Date: 20110718
Docket: IMM-6617-10
Citation: 2011 FC 894
Ottawa, Ontario, July 18,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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JESUS RENE LOPEZ ALFARO
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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 JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of Berto Volpentesta of the
Immigration and Refugee Board (the Board) dated September 10, 2010 wherein the
Applicant was determined to be neither a Convention refugee nor a person in
need of protection pursuant to sections 96 and 97(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Based
on the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
Jesus
Rene Lopez Alfaro (the Applicant) is a citizen of El Salvador. He is from
Tejutepeque and was born on April 25, 1990. In early 2008 (variously reported
as February, April or June), he was approached by members of the Mara 18 gang
(also called the Ms 18). They told the Applicant that he had to join their
gang or they would kill him. Several weeks later, different members of the
same gang approached the Applicant and again threatened to kill him if he did
not join their gang. The Applicant told his mother, who took him to the police
to report the threats.
[4]
In
June 2008, the Applicant and a cousin fled to the United States, where they
were detained and deported back to El Salvador. The Applicant fled to
the United States again in August 2008, and successfully made his way to Canada. He arrived
in Canada on October
14, 2008 and claimed refugee protection because of the Mara 18’s threats.
[5]
Twelve
days before the hearing, the Applicant provided the Board with further
documents to support his claim, including a letter from the Mayor of
Tejutepeque and from the National Civil Police in that city.
B. Impugned
Decision
[6]
The
Board found that the Applicant’s claim was not credible because he had given
conflicting reports of when he was first approached by the gang members and
because he had not provided the original police report. The Board considered
the letters from the police commander and the Mayor, but rejected them because
they merely repeated what the Applicant’s mother had told the authors rather
than stating the authors’ personal knowledge. The Board found that, even if
his claim was credible, the Applicant had not established a nexus to a
Convention ground and the risk he faced was a generalized one.
II. Issues
[7]
The
issues before the Court are:
(a) Is the Board’s credibility
determination reasonable?
(b) Is the Board’s determination
that the risk faced by the Applicant is generalized reasonable?
(c) Does
the Board’s section 97 determination violate section 7 of the Charter and, if
so, is it saved by section 1?
III.
Standard
of Review
[8]
The
Applicant’s submissions do not address the standard of review, although the
Applicant argues that the credibility determination is unreasonable. As to the
second issue, the Applicant argues that the risk determination is incorrect,
unreasonable and unconstitutional.
[9]
The
Respondent argues that the reasonableness standard applies, citing Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47 which states
that a reasonable decision is one that is justifiable, transparent and
intelligible and that falls within the range of acceptable outcomes defensible
in fact and in law.
[10]
More
specifically, I note that credibility findings attract deference and are
therefore reviewable on a reasonableness standard (see Ukleina v Canada (Minister
of Citizenship and Immigration), 2009 FC 1292, 2009 CarswellNat 4343 at
para 7) as are determinations about whether a risk is generalized (see De
Parada v Canada (Minister of Citizenship and Immigration), 2009 FC 845,
2090 CarswellNat 2944 at para 19). I would also add that constitutional issues
are reviewable on the correctness standard (see Dunsmuir at para 58).
IV. Argument
and Analysis
A. The
Board’s Credibility Determination is Reasonable
[11]
The
Applicant submits that the credibility determination is unreasonable because of
the Mayor’s letter, which refers to the police report indicating that the
Applicant was targeted by the Mara 18. The Applicant argues that, because of
this reference to the police report, it was unreasonable for the Board to
reject the Mayor’s letter on the basis that it merely repeated what his mother
said. The Applicant concedes that it was open to the Board to reject the
police letter on this basis. The Applicant argues that the Board did not
question the genuineness of the Mayor’s letter, and that it therefore
constitutes reliable evidence that he had been targeted by the Mara 18 gang.
[12]
The
Applicant submits that it was unreasonable for the Board to draw an adverse
inference from his failure to produce the original police report. The
Applicant argues that the Board should have considered the fact that he was
only 18 years old when he fled El Salvador, and that he does not
know why his mother did not obtain the original police report.
[13]
The
Applicant further submits that his testimony was straightforward and
consistent, and that the Board’s focus on one inconsistency (that is, when the
Mara 18s first approached him) is overly microscopic. He cites Attakora v Canada (Minister of
Employment and Immigration) (1989), 99 NR 168, 15 ACWS (3d) 344 (FCA) and Owusu-Ansah
v Canada (Minister of
Employment and Immigration) (1989), 8 Imm LR (2d) 106, 98 NR 312 (FCA),
which state that the Board should not take an overly microscopic approach to
assessing a claimant’s evidence. The Applicant argues that it was unreasonable
for the Board to expect him to recall what month he was approached, citing a
study demonstrating the inaccuracy of memory that was not before the Board.
[14]
The
Respondent submits that the credibility determination is reasonable given the
Applicant’s failure to explain his inconsistent answers about when he was first
approached by the gang and his failure to provide a copy of the police report. The
Respondent argues that it was open to the Board to give the letters little
weight. The Respondent argues that the Board’s rejection of the Mayor’s letter
is reasonable because the letter does not give specifics, and that nothing
turns on this rejection because the Board accepted that the Applicant had been
threatened by the gang (at page 7, para 19 of the Respondent’s Memorandum).
[15]
In
his reply, the Applicant notes that the Respondent’s statement that the Board
accepted the threats is in error, and that the Board actually found that “the
claimant was not himself threatened by gang members” (at para 9). The
Applicant argues that the Respondent cannot supplement the Decision, citing Qi
v Canada (Minister of
Citizenship and Immigration), 2009 FC 195, 79 Imm LR (3d) 229 at para 35.
[16]
The
memory study, though interesting, was not before the Board and so should not
render the credibility determination unreasonable. The Refugee Protection
Division (RPD) Screening Form (found at pages 46 and 47 of the Certified
Tribunal Record) informed the Applicant that his credibility would be at issue
at the hearing, and he could have put this evidence before the Board but he did
not.
[17]
The
letter is reproduced in the Applicant’s Record, and the certified translation
is found at page 36. The portion referred to by the Applicant is the statement
that the Applicant “has been threatened by members of a gang, according to a
national police report of this city.” Although it is true that the Mayor’s
letter attests to the existence of the police report, it was still open to the
Board to draw a negative inference based on the Applicant’s failure to produce
the report itself. Even if the Mayor’s letter is taken as proof of the
existence of a police report, it does not provide sufficient details to be sure
that the report relates to the same incidents which form the basis of the
Applicant’s claim.
[18]
Although
the Applicant has argued that his testimony was straightforward and consistent,
the transcript shows several inconsistent answers from the Applicant (see, for
example, pp 190-1 and 194 of the Certified Tribunal Record). The Board was
best placed to evaluate the Applicant’s demeanour at the hearing, and these
inconsistencies support the reasonableness of the credibility determination.
[19]
It
was open to the Board to disbelieve the Applicant’s claim based on the
inconsistent answers about when the threats began. The Applicant’s claim is a
simple one – he was only approached twice over the span of a few months before
he fled to Canada. His
situation is not analogous to those in the decisions he cited, where the claim
was based on a more complex factual situation and the Board honed in on one
detail of many.
[20]
The
Applicant has not demonstrated that the credibility determination is
unreasonable.
[21]
Given
my conclusion with request to the Board’s credibility finding, there is no need
to consider the other issues raised by the Applicant in this matter. Counsel
for the Applicant correctly conceded that the issue with respect to the
generalized risk and the related Charter issue were both dependant upon a
successful challenge to the reasonableness of the Officer’s credibility
finding. While it may be tempting to join the debate concerning the possible
limits of what properly constitutes generalized risk pursuant to section 97 it
is clear that each case will turn on its particular facts and in this case no
such factual foundation exists.
V. Conclusion
[22]
No
question was proposed for certification and none arises.
[23]
In
consideration of the above conclusions, this 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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