should not be determinative when the Applicant produces other credible and trustworthy evidence establishing that he is perceived to be politically opposed to the feared agents of persecution.
[18] The Applicant produced evidence that he was perceived to be politically opposed to the government. The RPD ignored documentary evidence to the effect that certain elements of the military are viewed by the regime as political opponents and more of a threat than opposition political parties themselves. It is also submitted that the Board erred in law by ignoring country condition documentation establishing that persons of the Applicant's profile were viewed as potential political opponents.
[19] Further, the Applicants submit that the RPD did not consider the political nature of his actions, the cumulative effect of which would result in his being perceived to be politically opposed to the Chavez regime. The RPD ignored documentary evidence that corroborate the Applicants' experience.
[20] Finally, dealing with the finding of viable IFA, the Applicants argues that the fact that he deserted is a material consideration to their ability to return to Caracas. Also, the Applicants did not have to establish past persecution. The evidence indicated that after his relocation to Caracas, his wife and children were followed in Maracay and he continued to receive threatening phone calls. The Applicants argue that given his status with the military, the presence of the military and Bolivian Circles throughout the country and the country documentation, the finding of the RPD of a viable IFA is patently unreasonable.
RESPONDENT'S SUBMISSIONS
[21] The Respondent first notes that contrary to the Applicants' allegation, the crucial element of the Applicant's story that he was on a hit list, was found to be implausible, and that finding was open to the RPD. The RPD took into consideration the Applicant's admissions that as a military, he was prevented to assist to political meetings and the lack of political membership or activity.
[22] The Respondent further denies that the RPD ignored country documentation, and submits that it was clearly cognizant of the large opposition to the Chavez government within the military. But the Board found that the Applicant did not have the profile to be of interest to the government; not having been active politically and not having openly criticized the government, it did not find plausible that his name would have been placed on a list of people to be targeted as opponents of the government.
[23] Finally, the Respondent advances that the Applicant cannot rely upon incidents that occurred after September 2002 to explain that he was perceived as an opponent. Be that as it may, the Board considered the reprimand and the detention that were imposed on the Applicant, but came to the conclusion that these actions amounted to harassment and not persecution.
[24] It is worth noting that in oral argument, counsel for the Respondent conceded that the Board was not thorough in its assessment of the internal flight alternative and that the mere passage of time was not enough to come to the conclusion that the Applicant would be safe were he to return to Caracas. As a consequence, it was accepted that the decision would have to be struck down if the plausibility finding of the Board was to be found unreasonable by this Court.
ISSUE
[25] As a result of the Respondent's admission that the Board's decision with respect to the existence of an internal flight alternative is flawed, the only issue to be determined in this application is whether the Board made a reviewable error in concluding that it is implausible that the Applicant would face persecution, risk to his life or cruel and unusual treatment or punishment were he to be returned to Venezuela.
POLITICAL OPINION
[26] A careful reading of the Board's reasons leads me to believe that the panel did not question the credibility of the main applicant. Indeed, nowhere does the Board disputes the facts as they were reported by the Applicant, and there is no hint that any of the incidents which the Applicant brought forward to establish his subjective fear were not to be taken as truthful. It is with the inferences to be drawn from these incidents that the Board disagrees with the Applicant. In other words, what we are faced with here is not a question of credibility, but one of plausibility.
[27] The Applicant has argued, on the basis of Giron v. Canada (M.C.I.), [1992] A.C.F. No. 481 (F.C.A.), that a less deferential standard of review should apply to implausibility findings as compare to credibility findings of the Board. This reasoning must be rejected, in light of the Federal Court of Appeal's comment on Giron in Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732, where Décary J.A. stated, at paras. 3-4:
It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from interferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
See also: Toor v. Canada (M.C.I.), [2003] F.C.J. No. 1872 (F.C.); Etemadifard v. Canada (M.C.I.), [1995] F.C.J. No. 666 (F.C.); Arachchilage v. Canada (M.C.I.), [2004] F.C.J. No. 2072 (F.C.); Babchine v. Canada (M.C.I.), [1996] F.C.J. No. 204 (F.C.)
[28] Having said that, was it implausible that the applicant would be on a list of opponents of the regime because he refused to attend political meetings, as the Board found, since he was merely following military protocol? This would most certainly be a reasonable conclusion to draw in Canada, where the armed forces are truly neutral and apolitical. But in a country as polarized as Venezuela is at the moment, where the President has been taken into custody by some factions of the army and subsequently returned to power by other factions of the same army, it is not far fetched to consider that an army officer can be perceived as a political opponent as a result of his refusal to attend a meeting in support of the President. Indeed, the documentary evidence is replete with illustrations showing the extent to which the army is very much a political actor in Venezuela, may be even more so than political parties.
[29] In those circumstances, it was not enough to assert categorically that the applicant was not objectively justified in believing that he could be persecuted as a political opponent; in concluding that he could not be at risk of persecution because he was not a member of a political party and was abiding by the military protocol, the Board totally misread the particular social and political conditions prevailing in Venezuela and failed to assess the Applicant's behaviour through that lens.
[30] As this Court has repeatedly said in other cases, "the Board should not be quick to apply the North American logic and reasoning to the claimant's behaviour: consideration should be given to the claimant's age, cultural background and previous social experiences" (R.K.L. v. Canada (M.C.I.), [2003] F.C.J. No. 162; see also Rahnema v. Canada (Solicitor General), [1993] F.C.J. No. 1431 at para. 20 (F.C.); and El-Naem v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 185 (F.C.). Similarly, the plausibility of a claimant's perception as to the risk of persecution must be informed by a careful assessment of the social, economic and political environment where the acts giving rise to his fear have taken place.
[31] It must also be borne in mind that the ground of political opinion may correspond either to the claimant's actual opinions or to those rightly or wrongly attributed to him; in other words, the critical issue is not so much whether the Applicant did in fact have political activities but whether his behaviour could be perceived by others as being politically motivated (Sopiqoti v. Canada (M.C.I.), [2003] F.C.J. No. 136; Astudillo v. Canada (M.E.I.), (1979) 31 N.R. 121 (F.C.A.); Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, at pp. 746-747).
[32] Counsel for the respondent submitted that the reasons of the Board should not be read microscopically, and should be understood to mean that the Applicant was not believed to have the profile to be of any interest to the government. It may well be so, but it is pure speculation as there is no discussion whatsoever of the reasons that could have led the Board to that conclusion. Nor is there any reference in the analysis of the Board to the threats experienced by the main Applicant's wife, nor to the warning he received from an Army colonel that he and his family were in danger because they were identified as opposed to the government. All we are left with to account for the conclusion that the Applicant is not at risk is that he is not a member of a political party and he was following military protocol.
[33] Counsel for the respondent also argued that the Applicant cannot rely upon incidents that occurred after September 2002 to measure the trustworthiness of the main Applicant's evidence that he was targeted in September. But a close reading of the Applicant's narrative in his PIF reveals that he had objective reasons to believe that he was suspect in the eyes of his superiors even before September 2000; there were grounds to establish that the warning from his colonel friend was not pure fiction. And the incidents that took place afterwards could only reinforce his fears.
[34] Finally, counsel for the respondent pleaded that perception has to be inferred from the treatment he received as a result of the failed coup d'état on April 12. Hundreds of officers were investigated and some were discharged, but the Applicant was cleared and was only excluded from a promotion list. Again, it may well be that this amounted to no more than harassment. The same can probably be said of the other sanctions that were subsequently imposed to him (two days of detention, reprimand, relocation); in and of themselves, each one of these sanctions can probably be characterised as harassment; but taken together, and added to the threats against his family, they certainly amounted to persecution.
[35] For all these reasons, I am of the view that the Board erred and made a reviewable error in rejecting the Applicants' claim on the basis that their fear was not warranted. Since the respondent also conceded that the Board's analysis with respect to the internal flight alternative was flawed, I must come to the conclusion that the Board's decision should be set aside and that the matter should be sent back to a differently constituted panel of the Board for rehearing and redetermination.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-5238-04
STYLE OF CAUSE: RAFAEL JOSE RENGEL CONTRERAS,
NATALIA CAROLINA UREA DE RENGEL
MARIA FERNANDA RENGEL UREA
PEDRO EMILIO RENGEL UREA
DATE OF HEARING: May 3, 2005
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER: de Montigny J.
DATED: May 16, 2005
APPEARANCES BY:
Mr. John Grice For the Applicants
Ms. Bridget O'Leary For the Respondent
SOLICITORS OF RECORD:
Mr. John Grice
North York, Ontario For the Applicants
John h. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent