Date: 20071001
Docket: IMM-782-07
Citation: 2007 FC 979
Ottawa, Ontario,
October 1st, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
WILLIAM
ALEXANDER CRUZ HERRERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated January 23, 2007. The Board concluded that the applicant was neither a
Convention refugee nor a person in need of protection, pursuant to sections 96
and 97 of the Act respectively, due to a lack of credibility.
In addition, the Board found that the applicant’s behaviour was incompatible
with a subjective fear of persecution.
[2]
Although
the decision and the memoranda are in French, the applicant asked that the
hearing be conducted in English. The reasons will therefore be written in
English.
ISSUES
[3]
The
parties’ submissions reveal three issues:
a) Did
the Board err by making adverse findings of credibility in a perverse and
capricious manner, on irrelevant considerations, or without regard to the
totality of the evidence before it?
b) Did
the Board err by drawing a negative inference regarding the applicant's
subjective fear of persecution?
c) Did
the Board err by failing to conduct a separate analysis under subsection 97(1)
of the Act?
[4]
For
the following reasons, the answer to the three questions is negative and
the present application will be dismissed.
BACKGROUND
[5]
The
applicant is a citizen of El Salvador who seeks asylum in Canada because he
fears persecution in his home country on the ground of his sexual orientation.
[6]
In
2001, the applicant entered into a relationship with a young man by the name of
Miguel Antonio El Pina, who was a member of a gang known as the Maras La Mara
18 (Mara). Their relationship lasted approximately one year. When other
members of the Mara learned of their relationship, they tortured,
assaulted and killed Miguel Antonio El Pina, and forced the applicant to watch.
They also beat and sexually assaulted the applicant on several occasions.
[7]
In
the spring of 2001, he left for the United States where he was granted
Temporary Protective Status. He remained in the United States for five
years by renewing his temporary status.
[8]
He
arrived in Canada on April 19,
2006. On his arrival, he declared that conflict stemming from the distribution
of his stepfather’s
inheritance was
his reason for fleeing El Salvador. Shortly after his
entry into Canada, the
applicant made a claim for refugee status on the grounds that he feared
persecution because of his sexual orientation. The discrepancies between the
facts related by the applicant in support of his claim are at the heart of the
issue before the Court. The denial of his claim by the Board forms the basis of
this application for judicial review.
DECISION UNDER REVIEW
[9]
The
Board denied the applicant’s claim, concluding that he was not credible. The
following are the key matters which the Board found to be detrimental to his
credibility:
a) The applicant
omitted from his Personal Information Form (PIF) the fact that he lived in the United
States
between 2001 and 2006. Rather, he initially declared he had always lived in El Salvador, from 1981
until 2006. It was subsequently revealed in the psychological report of Dr.
Valenzuela that he had entered the United Stated five years prior to his
arrival in Canada. This was
confirmed by his testimony;
b) The applicant
stayed in the United
States
for five years without making a claim for asylum. He first said the process was
too costly, and subsequently testified that he never thought of making such a
claim;
c) The applicant
provided contradictory testimony regarding an incident relating to his
stepfather. In his PIF, he stated that the Mara visited his stepfather’s
home in May 2005, which caused his stepfather to be hospitalized and
precipitated his death in June 2005. The applicant admitted before the Board that
the Mara visited the home in 2001, and that his stepfather passed away in 2006;
d) The applicant
further contradicted himself when he stated in his PIF that his stepfather’s
sons from a previous marriage blamed him for hastening the death of the stepfather.
However, when he was interviewed at the border upon his arrival to Canada, the
applicant maintained that the sons born from a previous marriage threatened his
life if he did not give them inheritance money to which they felt they were
entitled;
e) The applicant
testified that he watched his partner, Miguel Antonio El Pina, be tortured, but
that this was not mentioned in his PIF;
f)
Finally,
the Board questioned the lack of evidence, such as a news story reporting the
death of Miguel Antonio El Pina, or hospital records detailing the injuries
suffered by the applicant.
[10]
When
asked why he did not reveal his stay in the United States to the border
officials, the applicant explained that he was told by people in Canada that such a
disclosure would hinder his chances of making a successful claim, and advised
that he lied. He was unable to explain the diverging stories regarding the
question of his stepfather’s inheritance. When asked why he did not make a claim for
refugee status in the United
States at
any time during his five-year stay, he first said it was too costly, and then
changed his answer, saying that he had never considered the possibility.
[11]
The
Board found the applicant’s explanation insufficient to justify a five-year
stay in the United
States
without seeking asylum, and that this omission eroded the applicant’s pretension
that he has a subjective fear of persecution.
[12]
The
Board concluded for the above-mentioned reasons that there was a complete lack
of credibility on the part of the applicant:
Pour toutes ces raisons, le demandeur n’a
pas fait la preuve d’une possibilité sérieuse de persécution en cas de retour
dans son pays.
De plus, le tribunal conclut qu’il
n’existe pas de possibilité sérieuse que le demandeur soit torturé ou exposé à
une menace à sa vie ou à des traitements et peines cruels et inusités au El
Salvador parce qu’il n’a pas été trouvé crédible sur les points fondamentaux de
sa demande d’asile.
[13]
The
reasons of the Board did not include a specific analysis of subsection 97(1).
ANALYSIS
Did
the Board err by making adverse findings of credibility in a perverse and
capricious manner, on irrelevant considerations, or without regard to the
totality of the evidence before it?
Standard of review
[14]
When
the Board makes a determination regarding the credibility of a refugee
claimant, the decision will be reviewed by the Court using the standard of
patent unreasonableness. This standard has been confirmed by the Federal Court
of Appeal in Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315 at paragraph 4:
There is no longer any doubt that the
Refugee Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony: who is in a better position than the
Refugee Division to gauge the credibility of an account and to draw the
necessary inferences? As long as the inferences drawn by the tribunal are not
so unreasonable as to warrant our intervention, its findings are not open to
judicial review. […]
Adverse finding of credibility
[15]
Taken
as a whole, the Board’s adverse findings of credibility, based on the numerous
discrepancies between the applicant’s point of entry interview, PIF, and
testimony, cannot be characterized as patently unreasonable.
[16]
A
review of the transcripts of the applicant’s testimony, and point of entry
interview, as well as the PIF, confirm the Board’s assessment of conflicting
facts, including versions which were recounted to deliberately mislead Canadian
immigration authorities. However, one ground upon which the Board drew its
negative inference of credibility merits closer examination; the Board wrote in
its reasons:
En outre, le demandeur témoigne qu’il a
été témoin de la torture de son ami Miguel membre de la Mara.
Or, dans son histoire que l’on retrouve
dans son FRP, il ne parle pas du tout de cet événement de torture.
[17]
A
review of the applicant’s PIF discloses the following statement made at lines
35 through 41:
Miguel Antonio était membre d’une bande
de Maras, la MARA 18. Notre relation a duré un an. Quand les autres membres
ont découvert notre relation homosexuelle, ils ont violé et tué Miguel Antonio
El Pina. Quant à moi, les membres de la MARA 18, m’ont violé et battu avant de
me jeter devant le motel qui appartient à la mère de Gloria Elizabeth.
[18]
Despite
the fact that he did not qualify the experience as torture, the applicant’s
disclosure of sexual assault and beating suggests that he was subject to
extreme violence. Furthermore, a psychological report prepared by Dr. Martha
Valenzuela for the Board outlines the reason why the applicant would minimize
his description of the abuse (page 6):
Regarding
the question whether Mr. Cruz’ symptoms may interfere with his ability to
testify, this may be significantly affected. He appears prone to anxiety and
as soon as he refers to the aggression and torture perpetrated on his partner,
he becomes tearful and unable to talk. […] The helplessness and guilt regarding
the humiliation and debasement he was forced to witness and to endure, may
invade him to the point of impinging on his ability to construct a coherent
narrative. […]
[19]
Granted
the extreme violence to which the applicant was subjected, and in light of the
passages from the PIF and the psychological report, the court finds that it was
unnecessary for the Board to require from the applicant that this experience be
qualified specifically as torture.
[20]
Because
the Board relied on five other grounds which were supported by the evidence, I
find that the Board did not err in coming to an adverse finding of credibility
and denying the section 96 claim. The applicant’s extended stay in the United States without seeking asylum is
particularly persuasive. His failure to disclose this at the point of entry
erodes his credibility considerably.
Did
the Board err by drawing a negative inference regarding the applicant's
subjective fear of persecution?
[21]
The
Board determined that the applicant’s claim could not be granted, because the
applicant lived in the United Stated, state party to the 1967 Protocol
relating to the Status of Refugees, for a period of five years, without
making a claim for refugee status in that country. The decision referred to
the following passage from Ilie v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1758 (QL). The Board
wrote:
Le défaut d’un demandeur de revendiquer
le statut de réfugié dans un pays signataire du Protocole de 1967
contredit la prétention selon laquelle il craint d’être persécuté.
[22]
While a
determination of the existence of subjective fear is based on the claimant’s credibility (Canada
(Minister of Citizenship and Immigration) v. Elbarnes, 2005 FC 70, [2005]
F.C.J. No. 98 (QL); Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689), negative inferences may also be drawn from a claimant’s failure to bring
a claim promptly (Mejia v. Canada (Minister of Citizenship and Immigration),
2006 FC 1087, [2006] F.C.J. No. 1365 (QL); Manokeran v. Canada (Minister of
Citizenship and Immigration), 2006 FC 111, [2006] F.C.J. No. 146 (QL); Munoz
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1273, [2006]
F.C.J. No. 1591 (QL)). It was reasonable for the Board to conclude that a five-year
stay in the United
States
without making a claim indicates a lack of subjective fear.
[23]
I
agree with the respondent’s submission that the absence of subjective fear may also
be fatal to a refugee claim, beyond the simple negative inference of
credibility. In Kamana v. Minister of Citizenship and Immigration,
[1999] F.C.J. No. 1695 (T.D.) (QL), Tremblay-Lamer J. held at paragraph 10:
The
lack of evidence going to the subjective element of the claim is a fatal flaw
which in and of itself warrants dismissal of the claim, since both elements of
the refugee definition--subjective and objective--must be met.
[24]
Kamana, above has subsequently
been cited with approval (Akacha v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1489, [2003] F.C.J. No. 1897 (QL) at paragraph 5; Houssou
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1375, [2006]
F.C.J. No. 1730 (QL) at paragraph 32).
[25]
It
was reasonable for the Board to conclude that the applicant’s failure to make a
refugee claim in the United
States,
despite the fact that he remained in the country for five years, presents a
critical barrier to a claim under section 96 of the Act. While the
applicant’s lack of subjective fear properly disposes of his claim under section
96, the subjective element is not required in order to conclude that a claimant
is a person in need of protection under subsection 97(1).
Did
the Board err by failing to conduct a separate analysis under subsection 97(1)
of the Act?
[26]
The
applicant submits that it was incumbent on the Board to perform a separate
analysis under subsection 97(1) of the Act, to determine whether he is a person
in need of protection. The applicant relies on Bouaouni v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1211, [2003] F.C.J. No. 1540 (QL)
at paragraph 41:
A claim under section 97 must be
evaluated with respect to all the relevant considerations and with a view to
the country's human rights record. While the Board must assess the applicant's
claim objectively, the analysis must still be individualized. I am satisfied
that this interpretation is not only consistent with the United Nations CAT
decisions considered above, but is also supported by the wording of paragraph
97(1)(a) of the Act, which refers to persons, "...whose removal ... would
subject them personally...". There may well be instances where a refugee
claimant, whose identity is not disputed, is found to be not credible with
respect to his subjective fear of persecution, but the country conditions are
such that the claimant's particular circumstances, make him/her a person in
need of protection. It follows that a negative credibility determination, which
may be determinative of a refugee claim under s. 96 of the Act, is not
necessarily determinative of a claim under subsection 97(1) of the Act. The
elements required to establish a claim under section 97 differ from those
required under section 96 of the Act where a well-founder fear of persecution
to a convention ground must be established. Although the evidentiary basis may
well be the same for both claims, it is essential that both claims be
considered as separate. A claim under section 97 of the Act requires that the
Board apply a different test, namely whether a claimant's removal would subject
him personally to the dangers and risks stipulated in paragraphs 97 (1) (a) and
(b) of the Act. Arguably, the Board may also be required to apply a different
standard of proof, which is an issue that I will leave for another day, since
it was not argued on this application. Whether a Board properly considered both
claims is a matter to be determined in the circumstances of each individual
case bearing in mind the different elements required to establish each claim.
[27]
In
the present case, the Board concluded that there was a total lack of
credibility on the part of the applicant, and as such, they disbelieved that
there was a serious risk of torture, risk to his life or to a risk of cruel and
unusual treatment or punishment if he were to return to El Salvador. If the
evidence upon which a determination under subsection 97(1) is not found to be
credible, the Board is not required to perform a separate analysis. This was
confirmed in Kaur v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1710, [2005] F.C.J. No. 2112 (QL),
at paragraph16:
With respect to the lack of a distinct
analysis regarding subsection 97(1), the Board was entirely justified not to
undertake that exercise from the moment where it determined that the applicant
was not credible. If the Board was correct on that point, it is clear that the
applicant could not have been considered to be a person in need of protection.
Incidentally, that is what this Court has determined on numerous occasions: Bouaouni
v. Canada (Minister of Citizenship and
Immigration),
[2003] F.C.J. No. 1540; 2003 FC 1211 (QL); Soleimanian v. Canada (Minister
of Citizenship and Immigration), [2004] F.C.J. No. 2013; 2004 FC 1660 (QL);
Brovina v. Canada (Minister of Citizenship and
Immigration),
[2004] F.C.J. No. 771, 2004 FC 635 (QL).
[28]
I have
determined that the Board’s adverse findings of credibility are reasonable. It
cannot be said that there is no analysis in the case at bar under section
91(1). The decision is very succinct, but the conclusion of a total lack of
credibility and the absence of a proof that might link the general documentary
evidence to the applicant’s specific circumstances justify the Court to conclude
that the Board did not err when it dismissed the applicant’s claim under subsection
97(1) of the Act (Ahmad v. Canada (Minister of Citizenship and Immigration),
2004 FC 808, [2004] F.C.J. No. 995 (QL)).
[29]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for
judicial review is dismissed. No question is certified.
“Michel
Beaudry”
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