Federal Court Decisions

Date: 19971211

Docket: IMM-4723-96

BETWEEN:

     JEANNETTE GREY MORERA ORTEGA,

     Applicant,

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

MCGILLIS, J.

FACTS

[1]      The Immigration and Refugee Board ("Board") rejected the refugee claim of the applicant on the basis that she would not face a reasonable chance of persecution in the Dominican Republic "..at the hands of her ex-husband or any criminal that he might employ to harm her."

[2]      The evidence in the record indicates, among other things, that the applicant was physically abused by her husband Polivio Antonio Pepin Enriquez ("Pepin") during their marriage. Following their divorce and several years of separation, the applicant decided to allow the children of the marriage, who lived with her in the Dominican Republic, to join Pepin in Canada. Pepin, who had permanent resident status in Canada, travelled to the Dominican Republic to take the children back to Canada. However, on his arrival in the Dominican Republic, he was arrested on drug trafficking charges, and was sentenced to five years imprisonment. His sentence was reduced to three years imprisonment on appeal. Despite Pepin's incarceration in the Dominican Republic, the applicant nevertheless sent her children to Canada to live with a relative. She did not disclose to the immigration authorities that Pepin had been imprisoned in the Dominican Republic on drug trafficking charges.

[3]      During Pepin's incarceration in the Dominican Republic, the applicant visited him every few months. As a result of their visits, she believed that he had changed his behaviour. Following Pepin's release from prison and his return to Canada, the applicant began to make the necessary arrangements to immigrate to Canada in order to marry Pepin and to join her children. The applicant came to Canada and began living with Pepin and her children in Montreal in approximately September 1994. Once she began living with Pepin in Canada, she discovered that he was involved with other woman, including one who was pregnant with his child. She also discovered that he was involved in drug trafficking and prostitution.

[4]      In December 1994, the applicant threatened to tell the police about his illegal activities. As a result, Pepin threatened the applicant with a knife, but did not harm her due to the intervention of their son. The applicant did not call the police because she "did not speak the language" and "had no [immigration] papers."

[5]      In February 1995, the applicant told Pepin that she would report him to the police. Once again, he threatened her with a knife.

[6]      In March 1995, the police searched their residence and located drugs. Pepin was not at home at the time. The applicant was arrested and charged with trafficking in a narcotic. Shortly thereafter, Pepin was charged with possession of a narcotic for the purpose of trafficking and other related offences.

[7]      The applicant did not return home following her arrest, as she was afraid to do so. She took her two daughters and moved to a shelter for abused women in Ottawa. On March 31, 1995, a judge of the Ontario Court of Justice (General Division) awarded interim custody of the two daughters to the applicant. He also ordered, among other things, that Pepin was restrained from molesting, harassing or annoying the applicant or from contacting her directly or indirectly.

[8]      A few months later, the applicant's son found out where she was living and started calling her. Apparently, the telephone number of the shelter had been inadvertently included on some legal documents which had been served on Pepin. On one occasion, Pepin called the shelter, pretending to be the applicant's son. Pepin spoke to the applicant, and stated that she "...had taken away a piece of his life by taking away the girls...". He further stated that she would "pay dearly" for having taken away the girls.

[9]      The applicant and her two girls moved out of the shelter after about six or seven months. At her home, she had an unlisted telephone number which she gave to her son, who was seventeen years old at the time, on the condition that he not reveal it to Pepin. Her son, who lived with Pepin, called and visited her regularly. Pepin only called her on the one occasion, at the shelter.

[10]      During the course of the hearing, the applicant testified that Pepin had called her mother, as well as an aunt in New York. Pepin told her mother and aunt that, whenever he found the applicant, he would kill her. He also stated that he would send her back to the Dominican Republic in a coffin. The applicant further testified that Pepin thinks that he was charged with the drug offences because of statements made by her to the police.

[11]      At the hearing, Mercedes Paredes, a Canadian citizen, testified on behalf of the applicant. Ms. Paredes is a church missionary who has worked in the Dominican Republic at various times. During one of her postings in the Dominican Republic, she met Pepin while he was incarcerated and serving his three year sentence for trafficking in narcotics. He was involved in Bible study in prison, and she thought that he was a good and humble person. Her involvement with Pepin and his family continued, and she dealt with them extensively in Montreal. Approximately six months after Pepin's return to Canada, he reverted to his "old ways", and was expelled from the church for bad behaviour. Pepin treated the applicant in an abusive manner while they lived together in Montreal. Eventually, Ms. Paredes helped the applicant leave Pepin, and made the necessary arrangements for her to seek refuge in a shelter in Ottawa. Ms. Paredes testified that Pepin had bragged to her that he was an "enforcer", and that he had broken people's legs. She also testified that Pepin blames the applicant for everything that has happened to him. Pepin spoke to Ms. Paredes on one occasion after the departure of the applicant. During that conversation, he stated that the applicant was a "very bad woman" for taking his daughters away from him.

[12]      The applicant was convicted of trafficking in a narcotic and received a suspended sentence and a period of probation. The judge who sentenced the applicant stated that he would have sentenced her to six months imprisonment, but that the interests of the community would be better served by having her look after her daughters. He also noted that the applicant had lied in her testimony at trial.

[13]      In June 1996, just prior to the applicant's hearing before the Board, Pepin pleaded guilty to five narcotics offences and was sentenced to six months imprisonment concurrent on each charge.

THE BOARD'S DECISION

[14]      In its decision, the Board focussed on whether the applicant would have a well founded fear of persecution in the Dominican Republic. In its analysis on that question, the Board made four adverse findings of credibility against the applicant. Following its adverse findings of credibility, the Board stated as follows:

The claimant's ex-husband knew where she was in the shelter and contacted her there once. She remained there for approximately four months without him contacting her again or making threats against her. Since then the claimant's ex-husband has known where she was, their son lives with him and visits the claimant regularly. There have been no incidents of visits to her or direct threats against her by the ex-husband since then to date. The panel cannot find in this evidence serious pursuit of the claimant by her ex-husband.

It seems as if the claimant's ex-husband has been tried and sentenced for the offences which also resulted in the claimant's arrest and subsequent sentence. There was no evidence presented which indicates that the claimant was a witness at this trial or that that the husband was convicted because of information provided by the claimant to the police. Given this and the lack of evidence of pursuit by the ex-husband the panel finds insufficient evidence to support the assertion by the claimant that her ex-husband blames her for his arrest.

The claimant asks us to speculate that her ex-husband might be deported from Canada and that if he is he will blame the claimant and take revenge in the D.R. The panel cannot so speculate. The claimant's ex-husband may become the subject of action by the Immigration department. However this panel has no evidence that such action has begun, is imminent or even likely. There is simply no evidence to suggest to this panel that the claimant's ex-husband is likely to be in the D.R. to be a threat to her even if we were to have found that he had made serious efforts to pursue her in Canada.

     ...

The claimant asserts that if she were to be in the D.R. her ex-husband has sufficient funds and knows enough people who would do things for money, that her life would be in danger, even if he remained in Canada. The panel has not found evidence of serious pursuit of the claimant in Canada by her ex-husband, and given his criminal background and the type of criminal activity he was engaged in it does not seem unreasonable to assume that he would have acquaintances who would do things for money, including threatening or harming his ex-wife. He had time to do this before his trial in September 1995 if he believed that she had information that could be damaging to his case and yet there is no evidence of it. The panel finds it to be unsubstantiated speculation on the part of the claimant that her ex-husband would have an interest or ability to harm her in the D.R. while he is in Canada.

For all the above reasons the panel cannot find credible evidence that the claimant faces a reasonable chance of persecution at the hands of her ex-husband or any criminal that he might employ to harm her. Having thus found, the panel need not address the issue of state protection in the D.R.

ANALYSIS

[15]      Counsel for the Attorney General of Canada conceded that the adverse findings of credibility related to matters which were peripheral and not central to the Board's conclusion that the applicant had failed to adduce sufficient evidence to establish the well founded nature of her claim of persecution. He also conceded that Pepin had made serious threats against the applicant in Canada.

[16]      A review of the decision indicates that the Board placed great reliance in its analysis on the lack of any evidence of "serious pursuit" of the applicant by Pepin. However, the Board failed to consider in its decision the existence of the restraining order which precluded Pepin from communicating with the applicant. Given the importance of the "lack of evidence of pursuit" in its analysis, the Board erred in failing to consider the evidence of the existence of the restraining order, and the effect that such an order may have had on Pepin's actions.

[17]      The Board also used the "lack of evidence of pursuit" as a factor in concluding that there was "...insufficient evidence to support the assertion by the claimant that her ex-husband blamed her for his arrest." However, the Board made no adverse finding of credibility against the applicant or Ms. Paredes concerning their unequivocal evidence that Pepin blamed the applicant for his arrest, and that he had made threats about the applicant to her mother and her aunt. In my opinion, it was not open to the Board to disregard the sworn evidence of the two witnesses on that crucial aspect of the testimony, in the absence of an adverse finding of credibility. The error made by the Board in ignoring the sworn evidence was further compounded by its reliance on the "lack of evidence of pursuit" as a factor in determining that there was "insufficient evidence", without considering the impact, if any, of the restraining order.

[18]      Given the errors made by the Board in these crucial aspects of its analysis, the decision cannot be permitted to stand.

DECISION

[19]      The application for judicial review is granted. The decision of the Board is quashed and the matter is remitted to a differently constituted Board for rehearing and redetermination. The case raises no serious question of general importance.

________________________

Judge