Date: 20060808
Docket: IMM-5054-05
Citation: 2006 FC 954
Ottawa, Ontario, August 8,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JOSE GUILLERMO LOPEZ OCHOA
LESBIA ARACELY GARCIA DE LOPEZ
KELLY ADELAIDA LOPEZ
(a.k.a. KELLY
LOPEZ)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicants are Guatemalan citizens. The principal applicant (Applicant) is a
35-year-old male; the other, dependant applicants are his wife and minor child.
The other applicants relied entirely on the Applicant’s case which was based on
political persecution.
[2]
The
Immigration and Refugee Board (Board) denied the refugee application based on
its findings that there was no objective fear, no reasonable subjective fear
and, most importantly, the availability of state protection. This is the
judicial review of this negative decision.
II. Facts
[3]
The
Applicant claimed that he had been involved in recruiting for the Republican
Front Party (FRG). The FRG was the party of a former head of the Guatemalan government,
General (retired) Efrain Rios Montt – a government said to have engaged in
politically motivated murders.
[4]
The
Applicant alleged that he became the target of rival political parties. In early
2004 he began to receive anonymous death threats. The threats escalated and
when he went to the police and Public Ministry, they declined to help him
because they did not have the resources to protect him.
[5]
As
the threats continued and escalated, the Applicant left Guatemala and entered Canada in February
2005.
[6]
The
Board’s principal findings can be summarized as follows:
·
there
was insufficient evidence of objective fear because the only persons at any
risk are human rights leaders, of which the Applicant was not one;
·
the
subjective fear element was missing as the two adult applicants had worked in
the U.S., returning to Guatemala repeatedly, suggesting
economic migration rather than refugee migration; and
·
the
Applicant had not rebutted the presumption of state protection in Guatemala, a country
where there exists a functioning state apparatus that brings politically
motivated murders to justice, and as a document heavily relied on by the
Applicant (a police report) appeared not to be genuine due to its contradiction
with other evidence.
III. Analysis
[7]
The
Board’s finding of state protection would be sufficient to uphold the decision.
The Applicant, however, disputes this finding, arguing that the Board performed
a superficial analysis of the evidence of state protection.
[8]
While
there may be some issue in this Court as to the standard of review on questions
of state protection (reasonableness versus patent unreasonableness), it
is unnecessary here to resolve that matter. For purposes of this analysis, the
less deferential standard of reasonableness is applied.
[9]
It
is evident that the Board turned its mind, in some detail, to the issue of
state protection and referred specifically to both the Human Rights Watch World
Report, Guatemala,
2003
and the U.S. Department
of State Report – Guatemala Country Reports on Human
Rights Practices – 2003. The 2004 Department of State Report was not
available at the time of the Board hearing.
[10]
A
key problem with the Applicant’s position is that he was held not to be
credible on major issues touching on state protection. Credibility findings are
held to a standard of review of patent unreasonableness. (Aguebor v. Canada
(Minister of Employment and Immigration) (1993), 160 N.R. 315)
[11] There was an issue as to when the
Applicant’s problems with threats began; early 2004 or July 2004. While this
matter would not, in itself, sustain the adverse credibility finding, it is a
factor in the overall assessment of his story.
[12] The more damning evidence was the
inconsistency between his Personal Information Form (PIF) where he says he was
shot by a machine gun, his testimony where the incident is described as a
single shotgun shot, and the police report which makes no mention of the use of
a firearm. The exaggeration goes directly to the Applicant’s credibility on the
subjective elements of his refugee claim. To attempt to explain away the
difference of machine guns versus shotgun as immaterial is to ignore the
significant difference between the nature and character of the two weapons and
to stretch credibility.
[13] The Board had at least reasonable
grounds for its finding that state protection was available to the Applicant
and for its findings on credibility.
[14] Therefore, this application for
judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is dismissed.
“Michael
L. Phelan”
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