Date: 20040625
Docket: IMM-2025-03
Citation: 2004 FC 914
Toronto, Ontario, June 25th, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALFREDO NATYNCZYK,
LUIS MARTIN OLIVERAS,
LORENA NATALIA NATYNCZYK,
MALENA NATYNCZYK,
OLGA MARGARITA ROMERO DE NATYNCZYK,
EVANGELINA VANESSA NATYNCZYK,
GABRIELA LOURDE FLORINDO,
and PABLO ALFREDO NATYNCZYK
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated March 5, 2003, wherein it was determined that the applicants are not Convention refugees or persons in need of protection.
[2] The applicants ask this Court to quash the Board's decision and order that their claims be remitted back to a differently constituted panel of the Board.
Background
[3] Alfredo Natynczyk (the "principal applicant") is a 50 year-old citizen of Argentina who claims a well-founded fear of persecution by reason of his political opinion and his membership in a particular social group, namely union members who fight for workers' rights.
[4] The remaining applicants are the principal applicant's extended family, which consists of his wife Olga, daughter Lorena, son-in-law Luis Oliveras, granddaughter Malena, daughter Evangelina, son Pablo, and daughter-in-law Gabriela Florindo. All of the applicants based their claims on membership in the principal applicant's family, therefore, their claims are dependant on his.
[5] In the alternative to their refugee claims, the applicants claim to be persons in need of protection who, if removed to Argentina, would personally be subjected to a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment.
The Principal Applicant
[6] In the narrative portion of his Personal Information Form ("PIF"), the principal applicant states that from 1972 to 1987 he worked as a plumber, mostly in the construction industry, and from1987 onwards, worked as a welder. Since 1972, the principal applicant has been a member of the Unión Obrera de la Construcción de la República de Argentina, Seccional San Nicolás, a labour union representing construction workers. The principal applicant states that he has always been a strong advocate of the rights of his fellow workers.
[7] In early 1999, the principal applicant alleges that he starting receiving threats regarding his union activity while he was working in San Nicolás for a company called Techint S.A. The principal applicant and his fellow workers protested the company's unfair treatment of its workers, and its refusal to pay wages that were owed. The principal applicant states that when he visited the union offices to ask for help, he was taken aside by someone he did not know and warned that if he kept demanding his rights he would not only lose his job, but could be harmed for interfering in things that did not concern him.
[8] The principal applicant also states that he received a threatening phone call at home from an unidentified person who warned him again that he should not get involved in things that were not his business, or his life was in danger.
[9] In the summer of 1999, the principal applicant states that he began working for DSD Construcciones y Montajes S.A. as a welder. In August 1999, he was elected as a union representative and became very outspoken within the union regarding the unfair working conditions in the company and in Argentina in general. In particular, the principal applicant spoke out against the company's practice of paying workers a small fraction of their wage as payroll and the rest in cash so as to avoid taxes. The principal applicant also spoke out against the company importing workers from other countries instead of hiring locally, and not paying all wages that the workers were owed.
[10] The principal applicant states that he was threatened more frequently, including at least eight or ten times at work. People he did not recognize attended union meetings and carried revolvers, and on other occasions he was approached at work and told that someone could easily be hired for a small sum of money to kill him. The principal applicant further alleges that every week or so he received threatening phone calls at home, which were sometimes answered by his family members. The principal applicant also states that he was blacklisted for jobs because of his union activity.
[11] In 1999, the principal applicant alleges that his son Pablo and daughter-in-law Gabriela found a letter at the door of the family home saying that the family was dead. The principal applicant states that his son did not tell him of this incident until much later so as to prevent worry and upset in the family.
[12] The principal applicant finally decided to leave Argentina in May 2000. He states that he feared for his life and the lives of his family members. They entered the United States on May 2, 2000, using an I-94 tourist visa waiver. The principal applicant and his family remained in the United States illegally after the expiry of their status.
[13] At the Board hearing, the principal applicant testified that while in the United States he made inquiries regarding how to legalize his family's status in the United States, but was told that since they had arrived on visa waivers, there was no way to obtain permanent status.
[14] After September 11, 2001, the principal applicant states that it became more difficult to stay in the United States illegally. Out of fear of being caught by immigration authorities and deported to Argentina, the principal applicant states that he and his family came to Canada and made a refugee claim, hoping they could find a safe place to live.
[15] The applicants arrived in Coutts, Alberta on April 2, 2002, where they immediately made refugee claims.
[16] A hearing into the applicants' claims was held on February 5, 2003 before a single-member panel of the Board.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[17] In a decision dated March 5, 2003, the Board determined that the applicants were neither Convention refugees nor persons in need of protection within the meaning of IRPA.
[18] The Board accepted the applicants' identities as nationals of Argentina and that the principal applicant was involved in union activities while in San Nicholás, but held that there was not sufficient credible or trustworthy evidence to establish a reasonable chance that they would be at risk of persecution upon return to Argentina.
[19] The Board noted that although the principal applicant generally testified in a straightforward manner, his testimony regarding his union activities was often vague, general and repetitive.
[20] The Board rejected the applicants' refugee claims on four bases:
1. The applicants' failure to seek asylum in the United States indicated a lack of subjective fear of persecution;
2. The applicants' delay in leaving Argentina indicated a lack of subjective fear of persecution;
3. The events described by the applicants amounted to harassment, not persecution; and
4. Based on the documentary evidence regarding the situation of trade unionists in Argentina, the applicants' alleged fear of persecution is not objectively well-founded.
Lack of Subjective Fear - Failure to Claim Elsewhere
[21] Although the Board acknowledged that failure to seek asylum elsewhere is not a decisive factor in itself, it is a relevant consideration when assessing claimants' subjective fear of persecution: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.).
[22] On the facts of this case, the Board noted that the principal applicant left Argentina on May 1, 2000 for the United States. He did not make a refugee claim upon arrival in the United States, or when his tourist visa expired three months later, or any later point in time during his stay in that country.
[23] The principal applicant testified that he had approached a lawyer and attended immigration workshops but was told that there was no way to stay legally in the United States. The Board found it implausible that if the principal applicant had asked such officials if there was "any way" for his family to stay in the United States, they would not have brought up the possibility of seeking asylum.
[24] Furthermore, the Board found the principal applicant's explanation for not making a claim unsatisfactory. In the Board's view, the principal applicant was not naive nor inexperienced and would have known how to represent the interests of himself and his family. In the Board's view, if the principal applicant had truly left Argentina in fear for his life, he would have mentioned it to any professional he consulted. Citing Madoui v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 157 (T.D.), the Board concluded that the principal applicant's failure to claim in the United States indicated a lack of subjective fear.
Lack of Subjective Fear - Delay in Leaving Argentina
[25] The principal applicant testified that the threats relating to his union activities occurred in 1999, that for a long time he did not know what to do about his situation, and finally decided to leave Argentina in 2000. The principal applicant further testified that there was no specific incident that triggered his departure, but that he had felt under pressure for months. The principal applicant and his family left Argentina on May 1, 2000 for the United States.
[26] Given these facts, and acknowledging that delay in leaving the country of alleged persecution is not a decisive factor in itself (Huerta, supra), the Board found that the applicants' delay in leaving San Nicolás and Argentina was inconsistent with the applicants' claim of a subjective fear of persecution.
Harassment Not Persecution
[27] After reciting the substance of the principal applicant's testimony regarding the threatening conduct he endured in Argentina, the Board noted that the principal applicant was unable to clearly identify the agents of persecution, although he suggested that union members, company members or hired thugs may have been to blame. The Board also noted that the threats described by the principal applicant were never acted upon.
[28] The Board rejected the testimony of the principal applicant's son regarding finding a threatening letter on the doorstep of the family home in December 1999. The Board found it implausible that a son would not tell his father of such a letter when the father was afraid for the safety of himself and his family. The Board held that the account of the threatening letter was an embellishment intended to bolster the applicants' claims and, therefore, gave it no weight.
[29] The Board noted that the principal applicant was unable to give the names or positions of similarly situated persons who were mistreated even though he testified that he had heard about many cases.
[30] The Board concluded at page 5 of its reasons:
The panel considered the vague and sometimes confused nature of the principal claimant's testimony, the number and nature of the threats, the fact that the threats were never acted upon and the fact that neither the principal claimant nor any member of his family has been harmed in any way. The panel finds that the threats were made to intimidate. The actions of those he fears were not repetitive, persistent and serious enough to cumulatively amount to persecution. At the very most they would amount to harassment.
The panel finds that the events experienced by the principal claimant do not form a basis for a well-founded fear of persecution.
Documentary Evidence Shows No Objective Basis for Fear of Persecution
[31] The Board's survey of the documentary evidence regarding the situation of trade unionists in Argentina at the time in question indicated that although the labour situation is far from perfect, there was no evidence regarding the corruption, and collusion of unions and companies to which the principal applicant testified.
[32] In a survey of the documentary evidence before it, the Board noted that the Argentinian Constitution and general laws provide for freedom of association, for striking, prohibit anti-union practices and the labour minister had formed a commission to investigate complaints to the International Labour Organization. Relying on the U.S. Department of State Country Report of Human Rights Practices for Argentina (March 2002), the Board noted that in practice, the government does respect the workers' right to unionize.
[33] The Board also relied on documents by the Immigration and Refugee Board's Research Directorate to conclude that the principal applicant's fear is not objectively well-founded. The principal applicant had testified that he belonged to many unions, although mainly those associated with the Justicialist Party. One IRB Research Directorate report stated that an Argentinian human rights organization was not aware of any cases of police violence or intimidation against members of Justicialist Party-associated unions since October 1999, although some incidents had occurred in other areas of the country in relation to other unions. A second IRB Research Directorate report stated that the new government elected in 1999 planned to complete labour market reforms begun by its predecessor, was not particularly mistreating unions, and was attempting to get a dialogue going with key labour players.
[34] The Board stated that it preferred the documentary evidence over the testimony of the principal applicant because the former came from independent and objective sources with no interest in the outcome of this claim. On this basis, the Board concluded that the principal applicant's fear is not objectively well-founded.
Not Persons in Need of Protection
[35] The Board went on to conclude that the applicants were not persons in need of protection, given the elements of paragraphs 97(1)(a) and 97(1)(b) of IRPA.
[36] Having considered the totality of the evidence, the Board concluded that the principal applicant had failed to establish sufficient credible and trustworthy evidence to demonstrate that there exist substantial grounds to believe that he would be subjected personally to a danger of torture if he were to return to Argentina.
[37] For the reasons given under the Convention refugee analysis, the Board also refused the applicants' paragraph 97(1)(b) claim, since it was not persuaded that there was a reasonable chance that the claimants' lives would be at risk or there existed a risk of cruel and unusual treatment or punishment if returned to Argentina.
[38] Since the Board rejected the principal applicant's claim, it also rejected the claims of the other seven applicants, whose claims were entirely dependent on that of the principal applicant.
[39] This is the judicial review of the Board's decision.
Applicants' Submissions
[40] The applicants submit that the Board did not make a negative credibility finding, since clear reasons for doing so must be stated in the Board's decision. The applicants point to the Board's comment that the principal applicant testified in a straightforward manner but some answers were vague and general. In contrast, the applicants submit that a review of the transcript shows that the principal applicant clearly answered all of the questions put to him, and it was incumbent on the Board to make further inquiry if further clarification of detail was required.
[41] The applicants submit that the Board erred by requiring that the principal applicant demonstrate past persecution, when the proper definition of well-founded fear of persecution is a forward-looking test. In support of this argument, the applicants cite Salibian v. Canada (Minister of Employment and Immigration) (1990), 113 N.R. 123 (F.C.A.); Naredo v. Canada (Minister of Employment and Immigration) (1981), 40 N.R. 436 (F.C.A.); and Marchant v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 (C.A.). The applicants contend that the Board was obliged to consider whether the past incidents, whether persecutory or not, could form the basis of a fear of more serious harm in the future.
[42] The applicants point out that the Board's statement that the principal applicant was unable to name any similarly-situated persons is erroneous. The principal applicant testified that his friend Ohada was shot to death because of his pro-worker views and activities. The applicants argue, therefore, that the Board erred in not finding that this similarly-situated person indicated that their fear of persecution was objectively well-founded.
[43] Relying on Djama v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 531 (C.A.) (QL), the applicants argue that the Board's decision should be quashed because it failed to consider the totality of the documentary evidence. The applicants submit that the country conditions evidence indicates that trade union demonstrations are put down with excessive violence and that many examples of confrontation, conflict and violence are reported in connection with trade union activities.
[44] The applicants also allege that the Board failed to provide cogent reasons for giving no weight to documentary evidence that supported the principal applicant's evidence: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.)(QL). The corroborating documentary evidence taken together with the principal applicant's testimony, in the applicants' submission is evidence that they would be at risk upon return to Argentina.
[45] The applicants submit that the Board erred in finding that the principal applicant lacked a subjective fear of persecution. In the applicants' view, the Board found the principal applicant's explanations for the delay in leaving Argentina and not claiming asylum in the United States implausible without any basis for doing so or any detailed reasoning for why his testimony was unreasonable.
[46] The applicants submit that the Board misconstrued and misapplied the definition of "persecution" and "well-founded fear of persecution". The principal applicant's evidence was that he suffered threats to his liberty and security on account of his trade union activity, was blacklisted and unable to find work. Given this testimony, and the guidance of the United Nations High Commissioner for Refugees' Handbook on Procedure and Criteria for Determining Refugee Status ("UNHCR Handbook") that serious restrictions on the right to earn a livelihood can constitute persecution, the applicants argue that the Board erred in not concluding that the principal applicant had been persecuted in Argentina. The applicants further submit that the Board's failure to mention the evidence regarding blacklisting indicates that evidence was ignored and therefore the decision should be quashed.
[47] For these reasons, the applicants request in their written submissions that the Board's decision be quashed and that a new hearing be ordered.
Respondent's Submissions
[48] As the applicants withdrew their claim for declaratory relief at the hearing, I will not reproduce the submissions on this issue.
[49] The respondent submits that the bulk of the applicants' submissions simply disagree with the Board's weighing and interpretation of the evidence, which is insufficient to justify allowing this judicial review application. The respondent submits that the Board made no error of law or patently unreasonable finding of fact that would justify quashing its decision.
[50] The respondent disputes the applicants' argument that it was incumbent on the Board to obtain further clarification or detail from the applicants about their claims. The respondent submits that cases such as Boateng v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 810 (QL), 2003 FCT 632 emphasize that claimants have the burden of presenting credible evidence to prove every aspect of their claims to the Board's satisfaction and that the burden of proof does not shift to the Board at any time.
[51] The respondent submits that this Court should apply the highly deferential standard of review of patent unreasonableness to the Board's findings of fact, credibility determinations and weighing of the evidence. The respondent relies on cases such as Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) and Owusu v. Canada (Employment and Immigration Commission), [1988] F.C.J. No. 434 (C.A.) (QL).
[52] The respondent submits that it was open to the Board to conclude that the applicants lacked a subjective fear of persecution in Argentina. Having heard the applicants' explanation for their delay in leaving Argentina and for failing to make a refugee claim in the United States, the respondent submits that the Board was entitled to find these explanations implausible and unsatisfactory, given the nature of the alleged fears and the personal characteristics of the applicants. On the facts of this case, the respondent argues that it was not patently unreasonable for the Board to conclude the applicants lacked a subjective fear of persecution: Ilie v. Canada (Minister of Citizenship and Immigration) (1994), 88 F.T.R. 220 (T.D.); Ali v. Canada (Minister of Citizenship and Immigration), (1996), 112 F.T.R. 9 (T.D.); Riadinskaia v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 30 (T.D.)(QL).
[53] The respondent submits that the Board was entitled to consider past acts to assess the applicants' forward-looking fear of persecution. Since the applicants based their claim on these past incidents, the respondent argues that it was reasonable for the Board to take into account whether any of the threats were carried out. The respondent submits that the Board made no error in assessing the applicants' objective fear of persecution.
[54] The respondent further submits that the Board was entitled to prefer the documentary evidence regarding the labour situation in Argentina over the testimony of the principal applicant, which detracted from the well-foundedness of the applicants' alleged fear of persecution. As found in Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 114 (C.A.) (QL) and Boateng, supra, the respondent argues that the failure of the documentary evidence before the Board to corroborate the principal applicant's account rebutted the presumption that his sworn testimony was true.
[55] The respondent denies that the Board misinterpreted the documentary evidence that was before it. In the respondent's view, the passages referred to by the applicants have no personal connection to their situation, do not establish a general climate of worker oppression, and make no mention of the principal applicant, his national union or the area of Argentina in which he lived. The respondent submits that on this issue, the applicants simply disagree with the Board's assessment of the facts, which does not warrant this Court's intervention.
[56] Citing Aguebor, supra, the respondent states that the Board is entitled to make negative credibility findings on the basis of implausibilities. In this case, the respondent argues that it was not patently unreasonable for the Board to find the allegation regarding the threatening letter found on the family doorstep implausible and for no weight to be placed on that allegation.
[57] The respondent argues that the principal applicant has not established a basis for this Court to interfere with the Board's finding that the applicants were harassed or discriminated against but not persecuted. In the respondent's view, the question of whether or not the facts of a case amounts to persecution is a mixed question of fact and law, which in the past has been reviewed in a standard of reasonableness simpliciter (Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.), leave to appeal to S.C.C. dismissed [1993] S.C.C.A. No. 461 (QL)) but should now be reviewed on the more deferential standard of "palpable and overriding error" set out in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
[58] The respondent further submits that the conclusions regarding harassment versus persecution that were reached by the Board are clearly supported by the evidence presented to it. The respondent submits that the harassment experienced by the principal applicant was not "a sustained or systemic violation of basic human rights demonstrative of a failure of state protection", the definition of persecution set out by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 734. Nor, in the respondent's submission, do the allegations amount to persecution according to the UNHCR Handbook. Given these sources, the respondent argues that the Board did not err in finding that the applicants' experiences amounted to discrimination/harassment, not persecution.
[59] The respondent requests that this application for judicial review be dismissed.
Issues
[60] The key issues to be resolved in this application are as follows:
1. Did the Board err in concluding that the applicants experienced harassment, not persecution?
2. Did the Board err in concluding that the applicants lacked a subjective fear of persecution in Argentina?
3. Did the Board err in concluding that the applicants lacked an objective fear of persecution in Argentina?
Relevant Statutory Provisions
[61] Section 96 of the Immigration and Refugee Protection Act, supra, defines "Convention refugee" as follows:
|
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
. . . |
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
. . . |
Analysis and Decision
[62] Issue 1
Did the board err in concluding that the applicants experienced harassment, not persecution?
The Board, after considering the applicants' claims and the evidence presented ruled that the threats made against the principal applicant and his family constituted harassment meant to intimidate them and that the conduct was not repetitive, persistent and serious enough to amount to persecution. As the Federal Court of Appeal stated in Sagharichi, supra at paragraph 3:
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[63] As in Sagharichi, supra, this Court applied the reasonableness simpliciter standard of review in Wickramasinghe v. Canada (Minister of Citizenship and Immigration), [002] F.C.J. No. 601 (QL), 2002 FCT 470 to the Board's determination of harassment versus persecution. I disagree with the respondent that the "palpable and overriding error" standard set out in Housen, supra applies here. Housen, supra was a negligence case where one question before the Court was the appropriate standard of review of mixed questions of law and fact when a trial judge's findings were challenged on appeal. Since Housen, supra explicitly dealt with the law of appeals, not judicial review, I opt to follow the Federal Court of Appeal's guidance in Sagharichi, supra and will apply a reasonableness simpliciter standard of review to this issue.
[64] The parties referred to the UNHCR Handbook's discussion of discrimination versus persecution to support their arguments. The UNHCR Handbook was recently referred to in Mohacsi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 563 (QL), 2003 FC 429 at paragraph 34:
The Office of the United Nations High Commission for Refugees has published a book entitled "Handbook on Procedures and Criteria for Determining Refugee Status", (Reedited Geneva, January 1992) (the "Handbook") which provides guidance for the consideration of claims of persecution based on the cumulative effects of discrimination. The relevant paragraphs are paragraphs 53 through 55. Paragraph 52 is also quoted below to provide context to the discussion of what should be factored into a cumulative analysis in light of the broader goal of determining whether persecution exists:
(b) Persecution
[...]
52. Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case [...]. The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.
53. In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds". Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context.
(c) Discrimination
54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.
55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.
[65] With this guidance, I now turn to the facts of the matter before me. At page 4 of its decision, the Board summarized the incidents described by the principal applicant and concluded that the conduct amounted to discrimination and not persecution. In my view, this conclusion was certainly open to the Board to make and as such, it should not be this Court's role to intervene.
[66] According to the principal applicant, his son and daughter-in-law found a letter at the door of the family home which stated that our "family was dead". The principal applicant's son testified that he found the letter and it said "for us to be careful because we were going to disappear". It was claimed that the son and his wife tore up the letter and did not tell the principal applicant about the threat until they arrived at the Canadian border. The Board did not accept this evidence and found it implausible that a son would not tell his father of such a letter when the father was afraid for the safety of himself and his family. Again, I am of the view that this finding of the Board was reasonable. I am of the view that the Board's conclusion that the conduct complained of by the applicants amounted to harassment and not persecution does not warrant this Court's intervention.
[67] Issue 2
Did the Board err in concluding that the applicants lacked a subjective fear of persecution in Argentina?
The Board noted that failure to seek asylum elsewhere is not a decisive factor in itself but it is a relevant element when assessing the subjective fear of the applicants. The principal applicant left Argentina on May 1, 2000 for the United States where he stayed until he came to Canada on April 2, 2002. The principal applicant stated that he did not make a refugee claim in the United States because a lawyer told him that he could not legally stay in the United States. As well, the Board noted that while the threats were made to the principal applicant in 1999, he did not leave Argentina until 2000.
[68] The principal applicant offered explanations for not making a refugee application in the United States. The Board stated at page 3 of its decision:
. . . The principal claimant explained that he had approached a lawyer and attended "immigration" workshops with people he believed were lawyers representing the government and he was told there was no hope for him and his family to stay legally in the United States. The principal claimant testified that he had asked if there was any way they could stay legally in the United States. The panel finds it implausible that if the claimant had asked the aforementioned people if there was "any way" for his family to stay, they would not have brought up the possibility of asylum. The claimant told those he spoke to about his labour problems but did not tell anyone that he feared for his life in Argentina. At no time did he go to a government official while in the United States to request protection. The panel finds the explanation of the claimant unsatisfactory. If the claimant left his country because he feared for his life, he would have mentioned it to any professional he consulted. The principal claimant was not naive and inexperienced. He was a union representative whose job it was to represent the interests of his fellow workers. He would have known how to represent the interests of himself and his family. The panel fins that the principal applicant's failure to claim in the United States represents a lack of subjective fear . . .
[69] There is no doubt that a Board may draw negative inferences from conduct by an applicant which it considers inconsistent with the presence of a subjective fear of persecution. Examples of such conduct would be voluntarily returning to the country from which you fled or delay in leaving a country where the applicant claims to have been persecuted. I am satisfied that based on the facts of this case, the Board did not err in concluding that the applicants did not have a subjective fear of persecution.
[70] Issue 3
Did the Board err in concluding that the applicants lacked an objective fear of persecution in Argentina?
The applicants submit that the Board erred in its assessment of the well-foundedness of their fear in two respects. Firstly, they argue that the Board erred in requiring them to establish past persecution when the test for a well-founded fear of persecution is forward-looking. In the second place, the applicants state that the Board erred in its assessment of the documentary evidence regarding country conditions in Argentina.
[71] I agree with the applicants that the test for a well-founded fear of persecution is forward-looking, but when an applicant puts forward past incidents as the basis for his claim, the Board must assess these incidents, since evidence of past persecution is one of the most effective means of showing that a fear of future persecution is objectively well-founded. The applicants had based their claim on a number of threats received by the principal applicant as well as his blacklisting and difficulties with the union. The Board did not err by assessing the credibility, nature and seriousness of the past incidents described by the applicants to decide whether it could justify an inference of future persecution.
[72] The applicants submit that the Board made a reversible error by stating that the principal applicant did not know the name of any other similarly-situated individuals that were persecuted when, in fact, the hearing transcript shows that the principal applicant named a friend who was killed because of his union activity. I have reviewed the Board's decision and although the Board was in error in stating that the principal applicant did not give a name, the Board nevertheless did address the fact that the principal applicant did know of such cases. The principal application's testimony on this issue provides insufficient detail for me to conclude that this error was a material error which affected the Board's ultimate decision. There were no details as to which union the friend worked for or the circumstances under which he was shot. I am not satisfied that this error caused the Board to make a reviewable error.
[73] The applicants also submit that the Board erred in its assessment of the documentary evidence regarding country conditions in Argentina. In Horvath v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 643 (QL), 2001 FCT 398, MacKay J. stated at paragraphs 14 and 15:
In large part the panel's ultimate finding of a lack of well-founded fear of persecution is based on subordinate findings that are based on reliance upon selective portions of the documentary evidence. It is not the Court's function to question the weighing of evidence by the panel unless its findings are found to be perverse or patently unreasonable. It is accepted that failure to refer to specific documents does not imply the documents were ignored. Yet where the panel makes no reference to documentary evidence of generally acceptable sources which contradicts the portions on which the panel relies, it is difficult to conclude that the panel did consider all relevant evidence.
[74] I have reviewed the documentary evidence that was before the Board and I am of the opinion that the applicants are merely asking the Court to take a different view of the documentary evidence than that adopted by the Board. I would note many of the references to the documentary evidence pointed out by the applicants do not relate to the principal applicant's union, the San Nicolás region or the principal applicant's situation. The Board did not make a reviewable error with respect to its assessment of the documentary evidence or its decision with respect to the applicants' lack of an objective fear of persecution in Argentina.
[75] The applicant submitted that he was blacklisted and unable to find work on account of his trade union activity. He stated that serious restrictions on his right to earn a livelihood can constitute persecution and that the Board's failure to mention the evidence regarding blacklisting indicates that the evidence was ignored and therefore the Board's decision should be quashed. I would note that the Board is presumed to have considered all the evidence before it, unless the contrary is shown: Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 59 (C.A.) (QL). In this case, given the scope and nature of the applicant's allegations and the reasoning of the Board, the presumption has not been rebutted. I would not set aside the Board's decision on this basis.
[76] The applicants' application for judicial review is therefore dismissed.
[77] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2025-03
STYLE OF CAUSE: ALFREDO NATYNCZYK, LUIS MARTIN OLIVERAS,
LORENA NATALIA NATYNCZYK, MALENA NATYNCZYK, OLGA MARGARITA ROMERO DE NATYNCZYK, EVANGELINA VANESSA NATYNCZYK, GABRIELA LOURDE FLORINDO,
and PABLO ALFREDO NATYNCZYK
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: MAY 17, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
APPEARANCES:
Mr. D. Jean Munn FOR THE APPLICANTS
Mr. Rick Garvin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Caron & Partners LLP
Calgary, Alberta FOR THE APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040625
Docket: IMM-2025-03
BETWEEN:
ALFREDO NATYNCZYK, LUIS MARTIN OLIVERAS, LORENA NATALIA NATYNCZYK, MALENA NATYNCZYK, OLGA MARGARITA ROMERO DE NATYNCZYK, EVANGELINA VANESSA NATYNCZYK, GABRIELA LOURDE FLORINDO, and PABLO ALFREDO NATYNCZYK
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER