Docket: IMM-5949-11
Citation: 2012 FC 412
Ottawa, Ontario, April 11,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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CID ONASIS CALDERON GARCIA
JUAN JAVIER CALDERON MOLINA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated July 15, 2011.
The Board found that the Applicants were not Convention refugees or persons in
need of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27.
[2]
For
the reasons set out below, the application is dismissed.
I. Facts
[3]
Cid
Onasis Calderon Garcia, and his father, Juan Javier Calderon Molina, are
citizens of Mexico
(collectively the Applicants). They made refugee claims in Canada based on the
threat posed by members of organized crime, or the Los Zetos. The father
alleged robberies, extortion and physical assaults at his business while the
son referred to two instances of robbery and mugging leading to injuries
requiring medical attention. They also insisted that police did not pursue the
incidents.
II. Decision
Under Review
[4]
As
a preliminary matter, the Board addressed its decision to proceed although the
Applicants did not have counsel to represent them at the hearing. The
Applicants were notified that the hearing would be held on a peremptory basis. Despite
the father’s reluctance to proceed, the Board found it appropriate to do so
since he “had not made a concerted effort to find a representative” with a
single telephone call.
[5]
Addressing
the nineteen month delay in bringing a refugee claim in Canada, the Board
found this undermined the Applicants’ credibility with respect to any serious
harm or risk to life if returned to Mexico. The delay was
considered fatal to both refugee claims.
[6]
Further
adverse credibility findings were drawn from the Applicants’ failure to provide
independent corroborative documentation related specifically to the business
and from Mexican police. The Board noted that the testimony was vague and
evasive on these points. In addition, the Applicants’ explanation for losing
Mexican documents was not considered credible.
[7]
At
paragraph 25, the Board stated:
For these cumulative reasons,
the Panel cannot extend the benefit of the doubt to the principal claimant with
regard to the credibility of his narrative because he did not establish that he
made genuine efforts to provide any evidence of any type with regard to the
existence of his door and closet business in Mexico City or these alleged
robberies and extortion attempts by the Los Zetos, which are central elements
to his claim.
[8]
As
victims of crime, the Applicants did not have a link to a Convention ground. Similarly,
the Board concluded that, on a balance of probabilities, the risk to the
Applicants is one faced generally by the population of Mexico.
III. Issues
[9]
This
application raises the following issues:
(a) Did the Board err in
misconstruing evidence as to the Applicants’ identities?
(b) Did the Board err in making
negative credibility findings?
IV. Standard
of Review
[10]
Questions
of fact and credibility are reviewed according to the reasonableness standard (Aguirre
v Canada (Minister of Citizenship and Immigration), 2008 FC 571, [2008] FCJ
no 732 at paras 13-14; Canada (Citizenship of
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras
45-46).
[11]
Applying
this standard, the Court must assess “the existence of justification,
transparency and intelligibility within the decision-making process” as well as
whether the decision “falls within a range of possible, acceptable outcomes” (Dunsmuir
v New
Brunswick,
2008 SCC 9, [2009] 1 S.C.R. 190 at para 47).
V. Analysis
A. Error
in Applicants’ Identities
[12]
The
Applicants take issue with the error in the first paragraph of the Board’s
decision referring to Cid Onasis Calderon Garcia as the “principal claimant”
and Juan Javier Calderon Molina as his son. In reality, the reverse is true as
Juan Javier Calderon Molina is Cid Onasis Calderon Garcia’s father. According
to the Applicants, this erroneous finding of fact carries throughout the entire
decision. They argue the Board’s confusion with identity necessarily implies
the assessment of their refugee claims was unreasonable.
[13]
The
Respondent maintains that the inversion of the Applicants’ names was a
typographical error limited to the first paragraph of the decision. It had no
impact on the analysis or conclusion. Confusion did not arise as to the
substance of their claims or issues associated with credibility. Moreover,
many of the findings apply to both Applicants simultaneously. There was no
real misunderstanding of the evidence.
[14]
Having
reviewed the decision, I must agree with the Respondent’s position. Although
regrettable, the error did not affect the Board’s overall assessment of the
claims. The father as the principal claimant is consistently referred to as
having a business threatened by the Los Zetos. His son’s narrative refers to
mugging and robbery that led to injuries requiring medical treatment. In this
regard, there was no confusion between the two stories. The error is not
material to the overall findings made by the Board with respect to both
Applicants.
[15]
In
making this finding, I rely on the reasoning in Huseynova v Canada (Minister of
Citizenship and Immigration), 2011 FC 408, [2011] FCJ no 527 at para 7
as highlighted in the Respondent’s submissions. Justice Michael Phelan expressed
concern about an error as to the name of the country and organization relevant
to the applicant but found that it “was not fatal to the reasonableness of the
decision” given the Board understood her nationality and assessed her situation
accordingly. The error was considered immaterial.
[16]
In
this case, confusion associated with the names of the Applicants in the first
paragraph is similarly not sufficient on its own to make the Board’s
determination unreasonable.
B. Credibility
Findings
[17]
I
also find no error in the Board’s assessment of credibility that warrants the
intervention of this Court.
[18]
The
Applicants assert that the Board erred in rejecting their claim based solely on
the delay in claiming and a lack of supporting documentation. However, this
position is not supported by the Board’s decision or related jurisprudence.
[19]
Delay
in making a refugee claim “is not a decisive factor in itself” but it is a
“relevant element which the tribunal may take into account in assessing both
the statements and the actions and deeds of a claimant” (Huerta v Canada
(Minister of Employment and Immigration) (1993), 157 NR 225, [1993]
FCJ no 271 (CA)). It is reasonable to expect that the Applicants would make a
claim at the first possible opportunity (see Jeune v Canada (Minister of
Citizenship and Immigration), 2009 FC 835, [2009] FCJ no 965 at para
15).
[20]
Recent
jurisprudence also suggests that while the delay itself is not determinative,
it “may, in the right circumstances, constitute sufficient grounds upon
which to dismiss a claim” (Duarte v Canada (Minister of
Citizenship and Immigration), 2003 FC 988, [2003] FCJ no 1259 at para
14). Absent a satisfactory explanation for the delay, it “can be fatal to such
claim, even where the credibility of an applicant’s claims has not otherwise
been challenged” (Velez v Canada (Minister of
Citizenship and Immigration), 2010 FC 923, [2011] FCJ no 1138 at para
28).
[21]
While
the Board implied that the nineteen month delay in this instance would be fatal
to the claims, it proceeded to raise several other issues associated with the
Applicants’ credibility, notably evasive testimony and the lack of
corroborating documents. It is evident from the remainder of the decision that
the delay was a significant factor, but hardly the only basis for the negative
credibility findings. The Board stressed that there were “cumulative reasons”
for its conclusions regarding the Applicants.
[22]
As
a consequence, the Applicants’ reference to Juan v Canada (Minister of
Citizenship and Immigration), 2006 FC 809, [2006] FCJ no 1022 at para
11 is of limited assistance. In that case, Justice Eleanor Dawson faulted the
Board because its “finding with respect to delay is, by itself, an insufficient
basis for maintaining its denial of the claim.” In contrast, the Board’s issue
with the Applicants’ story was the delay in conjunction with other relevant
factors. In addition, more recent jurisprudence referred to above, suggests
there are certain circumstances when the delay would be fatal to the claim.
[23]
Given
various credibility concerns raised, it was also reasonable for the Board to
seek some independent documentary corroboration. This was one of many factors
considered in the assessment of their claims. As the Respondent points out,
factors relevant to credibility were the delay in seeking protection, the lack
of effort to obtain documents, and evasive responses to questions regarding
their story.
[24]
The
Applicants’ reliance on the decisions of Ahortor v Canada (Minister of Employment
and Immigration) (1993), 65 FTR 137, [1993] FCJ no 705 at para 45 and Zheng
v Canada (Minister of
Citizenship and Immigration), 2007 FC 974, [2007] FCJ no 1267 at para 9
is therefore misplaced. These cases suggest, in the absence of contradictory
evidence, the Board errs in requiring an applicant to produce corroborative
evidence and make a negative credibility finding based solely on their failure
to do so.
[25]
However,
as discussed, that is not what occurred in the Board’s consideration of the
Applicants’ claims. Credibility was already raised as an important factor
based on the delay and evasiveness in answering questions. The Respondent
appropriately draws the Court’s attention to the determination in JJW v Canada (Minister of
Citizenship and Immigration), 2009 FC 793, [2009] FCJ 915 at paras
24-26 concerning delay where it was stated that “the explanations of the
applicant, viewed in the context of her uncorroborated evidence in its
entirety, warranted the dismissal of her claim by the Board.”
[26]
When
the decision is read as a whole, the negative credibility findings based on the
issues identified by the Board were well within the range of possible,
acceptable outcomes.
VI. Conclusion
[27]
As
the error regarding the Applicants’ identities was not material to the
assessment of their claim and the Board’s credibility findings were reasonable,
the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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