Date:
20130710
Docket:
IMM-8547-12
Citation:
2013 FC 760
Ottawa, Ontario, July 10, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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XIOMARA ERNESTINA
GUERRERRO BUEZO (A.K.A. XIOMARA ERNESTI GUERRERO BUEZO) YUNIOR ALEXIS LEZAMA
GUERRERO
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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
I. Overview
[1]
Ms
Guerrero Buezo and her son, Yunior, sought refugee protection in Canada based primarily on their fear of Yunior’s father, Marvin, in Honduras. In 1994, Marvin
kidnapped and sexually assaulted Ms Guerrero Buezo when she was 15 years old.
He held her captive for nearly two years, during which she gave birth to
Yunior. In 1996, Ms Guerrero Buezo briefly escaped with Yunior, but Marvin
managed to find them and retrieve his son. Ms Guerrero Buezo, who fled to the United States in 2006, did not see Yunior for 13 years, during which he lived with his
paternal grandparents.
[2]
In
2007, Yunior witnessed a murder committed by a man known as “Big Mama”. As a
result, he feared that Big Mama would try to kill him, too. He also feared
gangs who had tried to recruit him. In 2009, Yunior fled to the US where he reunited with his mother. They arrived in Canada in 2011.
[3]
A
panel of the Immigration and Refugee Board considered the applicants’ claims
and dismissed them on the basis that Yunior’s claim had no nexus to a
Convention ground; their fear of Marvin was no longer well-founded; the fact
that they had not sought asylum in the US showed a lack of fear of returning to
Honduras; and they faced, at most, a generalized risk of harm in Honduras.
[4]
The
applicants argue that the Board’s decision was unreasonable because it failed
to recognize their unique circumstances. Given the nature and long duration of
Marvin’s persecution, the Board should have recognized that he will likely seek
out and harm the applicants if they return to Honduras, especially now that the
applicants have reunited. Further, Yunior still has a well-founded fear of
persecution by Big Mama. Finally, the Board failed to appreciate that Ms
Guerrero Buezo suffers from post-traumatic stress disorder, which explained why
she did not claim asylum in the US. The applicants ask me to quash the Board’s
decision and order a new hearing.
[5]
I
can find no basis for overturning the Board’s decision. Its conclusion that the
applicants have not presented sufficient evidence to establish more than a mere
possibility of harm if they return to Honduras was not unreasonable.
II. Was the Board’s
decision unreasonable?
[6]
In
my view, the Board’s decision was not unreasonable. While it is clear that the
applicants endured serious physical and psychological harm, the Board
reasonably found that the evidence did not show that their fear of persecution on
return to Honduras was objectively well-founded.
[7]
Ms
Guerrero Buezo has not had any contact with Marvin since 1996; Yunior saw his
father rarely during his life. At this point, their fear of Marvin is
speculative.
[8]
The
same is true of Yunior’s fear of “Big Mama”. There were two occasions when this
man could have harmed Yunior, yet he did nothing. Further, Yunior fears being
harmed by a criminal. That fear has no nexus to a ground of persecution
recognized by the Refugee Convention.
[9]
While
I agree with the applicants that the Board should have considered the evidence relating
to their psychological well-being before concluding that their failure to claim
asylum in the US showed a lack of subjective fear, that finding was not
essential to the Board’s decision. Its main conclusion was that the evidence
did not show that their fear was objectively well-founded.
[10]
Finally,
the Board reasonably concluded that Yunior’s fear of gangs was based on a
generalized risk. The gangs had not singled Yunior out for any particular
attention – many young men are pressured to join gangs in Honduras.
[11]
Therefore,
I cannot conclude that the Board’s decision was unreasonable.
III. Conclusion and
Disposition
[12]
The
Board’s decision represented a defensible outcome based on the facts and the
law. I must, therefore, dismiss this application for judicial review. Neither
party proposed a question of general importance for me to certify, and none is
stated.
[13]
I
would point out, however, that the applicants’ circumstances appear to support
a strong claim for humanitarian and compassionate relief, and I urge them to
apply for it.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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