Date: 20070703
Docket: IMM-4563-06
Citation: 2007 FC 690
Ottawa, Ontario, July 3,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
SALVADOR AYALA;
CARLOS ALEXANDER AYALA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
An
important indicator of credibility is the consistency with which a witness has
told a particular story. (Reference is made to Canada (Minister of
Employment and Immigration) v. Dan-Ash (F.C.A.), [1988]
F.C.J. No. 571 (QL).)
Inconsistent
testimony and contradictions on significant elements related to the core issue
of a claim weaken the applicant’s credibility.
“The
subjective basis for the fear of persecution rests solely on the credibility of
the applicants.”
(Maximilok v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.),
[1998] F.C.J. No. 1163 (QL), justice Louis-Marcel Joyal.)
Genuine convention refugees can
be expected to seek protection as soon as reasonably practicable when they are
outside of the reach of the oppressors. (Ilie v. Canada (Minister of
Citizenship and Immigration) (F.C.T.D.), [1994] F.C.J. No. 1758 (QL), Justice
Andrew McKay.)
JUDICIAL PROCEDURE
[2]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (Board)
rendered on July 18, 2006, wherein it found the Applicant neither a Convention
refugee nor a person in need of protection pursuant to section 96 and
subsection 97(1) of the IRPA.
BACKGROUND
[3]
The
principal Applicant, Mr. Carlos Alexander Ayala and his uncle, Mr. Salvador
Ayala, are citizens of El Salvador, who claim to have a well-founded fear of
persecution at the hands of gang members in El Salvador. Their fear is based on an alleged attack
by members of the Mara Salvatrucha gang, in which the principal Applicant was
allegedly shot and wounded, and his friend, Mr. Heriberto Arévalo was allegedly
shot and killed.
[4]
Following
this incident, the principal Applicant identified the two attackers to the police
but refused to make a declaration because he allegedly received threatening
phone calls warning him not to speak with the police.
[5]
On
March 13, 2005, the principal Applicant went to stay with an aunt and cousin in
San
Salvador.
[6]
On
April 14, 2005, upon returning to his mother’s house in Sonsanate, the
principal Applicant discovered that the police were still looking for him. He
and his uncle therefore decided to leave El Salvador and come to Canada.
[7]
On
July 5, 2005, the Applicants entered the United States without claiming refugee
status, before coming to Canada on September 22,
2005.
DECISION UNDER REVIEW
[8]
In
its decision rendered on June 18, 2006, the Board determined that state
protection is available to the Applicants, noting that El Salvador is a constitutional,
multiparty democracy that respects human rights, appears able and willing to
offer protection to its nationals, is in effective control of its territory,
and has its own military and civil authorities.
[9]
Moreover,
the Board determined that the Applicants lacked credibility due to
inconsistencies and contradictory found in their testimonies which failed to
provide the Board with trustworthy and reliable evidence concerning their fear
of gangs in El
Salvador.
[10]
Furthermore,
the Board noted that while the Applicants had had the opportunity to seek
refugee protection in the United States, they had chosen not to do so. In this regard,
the Board found that the Applicants did not provide a satisfactory explanation
for the delay in applying for refugee status in Canada.
[11]
Finally,
the Board rendered a decision on July 18, 2006, wherein it found the Applicant
neither a Convention refugee nor a person in need of protection pursuant to
section 96 and subsection 97(1) of the IRPA.
ISSUES
[12]
(1)
Did the Board err in its finding on state protection?
(2) Did the Board err in
ignoring evidence?
(3) Did the Board err in
its credibility finding?
STATUTORY SCHEME
[13]
Section
96 of the IRPA reads as follows:
|
96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
|
96. A qualité de réfugié au sens
de la Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
[14]
Subsection
97 (1) of the IRPA states the following:
|
97. (1) A person in need of protection
is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because
of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
|
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en
tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou
qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque
ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque
ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de
santé adéquats.
|
STANDARD OF REVIEW
[15]
In
regard to state protection, Justice Danièle Tremblay-Lamer in Chaves
v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005]
F.C.J. No. 232 (QL), at paragraph 11, after conducting a pragmatic and
functional analysis, determined that the assessment of state protection
involves the application of the law to the facts and as such is a question of
mixed law and fact, reviewable on the reasonableness simpliciter
standard. This being said, there is no reason to diverge from this standard in
the case at bar. With respect to state protection, a finding by the Board will
not be overturned where such a finding is supported by reasons that can
withstand a somewhat probing examination. (Canada (Director of
Investigation and Research, Competition Act) v. Southam Inc.), [1997] 1
S.C.R. 748, at paragraph 56.)
[16]
In
regard to credibility findings, it is trite law that the Board has a
well-established expertise in the determination of questions of facts,
particularly in the evaluation of an applicant’s credibility. Under judicial
review, this Court does not intervene in findings of fact reached by the Board
unless it is demonstrated that its conclusions are unreasonable or capricious,
made in bad faith or not supported by the evidence. (Aguebor v. (Canada)
Minister of Employment and Immigration (F.C.A.), [1993] F.C.J. No. 732
(QL), at paragraph 4); (Wen v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 907 (QL), at paragraph 2); Giron v.
Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481
(QL); He v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 1107 (QL); Khan v. Canada (Minister of Citizenship and
Immigration), 2006 FC 839, [2006] F.C.J. No. 1064 (QL), at paragraph 27.)
ANALYSIS
(1) Did the Board err in
its finding on state protection?
[17]
The
Applicants argue that the Board erred in its determination of the objective
basis of their refugee claims, more specifically, in the assessment of the
issue of state protection.
[18]
It
is to be noted that, in Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689, at paragraphs 49, 50 and 52, the Supreme Court of Canada determined
that the state is presumed to be capable of protecting its citizens in the
absence of a complete breakdown of the state. The danger that this presumption
will operate too broadly is tempered by a requirement that clear and convincing
proof of a state's inability to protect must be brought forward. An applicant
might advance testimony of similarly situated individuals unassisted by state
protection or the applicant's testimony of past personal incidents in which
state protection did not materialize or the applicant’s personal experience as
proof of a state’s inability to protect its citizens. An applicant can also
provide country condition documentation to rebut the presumption that a state
is capable of protecting its citizens. (Reference is also made to Avila v. Canada (Minister of
Citizenship and Immigration), 2006 FC 359, [2006] F.C.J. No. 439 (QL), at
paragraphs 27 to 32.)
[19]
Moreover,
in Xue v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1728, Justice Marshall E. Rothstein held that it was not erroneous
to conclude that “clear and convincing” confirmation required a higher standard
of proof than the bottom end of the broad category of a “balance of
probabilities.” Specifically, he stated the following:
[12] Having regard to the
approach expressed by Dickson C.J.C. in Oakes, i.e. that in some
circumstances a higher degree of probability is required, and the requirement
in Ward that evidence of a state's inability to protect must be clear
and convincing, I do not think that it can be said that the Board erred in its
appreciation of the standard of proof in this case. If the Board approached the
matter by requiring that it be convinced beyond any doubt (absolutely), or even
beyond any reasonable doubt (the criminal standard), it would have erred. However,
the Board's words must be read in the context of the passage in Ward to which
it was referring. Although, of course, the Board does not make reference to Oakes
or Bater, and while it would have been more precise for the Board to say
that it must be convinced within the preponderance of probability category, it
seems clear that what the Board was doing was imposing on the applicant, for
purposes of rebutting the presumption of state protection, the burden of a
higher degree of probability commensurate with the clear and convincing
requirement of Ward. In doing so, I cannot say that the Board erred.
[20]
In
its decision, the Board concluded that the Applicants failed to rebut the presumption
of state protection. The Board relied on extensive documentary evidence that
indicates that the El Salvadorian government is taking an active role in
combating the problem of gang-related violence (Decision of the Board, at pages
4-10). In its decision, the Board agreed that gang related violence does take
place in El
Salvador,
but noted that this did not necessarily lead to an objective basis for the
Applicants’ claims. (Decision of the Board, at page 5). Moreover, the Board
determined that state protection is available to the Applicants, noting that El Salvador is a constitutional,
multiparty democracy that respects human rights, appears able and willing to
offer protection to its nationals, is in effective control of its territory,
and has its own military and civil authorities (Decision of the Board, at page
6). Finally, the Board determined that the Applicants failed to show that they
had made reasonable efforts to seek protection, which was not forthcoming or
adequate.
[21]
Consequently,
the Board did not make an unreasonable error in its findings on state
protection in El
Salvador.
(2) Did the Board err in
ignoring evidence?
[22]
Contrary
to the Applicants’ allegations, in light of the Board’s decision and the
transcript, it appears that the Board did consider and weigh the
proportionality of the evidence before it.
[23]
It
is well established that the Board is assumed to have weighed and considered
all of the evidence unless the contrary is shown. Hence, the Court has also
ruled on numerous occasions that it is also within the Board’s discretion to
exclude evidence that is not material to the case before it. The Board’s
decision, not to admit evidence submitted before it or to refer to each and
every piece of evidence, does not amount to a reviewable error. (Yushchuk v.
Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1324
(QL), at paragraph 17.)
[24]
In
fact, the Board has great flexibility in terms of the evidence that it may
consider. It is not bound by any legal or technical rules of evidence and may
rely on any evidence it considers credible or trustworthy in the circumstances.
(IRPA, subsection 173(c) and (d); Thanaratnam v. Canada (Minister of
Citizenship and Immigration), 2004 FC 349, [2004] F.C.J. No. 395 (QL), at
paragraph 7.)
[25]
The
Applicants’ contentions, that the Board’s conclusions were not based upon the
facts of the case and that it ignored the Applicants’ documentary evidence that
they were threatened by members of the gang not to go to the police out of fear
of these threats, are not well founded. Albeit, the Board noted in its decision
that the principal Applicant simply did not bother to approach the Salvadorian
authorities after allegedly receiving a note on his truck, it is clear
that the Board properly understood the facts of the case, despite the fact that
there is no mention of such a note in the principal Applicant’s PIF. (Decision
of the Board, at pages 1-2; Transcript of the hearing, at pages 4-7.)
[26]
Furthermore,
contrary to the Applicants’ allegations, the Board based its decision on
reliable documentary sources. (Decision of the Board, at pages 8-9; Transcript
of the hearing, at pages 9-10.) The general documentary evidence submitted by
the Applicants indicating that there are problems with the protection regime
for victims of gang violence is of no bearing since the Board recognized that
there were gang violence issues in El Salvador.
[27]
Nonetheless,
in considering the Applicants’ particular circumstances, the Board concluded
that they failed to demonstrate, with clear and convincing evidence, that they
would not be able to obtain state protection especially since the police did
respond in this particular case; however, the principal Applicant chose not to
take advantage of such state protection.
[28]
The
onus was on the Applicants to provide clear and convincing evidence to show
that state protection would be unavailable. The existence of documents
suggesting that the situation in El Salvador is not perfect, is not, by itself, clear
and convincing confirmation that state protection is unavailable, especially
when there are numerous other documents indicating that state protection is
available. As stated in Pehtereva v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1491 (QL):
[12] In addition, I am not persuaded that the tribunal ignored
documentary evidence provided by the applicant. That evidence, of newspaper and
other articles with translations to English where necessary, is not
specifically referred to by the tribunal, but in its decision it recorded its
agreement with the Refugee Hearing Officer's observations that the most
reliable evidence was from independent objective sources such as Human Rights
Watch, Amnesty International and the Department of State Country Reports as
opposed to anecdotal, newspaper articles. The sources referred to by the
tribunal are sources regularly relied upon by refugee claims tribunals as
providing generally objective information on country conditions. Reliance upon
such sources cannot be characterized as error; even if the newspaper articles
submitted by the applicant provided examples indirectly supportive of the
applicant's claim, for it is trite law that the weight to be assigned to given
documents or other evidence is a matter for the tribunal concerned. Even if the
reviewing court might have assigned different weight or reached other
conclusions that provides no basis for the reviewing court to intervene where
it is not established that the tribunal has been perverse or capricious or its
conclusions are not reasonably supported by the evidence. I am not persuaded
that the tribunal's conclusions can be so classified in this case.
[13] Finally, the tribunal's decision does not set out in precise
terms why it preferred certain documentary evidence and not other evidence, but
that does not constitute error. Here, the applicant's concern is primarily that
the documentary and other evidence offered by the RHO was relied upon without
specifying why evidence of the applicant was not. But that preference of the
tribunal, related to evidence of the general circumstances within Estonia, of
which the applicant's experience was but an example. The general circumstances
based on documentary evidence from recognized sources provided the basis for
objectively assessing the applicant's expressed fear. In my opinion, the
tribunal did not err by ignoring evidence offered by the applicant, or by
failing to specify reasons for preferring other sources of evidence,
particularly in seeking an objective overview of circumstances within Estonia.
Nor am I persuaded that the tribunal misunderstood or misstated the evidence of
the applicant in any way significant for its ultimate finding that the
applicant is not a Convention refugee, because it found no serious possibility
or reasonable chance she would be persecuted for any reason set out in the
definition of Convention refugee should she return to Estonia.
[29]
The
Court finds that the Board did properly assess the objective basis of the
Applicants’ claim. Consequently, no error is found on this basis.
(3) Did the Board err in
its credibility finding?
[30]
The
Applicants argue that the Board erred in its credibility finding. The Court
disagrees, finding instead that the Board was justified in arriving at such a
conclusion and provided clear reasons for its determination.
[31]
First,
the Board noted significant contradictions and inconsistencies between the
principal Applicant’s PIF narrative and his testimony:
Throughout his testimony, the principal
claimant statements were muddled and riddled with inconsistencies. While
attempting to ascertain his reaction to situations he had described as
representing eminent harm, the principal claimant was asked about his day-to-day
life following the alleged incident. According to his PIF narrative, the
principal claimant has stated that, shortly following the incident, he and his
family fled to a cousin’s house in San
Salvador where they
remained until mid-April. However, as his PIF indicated that he worked
uninterrupted as a sales clerk from February 02, 2004 until June 16, 2005, he
was asked when he stopped work. The principal claimant responded that he
stopped working as of March 13, 2005 when he fled to San Salvador to avoid complying with the police
summons. He then changed that testimony when it was pointed out that his PIF
told the Board that he stopped working on June 16, 2005. June 16, 2005 was,
con-incidentally the date on which the claimants departed El Salvador. After repeated questions intend on
simply establishing his final day of work, the principal claimant then stated
that both March 13, 2005 and June 16, 2005 were correct
The principal claimant had already
testified that from March 13, 2005 until April 14, 2005, he was in hiding at a
cousin’s home in San Salvador and, thereafter, from April 14, 2005 until the
time he left El Salvador, he hid with an aunt in San Salvador where
arrangements were made to assure that he would not have to “leave” his “room
for anything”.
Finally, after a number of similar internal
contradictions, counsel was asked if he preferred to continue putting questions
to his client and, therein creating more contradictory testimony, or, instead
to proceed directly with his submissions. Counsel chose to then stop questions
and present oral submissions on behalf of his clients.
(Decision of the Board, at pages 10-12;
Transcript of the hearing, at pages 12-15; PIF (Principal Applicant, at page 45.)
[32]
Second,
the Board found that the Applicants did not provide a satisfactory explanation
for the delay in applying for refugee status in Canada. The Board noted:
Genuine Convention refugees can be
expected to seek out protection as soon as it is reasonably practicable and
they are beyond the reach of their oppressors. Once having obtained protection
against refoulement, they are then free to apply to resettle in any
third country they so choose. At this point, however, the matter belongs in the
realm of immigration law, and not refugee law (Hankali, Ilie, and
Bains)
The claimants admit that illegally
entered the USA and remained there for over three weeks and, after being
apprehended by USA immigration made no mention of their
alleged fear of return to El
Salvador. At no time did
they make a claim for refugee protection in the USA and, instead chose to
simply ignore an opportunity to appear in USA courts and explain their situation…
[33]
The
cases as outlined by the Board must be distinguished from decisions pertaining
to delays of application of refugee protection in Canada as raised by the
Respondents; nonetheless, the fact that the Applicants did not seek protection,
as soon as they had fled El Salvador, is a factor that should have been
and was considered by the Board.
[34]
The
Court finds that the Board did properly assess the subjective basis of the Applicants’
claim. Consequently, no error is found on this basis.
CONCLUSION
[35]
For
all the above reasons, the applicatiion for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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