Menjivar is not recent but it’s an interesting case about the Board’s unreasonable findings of impugned credibility based on irrelevant details in the claim. The Court also noted that hasty decisions from the Board point to an unfair hearing.
Mr. and Mrs. Navarrete Menjivar (the Applicants) testified that they were union activists for STISS in El Salvador. They were involved in a major strike in San Salvador. They were fired from their jobs allegedly due to their participation in the strike. They were later beaten up and threatened that they would be killed. They were afraid to inform the police about the attack because they thought that the men who threatened them were affiliated with the police. They were also threatened with death after they were involved in assisting a left-wing candidate in a bid for a presidential election. The family flew to New York and stayed there for five days before coming to Canada. They said that they did not claim refugee protection in the US because they did not “have confidence in the politics of the US.”
The Board’s Decision
The Board found that the Applicants were not Convention refugees, nor were they persons in need of protection. The Board noted that the constitution of El Salvador allows for protection against discrimination of trade unions. The Board found that it was unreasonable for the Applicants not to seek redress for their assaults. The Board dismissed a letter from a trade union that was submitted in support of their application as biased in favour of unions.
The Board also found that the Applicants lacked credibility. They appeared to waver on the question about the police treatment of the protestors. They did not disclose the last name of their friend who advised them to come to Canada. The Board found that the Applicant’s sojourn in the US was more like a vacation or planned and leisurely immigration and was inconsistent with their well-founded fear. Lastly, the Board made an adverse credibility finding based upon the fact that the husband and wife stated that the reason for their dismissal from work, i.e. their involvement in the protests, was stated in their letters of dismissal, when in fact there was no such mention.
The Court found that in essence the Applicant’s concerns amounted to their assertion that the Board was biased against union activity. The Applicants claimed that the Board’s use of pejorative language such as “mob” and “anarchy” with respect to the protestors, disregard for a document prepared by the International Confederation of Free Trade Unions and the sarcastic tone adopted by the presiding member all amounted to a finding of bias.
The Court stated that the test for bias is described in Committee for Justice and Liberty v Canada (National Energy Board) (1976),
[…] the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” [Underlining added]
The Court noted that the onus was not met in this case.
Before analyzing the Board’s findings on credibility, the Court cautioned that according Djama v Canada,  FCJ 531 (FCA) where adverse credibility findings are based on contradictions in evidence, the inconsistencies must be sufficiently serious and matters of concern must be of adequate relevance to justify the finding of incredibility.
The Court noted that while credibility findings are reviewed on the most deferential standard, the following concerns arose with the Board’s reasons:
- First, the Board found that Mr. Navarrete Menjivar did not have a sufficient profile to be targeted. It relied on the previously discredited union letter to conclude that only “union leaders” were targeted. The Court noted, however, that the US DOS Report observed that dozens of strike leaders and their family members reported being threatened. The Court noted that the Board should have analysed whether the Applicants would have been perceived as strike leaders. The letter from the strike leader Mr. Monge, confirming the telephone threats was also missing from the analysis.
- Second, the Board found inconsistencies with resect to what the police said to the demonstrators to make them disperse. The Member asked whether the police shouted instructions at them and was told no. Later the Applicants said that the police said offensive things to them. The Court found that the Board mischaracterized the testimony as inconsistent since earlier the Applicants denied that the police said anything. The Applicants never denied that the police spoke to them. They denied that they provided any instructions.
- Third, the Board found it implausible that someone recommended that they come to Canada and yet the Applicants hesitated recalling that person’s name. The Board allocated significance to the hesitation over the last name. The Board failed to consider the possibility that if a person really has been a victim of persecution or abuse by people in authority, it may well be natural to hesitate before revealing names to persons in a position of authority.
- Fourth, the Board noted that the sojourn in the US was inconsistent with the well-founded fear. Refugee claimants are not obliged by the Convention to seek asylum in the first country they reach. The brief 4-5 days duration in the US, the explanation that was provided for not making a claim in the US and the lawful status while in the US all make it unreasonable for the Board to impugn their credibility because they did not claim refugee protection in the US.
- Finally, the Board found inconsistencies with respect to the letter of termination. The Board exaggerated the importance of the Applicant’s initial statement that the letter of termination set out his participation in union activities as the cause of the dismissal. The Board ignored the clarification that the Applicants provided later that the letter simply confirmed their termination. The Board did not consider the plausibility of a claimant embellishing the claim by mis-stating the content of a document already in evidence that spoke for itself.
3) State Protection
The Board also found that state protection was available to them. The Board had the onus to make the findings of fact on state protection (Muszynski v Canada,  FCJ 1329). In this case the Board found that documents spoke of the police being prosecuted and fired through ordinary disciplinary actions.
The Court noted that the overwhelming evidence from the US DOS Report and RPD’s Country of Origin Research demonstrate that state protection was unavailable. The reasons of the Board were superficial in concluding that the prosecution and disciplining of police officers established state protection. The reasons of the Board did not adequately support its conclusions with respect to state protection.
The Court concluded by noting that in the present case after hearing the submissions, the Board immediately launched into its reasons, which were 15 pages long. As such the Court endorsed Justice Kelen’s statement in Martinez v Canada, 2005 FC 1617, that haste may indicate that an applicant did not receive a fair hearing and “[t]his may be compounded where the Board Member reads a 13-page decision at the end of the morning of the hearing.”
The application for judicial review was allowed and the decision of the Board was set aside. The matter was remitted for redetermination by a differently constituted panel of the Board.
The Treatment of Menjivar in Subsequent Decisions
Bocangel v. Canada, 2006 FC 977:
In this case the Court cited Menjivar for the proposition that the Board had to undertake a proper contextual analysis of the evidence and a failure to do so would make the decision unreasonable.
The Applicants were members of a Bolivian political opposition group. Their application was rejected based on adverse credibility and plausibility conclusions made in connection with the evidence of the principal applicant. The principle applicant was actively involved in political opposition groups and provided ample uncontradicted evidence supporting that. He claimed that he was threatened and targeted by the Bolivian authorities on three occasions and that he and other members of his family had been repeatedly threatened because of his political involvement in opposition to the Bolivian government.
The Board concluded that Mr. Carrillo was an unreliable witness based upon its finding of implausibility and testamentary inconsistencies. The Board said that it was implausible that the Bolivian police would wait for political opposition groups to reach their destinations before confronting them and, instead, would more likely have stopped them on the road. There was no evidence that members of the political opposition party or its leader, Mr. Morales, had been persecuted by the authorities. It was a material omission not to mention that the authorities had been advised to deliberately set fire to his home. The Board noted of various discrepancies and implausibilities with respect to one of the incidents when the Applicant was beaten during an uprising. It found that it was implausible that the judicial police would ignore Mr. Carrillo’s evidence of mistreatment by the Bolivian authorities. Mr. Carrillo’s evidence of barriers to the political involvement of the indigenous population was inconsistent with the documentary evidence and was, therefore, not believable. It rejected as unreliable the key evidence that he related concerning the episodes of the burning of his home and the beating and gunshot injury.
The Court noted of the Board’s failure to place much of the evidence into the broader, and essentially undisputed, context of Mr. Carrillo’s political involvement at a time of profound political and social unrest in Bolivia. Notably, the Board decision relates almost nothing about Mr. Carrillo’s political activity or his profile as a leader of the political opposition in Bolivia. The decision also virtually ignores key elements of the apparently reliable United States Department of State Report for 2003 detailing a background of political unrest and violence across Bolivia in 2002 and 2003. The Board’s conclusion that the principle Applicant faced no more than a generalized risk of harm in Bolivia is difficult to reconcile with the uncontradicted evidence of his political profile and the situation of political and social unrest in that country in 2002 and 2003. Citing Menjivar, the Board noted that the Board failed to conduct a contextual analysis of the evidence, making the decision unreasonable.
RPD File No. VA8-02028,  R.P.D.D. No. 59:
In its 2010 decision, the RPD cited Menjivar for the proposition that there is no provision in the Convention that obliges claimants to seek asylum in the first country they reach. However, the claimant’s explanation for not doing so must be considered in order to determine whether the claimant’s behaviour is evidence of a lack of subjective fear. In considering the principal claimant’s explanation, the panel finds that the principal claimant did not satisfactorily explain why she returned to Nigeria if she was in a safe place. The principal claimant’s professional work does not surpass the importance of the safety of her children, the panel finds, and such behaviour undermines the subjective fear element to this claim.