Date: 20050125
Docket: IMM-2163-04
Citation: 2005 FC 108
Ottawa, Ontario, the 25th day of January 2005
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
Nelson Horacio DE-ROBLES
Pablo Sergio GONZALEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The unrefuted presumption of government protection so dominated the content of the first instance decision that it alone was the basis for the decision. Nevertheless, upon review of the complete decision, it became obvious that the assessment of credibility has its own well-settled rules and standards, which should not be overlooked, once such an assessment is undertaken! Accordingly, the first instance decision stands solely because of the presumption of government protection.
NATURE OF JUDICIAL PROCEEDING
[2] This is an application for judicial review, filed pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (the Act),[1]of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated February 12, 2004. In that decision, the Board determined that the applicants did not meet the definition of "Convention refugees" in section 96 nor that of "persons in need of protection" in subsection 97(1) of the Act.
FACTS
[3] The principal applicant, Pablo Sergio Gonzalez, and his spouse Nelson Horacio De-Robles, citizens of Argentina, alleged that they had a well-founded fear of persecution on account of their membership in a particular social group, homosexuals, and their alleged political opinions.
[4] The alleged facts as described by the Board are as follows. Mr. Gonzalez said that he was a political activist between 1973 and 1975, the year in which he was arrested and imprisoned until December 31, 1980. Those responsible for a massacre at the El Chaco prison on
December 12, 1996, were allegedly pardoned on two occasions, but in July 2002 the investigation into that massacre was reopened. Mr. Gonzalez said he offered to appear as a witness, and one of the persons charged was General Ricardo Guillermo Brinzoni. Beginning in August 2002, Mr. Gonzalez said that he received death threats from soldiers who allegedly told him: "If you go to Chaco to testify, we'll crush you and your little homo friend.". In view of these threats, Mr. Gonzales and Mr. De-Robles left Argentina on October 27, 2002, came to Canada and applied for asylum on November 7, 2002.
[5] Mr. Gonzalez also said that as he lost his employment in September 2001 it was impossible for him to find work in Argentina, since he is HIV positive.
IMPUGNED DECISION
[6] The Board dismissed the application for protection on the ground that the applicants' testimony was not credible. It further stated that, even if it had believed the story it was given, it would still have dismissed the application for protection because government protection was available in Argentina for Mr. Gonzalez and Mr. De-Robles.
ISSUES
[7] 1. Did the Board make a reviewable error in determining that the applicants did not rebut the presumption that the Argentine government was able to protect them?
2. Did the Board make a reviewable error in failing to address the risk of persecution resulting from the illness of the principal applicant?
3. Did the Board make a reviewable error in determining that the applicants were not credible?
ANALYSIS
1. Did the Board make a reviewable error in determining that the applicants did not rebut the presumption that the Argentine government was able to protect them?
[8] In Canada (Attorney General) v. Ward,[2] the Supreme Court of Canada held that unless the government apparatus has broken down completely, it had to be presumed that a state was capable of protecting its citizens. On account of that presumption, "clear and convincing confirmation of a state's inability to protect must be provided". Mr. Gonzalez must thus rebut this presumption by showing, by clear and convincing evidence, that the Government of Argentina was unable to protect him. Mr. Gonzalez did not submit such evidence to the Board.
[9] In its reasons, the Board cited passages from several items of documentation (Yahoo! News of July 29, 2003, Workers World of June 12, 2003, Le Devoir of July 25, 2003, BBC news of July 26, 2003) establishing that the Government of Argentina was not unable to protect its citizens since, following the accession to power of the new President Kirchner, the latter had taken steps to provide protection for citizens. In particular, it noted that President Kirchner
had agreed to extradite 46 persons sought by Spain for human rights violations during the
military dictatorship in Argentina (1976-1983), had replaced the Army Chief of Staff, General Ricardo Brinzoni, with another general and had forced more than half of the high-ranking members of the military to take early retirement. He stated that he would put an end to the impunity of former criminals of the dictatorship. The Board concluded that this documentary evidence indicated that the Government of Argentina had taken steps to protect its citizens, and in the circumstances there was a possibility that Mr. Gonzalez could obtain government protection if he were eventually to testify against one Casco, who allegedly participated in the massacre of political prisoners held in the same prison as Mr. Gonzalez in 1976.
[10] Mr. Gonzalez and Mr. De-Robles did not substantially address the question of government protection before the Court. It follows that the findings of the Board in this regard are unchallenged. The Court itself finds, based on the extracts from the documentary evidence cited by the Board that, in the case at bar, there was no complete breakdown of the government apparatus in Argentina. In fact, the evidence appeared to show that the Argentine justice system was operating and that, insofar as possible, President Kirchner was trying to ensure that justice was done and the law observed. Accordingly, there is nothing unreasonable in the Board seeing that "the principal claimant has the chance to obtain protection if he eventually had to testify against Casco".
[11] The fact that a government is acknowledged to be able to protect its citizens, as in the case at bar, in itself suffices to dismiss a protection application. Having determined that the Board did not err in coming to this conclusion in the case at bar, there is no need to proceed to analyse the other issues. Nevertheless, the Court will do so.
2. Did the Board make a reviewable error in failing to address the risk of persecution resulting from the illness of the principal applicant?
[12] Mr. Gonzalez and Mr. De-Robles argued that the Board made an error in analysing only the risk of persecution on account of their sexual orientation, without analysing the risk of persecution on account of the applicant's illness. In their submission, the latter risk of persecution takes the form of systematic discrimination against HIV-positive persons in the workplace. In other words, the applicants alleged it was impossible for an HIV-positive person to find a job. Without deciding whether the discrimination in the case at bar amounts to persecution, the Court notes that the Board dealt with the question of workplace discrimination at page 11 of its reasons:
Gonzalez testified that, after losing his job in September 2001, he had tried unsuccessfully to find work in the newspaper field twice in December 2001 and that subsequently, he had not looked for another job in this field. However, he had allegedly found a job in a bar/restaurant. Therefore, it is not true that it is impossible for him to find work in Argentina, and this undermines his credibility.
[13] The Board not only addressed the matter, but did so fairly as well. Mr. Gonzalez found employment, perhaps not what he would have liked, but employment all the same, to say nothing of the fact that he only made two attempts to find employment in journalism. The Board made no error with respect to this issue.
3. Did the Board make a reviewable error in determining that the applicants were not credible?
[14] It is well settled that on the question of credibility, as in the case at bar, the Board's error must be patently unreasonable if the Court is to intervene [Aguebor v. Canada (Minister of Employment and Immigration) (F.C.A.);[3] Pissareva v. Canada (Minister of Employment and Immigration);[4] Singh v. Canada (Minister of Employment and Immigration)[5]].
[15] The Board found several contradictions and inconsistencies in the applicants' testimony. Those relating to the fear of persecution felt by Mr. Gonzalez and Mr. De-Robles are particularly revealing. Replying to a question by his counsel as to what led Mr. Gonzalez to leave Argentina, he spontaneously stated that he had no choice because of AIDS, and later added that it was because of the death threats received. In the Board's view, these threats became a secondary reason, as the first reply was given quite spontaneously. This admission by Mr. Gonzales was not in any way denied by him and had a significant effect on the credibility of the story submitted by Mr. Gonzalez and Mr. De-Robles, in particular showing that these men did not leave their country primarily from a fear of persecution. Moreover, the Board properly noted that the threat or risk should not be caused by the government's inability to provide adequate health or medical care (subparagraph 97(1)(b)(iv) of the Act). With respect to the subjective fear of persecution, the Board noted that Mr. Gonzalez and Mr. De-Robles applied for a visitor's visa at the Canadian Embassy in Buenos Aires on August 14 or 15, 2002, that is after two of the five death threats: according to Mr. Gonzalez's testimony at the hearing, the first death threat was received on August 2, 2002. The Board also noted that Mr. Gonzalez had had an air ticket since September 5, 2002, but it was not until October 29, 2002 that he finally left Argentina.
[16] Other contradictions or inconsistencies found by the Board were not disputed by Mr. Gonzalez and Mr. De-Robles. Mr. Gonzalez said that he went to the Red Cross office seeking assistance regarding the threats received. However, he stated that he had not tried to obtain a document confirming that he had gone to the office. Accordingly, the Board concluded that he had not gone to the Red Cross office. Mr. Gonzalez also stated that he had not sought assistance from organizations such as the Centre for Legal and Social Studies because his health did not allow him to start struggling to find assistance. At the same time, there was nothing in the record to indicate that Mr. Gonzalez had received a summons to appear at the trial, and this led the panel to conclude that the telephone threats were invented, as it is rather unlikely that someone who was not being called to testify would be threatened. Mr. Gonzalez said that the trial might be held within four to five years, if it were to take place.
[17] Six other points also led the Board to find that Mr. Gonzalez and Mr. De-Robles lacked credibility. The Court will comment on these points. First, since the prisoners that were transferred from the prison on December 12, 1976, were hooded, the Board determined that it was impossible for Mr. Gonzalez to have recognized the prisoner Salas among those prisoners. The Board made an error in not ruling either at the hearing or in its reasons on the admissibility of Exhibit P-38 (e-mail from another former political prisoner held at the same prison as Mr. Gonzalez, confirming that prisoners could see the men before the latter were taken away). Regardless of the analysis the Board made of this exhibit and the evidentiary value it may have attached to it, the Board had to rule expressly on its admissibility since it was an exhibit dealing directly with several aspects of Mr. Gonzalez's testimony and it constituted corroboration of his testimony by a third party. Although significant, however, this error is not determinative as the final outcome of the case would be the same, quite clearly, as a result of the Board's unchallenged finding that the presumption of protection by the Government of Argentina was not rebutted [Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, Yassine v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 135 (F.C.A.)].
[18] Secondly, the Board found that it was unlikely that cell doors would have been open when the prisoners were moved on December 12, 1976. Nonetheless, the Court agrees with Mr. Gonzalez that it would have been suspicious to change the prisoners' schedule for what was supposedly just a transfer of prisoners from one institution to another. At the same time, the comment regarding Exhibit P-38, the admissibility of which was not decided by the Board, also applies to the conclusion regarding open cells.
[19] Thirdly, the Board concluded that there was no reason to think that prisoners transferred from the institution had been murdered (rather than killed because they tried to escape when they were transferred), since "it's one person's words against another's". The Court understands that, as the trial of the persons charged with killing these prisoners has not yet taken place and quite clearly no tribunal has yet found these individuals guilty, the Board was justified in thinking that their guilt had not been conclusively established. Moreover, the Board mentioned that it considered another item of evidence in the record, the Human Rights Watch Publication 2001 for Argentina, according to which General Brinzoni had admitted that there had been extra-judicial executions. However, in deference to the persons concerned and their relations, the Court would like to stress the importance of paying attention to the formula used when tragic events, here the death of political prisoners, are involved, even if the cause of those events is not definitely known.
[20] Fourthly, Mr. Gonzalez hesitated when the Board asked him about the third threatening call, and hesitated between two dates (August 14 and 15, 2002) as to the time when he approached the Red Cross seeking assistance in connection with the threats received. The Board is entitled to assign the weight that it sees fit to such hesitations, since it is the Board which has seen and heard the witness, and it must be given broad latitude in assessing credibility. However, the Court notes that there appears to be a contradiction in the Board's reasons regarding the significance of these hesitations. At page 2 of its reasons, the Board wrote the following:
[TRANSLATION]
However, the panel finds that Gonzalez testified very well in July 2003 and January 2004, except when the dates of the threatening phone calls, of his visits to the Red Cross and to the Canadian embassy to obtain a visa were involved, but this has no weight in the decision. [Emphasis by the Court]
However, at page 5 of the reasons the Board said something else:
As for the third call, he received it on either August 14, 2002 or September 4, 2002. The principal claimant hesitated for a long time regarding this call,which undermines his credibility.
The principal claimant testified that, on August 15, 2002, he had gone to the Red Cross offices, but then changed his testimony and said it was on August 14, 2002, and that on August 15, 2002, he had taken steps to obtain a visa for coming to Canada. Again, these hesitations undermine the claimant's credibility.[Emphasis by the Court]
The Board must be sure to write in a clear and precise manner so as to avoid ambiguities and the appearance of contradictions. That said, this error is not determinative as other points significantly detract from the applicant's credibility.
[21] Additionally, Mr. Gonzalez argued that his hesitations were due to the side-effects of the medication he was taking, and that these side-effects were not taken into account by the Board in assessing Mr. Gonzalez's testimony. The Court agrees with him that the Board misunderstood the document entered in evidence dealing with the side-effects of the new medication. The Board understood that the new medication made it possible to avoid side-effects. In actual fact, the new medication increased side-effects such as memory loss, somnolence and comas. However, that error was not determinative as the Board addressed the medication in its decision and noted that Mr. Gonzalez had testified very well on all the hearing days, except with regard to three specific points, which by implication indicates that true memory losses would have been more generally apparent than on three very specific points.
[22] Fifthly, Mr. Gonzalez filed a complaint with the police on October 17, 2002, but had already obtained an airline ticket to leave Argentina on September 5, 2002. The Court considers that there was nothing to offset the Board's serious doubts as the result of such actions by Mr. Gonzalez.
[23] Sixthly, in his Personal Information Form (PIF) Mr. De-Robles indicated he was only afraid of General Brinzoni, not of Casco as well, as he was in the El Chaco prison. The Board determined from this that the applicants had changed their story after General Brinzoni resigned. The Court considers that it was reasonable to consider some other explanation, i.e. that General Brinzoni was named by the applicants in their PIF as a leading figure in the massacre in the El Chaco prison and that they expected to testify at the hearing in greater detail about the persons involved. The fact that General Brinzoni resigned between the preparation of the PIF of Mr. Gonzales and Mr. De-Robles and the hearing does not change anything about the fact that he was or was not involved in the death of political prisoners. That said, the Court cannot go so far as to say the Board's determination on this point and on Mr. Gonzalez's general credibility was patently unreasonable, and that is the standard that must be applied in this case.
[24] In any event, as indicated earlier the case at bar could have been disposed of solely with reference to the presumption that the Government of Argentina was able to protect its citizens, a presumption which was not rebutted or challenged.
CONCLUSION
[25] Subject to the clarifications made in response to the third point at issue, the Board answers the three issues in the negative. Consequently, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that the application for judicial review at bar be dismissed. No question is certified.
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"Michel M.J. Shore" |
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Judge |
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2163-04
STYLE OF CAUSE: NELSON HORACIO DE-ROBLES and
PABLO SERGIO GONZALEZ
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 17, 2005
REASONS FOR ORDER AND ORDER BY: THE HONOURABLE MR. JUSTICE SHORE
DATE OF ORDER AND ORDER : JANUARY 25, 2005
APPEARANCES:
Sébastien Dubois FOR THE APPLICANT
Lucie St-Pierre FOR THE RESPONDENT
SOLICITORS OF RECORD:
SAINT-PIERRE, GRENIER FOR THE APPLICANT
Montréal, Quebec
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
[1] S.C. 2001, c. 27.
[2][1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 (QL), at para. 50.
[3](1993) 160 N.R. 315, _1993_ F.C.J. No. 732 (QL).
[4] (2001) 11 Imm. L.R. (3d) 233, _2000_ F.C.J. No. 2001 (T.D.) (QL).
[5](2000) 173 F.T.R. 280, _1999_ F.C.J. No. 1283 (T.D.) (QL).