Date: 20110329
Docket: IMM-4758-10
Citation: 2011
FC 385
Toronto, Ontario, March 29, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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JOSE HECTOR AYALA
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Applicant
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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 ORDER AND ORDER
[1]
The
present Application concerns a negative decision of the Refugee Protection
Division (RPD) with respect to the Applicant’s claim for s. 97 protection from
the El Salvadorian criminal organization known as the “maras”.
[2]
In his PIF,
the Applicant outlines his conduct, experiences and reasons for leaving El Salvador which date back to 1982, and
includes the most recent flight which is the subject matter of his claim. The
RPD describes the “allegations” of this history as follows:
The claimant alleged that in 1982 when he was 23 years old, fearing
the civil war in El Salvador, he left the country, travelling through Guatemala
and Mexico and entered the US. After a month in the US working illegally, he
was arrested and deported back to El Salvador.
In 2003 there was news of violence committed by
the maras. As a result he became afraid again and entered the US illegally. But
hearing that that the authorities were cracking down on illegal immigrants, he
returned to El Salvador. He alleged to do farming with the money he had saved working
in the US.
In March 2007 he was approached by three members of the maras who
demanded money from him. Not having the money to give them, they kicked and hit
him leaving him completely helpless.
The last week of that same month he was again approached by three
members of the maras. They demanded he pay them $4,000. He didn’t have the
money to pay and he was again beaten. Fearing the maras, he again left and went
to the US and came to Canada on June 25, 2008 where he has a brother and
sister, filing for refugee protection on the same day. The claimant did not
seek state protection.
(Decision, paragraphs 2 to 5)
[3]
In
evaluating the evidence of the Applicant’s conduct, the RPD concluded that,
with respect to his leaving El
Salvador in 1982
and 2003, he did so, not to flee risk, but rather as an economic migrant. In reaching
this conclusion, the RPD made negative findings of credibility with respect to
the Applicant’s evidence. Indeed, the negative findings were used to deny the
Applicant’s claim which is the subject of this judicial review.
[4]
With
respect to the 1982 leaving of El
Salvador, these
statements are made by the RPD in the decision:
The
panel does not believe that the claimant have been approached, threatened,
beaten or asked to come up with extortion payments. In arriving at this
decision, the panel examined the evidence before it. For example, in 1982 the
claimant said he left El
Salvador because of the
civil war. He said he feared being killed because there were dead people
everywhere and people were being shot. He went to the US
to escape the violence. But he was deported back to El Salvador only after a
month of being in the US.
[…]
As
such, the panel believes that the claimant went to the US
for financial gain, to work, not because he feared anyone or anything in El Salvador. If he had feared the civil war, as he
said he did, he would have filed for asylum. By not filing for asylum, bear in
mind he didn’t say that he was unaware of the system and/or process of filing
for asylum, but that he needed money to file. The panel does not believe he
intended to file for asylum and finds that his explanation that he didn’t have
the chance to file because he was deported so soon further undermines his
credibility.
Therefore,
the panel finds that the claimant has a serious problem with telling the truth
and his claim that he feared for his life was really the beginning of a string of
false allegations of a well-founded fear that has found its way in this
particular claim before this panel.
(Decision, paragraphs 9 and 12)
[5]
And with
respect to the 2003 leaving of El
Salvador, this
statement is made in the decision:
The
panel does not believe that the claimant feared any violence from the maras
when he left El Salvador in 2002 or 2003. If he did he would not
have returned to the country while the maras that caused him to leave was still
in operation. The panel finds that the allegation that he feared the violence
from the maras to undermine his credibility. The panel also finds that the
allegations of the claimant fearing first the civil war, then the news of the
violence associated with the maras, were exaggerations and embellishments to
justify his trips to the US, which the panel finds were for economic reasons,
not because of a well-founded fear. For example, the claimant was asked why he
went back to the US. He said to get some money together to
return to his land, money to buy animals, cows, pigs and chicken and to farm
the land.
(Decision, paragraph 15)
[6]
There is
no question that the negative credibility findings with respect to the
Applicant’s 1982 and 2003 conduct resulted in the following negative
credibility finding with respect to his 2008 leaving of El Salvador:
The
claimant testified that he left El Salvador again for the US
in 2008. As in all the other times he went to the US,
he went through Guatemala, Mexico and then to the US.
He was asked why he didn’t file for asylum in Guatemala.
He said that the maras are in Guatemala too. Asked how long he stayed in Guatemala; he said one day. He was asked again why he didn’t file for
asylum. He said his idea was to come to Canada. Asked how long he stayed in Mexico; he said one month. He also testified that he worked while
he was in Mexico. Asked how long he remained in the US;
he said a month. The panel notes that the claimant didn’t file for asylum in
Guatemala or Mexico because the maras have connections in
these countries and he was in transit to Canada. When he was asked why he didn’t file
for asylum in the US, he said because he was previously deported from the US.
Again, the panel knows that the claimant is very verse on the requirements for
asylum in the US, but he never filed for asylum which the
panel believes was because he didn’t have a well-founded fear then as he does
not have now [sic].
The
panel notes 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 to the Convention Relating to the
Status of Refugees; can be seen to negate the claimant’s fear. The Federal
Court has ruled that the claimant must subjectively fear persecution, and this
fear must be well-founded in an objective sense. The panel believes if the
claimant had a well-founded fear and was not an economic migrant, he would have
sought asylum in one of the countries he sojourned.
(Decision, paragraphs 20 and 21)
[7]
With
respect to the present Application, I have no difficulty differentiating the
findings on the three separate events of the Applicant leaving El Salvador. In the 1982 and 2003 events,
the Applicant had no personal targeting evidence to offer and, after leaving El Salvador, he did not claim asylum
anywhere. I find that there is a sharp contrast between the evidence respecting
those events and the evidence that grounds the claim presently under review. In
the present case, the Applicant gave evidence of personal targeting, and
reasons as to why he did not claim asylum on his way to Canada, and why he wanted to claim
in Canada: his brother lives in Canada.
Upon his arrival in Canada, the Applicant immediately claimed
protection. Given this differentiation, in my opinion it was unfair for the RPD
to use the negative credibility findings with respect to 1982 and 2003 leavings
to make a negative credibility finding on the present claim. In my opinion, the
present claim must be evaluated on its own merits, untainted by any credibility
opinion with respect to the Applicant’s past history of movements from El Salvador.
[8]
As a
result, I find the RPD’s decision to be indefensible in respect of the facts
and law and is, therefore, unreasonable.
ORDER
Accordingly, the decision
under review is set aside and the matter is referred back for redetermination
before a differently constituted panel.
There is no question to certify.
“Douglas R. Campbell”
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