X v. Immigration and Refugee Board of Canada

REASONS FOR JUDGMENT

Nicaragua (NIC)-El Salvador (SLV)-Honduras (HND) Negative-Males-Credibility-Exclusion clauses-Forced conscription-Nationality-Persecution for Political Opinion-Social Group persecution-Torture.

These are the reasons for the decision that xxxxxxxxxxxxx xxxxxxxxxxxxxxx is not a Convention refugee.

The claimant bases his claim to have a well-founded fear of persecution on his political opinion and membership in a particular social group. The claimant possesses a valid Honduran passport and claims fear of persecution from the authorities of that country.

The claimant's material allegations are as follows:

1.         He was born in Honduras of Salvadorean parents on xxxxxxxxxxxx, 1966. In 1972 the claimant moved with three siblings to his father's residence in Nicaragua. He was educated in and by the authorities of the country, spending some six years in school in Cuba. In 1985 he returned to Nicaragua, completed his education there and worked for the government in the area of forestry until December 1989 when he returned to Honduras because of fear of military conscription in Nicaragua. He returned to Honduras via El Salvador to visit his family.

2.         While In El Progreso, Honduras, the claimant worked as a tailor with his brother. In xxxxxxx 1990 he applied for and received a passport from the government authorities which is valid for five years until October 1995.

3.         On xxxxxxxxxxx, 1990, the claimant was taken to police headquarters, questioned and beaten by his interrogators for two hours. The claimant's brother, through the intermediary of a government official, was able to have him released from prison. He remained in El Progreso, Honduras.

4.         In December 1990, the claimant was chased by, but escaped from, the two individuals who had detained him on xxxxxxxxxxx, 1990. Hedeparted Honduras for Canada on January 3, 1991.

Assessment of Credibility

1.         Major elements of the claimant's evidence concerning his arrest, incarceration, torture and release from prison on xxxxxxxxxxx, 1990 are implausible:

i)          I find it implausible that someone would risk so much to help an unknown individual. This same person allegedly advised the claimant's brother, "...that it was dangerous for anyone to be seen assisting a known Communist."

ii)          The claimant alleged that the military was still looking for him after his release. Although he stayed "indoors" until the end of November, he ventured out to a party at a friend's house in December. He alleges that on his way home he was chased by two men--the same two men, in fact, who had originally detained him. He managed to elude them and return to his brother's house. I do not find this evidence credible. According to the claimant's earlier testimony, these two men had originally picked the claimant up at his brother's house. It is not plausible that they would not seek the claimant there the second time as well.

I have concluded that this claimant might have been arrested and even questioned by the authorities but that only in the fulfilment of their legally constituted duties. The allegations of torture, release and further flight from two individuals in December 1990 I have concluded are concoctions for the enhancement of a Convention Refugee claim.

2.         The claimant has alleged that he was being asked in early 1988 to complete his military service in Nicaragua. That he had received summons to appear at military headquarters just prior to his departure for Honduras in December 1989. However, documentary evidence shows:

Conscription Suspended. Nicaraguan President Daniel Ortega Saavedra announced Aug. 3 that the Sandinista government would suspend conscription into the armed services from Sept. 1 until after the February 1990 elections. He made the pledge to representatives of opposition political parties during a dialogue between the government and the opposition. [Exhibit No. 7.]

I have concluded that evidence regarding the claimant's possible conscription in Nicaragua is a concoction.

Issue

Despite these conclusions of credibility, the evidence requires that the exclusion clause be considered since the claimant was a resident of Nicaragua from 1972 to December 1989:

SCHEDULE

(Subsection 2(2)) Sections E and F or Article 1 of The United Nations Convention Relating to the Status of Refugees

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

Analysis

As in other proceedings of a civil nature, the balance of probabilities is the general standard of proof.

1.         The claimant has testified that he was not a Nicaraguan citizen but did have temporary residency status in that country. When asked to produce documentation to that effect he testified that he had lost all his documents of identification and residency in El Salvador on his trip from Nicaragua to Honduras in December 1989.

2.         The claimant testified that at the age of five he moved with three siblings "... to my father's residence in Nicaragua," after his mother died.

3.         The claimant was educated from 1973 to 1978 in Nicaragua; he was then sent along with others to be educated in Cuba at Nicaraguan Government expense (1979 to 1985) [Exhibit No. 3.] and completed his degree in Nicaragua in 1988. [Exhibit No. 2.]

4.         It was also during the period of 1985 to 1988 that the claimant testified he worked for the "...Government in the area of forestry" in Puerto Cabeza.

5.         From 1988 to December 1989 the claimant worked for a lumber company in Ocotal where "...I had moved to my father's residence."

6.         Documentary evidence [Exhibit No. 6.] also shows that in the Constitution of Nicaragua the following is found under

TITLE III: NICARAGUAN NATIONALITY

CHAPTER I

ART. 17 Persons originally from Central America have the right to apply for Nicaraguan nationality from competent authorities when they reside in Nicaragua, without having to renounce their previous nationality.

The claimant has testified that he enjoyed the rights of a Nicaraguan citizen. He was educated and travelled at government expense. His education was both at secondary level and post-secondary level. He was allowed to work. The claimant did not testify that he was denied any rights of Nicaraguan citizenship. It was only when he was asked to serve in the military that he fled his country of habitual residence. There is no evidence that the claimant has any strong moral or religious convictions against military service. I have concluded that he was prepared to enjoy the benefits of Nicaraguan citizenship as a resident but not to fulfil its obligations.

I have concluded that the claimant, xxxxxxxxxxxxxx xxxxxxxxxxxxxxx is excluded from claiming convention Refugee status because he is determined to have the rights and obligations which are attached to the possession of the nationality of Nicaragua. If the reasons to this point are not compelling, I add that the claimant has presented into evidence his birth certificate. [Exhibit No. 4.] It shows that, although born in Honduras, his parents were Salvadorean of nationality.

Exhibit No. 6 shows that in the Constitution of El Salvador, under

TITLE IV: CITIZENSHIP

Article 90 - The following are Salvadoreans by birth:

2nd - Children born of a Salvadorean father or mother, but born in a foreign country;

I conclude that the claimant has not availed himself of the protection of the Government of El Salvador where he also possesses citizenship.

The claimant has not shown with credible evidence that he has good grounds to fear persecution in Honduras or Nicaragua. In addition, he has led no evidence that he has good grounds to fear persecution in El Salvador, a country of which he is also a citizen. Finally, even if he had shown that he had good grounds to fear persecution in Honduras and El Salvador, he would be excluded from the definition of Convention refugee pursuant to Article 1E of the Convention because he is recognized by Nicaragua as having the rights and obligations of a citizen of that country.