Docket: IMM-1114-11
Citation: 2011 FC 1114
Ottawa, Ontario, September 28,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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SERGIO ANTONIO ACOSTA GALINDO,
ROSARIO BEATRIZ FLORES LEMUS,
JAIME ELIAS ACOSTA GALINDO
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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 by Sergio Antonio Acosta Galindo, Rosario
Beatriz Flores Lemus, and Jaime Elias Acosta Galindo challenging a decision by
the Refugee Protection Division of the Immigration and Refugee Board (Board)
that denied their claims to refugee protection.
[2]
The
Applicants are all citizens of El Salvador. The two male
Applicants are brothers and the female Applicant is the common-law spouse of
the Applicant, Sergio Acosta. All of the Applicants entered Canada from the United
States
in September 2009. Jaime Acosta left El Salvador for the United
States
in 2004. He was followed by Sergio Acosta and Rosario Flores in 2005. None of
them sought asylum in the United States despite living there
for several years.
[3]
The
Applicants say that the Board breached the duty of fairness during their
refugee hearing and subsequently rendered a decision that was unreasonable.
For the reasons that follow I reject their arguments.
[4]
Counsel
for the Applicants contends that the Board acted unfairly when it failed to
advise them of the benefits of legal representation. This obligation, it is
said, was heightened by the fact that no Refugee Protection Officer was present
to assist the Applicants in the presentation of evidence. This is an issue of
procedural fairness for which the standard of review is correctness.
[5]
The
Applicants’ argument concerning the right to be informed about the benefit of
legal representation has no merit. The record before me establishes that the
Applicants had engaged legal counsel to represent them before the Board. That
retainer was terminated by the Applicants for reasons that are not explained in
their affidavits. Given this history, it is safe to assume that the Applicants
understood the value of having a lawyer but proceeded without one for reasons
known only to them.
[6]
From
my review of the transcript of the hearing, I am satisfied that the Board acted
fairly throughout the hearing by providing ample opportunity to the Applicants
to present their evidence. The Board also explained the process and advised
the Applicants of its concerns. It accepted documentary evidence tendered on
the day of the hearing because the Applicants were unrepresented and may not
have been aware of the advance notice requirement. In short, the Applicants
were able to tell their stories in considerable detail and the Board accepted
their evidence mostly at face value. It is difficult to see how the
prosecution of these claims would have materially benefited from the presence
of legal counsel but, in any event, the Board owes no duty to explain to
unrepresented parties something they would be taken to understand.
[7]
The
Applicants’ argument that these claims ought not to have been heard together is
equally unmeritorious. Counsel for the Respondent is correct that under Rule
49 of the Refugee Protection Division Rules, SOR/2002-228, related
family claims are to be joined unless a convincing claim for severance is
advanced: see Gilbert v Canada (MCI), 2010 FC 1186 at para 21, [2010]
FCJ no 1484 (QL) (TD). Here the Applicants put no request for severance to the
Board and so it followed its usual practice. Furthermore, there is nothing in
the record before me to suggest that any of the parties suffered some prejudice
from the consolidation of their claims. For instance, there were no material
contradictions or inconsistencies among the parties and they willingly adopted
one another’s testimony in corroboration. It is not enough to vaguely allude
to the hypothetical advantage of the Board being better able to focus on one
claim at a time. That argument can be advanced in every case and it would
vitiate Rule 49 of the Refugee Protection Division Rules. The Board did
not err by proceeding as it did.
[8]
I
also do not agree that the Board had a fairness obligation to open up the
theoretical issue of psychological trauma. There is nothing in the record or
in the Applicants’ affidavits to support such a theory. It is not the role of
the Board to raise evidentiary issues that are nowhere to be found in the
record or to stand in the place of legal counsel: see Ngyuen v Canada (MCI), 2005 FC 1001
at paras 17-18, [2005] FCJ no 1244 (QL) TD). Indeed it is disingenuous for the
Applicants to fire their legal counsel for reasons they never explain and then
complain that the Board had an obligation to advance their protection claims.
The duty to present relevant and convincing evidence rested on the Applicants
not on the Board: see Brad v Canada (MCI), 2003 FCT 808
at para 9, [2003] FCJ no 1035 (QL) (TD). If the Applicants were
psychologically traumatized by their experiences, they had ample opportunity to
say so and to present any evidence they wanted in corroboration.
[9]
The
Applicant, Sergio Acosta, also contends that the Board erred by failing to
refer to his evidence of scarring and burns including a corroborative medical
report. In a case where the Board overlooks such evidence, its decisions may
be vulnerable on judicial review. But here the Board accepted at face value
the Applicants’ allegations of a history of harassment, threats and assaults at
the hands of criminal street gangs leading up to their departure to the United
States in 2004 and 2005. In other words the Board accepted Sergio Acosta’s
evidence of abuse and there was, therefore, no need for it to refer to any
particular piece of corroborative evidence.
[10]
The
Board correctly held that the Acosta brothers did not fear persecution in El Salvador for any of
the reasons enumerated in s 96 of the Immigration Refugee and Protection
Act, SC 2001, c 27, [IRPA]. Their evidence clearly indicated that
they were simply the victims of street level criminality and nothing more.
[11]
The
Board was also correct in holding that the risks they described were not state
or officially sponsored. Their claims, therefore, did not fall within s 97(1)(a)
of the IRPA.
[12]
The
Board then went on to examine the brothers’ claim under s 97(1)(b) of the IRPA.
It concluded that because the risks they claimed to face were ones faced
generally by other citizens of El Salvador, they were excluded
from protection under that provision.
[13]
The
Applicant, Sergio Acosta, asserts that as a victim of one incident of torture
at the hands of gang members in late 2004, the Board erred when it applied s
97(1)(b)(ii) to his claim. I do not agree. The Board’s finding that the
brothers’ assertions of risk were unexceptional and consistent with the acknowledged
criminal risks faced generally throughout El Salvador was based on
the evidence. As such, that part of the decision is entitled to deference.
The parties freely acknowledged that gangs throughout El Salvador routinely
extort money from their victims often under the explicit threat or the
application of serious harm or death. The experiences recited by the parties,
although serious and troubling, did not transcend the kinds of risks that the
Board accepted as routine in El Salvador. Indeed the Board
relied in part on a United States Department of State Report which described El Salvador as one of
the most dangerous countries in the world precisely because of ubiquitous
gang-related street crime. This is the type of situation that s 97(1)(b)(ii)
was intended to address. Any other interpretation would render every innocent
victim of serious gang violence in El Salvador eligible to claim
refugee protection. That is obviously not the intent of s 97 of the IRPA.
[14]
The
Board approached Ms. Flores’ claim differently. It correctly noted that her
claim potentially fell within both ss 96 and 97 of the IRPA with her s
96 claim grounded on allegations of gender-based sexual abuse. The Board held
that an Internal Flight Alternative (IFA) was available to her and, as such,
neither s 96 nor s 97 were available.
[15]
The
Board reasonably concluded that Ms. Flores’ risk narrative involved
behaviour by one gang member in the small town of Metapan. The Board
declined to accept that this highly localized personal risk from 2004 would
prevail today throughout El Salvador. That, too, was an
evidence-based conclusion that was reasonably made by the Board and it cannot
be set aside on judicial review. The Board also reasonably found that
Ms. Flores was highly adaptable and would have family support to
re-establish herself in El Salvador. The fact that she
would, on her return, face the same levels of criminality as other citizens was
correctly held by the Board not to render other parts of the country unfit as
IFA’s.
[16]
This
application for judicial review is, accordingly, dismissed.
[17]
Counsel
for the Applicants suggests two possible questions for certification. The
first involves the standard of review applicable to IFA determinations. The
second involves the fairness of the Board’s failure to raise on its own
initiative the issue of potential psychological trauma. Neither of these
proposed questions have merit.
[18]
The
standard of review for assessing the Board’s IFA decisions insofar as they
concern issues of mixed fact and law is well-established – it is reviewable for
reasonableness. Counsel’s second proposed question also raises a well-settled
point. The burden rests upon an applicant to establish the factual basis for a
successful refugee claim. The Board is not an advocate. It is up to the
parties to adduce the evidence required. I would add that in a case like this
where the parties dispensed with legal representation, they cannot later
complain that they needed a lawyer. For that reason alone, the suggested
question would not be determinative of this proceeding.
[19]
No
issue of general importance arises on this record and no question will be
certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
"R.L.
Barnes"
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