Date:
20100223
Docket:
IMM-4545-09
Citation: 2010
FC 195
Montréal, Quebec, February 23, 2010
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
PEREZ ROCHA Jose Miguel
LARA BALDERAS Maria Guadalupe
PEREZ LARA Daniela
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the decision
dated August 18, 2009, by the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the panel), that the applicants are
not Convention refugees.
[2]
The male
applicant, Jose Miguel Perez Rocha, his wife,
Maria Guadalupe Lara Balderas, and their daughter,
Daniela Perez Lara, are all citizens of Mexico. They allege that
they fear death at the hands of René Ballesteros. The applicant was at
fault for a car accident on August 23, 2003. Mr. Ballesteros was
the victim. In August 2004, a court found the applicant guilty and
ordered him to pay compensation to Mr. Ballesteros. Dissatisfied
with the compensation awarded, Ballesteros demanded more money from the
applicant and threatened to kill him.
[3]
The
applicants fear that if they are sent back to their country, they will be
killed by Mr. Ballesteros.
[4]
The panel
rejected their claim because it found the applicants not to be credible and
found that they did not reasonably explain their delay (15 months for the
principal applicant) in claiming protection in Canada.
[5]
The
inconsistencies in the evidence raised by the panel with respect to the
credibility of the applicants is detailed and set out in the decision. These
inconsistencies do not relate to incidental or secondary aspects. They are
at the heart of the applicants’ claim. The panel had the benefit of hearing the
testimony and of gauging the witnesses’ reactions and answers. (Aguebor v.
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, at
para. 4 (QL)).
[6]
The panel’s
findings concerning the effect of the delay in applying for protection is
related to the applicants’ credibility (Valera v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1384, [2008] F.C.J. No. 1775, at
para. 13 (QL)). This is a question of fact and the appropriate standard of
review is reasonableness (Gutierrez v. Canada (Minister of Citizenship and
Immigration), 2009 FC 487, [2009] F.C.J. No. 617 (QL); Dunsmuir v. New‑Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190). Consequently, the Court will only intervene
if the decision does not fall within a range “of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, at para.
47).
[7]
In Huerta
v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225
(F.C.A.) (QL), the Federal Court of Appeal stated that the “delay in making a
claim to refugee status is not a decisive factor in itself. It is, however, a
relevant element which the tribunal may take into account in assessing both the
statement and the actions and deeds of a claimant”. It is clear in its reasons
that the panel considered the applicants’ explanations, but rejected them.
[8]
The panel
did not accept the explanation that the applicants lacked knowledge to file
their claim, nor the fact that they simply were waiting for things to calm
down. The applicants did not submit any evidence in this case that showed that
the panel erred on this point. Even though in other circumstances, the Court
has already found that even longer delays were not determinative, in this case,
I can conclude no such thing. The delay in claiming refugee status may
certainly raise doubts as to the subjective fear of the applicants.
[9]
In this
case, the evidence demonstrated that the female applicants returned to their
country after staying in Canada.
[10]
The panel
may conclude that the fact of returning to the country where the male applicant
feared persecution makes the existence of such a fear unlikely (Kabengele v.
Canada (Minister of Citizenship and Immigration) (2000), 197 F.T.R. 73 at
para. 41 (QL)). The panel did not accept the explanation that the female
applicant did not fear returning to Mexico because only the male applicant had
been directly threatened. Nothing indicates that the panel’s conclusion in this
regard is unreasonable or that the panel did not consider all the
evidence submitted.
[11]
The
Court’s intervention in this case is not warranted.
[12]
No
question of general importance was proposed and none arises from this case.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Monica
F. Chamberlain
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