C.E.C.U. v. Canada (Minister of Citizenship and Immigration)

Between
C.E.C.U., applicant, and
The Minister of Citizenship and Immigration, respondent

[2003] F.C.J. No. 554
2003 FCT 393
Docket IMM-1434-02

Federal Court of Canada – Trial Division
Toronto, Ontario
Snider J.

Heard: April 1, 2003.
Judgment: April 2, 2003.
(18 paras.)

Counsel:

J. Byron M. Thomas, for the applicant.
Mary Matthews, for the respondent.

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REASONS FOR ORDER AND ORDER
1 SNIDER J.:— C.E.C.U. (the "Applicant") is a citizen of Costa Rica. He claims a well-founded fear of persecution based on his membership in a particular social group, namely that of former common-law spouses of Costa Rican women subjected to domestic and sexual abuse. His agent of persecution is M.D.C.R. ("M.D.C.R."), a former co-worker of the Applicant's former common-law partner, V.V.R.Q. ("V.V.R.Q."). In a decision dated February 28, 2002, Milagros Eustaquio of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") found the Applicant not to be a Convention refugee. The Applicant seeks judicial review of that decision.

Background

2 Since 1994, M.D.C.R. has been romantically pursuing V.V.R.Q, who has consistently rejected his affections. On April 28, 1995, M.D.C.R. raped V.V.R.Q., which resulted in the birth of her son E. on January 23, 1996.

3 V.V.R.Q. met the Applicant in August 1996; a relationship developed between them and they began living together in February 1998. From July 1998 to February 2000, both V.V.R.Q. and the Applicant were subjected to verbal abuse, threats and physical violence by M.D.C.R. The police refused to help V.V.R.Q. The Applicant did not report these incidents to the police, fearing that he would provoke M.D.C.R. further.

4 The Applicant and V.V.R.Q. fled Costa Rica for Canada in April 2000. They claimed refugee status upon their arrival in Canada on April 19, 2000. However, the strain arising from their problems in Costa Rica affected their relationship and the Applicant moved out of their home in April 2001. The refugee claims of V.V.R.Q. and the Applicant were disjoined. V.V.R.Q. was granted refugee status on July 30, 2001.

5 The Board accepted that the Applicant was persecuted by M.D.C.R. because of his relationship with V.V.R.Q. However, since the Applicant was no longer in a relationship with V.V.R.Q., the Board found that there was not a serious possibility that M.D.C.R. would persecute the Applicant should he return to Costa Rica today. As a result, his Convention refugee claim was denied.

Issues

6 The issues in this application may be stated as follows:

1. Did the Board err by concluding that the Applicant did not have a well-founded fear of persecution?

2. Did the Board err by rejecting the revenge motivation as a new spin on the Applicant's story?

Analysis

For reasons that follow, I am of the view that this application should not succeed.

Preliminary Issue: Standard of Review

7 Questions of credibility and weight of evidence are matters particularly within the Board's jurisdiction to decide. As a result, the appropriate standard of review is one of patent unreasonableness, which means that findings of credibility and of fact must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 at para. 4 (C.A.); Bennasir v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 513 (T.D.) (QL); Ndombele v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1211, [2001] F.C.J. No. 1690 (QL)). Even if this Court would have reached a different conclusion based on the evidence, the Board's decision should not be overturned unless it was perverse, capricious or made without regard to the evidence before it (Grewal v. Minister of Employment and Immigration, [1983] F.C.J. No. 129 (C.A.) (QL); Ankrah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 385 (T.D.) (QL); Boye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1329 (T.D.) (QL)).

Issue No. 1: Did the Board err by concluding that the Applicant did not have a well-founded fear of persecution?

8 This issue relates to the following portion of the Board's reasons, located at pages 5 and 6 of the Certified Tribunal Record:

While M.D.C.R. does not believe that the claimant and V.V.R.Q. are now separated, the panel finds that, should the claimant return to Costa Rica without V.V.R.Q., M.D.C.R. would likely be able to confirm – given his extensive connections with the police – that V.V.R.Q. is indeed no longer with him. Given M.D.C.R.'s history of resourcefulness and success in locating V.V.R.Q., I am not persuaded by counsel's arguments that M.D.C.R. will continue to believe that the claimant is merely hiding V.V.R.Q. I find that sooner or later, M.D.C.R. would find out the truth.

The Board restated this conclusion at page 7 of the Certified Tribunal Record:

should the claimant now return to Costa Rica without V.V.R.Q. (which is very likely given that V.V.R.Q. has been found to be a Convention refugee), it appears, from M.D.C.R.'s perspective, that the claimant has acceded to his demands. I therefore do not find that there is a serious possibility that M.D.C.R. would persecute the claimant should he return to Costa Rica today. As I do not find the claimant's fears to be well-founded, the claimant's claim must fail.

9 The Applicant submits that the Board erred in relying on its conclusion that it was "likely" the M.D.C.R. would eventually conclude that the Applicant was no longer with V.V.R.Q. In particular, the Applicant submits that the Board erred by relying on evidence which merely indicated that there was greater possibility than existed that M.D.C.R. might not persecute the Applicant (Chaudary v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 741 (T.D.) (QL)). The Applicant submits that the Board's own use of the words "sooner or later" is an admission that, at present, the current well-foundedness of the Applicant's persecution is ongoing. It is submitted that the Board failed to consider the crucial time after he returned to Costa Rica but before M.D.C.R. "sooner or later" discovered that the Applicant was no longer living with V.V.R.Q.

10 Hugessen J.A., writing for the Federal Court of Appeal in Yusuf v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 35 (C.A.) (QL), leave to S.C.C. dismissed, [1995] S.C.C.A. No. 102, at paragraph 2, discussed how the issue of changed circumstances should be addressed:

We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured.

11 In my view, there was evidence to support the Board's finding that the Applicant did not now have a well-founded fear of persecution (Yusuf, supra; Cerri v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1283 (T.D.) (QL)). M.D.C.R. was persecuting the Applicant because of his relationship with V.V.R.Q. The change of circumstances, namely the Applicant's separation from V.V.R.Q., was meaningful and effective enough to render the genuine fear of the Applicant unreasonable and without foundation (Cuadra v. Canada (Solicitor General), [1993] F.C.J. No. 736 (C.A.) (QL); Ahmed v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 718 (C.A.) (QL); Rahman v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 487 (C.A.) (QL)). Put simply, the reason that M.D.C.R. wanted to harm the Applicant no longer exists. Therefore, while his subjective fear may be quite real, that subjective fear does not have an objectively valid basis.

12 In addition, this case is distinguishable from Chaudary, supra. In that case, Reed J. held that the Board erred in denying the applicant's Convention refugee claim based on a "significant change in country conditions" because the documentary evidence went no further "than to express the hope, an expectation, that the political situation would stabilize" as a result of the change in government (Chaudary, supra at para. 5). In this case, the evidence clearly indicated that the Applicant's relationship with V.V.R.Q. was the reason that M.D.C.R. wanted to harm the Applicant. Aside from the Applicant's last minute explanation that M.D.C.R. also wanted revenge, which was properly rejected by the Board (see below), there is no indication that M.D.C.R. had any intention of harming the Applicant if he complied with M.D.C.R.'s demands to leave V.V.R.Q. As a result, this change in circumstances, unlike in Chaudary, supra, was significant and profound (Rahman, supra).

13 As admitted by the Respondent, the words "sooner or later" were poorly chosen. However, when the Board's conclusions on this point are read as a whole, the statement that "sooner or later, M.D.C.R. would find out the truth" is extraneous to the central conclusions of the Board.

14 Therefore, the Board's conclusion that the Applicant would no longer face a serious possibility of persecution in Costa Rica because his relationship with V.V.R.Q. had ended was not devoid of rationality (Rahman, supra) and was open to it based on the material before it.

Issue No. 2: Did the Board err by rejecting the revenge motivation as a new spin on the Applicant's story?

15 In the Applicant's submission, the Board erred by characterizing the revenge motivation as a "new spin" on the Applicant's original story. M.D.C.R.'s desire to seek revenge on the Applicant is a perfectly logical extension of his anger toward the Applicant for having failed to do as M.D.C.R. demanded. It was M.D.C.R.'s impression that the Applicant did not leave V.V.R.Q.; as a result, he is still after the Applicant for having "stolen" V.V.R.Q. from him. The Board also failed to consider that, in the 18 months since the Port of Entry (POE) notes were taken and the 14 months since the Personal Information Form (PIF) narrative was written, M.D.C.R.'s motivation could have changed. In so doing, the Board failed to consider any new evidence from after the original PIF narrative was drafted and erred by not having regard to the totality of the evidence before it (Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (C.A.) (QL); Frimpong v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 441 (C.A.) (QL)). In addition, the Applicant submits that the Board erroneously concluded that there was no motivation of revenge in the POE interview notes.

16 In my view, the Board did not err by rejecting the Applicant's revenge motivation as a new spin on his story.

17 Based on the evidence before the Board, it was not patently unreasonable for the Board to conclude that the motivation for M.D.C.R.'s persecution of the Applicant was to force him to leave V.V.R.Q. and not to avenge him for having stolen "his woman". The first time that the Applicant raised this explanation was when he was questioned by the Presiding Member. On the basis of the rest of the evidence, it is not unreasonable to conclude that the only reason that M.D.C.R. wanted to harm the Applicant was because he still believed that the Applicant was with V.V.R.Q. The Board was entitled to reject the revenge argument because it was not mentioned at the POE interview or in the PIF narratives (Grinevich v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 444 (T.D.) (QL) ; Barrera v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1174 (T.D.) (QL); Parnian v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 777 (T.D.) (QL); Karikari v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 586 (C.A.) (QL)).

18 Finally, there is no indication that the Board failed to consider the totality of the evidence; the fact that it did not specifically mention all of the evidence before it in its reasons is not sufficient to conclude that it ignored that evidence (Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102; Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL); Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946 (C.A.) (QL)).

ORDER
The Court orders that this application is dismissed. There is no question for certification.

SNIDER J.