Date: 20091104
Docket: IMM-4-09
Citation: 2009 FC 1129
Ottawa, Ontario, November 4, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
OMAR
JASFIR HERNANDEZ SANCHEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Mr.
Omar Jasfir Hernandez Sanchez (the “Applicant”) seeks judicial review of the
decision of the Refugee Protection Division, Immigration and Refugee Board (the
“Board”). In its decision dated December 16, 2008, the Board determined that
the Applicant was neither a Convention refugee nor a person in need of
protection, pursuant to section 96 and section 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “Act” or “IRPA”),
respectively.
Facts
[2]
The
Applicant is a citizen of Mexico. He entered Canada as a
visitor, holding a visitor’s visa that was valid for six months on January 21,
2007. He remained in Canada after expiry of that visa and claimed
refugee protection on December 3, 2007, on the basis of a fear of corrupt
police officers in his home city of Ecatepec. He testified about an
assault and extortion by two local officers which led him to file a complaint
with the Attorney General’s office.
[3]
Before
he was scheduled to appear at the Attorney General’s office to proceed with a
formal action against the officers, the Applicant was hit by a car while riding
his motorcycle. The Applicant believed that the police were behind this event.
[4]
After
the crash, the Applicant took a leave of absence from his employment. Four days
after returning to work, the Applicant was allegedly abducted and beaten
by other police officers who were unknown to him. Following this attack, the
Applicant took a further leave of absence and stayed with his wife’s family in a
small village in Oaxaca. He testified that after approximately two
months, he received a threatening telephone call from the police. This
information was not included in the Applicant’s original Personal Information
Form (“PIF”) but was set out in an amended PIF narrative.
[5]
The
Applicant testified that from the time that he returned home from Oaxaca until
he left for Canada, he was
followed by the police and threatened with beatings. He also received anonymous
threats of death and imprisonment which he attributed to the police.
[6]
The
Applicant further testified that in addition to filing a complaint with the
Attorney General’s office, after the initial assault and extortion, he
approached the Human Rights Tribunal but was turned away, on the basis that the
Tribunal did not deal with complaints relating to the police. He was afraid to
pursue the matter after he was injured in the motorcycle crash, abducted and
beaten.
[7]
The
Applicant offered an explanation for the delay in seeking protection in Canada. He said that
he had sought advice from an immigration consultant and was advised to obtain
documentation from Mexico before filing a refugee claim. The Applicant
had been out of status for at least four months before he made his refugee
claim. The Board considered this to be a significant delay and concluded that
the Applicant’s action in this regard undermined his subjective fear.
[8]
The
Board found no nexus between the Applicant’s claim and the grounds for claiming
Convention refugee status in section 96 of the Act. The Applicant does not
challenge this finding.
[9]
In
rejecting the Applicant’s claim pursuant to section 97 of the Act, the Board
found that the Applicant had failed to rebut the presumption that state
protection would be available to him. It also found it implausible that the
police were able to locate him in Oaxaca and drew a negative
inference from the omission of this information from the narrative that formed
part of the PIF, as initially filed. The Board further found that the
Applicant’s claim was weakened by the absence of a link to the police
respecting the incidents that occurred after the first incident of assault and
extortion “which was accorded due process”.
Submissions
[10]
The
Applicant submits that the Board made unreasonable findings when it rejected
his explanation for the delay in making his claim for protection in Canada. He also
argues that the Board’s findings as to the availability of state protection
were unreasonable, having regard to the evidence that he presented.
[11]
The
Minister of Citizenship and Immigration (the “Respondent”) submits that the
Board committed no reviewable error in the manner with which it dealt with the
issue of the Applicant’s delay in claiming state protection and that its
finding that state protection was available was reasonable.
Discussion and
Disposition
[12]
The
standard of review for decisions of the Board in matters of fact is
reasonableness according to the decision of the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190.
[13]
The
Board’s determination with respect to the Applicant’s arguments in explaining
the delay in claiming protection in Canada involves an assessment of
credibility; see the decision in Huerta v. Canada (Minister of Employment
and Immigration) (1993), 157 N.R. 225 (F.C.A.). That assessment of
credibility is reviewable on the standard of reasonableness. I am not persuaded
that the Board erred in the manner in which it dealt with this issue.
[14]
The
Applicant’s challenge to the Board’s finding relative to the issue of state
protection, in my opinion, is essentially a disagreement with the Board’s
assessment of the evidence. The Board is mandated to weigh the evidence. I am
not persuaded that the Board ignored any of the evidence that was submitted in
reaching its conclusions. The Board found that the evidence failed to show a
link between the attacks on the Applicant and the police, as perpetrators of
those attacks.
[15]
I
am not persuaded that the Board’s findings in this regard are unreasonable. It
follows that the ultimate conclusion, as to the availability of state
protection, is reasonable.
[16]
In
the result, this application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed. There is no question for certification
arising.
“E.
Heneghan”
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