Date: 20080707
Docket: IMM-607-06
Citation: 2008 FC 834
Montréal, Quebec, July 7,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
OMAR JESUS DIAZ ESPINOZA
ALEJANDRA PAMELA DIAZ FORTES
RAMIRO ARCE VERA
SUSANA CECILIA ARCE
MATEO RODRIGO ARCE DIAZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
principal applicant, Mr. Omar Jesus Diaz Espinoza, his two daughters, Alejandra
Pamela Diaz Fortes (younger daughter) and Susana Cecilia Arce (older daughter),
as well as the latter’s spouse, Ramiro Arce Vera (son-in-law) and their young
son, Mateo Rodrigo Arce Diaz (child), seek to quash a decision of the
Immigration and Refugee Board, Refugee Protection Division (Board), dated
January 12, 2006, which found them to be neither “convention refugees” nor “persons
in need of protection” pursuant to sections 96 and 97 respectively, of the Immigration
and Refugee Protection Act (Act), S.C. 2001, c. 27.
I. Facts
[2]
The
applicant and his two daughters left Peru in 1998 to settle in
the United States of America (USA). While living there illegally they failed to
make a claim for Refugee Protection.
[3]
The
older daughter met and married in USA, a fellow country man,
the son-in-law. The son of this couple, the applicant child, was born in the USA, while his
parents, maternal aunt and grandfather are all native Peruvian citizens. There is no evidence on the record of any allegations of fear
of persecution in the USA for this
child applicant.
[4]
In
April 2000, the principal applicant left his two daughters in the USA, and
returned to Peru to process his application for a USA work visa.
However, instead of a work visa he was only granted a visitor’s visa before
returning to the USA, in July 2000.
[5]
During
the three-month period of his return in Peru, the
principal applicant stayed with friends and family members and did not
experience any threats or attacks from factions of the Shining Path. At the
expiration of their USA visitor’s visas, in March 2002, the principal
applicant and his daughters decided to remain illegally in the USA.
[6]
With
respect to the son-in-law, who had made a refugee claim in USA, he was found in
October 16 1998, by USA authorities, not to be a Convention refugee due
to the availability of state protection in his home country. He remained in the
USA illegally,
had a child with the older daughter applicant in July 2004, and they
subsequently married in November 2004.
[7]
The
applicant and his younger daughter left the USA and came to Canada on December
13, 2004, while his son-in-law and his older daughter and their child followed
5 days later. They all sought refugee protection immediately upon their arrival
in Canada.
[8]
They
now claim that their lives would have been in danger had they returned to Peru. The basis
of their fear is the actions of the “Sendero Luminoso” (the Shinning
Path) and the Fuerzas Armadas Revolucionarias de Colombia (FARC) who oppose the
religious work of the principal claimant and fear of the Shining Path who
oppose the journalistic and religious work of the son‑in‑law.
[9]
Their
refugee hearing was held on October 13, 2005 and the Board’s decision rejecting
their claims was rendered on January 12, 2006. After the hearing but before the
decision was rendered, counsel for the applicants submitted additional
documents.
II. Impugned
Decision
[10]
After
a review of the entire families’ files, including the post-hearing documents
submitted by the applicants, the Board found that the adult applicants did not
have a credible basis to make refugee claims due to the fact they failed to
make a claims in the USA, while the son-in-law’s claim had been denied because
of late filing and the availability of state protection in Peru. With respect to
the son-in-law, the only applicant who had made a refugee claim in the USA, and
whose claim was dismissed by the USA authorities, the Board
noted that the documentary evidence failed to support his contention that he
was targeted, and in addition the Board found that there was adequate state
protection in Peru.
[11]
Finally,
after a careful analysis of the multiple threads of the five applications, the
pattern of living illegally for a number of years in the USA, and the confirmed
desires of the adult applicants not to return to Peru and their
profile, the Board concluded as follows:
There is little doubt in my mind that
having being outside Peru for over ten years, the adult
claimants are highly motivated to remain in Canada. That their desire to stay in Canada is, however more suited to
the immigration process than to refugee determination. Refugee law deals primarily
with needs; immigration law deals primarily with desires. To use the refugee
determination process as an alternative procedure for immigration is an abuse
of the system and runs afoul of the jurisprudence. [Emphasis added by the Court].
[. . .]
I find that they have no fear of a risk
to their lives, a risk of cruel and unusual treatment or punishment. There is
also not more than a mere possibility that their return to Peru would expose them to a fear resulting
from the danger of torture. Accordingly, I find that the claimants’ desire to
live in Canada must be addressed under
immigration law and not refugee law.
[12]
This
negative decision forms the basis of the present application for judicial review.
III. Issues
[13]
As
a preliminary matter, counsel for the applicants had made extensive written
submissions alleging that the Board had violated the principles of natural
justice by adopting the reverse order questioning as per Guideline 7 of the
Immigration and Refugee Board. However, this line of argument was abandoned, in
light of the resolution of this matter by the Federal Court of Appeal in Thamotharem
v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 734 (QL); leave to
appeal to S.C.C. refused, [2007] S.C.C.A. No. 394 (December 13, 2007) (QL).
[14]
Thus
the only remaining issue for this Court is to verify if the Board erred in fact
or in law in concluding as it did.
IV. Standard
of Review
[15]
The Board’s findings with respect to state
protection are findings of fact reviewable on the standard of reasonableness (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (QL); Khokhar v.
Canada (Minister
of Citizenship and Immigration), 2008 FC 449, [2008]
F.C.J. No. 571 (QL); Eler v. Canada (Minister
of Citizenship and Immigration), [2008] F.C.J. No. 418 (QL), 2008 FC
334, at paragraph 6). This is a deferential standard which recognizes that certain
questions before administrative tribunals do not lend themselves to one
specific, particular result but instead give rise to a number of possible and
reasonable conclusions.
[16]
Therefore the Court will review the Board's decision with
regard to "the existence of justification, transparency and
intelligibility within the decision-making process [and also] [...] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law" (Dunsmuir, above, at paragraph 47).
[17]
Further,
the Court will keep in mind that the Board is not required to establish the
existence of state protection. The onus to rebut the presumption of state
protection remains at all time on the refugee claimant, (Canada (Attorney
General) v.
Ward, [1993] 2. S.C.R. 689, [1993] S.C.J. No 74 (QL)).
V. Analysis
[18]
The
applicants submit that the Board overly simplified the alleged fears of the
adult applicants and erred in failing to consider the son-in-law’s political
involvement.
[19]
However,
it is clear from the transcript and the decision read as a whole that the Board
did consider the evidence provided by the son-in-law to corroborate his
membership in a Peruvian political party. The reasons given by the Board are
not to be read hypercritically and the Board is not required to refer to every
piece of evidence that it received and that is contrary to its finding, and it is
not required also to explain how it dealt with it in every detail. The Board
must be presumed to have considered all the evidence, and it appears here that
it did. But unfortunately the applicants failed to convince the Board of their
pretensions and to rebut the presumption of state protection, considering their
personal situation.
[20]
The
Board was entitled to take into account the delay before the applicants claimed
refugee status (Huerta v. M.E.I. (1993), 157 N.R. 225 (F.C.A.) at 227; Hue
v. M.E.I., March 8, 1988, A‑196‑87 (F.C.A.); Heer v. M.E.I.,
April 13, 1988, A‑474‑87 (F.C.A.)), and it did not err when it
found that a return of the applicant to his country of alleged persecution, for
a period of three months, is hardly compatible with the behaviour of someone
who allegedly fears persecution (Liviu-Mitroi v. M.E.I., [1995] F.C.J.
No. 216 (QL), February 8, 1995, A-202-92, (F.C.A.)).
[21]
International
refugee law comes into play only in situations when the protection expected
from the state in one’s country of nationality is unavailable, and then only in
certain situations. Absent a situation of complete breakdown of state
apparatus, it is generally presumed that a state is able to protect a claimant.
This presumption “serves to reinforce the underlying rationale of international
protection as a surrogate, coming into play where no alternative remains to the
claimant” (Ward, above, at 709 and 726).
[22]
A
claimant must provide clear and convincing confirmation of his state’s
inability to protect (Ward, above at 724), having in mind that the
protection provided by the authorities of the country of origin need not to be
perfect (Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R.
(2d) 130 (F.C.A.)).
[23]
The
Board conducted a thorough examination of the documentary evidence before
finding that the applicants are neither “convention refugees” nor “persons in
need of protection” pursuant to sections 96 and 97 respectively, of the Act,
and that in addition there is in Peru adequate protection
available for them against the Shining Path and the FARC’s project.
[24]
Having
reviewed the impugned decision in the context of the entire file, including the
post‑hearing evidence, the Court concludes that the assessment of the Board
falls entirely within a range of possible, acceptable outcomes which are more
than defensible in respect of the facts and the law. The Board enjoys a certain
expertise vis-à-vis this reviewing Court, to readily identify and
ascertain the reliability of the sources, and is owed deference for its
findings.
[25]
The
applicants call more or less upon this Court to reassess the evidence and the
articles submitted, to weigh their probative value and to substitute its
findings for those of the Board’s. This Court refuses this invitation since it
is the role of the Board and its role exclusively, to weigh evidence. This is
precisely what the Board did in this case, even if the applicants would have
preferred a different result.
[26]
While
the applicants make several criticisms at the decision, the Court is satisfied
that the Board’s decision contains no error of fact or law that would
individually or cumulatively warrant the intervention of this Court.
[27]
The
application will therefore be dismissed. Further, the Court agrees with the
parties that there is no question of general interest to certify.
JUDGMENT
FOR THE FOREGOING
REASONS THE COURT dismisses the application.
“Maurice E. Lagacé”
Email this Content