Date: 20011102
Docket: IMM-829-01
Neutral citation: 2001 FCT 1197
BETWEEN:
MANUEL DE JESUS CORTEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] On July 13, 1992 the Refugee Division of the Immigration and Refugee Board (the "Board") concluded that the Applicant was a Convention refugee. On February 7, 2001, the Board made an order, pursuant to subsection 69.2 of the Immigration Act, vacating its July 13, 1992 decision. This is the decision which the Applicant seeks to set aside by his judicial review application.
[2] The application is based on two grounds, namely:
(1) that the Board erred in basing its decision on erroneous findings of fact made without regard to the material before it;
(2) that the Board erred in refusing to exercise its jurisdiction to consider events prior to October 2000 as a basis for declaring the Minister's application to have been abandoned.
[3] I begin with the second ground. On May 7, 1997 the Minister sought leave of the Board to commence a vacation application and on June 2, 1997 leave was granted. As a result, the Minister, pursuant to subsection 69.2(2) of the Immigration Act, applied for reconsideration and vacation of the Board's decision of July 13, 1992.
[4] On December 17, 1998 the Board dismissed the Minister's application to vacate but on January 21, 2000 Pinard J. set aside the Board's decision and referred the matter back to the Board for reconsideration.
[5] A new hearing date was scheduled for October 23, 2000. However, the matter did not proceed on that date as counsel for the Minister sought an adjournment because he had just become aware of the file and, thus, was without instructions. On October 25, 2000 the Board issued a notice to appear requesting the Minister to appear at an abandonment hearing to be held on December 20, 2000. On that date, the Board heard arguments from counsel for both sides and made the following order:
PRESIDING MEMBER: Back on the record. We're going to make our decision on the application on the show cause matter.
Having had an opportunity to listen to the explanations of Mr. Tucci, on behalf of the Minister's counsel's office, and Mr. Riecken in response, we are going to set the show cause application aside and proceed to hear the case of the Minister's counsel. I'd like to give a very brief explanation as to why we've reached that decision.
In our view, the Federal Court Trial Division has dealt with the progress of this file up until the reference back to this newly constituted panel. The failure to proceed on the October 2000 date, as we understand it, was not intentional on the part of the Minister's counsel, but due to poor office protocols in dealing with documentation. We take you at your word, Mr. Tucci, that these problems have been addressed and we trust that that will continue to be the case.
Minister's counsel had indicated that he's prepared to proceed. The steps the Minister's counsel has gone through to date in dealings with this panel indicate an overall intention to proceed, and that is what we will do.
Now, we will then move on to the -- yes, and I ask my colleagues if they agree with what I've just had to say.
MEMBER GIBBS: I agree with the presiding member's comments.
MEMBER ROSS: I concur, and would also add that the overall conduct of the case on the part of the Minister, going through the various steps, does indicate a serious intention to proceed with this matter.
[6] During the hearing before me, I advised counsel for the Applicant that, in my view, he could not now challenge the Board's December 20, 2000 decision since no judicial review application was filed in respect of that decision. Whether the Board made that decision on proper grounds, is, at this stage, totally irrelevant. The Board's decision is final and cannot now be challenged. The application for judicial review which is before me does not seek to set aside the Board's decision of December 20, 2000. It is directed solely at the February 7, 2001 decision.
[7] I now turn to the first ground in respect of which the Applicant submits that in reaching its conclusion the Board relied on erroneous findings of fact which were made without regard to the material before it. For the reasons that follow, I am of the view that the Board made no error which would allow me to intervene.
[8] The reasons given by the Board in support of its decision to vacate the July 13, 1992 order are, in my view, clear. Firstly, the Board concluded that the Applicant had succeeded on his refugee application by reason of fraudulent misrepresentation and suppression of material facts. Secondly, the Board was of the view that following its finding concerning the fraudulent misrepresentations made by the Applicant, there was insufficient evidence on which a positive determination was or could have been made. The Applicant's challenge herein concerns the second aspect of the Board's decision.
[9] It cannot be disputed by the Applicant, nor has he attempted to do so, that he made substantial misrepresentations in 1992 to the panel that heard his refugee claim application. After reviewing the relevant facts and pointing out the misrepresentations made by the Applicant in 1992, the Board makes the following remarks, at pages 7 and 8 of its decision:
ANALYSIS
Vacation applications are to be determined in two stages.
In the first stage the panel must determine whether the respondent obtained refugee status by fraudulent means or misrepresentation, or suppression or concealment of any material fact. Based on the findings previously set out, the respondent clearly obtained his status by fraudulent misrepresentations and suppression of material facts.
The second stage is to determine whether the application of Minister's Counsel's should be rejected if this panel is of the opinion that, notwithstanding the finding at the first stage, there was other sufficient evidence on which the determination was or could have been based. Evidence not before the previous panel cannot be considered.
If the claimant's story of a return to El Salvador after 1988 is not credible, the story of his brother's murder and his own abuse at the hands of the ESAF in 1990 cannot be credible. As a result, I find that there is no evidence past 1988 on which the original determination could have been made. The evidence of problems before 1988 would have been insufficient at the 1992 hearing to establish grounds for a well-founded fear of persecution.
[10] A careful review of the Board's reasons leads to the conclusion that the Board was of the view that the Applicant was not a credible person. Not much elaboration on that view was required, since the Applicant recognized that he had not been truthful in 1992 in a number of respects.
[11] It is interesting to note the answer given by the Applicant to question 37 of the Personal Information Form, he signed on October 4, 1991. In his answer, the Applicant placed great emphasis on the events which took place in 1990 and 1991, at a time when, in the Board's view, he was not in El Salvador but in the United States. With respect to the events which allegedly occurred prior to 1988, the Applicant, in his answer to question 37, was very vague. As I indicated to counsel for the Applicant during the hearing, the Board's decision of July 13, 1992 is predicated, in great part, on a finding that the Applicant was a credible witness and that, hence, his testimony was trustworthy. We now know, for a fact, that that finding was made on the basis of misrepresentations.
[12] At paragraphs 11, 12, 13 and 18 of her written submissions, Ms. Namazi for the Minister, makes the following submissions:
11. Consequently, the Refugee Division determined that as Cortez' story of a return to El Salvador after 1988 was not credible, the story of his brother's murder and his own abuse at the hands of the ESAF in 1990 could not be credible. As a result, the Refugee Division found that there was no evidence after 1988 on which the original claim could have succeeded. In addition, the evidence of problems prior to 1988 would have been insufficient at the 1992 Hearing to establish a well-founded fear of persecution.
12. In fact, there remained little, if any evidence that was not tainted by Cortez' misrepresentations:
(a) Cortez was a construction master in El [Salvador];
(b) Beginning in 1982, Cortez assisted others in creating a [volunteer] group. The group assisted in the distribution of goods to the poor;
(c) The ESAF would sometimes harass the volunteer group.
13. The remaining evidence was clearly insufficient to support Cortz' refugee claim. The evidence remaining did not show that Cortez had more than a mere possibility of succeeding at the 1992 Hearing. It is trite law that a claim to Convention status must have both an objective and subjective basis. Based upon the Refugee Division's analysis of events after 1988, which is not disputed by Cortez, the alleged precipitating incident central to Cortez' claim of persecution was considered not credible. With respect to the time before 1988, Cortez was often in the U.S. Based upon the misrepresentations made by Cortez and the evidence remaining, the Decision was reasonable.
...
18. In response to paragraphs 19 - 22 of the Applicant's Memorandum of Argument, in addition to the misrepresentations of post-1998 events, the Refugee Division did state that Cortez had been absent from US starting in 1977. Furthermore, even if the Refugee Division accepted Cortez' testimony regarding events prior to 1988, there is nothing upon which to support a claim to Convention status. Even if one were to accept the evidence that remains as they are set out in paragraph 20 of the Applicant's Memorandum of Argument, Cortez' claim lacks essential elements. First, there is no persecution. The precipitating event is tainted and no longer forms part of the claim. The events prior to 1988, as described by Cortez, do not amount to persecution. Second, there is no subjective basis to the claim. At the 1992 Hearing, Cortez testified that he decided [to] leave after the alleged precipitating event and not before that time.
[13] In my view, Ms Namazi is right. The Board, in concluding against the Applicant, states that the pre-1988 events raised by the Applicant "would have been insufficient at the 1992 hearing to establish grounds for a well-founded fear of persecution". In my view, considering the evidence before the Board and more particularly the evidence before the 1992 Board, that conclusion is not unreasonable.
[14] The Applicant argued that the Board failed to consider a medical report and an assessment made by a psychologist. I see no merit in this contention. Having concluded that the Applicant was not a credible person, the Board, in my view, did not have to explain why it could not rely on or give weight to the documents. I need not reproduce the Applicant's arguments on this issue which are found at paragraphs 32 and following of his memorandum of argument. Part of the Applicant's argument is that these reports provide medical and psychological evidence which could explain why the Applicant misled the 1992 Board. Be that as it may, it is obvious that the second panel did not believe the Applicant's explanation with respect to the misleading evidence given in 1992.
[15] What the Applicant has attempted to do is to raise "technical" objections to the Board's decision. The plain fact is that he lied to the Board in 1992 and also, in other respects, to the Board in 2000. Having been caught out, the Applicant attempted to explain or justify his misleading statements. The Board did not accept his explanations and, as a result, discounted a considerable part of the evidence he adduced in 1992. In these circumstances, the conclusion that followed was almost inevitable.
[16] Notwithstanding Mr. Riecken's forceful attempt to convince me otherwise, I am of the view that this application must be dismissed.
(Sgd.) "Marc Nadon" Judge
Vancouver, British Columbia
November 2, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-829-01
STYLE OF CAUSE: Manuel De Jesus Cortez v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 31, 2001
REASONS FOR ORDER OF THE COURT BY: Nadon J.
DATED: November 2, 2001
APPEARANCES:
Guy Riecken FOR APPLICANT
Manada Namazi FOR RESPONDENT
SOLICITORS OF RECORD:
Legal Services Society FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia