Federal Court Decisions

     IMM-1151-97

Between:

     MARCO ESCOBAR,

     Applicant,

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS

     (delivered orally from the bench on October 1, 1997)

Muldoon J.

[1]      The Court's task is not made easier by an excellence of intellect and advocacy of counsel on both sides, such as found here, this day in Winnipeg.

[2]      To say that it is a borderline case is to take a long objective view when, in fact, intimate contact with the case and a final pragmatic decision have to be made.

[3]      This is an application for judicial review of the Convention Refugee Determination Division's (CRDD's) decision of September 20, 1996, in Calgary: file no. C 95-00479. The facts being, as will be seen, the evidence, are recited under the headline: "THE EVIDENCE", beginning on page 1 of the decision and ending at the end of page 3 of this 5 1/2 page passage of written reasons. If these present reasons of this Court ever be typed or printed, those passages of the CRDD's reasons should be inserted at this point.

THE EVIDENCE:

The evidence before the panel consists of the claimant's oral testimony and his Personal Information Form (PIF), documents from Citizenship and Immigration including identity documents, various documents and articles describing country conditions and human rights practices and the oral testimony of one additional witness, the claimant's step-father, A.G.

The following evidence was adduced from the claimant's PIF, his oral testimony and the testimony of the witness.

1.      The claimant is a 23-year-old male with a high school education.

2.      The claimant left his country on 26 December 1989 when he was 16 years of age. He requested Convention refugee status in the United States of America (U.S.A.) on arrival at the end of December 1989, but this was never granted. The claimant came to Canada in December 1995, making a refugee claim at the border.

3.      In August 1989, the step-father's brother, J.G., (the claimant's uncle) was detained by Salvadoran authorities with charges of subversive and terrorist acts against the government. While in jail J.G. was severely tortured in an attempt to make him supply the authorities with names of the FMLN.

4.      As a result of the incarceration of his brother, who was reported in newspapers to be a terrorist suspect, the step-father, A.G., came under suspicion.

5.      In September, approximately a week after the detention of the claimant's uncle, a student from the claimant's school was killed by the Salvadoran authorities for participating in terrorist acts. The authorities were ordered to check every single student in the claimant's school. The claimant was afraid they would find out that he was related to J.G. Indeed, the claimant states that all the students were suspected of being involved with the FMLN organization.

6.      On 5 September, as the claimant was leaving the school, three undercover police officers beat him up, telling him they knew that J.G. was his uncle. They threatened his family, telling him that they would be watched.

7.      Toward the end of December, the step-father made arrangements with the judge to have charges dropped against J.G. by paying a large bribe.

8.      Shortly after the release of J.G., anonymous calls came to the house making death threats. The family quickly decided that J.G., the step-father, A.G., and the claimant should leave El Salvador, carrying only their birth certificates.

9.      The three made their way through Guatemala and Mexico into the U.S.A. As soon as they arrived they were arrested by border patrols. They asked for political asylum. The claimant states that they had a rough time in California.

10.      J.G. and the step-father decided to return to El Salvador as the former had an invalid son who really needed his care and the step-father was worried about the family. The claimant states in his PIF 'My uncle (J.G.) and step-father were deported to El Salvador'.

11.      The claimant remained in the U.S.A., eventually going to New York where he was able to obtain a social security card and employment authorization.

12.      J.G. returned to El Salvador and, despite his fear of retribution from his former enemies, remained and continues to live there today. In order to avoid these persons, J.G. has relocated his residence.

13.      In approximately 1993, the claimant's family, including the mother, step-father, and three siblings, applied to the Canadian authorities in El Salvador and were given permission to come to Canada. They now reside in Winnipeg.

14.      In the beginning of February 1995, the claimant found out that a cousin of his, R.G., had been severely tortured by the authorities near his house because they saw him with J.G. However, because of neighbours' intervention the cousin was not killed but was hospitalized for a time.

15.      The claimant fears that if he returns he will be at risk because of his uncle, J.G.

    

[4]      There are a few facts missing from the reasons, such as the matters of the attacks on the applicant's house, death threats by telephone and other factors which play a large part of the applicant's apprehension, but seemed not to be worthy of mention by the CRDD.

[5]      After its statement of the facts the CRDD panel then expressed its analysis from which the Court extracts the following two passages:

The claimant answered questions in a straightforward and believable manner. There were no contradictions in his testimony. The panel finds him to be a credible witness.

The panel considered whether the claimant is at risk because of what happened to his cousin, R.G. The identity of the attackers is questionable. J.G. identified them from a description given to him. There is a real possibility that the experience of R.G. and, by extension, J.G., was due to the work of criminals. Criminal activity is reportedly high. There is no dearth of documentary evidence to support this.

[6]      The CRDD then did recite a report of the U.S. Department of State for 1995, dated March 14, 1996. That report does indeed state:

The level of criminal violence, particularly murder, assaults, kidnapping, robberies, and crimes against women and children, remained high.

Immediately following, however, it states:

Allegations of politically motivated assassinations continue, but are less frequent.

The report coyly does not mention the other forms of political violence by armed and brutal vigilantes of the old regime. Surely, it is not in the self-interest of criminals to frighten their intended victims into fleeing the district or the country.

[7]      The CRDD obviously erred in law in making the above two conflicting findings. The panel found the applicant to be straightforward and credible. They did not find that his fear of persecution was implausible. Indeed, their adverse finding dealt not with well-grounded implausibility - it was sheer speculation!

[8]      In considering an internal flight alternative, the CRDD erred in considering that a person going into hiding here and there is exercising an internal flight alternative.

[9]      The finding of a change in country conditions is a question of fact: Yusuf v. M.C.I. (1995) 179 N.R. 11 (FCA). also of importance here are the cases of Ahmed v. M.E.I. (1993) 156 N.R. 221 (FCA), and Boateng v. M.E.I. (1993) 64 F.T.R. 197 (Noel, J.).

[10]      The jurisprudence to date establishes that where there is a change in country conditions the CRDD is required to provide clear reasons for determining that the well-founded fear, which the applicant has expressed, no longer exists at all; and it must base this conclusion on solid evidence of effective and durable change, especially in light of attacks on the applicant's relatives by assailants of whom there is some evidence of their having already persecuted another relative on the State's behalf, into the time of armistice and the alleged change of conditions.

[11]      If there be a reasonable chance of the applicant's persecution upon his return to El Salvador, his expressed fear ought to be regarded as credible, for sooth, but ought also to bring him refugee status, as stated in Adjei v. M.E.I. 7 Imm. L.R. (2d) 169 (FCA).

[12]      So in postulating that R.G.'s attackers were motivated by garden-variety criminality and not by the political grudges they held against the uncle, J.G., although he identified them as such by description, the CRDD was indulging in unlawful speculation, rather than in lawful, well-based inference or a finding of plausibility. They took a documented category and applied it to the applicant's specific case without specific rational connection.

[13]      On another plane, neither the CRDD nor anyone else considered the effect of subsection 2(3) of the Act, which runs:

(3)      A person does not cease to be a Convention refugee by virtue of paragraph 2(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution.

That is a section which is applicable according to the circumstances to any person, not a mature person necessarily or an immature person, or someone who is developed or grown up or obtained a high school education, it is available to whomever it is available.

[14]      There is opposing jurisprudence regarding the CRDD's duty to consider subsection 2(3) in the appropriate circumstances of changed country conditions. Mr. Justice Wetston fixed the CRDD with such a duty where there were compelling reasons revealed in the evidence: Rasanayagam v. M.C.I. (1995). So also in Yong-Gueico v. M.C.I. (1997) where Mr. Justice Cullen held that failure to consider subsection 2(3) amounts to a failure to exercise jurisdiction.

[15]      In essence, the very definition of a Convention refugee requires the CRDD to make a finding with respect to past persecution proximate to the applicant, if not of the actual applicant, and to determine whether compelling reasons arose out of it, so as to neutralize the changed country conditions. This is for the CRDD to do on the appropriate case before it. It is not for this Court.

[16]      That the CRDD utterly ignored subsection 2(3) is a reviewable error, as was their flying speculation on the reasons or causes of attack on the applicant's cousin, also related to J.G. The danger to the applicant would not be generated only by residence with Jose, but also, and just as realistically, on relationship.

[17]      The CRDD made other questionable findings, but enough have been identified to cause the CRDD's decision to be quashed, as it is. The case of Marco Escobar is referred to a differently constituted panel of the CRDD for determination anew.