Date:
20120925
Docket:
IMM-761-12
Citation:
2012 FC 1116
Ottawa, Ontario, September 25, 2012
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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MARCO ANTONIO ROMERO DAVILA
WILDER ROMERO DAVILA
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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 by the Refugee Protection Division of the Immigration and
Refugee Board [panel], rendered on December 22, 2011, wherein the panel concluded that the applicants were
neither Convention refugees nor persons in need of protection, within the
meaning of sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA].
[2]
For the
reasons
below, I find the panel’s key findings to be reasonable in the circumstances. The applicants have not
established that the impugned decision is one which can be characterized as
unreasonable and I find that none of their arguments in this application for
judicial review warrant the Court’s intervention.
Background
[3]
The
applicants (the principal applicant, Marco Antonio, and his brother, Wilder)
are brothers from Huancayo, Peru. They allege that they fear returning to their
country because, as renowned athletes, they have both received threats from
members of the Shining Path, a Peruvian guerrilla group which sought to extort
money from them.
[4]
The
applicants allege that in November 1991, their late brother Edgar, who was a
national boxing champion in Peru, was targeted for extortion, kidnapped and
killed at the age of 24 by members of the Shining Path. His dead body was
found in the mountains outside Huancayo with the body of another athlete. The
applicants allege that according to the forensic report they both had died from
trauma to the head and bullets were found in their bodies. In his narrative in
response to question 31 of his Personal Information Form [PIF], the principal applicant
claims that his father filed a denunciation about his son’s disappearance as
the newly elected President Toledo had encouraged people to report their
experiences with the country’s terrorists. However, the applicants allege that
because of numerous attacks against state authorities at the time, no copy of
the denunciation would currently be accessible.
[5]
The
applicants allege that on October 20, 2005, Wilder was kidnapped by members of
the Shining Path and was threatened with death if he refused to pay them $6,000
(US). This incident allegedly happened after Wilder had won a financial award
in an international competition. Wilder did not report the incident to the
police but on October 24, 2005 he temporarily moved to Lima to protect himself
from the Shining Path. In October 2005 Wilder was selected to participate in an
international marathon competition that took place in New York on November 6,
2005. Wilder alleges that as a result of the threats he had received, he never
returned to Peru afterwards. He lived in New Jersey without legal status for
five years before applying for refugee status in Canada on January 14, 2011.
[6]
The
applicants allege that Marco Antonio was targeted and kidnapped by members of
the Shining Path on January 10, 2010. He was allegedly threatened with a gun
and told that he had ten days to pay $7,000 (US); that way he would have paid
the balance his brother Wilder owed to the party. Marco Antonio alleges in his
PIF narrative that the assailants also threatened to kill him if he reported
them to the police.
[7]
Despite
these threats, Marco Antonio states in his PIF narrative that he did report the
incident to the police five days after it took place but they did not do
anything except to tell him “that if something happened again, not to worry
about coming back to the police again, that there is nothing they could do.
[He] told the police that if they come back to [him he] could be dead. But they
did not offer to help; they just said there was nothing they could do.”
[8]
On
January 15, 2011, Marco Antonio went to Lima and hid there for a month, during
which time he received an invitation to participate in a marathon competition
in Puerto Rico, United States. Marco Antonio alleges that he considered this an
opportunity to escape. He travelled to the United Stated on February 25, 2010
and went to Vive la Casa on March 10, 2010 in hopes of seeking asylum from Canada. Although he was told he did not qualify because he had no relatives in Canada he ran for three hours in order to cross into Quebec. He then travelled to Toronto from Montreal and filed an application for refugee status on March 24, 2010.
Decision under
Review
[9]
The panel was
of the view that several aspects of the applicants’ narrative lacked
credibility, namely as it related to their failure to claim refugee status in
the United States and as it related to the availability of an Internal Flight
Alternative [IFA] for them in Lima. The panel further concluded that the
applicants had not succeeded in rebutting the presumption that the Peruvian
police were able to ensure their protection as such protection was never sought.
Failure to claim elsewhere
[10]
The
panel first noted that failure to claim refugee protection from a country
within which the claimant resided or even sojourned or travelled before coming
to Canada, when that country is a signatory of the Refugee Convention, can be
seen to negate the claimant’s subjective fear of persecution. The panel also
noted that lack of evidence going to the subjective element of the claim is in
itself sufficient for the claim to fail, even when there is evidence that an
objective basis for the fear does exist.
[11]
The
panel found that in this case, both applicants had the opportunity to seek
asylum in the United States or, at the very least, to seek information from
official government sources regarding the process to seek asylum in the United States, but they did not do so. Wilder lived in the United States for nearly four
and a half years without legal status and without ever making any enquiries or
efforts to regularize his status. The panel found Wilder’s explanation that he
was unaware of the possibility that he could claim refugee status in the United
States because he did not speak English was unsatisfactory and unreasonable in
light of the fact that he left New York for New Jersey immediately after he
finished his marathon in 2005. According to Wilder’s testimony, some Spanish
speaking people he had met in New York told him how to get to New Jersey, but
he did not trust them enough to tell them his story.
[12]
The
panel also found improbable Marco Antonio’s contention that while he was in
Buffalo from February 25 to March 10, 2010, he was not told anything about the
asylum process in the United States, but only about the process in Canada; all
the more so that he left Peru in hopes of seeking protection in the United
States.
Availability of an Internal
Flight Alternative
[13]
Both
Marco Antonio and Wilder testified that they fled to Lima once they were
threatened by the Shining Path on January 10, 2010 and October 20, 2005
respectively. They stated that it was because they were living in hiding that
they were safe in Lima. However, the panel found the applicants not to be
credible on that issue.
[14]
The
applicants alleged that an IFA in Lima was not appropriate because members of
the Shining Path are able to trace them anywhere in the country. However, the
panel noted that according to his PIF narrative and testimony, Marco Antonio
was under routine training in a stadium in Lima from January 16 to February 25,
2010, which suggests that on a balance of probabilities, if the Shinning Path were
after him, he would have been located in Lima.
[15]
The
applicants’ previous move to Lima also raised credibility concerns for the
panel. The panel questioned the plausibility of the claim that both applicants
were approached, five years apart from the other, shortly before their trips to
the United States, to run in marathons and they both went to Lima just after
they were allegedly threatened, where they stayed less than a month. Upon
questioning as to when they became aware that they would be going to an
international competition, Marco Antonio became very evasive and finally
mentioned that it was a week after he went to Lima that he was advised of the
trip to the United States. Wilder, on the other hand, replied that he learned
about his selection two and a half month before departing for the United States, while he only stayed in Lima for ten days.
[16]
The
panel stated that on a balance of probabilities both applicants would have been
given at least a couple months notice of their selection and concluded that
Marco Antonio’s move to Lima was for training and monitoring purposes and not
because of the threats allegedly made against him. Accordingly, the panel found
that the applicants were attempting to embellish their claim by contending that
they fled from Huancayo to avoid extortion and save their lives.
[17]
Applying
the two-pronged IFA test established by the Federal Court of Appeal in Thirunavukkarasu v Canada
(Minister of Citizenship and Immigration), [1994] 1 FC 589 (FCA) and Rasaratnam v Canada
(Minister of Employment and Immigration), [1992] 1 FC 706 (FCA), the panel
stated that no persuasive evidence was put before it to suggest that either of
the applicants were being pursued by the Shining Path or that the latter
retained any interest in them. Notably, no evidence was provided to the panel
to indicate that the applicants’ family members, including the principal
applicant’s wife and daughter, were being subject to harassment by Shining Path
members.
[18]
Also,
in view of the objective documentary evidence, the panel found that Shining
Path members do not have any sort of an elevated profile in terms of any
contacts or influence over the police or the government of Peru. Their activities are now rather limited to the traffic of drugs through corporate
means. The panel concluded that, on a balance of probabilities, the agents of
persecution could not locate the applicants in Peru if they were to move to Lima.
[19]
Finally,
the panel found that considering the age of the applicants and their notoriety
as national sports figures of some international stature, it is not unduly
harsh to expect them to move within Peru, namely to Lima, before seeking refuge
in Canada.
Other
Credibility Issues
[20]
Other
major concerns noted in the panel’s findings seriously
undermined the applicants’ credibility:
§ A death
certificate and a police report were produced in evidence of the death of the
applicants’ older brother. However, the panel found that this evidence said
nothing of their older brother being kidnapped and killed by the Shining Path.
The panel rejected the applicants’ testimony that they were unable to get a
copy of their father’s denunciation to the police about the home invasion and
kidnapping of his son because the police station was later destroyed in a
terrorist attack. The panel noted that the applicants were able to obtain proof
of their brother’s death but no proof of the denunciation; which led the panel
to conclude that, on a balance of probabilities, no such denunciation was ever
made because none of the alleged events had taken place.
§ The panel found
a contradiction between Marco Antonio’s oral and written testimony with respect
to the report he filed with the police in January 2010: while the applicant
testified that the police told him to come back if something happened to him
again, the PIF narrative mentioned that the applicant was told not to come back
to the police because they could not offer any help.
§ The applicants
were unable to provide a reasonable explanation for why the January 2010 police
report stated that “this certificate is issued by the request of the interested
party for legal purposes.” The panel noted that given Marco Antonio’s
inconsistent testimony and the finding that he was knowingly leaving his hometown
to eventually go to the United States, as well as the fact that according to
the record the principal applicant has made two unsuccessful attempts to come
to Canada in the past, there is the basis to conclude on a balance of
probabilities that the applicant’s complaint was baseless and the police report
was sought in an effort to support a refugee claim in Canada.
§ Although Edgar’s
death could have occurred as a result of a terrorist act, the panel found it
implausible that once Wilder left the Country (fourteen years after Edgar’s
death), it took five years for members of the Shining Path to locate Marco
Antonio and demand Wilder’s outstanding payment, in spite of the fact that
Marco Antonio continued to reside at the same place.
[21]
The
panel went on to conclude that even if the applicants have encountered problems
with a terrorist group, both an IFA and state protection would be available for
them.
Failure
to Seek State Protection
[22]
The
panel reiterated that Wilder made no efforts whatsoever to seek police
protection after the alleged extortion demands from the Shining Path and that
Marco Antonio filed a denunciation but did not give the police sufficient time
to conduct its investigation, as he immediately left without following up on
his complaint. Not only there was no evidence to suggest that police were not
making genuine and earnest efforts to investigate the principal applicant’s
allegations and apprehend the perpetrators, but also his choice to leave the
country within a few weeks may have resulted in the investigation being delayed
or stymied given that he was the key witness.
[23]
In
view of the circumstances and considering the objective documentary evidence
that the Peruvian government is taking active action against the Shining Path,
the panel found that the applicants had failed to provide clear and convincing
evidence to establish their state’s inability to protect them. The burden was
on them to do so.
[24]
To
conclude, the panel found that there
is not a serious possibility that the applicants would be persecuted upon their
return to Peru, nor that they would be personally subjected to a risk to their
lives, a risk of cruel or unusual treatment or punishment, or a danger of
torture, on a balance of probabilities. Accordingly, their claims were both
rejected.
Issues and
Applicable Standard of Review
[25]
Three issues
are raised in this application for judicial review:
1)
Did the panel
err in its assessment of the principal applicant’s failure to seek asylum in
the United States?
2) Did the panel misapprehend and
speculate in reaching its credibility findings in relation to the issue of IFA?
3) Did the panel err in
its assessment of the issue of state protection?
[26]
The parties agree
that it is the standard of reasonableness that applies to all of the above
issues as they raise questions of fact or of mixed fact and law. Accordingly,
if the decision falls “within the range of possible, acceptable outcomes which
are defensible in respect of the facts and law” it shall not be set aside : Dunsmuir
v New Brunswick, 2008 SCC 9 at para
47, [2008] 1 S.C.R. 190; Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 59, [2009] 1 S.C.R. 339.
[27]
The
respondent underlines that a “high standard of review has consistently been
held to apply to decisions of the Refugee Protection Division concerning findings
of fact or of credibility in the context of claims under sections 96 and 97 of
the Act” (Ren v Canada (Minister of Citizenship and Immigration), 2009
FC 973 at para 13, [2009] FCJ 1181); “the very essence of deference [being]
that the Court will not substitute its view of the evidence or apply its own weight to the testimony where there is a reasonably based
Board’s conclusion” (Huseynova
v Canada (Minister of Citizenship and Immigration), 2011 FC 408 at para 11, [2011]
FCJ 527). It is also established that “a negative finding regarding subjective
fear may render the assessment of the objective aspect of the complaint
superfluous and may in itself warrant the dismissal of the claim” (Ahoua v Canada (Minister of Citizenship and Immigration), 2007 FC 1239 at para 16, [2007] FCJ
1620).
Review of the
Impugned Decision
[28]
The
applicants take issue with portions of the panel’s finding and not with its
entire reasoning. As stated above, I find none of their arguments justify the
Court’s intervention.
No reviewable error in the assessment of the principal
applicant’s failure to seek asylum in the United States
[29]
The
principal applicant alleges that he only stayed in the United States for two weeks and his stay there was akin to a transit stop on his way to Canada. He also alleges that the explanation he provided in this respect was a strong one:
he sought advice within a short period of his arrival and was told to go to
Vive la Casa in Buffalo, which he did. This, according to the principal
applicant, constitutes a reasonable explanation given the fact that he did not
speak English and had to seek information in a prompt fashion.
[30]
The
applicants have cited case law (notably, Raveendran v Canada (Minister of Citizenship and
Immigration),
2003 FCT 49; [2003] FCJ 116 [Raveendran])
to
argue that the panel should have inquired into principal applicant’s personal
circumstances in order to determine whether, in fact, there was a reasonable
opportunity for him to claim refugee protection elsewhere. In Raveendran, at paras
58-59, the Court stated:
The panel, in its discussion of the decision of the
applicants not to claim refugee protection in the United States and the advice
on which that claim was based, mentioned only that the applicant had spoken
with counsel. The panel stated that she “may have received that advice or may
not have”. The panel went on to state that it expects that a refugee would take
“every reasonable opportunity” to seek international protection.
In my view, a subjective determination of what constitutes
a reasonable opportunity is appropriate in this case. The principal applicant
understood, based on the advice that she claims to have received from other
refugees and church workers, that there was a chain of causality between making
a claim for asylum in the United States and being sent back to Sri Lanka, where her fears of torture and mistreatment could materialize. This explanation
with the other elements already mentioned by the applicant satisfies me that
she had a well-founded fear of persecution by being returned to Sri Lanka.
[31]
The jurisprudence is clear that a delay in making a refugee
claim is related to the existence of a subjective fear of persecution, the essential
element of a claim (Espinosa
v Canada (Minister of Citizenship and Immigration), 2003 FC 1324 at para 21, [2003]
FCJ 1680). The Raveendran case should not be read as suggesting that any
postponement of a refugee claim is justified insofar as the claimant followed
someone else’s advice in a foreign country, just as it “does not stand for a blanket proposition that a fear of deportation to
persecution is a valid reason in every case for not claiming asylum in the
United States. Such an argument will be decided on the circumstances of each
case” (Shah v Canada (Minister of Citizenship and Immigration), 2005 FC
1711 at par 36, [2005] FCJ 2131). Furthermore, the principal applicant has not
established that the Board failed to consider his explanations which he
reiterates in this application for judicial review and the Court is not prepared
to reassess his evidence.
[32]
I agree with the respondent that while the principal
applicant’s claim could not be rejected solely on this basis, the panel could
reasonably take this factor into consideration where the applicant failed to
make any inquiries into the process in place in the United States, despite
allegedly going there in hopes of seeking protection. As this finding was
supported by other credibility issues which also undermined the principal
applicant’s subjective fear, there is no basis for holding that the panel
committed a reviewable error in this regard.
No
unreasonable credibility
findings in relation to the IFA
[33]
The
applicants assert that the findings of the panel regarding the IFA are based
solely on speculation and conjecture rather than on the relevant evidence. More
specifically, they submit that regarding the lack of police report concerning
the 1991 kidnapping and murder of Edgar, the panel disregarded the situation of
Peru and the fact that the rural area of Huancayo was under attack by the
Shining Path at the time; hence the claim that no proper records remain of that
incident.
[34]
However,
if read in its context, the panel’s finding, although not the only conclusion
it could have reasonably reached, nonetheless falls within the realm of
reasonable outcomes. The panel questioned the fact that the applicants were
able to provide both a police report regarding the death of their brother and a
death certificate from the police station that they alleged was destroyed in
terrorist attacks. The applicants were unable to clarify at the hearing the
reason why their father’s denunciation (which incidentally was the only
document reporting the circumstances of the incident) was also the only missing
document. In this context, the Court finds the panel’s finding to fall within
the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
[35]
The applicants
further cite Sabaratnam v Canada (Minister of Employment and Immigration),
[1992] FCJ 901
(FCA), in which the Federal Court of Appeal essentially held that the fact that
an individual had to remain in hiding to avoid problems and successfully
managed to do so is not evidence of an IFA or a lack of objective basis of
fear. Accordingly, they argue that the panel made incorrect and perverse
findings on the likelihood for them to be relocated by the Shining Path
elsewhere in Peru.
[36]
The
applicants seem to suggest that the panel erred in finding that the Shining
Path could not relocate them in Peru simply because they managed to hide for a
certain period of time in Lima. As I read the panel’s reasoning in its
entirety, this argument is clearly unfounded. First, as the respondent notes,
the panel reasonably found that the applicants were not hiding in Lima and that their move to Lima was in preparation for an upcoming marathon in the United States. Second, the panel’s finding with respect to the objective basis of the
applicant’s fear was not solely based on the fact that they lived safely in Lima but, more fundamentally, that there
was no evidence before the panel to support the allegation that the Shining
Path continued to pursue the applicants or would be interested in them now. On
the contrary, the evidence tends to demonstrate that they were not seriously
after the applicants. The incident upon which Wilder bases his claim allegedly
occurred fourteen years after Edgar’s death, whereas the incident upon which
the principal applicant bases his claim allegedly occurred close to twenty
years after Edgar’s death and five years after Wilder’s departure from Peru, in spite of the fact that the principal claimant continued to reside at the same
place. On
the issue of the burden of proof, I concur with Justice Gibson’s comments in Khan v Canada (Minister of
Citizenship and Immigration),
2006 FC 1183 at para 18, [2006] FCJ 1481, where he stated:
With
great respect to the Applicant, I am satisfied that it is clear beyond question
that, despite what may transpire at the opening of a hearing when the range of
issues before the RPD is discussed, the legal duty or onus remains on a
claimant to make out his or her claim in clear and unmistakeable terms. The transcript of the hearing before the RPD clearly discloses that the
“agents of persecution today” was an issue before the RPD relating to the
objective component of the claimants’ claim. The issues before the RPD were not
narrowed. More specifically, the issue of “agents of persecution today” was not
withdrawn. As stated in paragraph 11 of the reasons for decision in
Ranganathan:
... A failure
by a claimant to fulfill his obligations and assume his burden of proof cannot
be ... imputed to the Board so as to make it a Board’s failure.
No reviewable error in the
assessment of the issue of state protection
[37]
The
applicants submit that the panel failed to consider the verbal answer that was
given to Marco Antonio at the police station, namely that the police cannot
help him and that if further problem occurs he should not return to them. The
applicants contend that it was unreasonable for the panel to conclude that they
could be given adequate protection despite this evidence.
[38]
Yet
the panel did consider the principal applicant testimony at several points in
its written reasons. Aside from the contradictions the testimony contained with
regards to what the police exactly told him that day and the fact that he did
not await for his complaint to be duly investigated, the panel found that other
recourses, such as the Public Ministry and the Ombudsman, were still available
to the principal applicant. Again, I find that the applicants take issue with
portions of the panel’s reasons without reading them in context.
[39]
Regarding
the objective documentary evidence considered by the panel, the applicants
submit that according to the jurisprudence, the state’s willingness to address
a particular situation (Balogh
v Canada (Minister of Citizenship and Immigration), 2002 FCT 809 at para 37, [2002]
FCJ 1080)
or mere police investigation and prosecution (Alli v Canada (Minister of
Citizenship and Immigration),
2002 FCT 479 at para 20, [2002] FCJ 621) cannot be
equated with adequate state protection. In my view, this argument is also
unfounded in circumstances where, contrary to the cases they have referred to,
the principal applicant immediately left the country without allowing the state
enough time to look into his complaint.
[40]
The
applicants also submit that the panel erred in its analysis of state protection
by failing to consider the totality of the evidence and preferring one excerpt
of the documentary evidence over others. However, the applicants make no
further submission to establish that the panel conducted a selective reading of
the documentary evidence; they do not specify which documents have been
overlooked or misconstrued. A bare assertion that the panel failed to consider
the totality of the evidence is insufficient as it does not enable the Court to
conduct a more detailed review.
[41]
For
all of the above reasons this application for judicial review is dismissed. No
questions were proposed for certification and none arises in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
a.
The application for judicial review is dismissed.
b. There
is no question for certification.
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