Docket:
IMM-1296-13
Citation: 2013 FC 1016
Montréal,
Quebec, October 8, 2013
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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LUIS FERNANDO BUESO TROCHEZ
LESTHER ENRIQUE BUESO TROCHEZ
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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. Introduction
[1]
The Applicants seek a judicial review of a
decision by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board, dated January 14, 2013, wherein, it was determined that neither
Applicant was a Convention refugee under section 96 nor a person in need of
protection under section 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA].
II. Background
[2]
The Applicants, Mr. Luis Fernando Bueso Trochez and Mr. Lesther Enrique Bueso Trochez, are brothers and citizens of Honduras. They
were born and raised in the city of San Pedro Sula.
[3]
In 2001, the Applicants’ parents immigrated
illegally to the United States and left the brothers in the care of their
grandmother.
[4]
The Applicants began attending the Centro Educativo en Computacion in February 2005.
[5]
The Applicants’ Personal Information Form [PIF]
then indicates:
a)
In March 2005, the Applicant, Mr. Lesther Bueso, was approached by members of the Mara Salvatrucha 13 [MS-13] criminal gang
outside their school and was badly beaten when he refused to join their gang;
b)
In May 2005, the other Applicant, the younger
brother of Lesther Bueso, Luis Bueso, faced a similar demand to join the gang
and when he refused, he was beaten and stabbed in his upper left arm. This
required a visit to the local hospital;
c)
The Applicants’ family attempted to file a
complaint with the local police; however, without more information, the police
advised them that they could not do anything;
d)
The Applicants moved to an aunt’s home in San
Pedro Sula in June 2005, and then to their grandfather’s home in the city of
Comayagua in December 2005;
e)
In February 2006, the Applicants decided to
leave Honduras for the United States to live with their parents. They traveled
through Guatemala and Mexico by car, and on March 16, 2006, successfully,
crossed the Mexican-US border by foot at McAllen, Texas.
[6]
The Applicants reunited with their parents in
Miami and remained in the United States without legal status for over 5 years.
[7]
The Applicants arrived in Canada on March 26,
2011 and claimed refugee protection a few days later.
[8]
The Applicants indicate that continuing threats
made to their brother, German Bueso, have made them fearful to return to
Honduras. They feel their family is targeted by the MS-13 gang because they
refused to join their ranks in 2005.
III. Decision under Review
[9]
The RPD rejected the Applicants’ asylum claim on
January 14, 2013.
[10]
At the outset, the RPD found that the Applicants
had not established a nexus to a Convention ground. The Applicants had agreed
with this determination in regard to the Convention at the oral hearing, itself,
therefore, the RPD did not discuss the matter any further in its decision in regard
to a Convention ground (Hearing Transcript at p 17).
[11]
Having concluded that a claim under section 96
had not been established, the RPD considered whether the criteria of section 97
of the IRPA had been satisfied. The RPD found that the Applicants’ evidence
was not credible; therefore, they had not established a personal risk to their
life or to a risk of cruel and unusual treatment or punishment pursuant to
section 97 of the IRPA.
[12]
The RPD raised the lack of specificity in
respect of the Applicants’ claim; they could not identify a single member of
the gang that had been trying to recruit them, although they alleged they were
well-known in their neighbourhood. The RPD also found that it was implausible
for the MS‑13 to continue to seek the Applicants years after they had
left the country. Referring to the documentary evidence, the RPD noted that it
did not find that the Applicants fit the profile of youths, recruited by the
MS-13, or even that the MS-13’s recruitment pattern was, generally, one of forced
recruitment.
[13]
The RPD also drew a negative inference from a
significant inconsistency between the PIF and the Applicants’ testimony in
regard to when they had left the school where they had been attacked. The
Applicants indicated in their PIF that they had withdrawn from school in
November 2005; however, at the hearing, the Applicants claimed they left school
immediately after the attacks in the spring of 2005. The RPD noted that the
date given at the hearing would have been included in their PIF narrative if
the allegations had been true as “such actions provide proof of facing risk.”
[14]
Given these credibility problems and a general
lack of evidence corroborating their story, the RPD found that, on a balance of
probabilities, the Applicants had not met their burden of establishing that
their allegations of risk of torture were true.
[15]
In addition to this negative credibility
finding, the RPD also found that the Applicants’ alleged risk of torture was of
a generalized nature, faced by a large number of young people in Honduras
targeted by gangs, such as the MS-13. As the risk was of a generalized nature,
not specifically targeting the Applicants, themselves; thus, even if they had
been credible, the provision of section 97 would not apply to the Applicants. The
RPD cited the cases of Perez v Canada (Minister of Citizenship and
Immigration), 2010 FC 345 and Maldonado Lainez v Canada (Minister
of Citizenship and Immigration), 2011 FC 707 in support of this conclusion.
[16]
Correspondingly, the RPD concluded that the
Applicants had not met the burden of establishing that the city of Comayagua
was not a viable internal flight alternative [IFA].
IV. Issues
[17]
(1) Is the RPD’s credibility determination
reasonable?
(2)
Is the RPD’s determination that the Applicants faced a generalized risk
reasonable?
(3)
Is the RPD’s determination that there is an IFA available in Honduras
reasonable?
V. Relevant
Legislative Provisions
[18]
The following legislative provision of the IRPA
is relevant:
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Convention refugee
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.
Person in need of protection
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.
Person in need of protection
(2) A person
in Canada who is a member of a class of persons prescribed by the regulations
as being in need of protection is also a person in need of protection.
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Définition de « réfugié »
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.
Personne à protéger
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.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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VI. Position of
the Parties
[19]
The Applicants submit that the RPD’s credibility
determination was not reasonable as it ignored and misconstrued key pieces of
evidence; particularly related to RPD’s findings on the MS-13’s recruitment
pattern and the Applicants’ profiles.
[20]
The Applicants also submit that the RPD erred by giving
too much weight to the inconsistency between their PIF and testimony with
regard to the date they withdrew from school. The Applicants maintain that such
an inconsistency cannot, in and of itself, support a negative credibility
finding.
[21]
The Respondent submits that the Applicants did not
demonstrate that the RPD’s conclusion regarding the absence of credibility of
the claim was unreasonable.
[22]
The Respondent first emphasizes that it was within the RPD’s
jurisdiction to use a common-sense approach in determining the credibility of
the Applicants and to take into account any discrepancies in their claims (Shahamati
v Canada (Minister of Employment and Immigration), [1994] FCJ No 415 (FCA)
(QL/Lexis); Gudino v Canada (Minister of Citizenship and Immigration),
2009 FC 457). According to the Respondent, the RPD was equally entitled to
reject explanations in respect of discrepancies as they were insufficient to
give credence to their allegations (Sinan v Canada (Minister of Citizenship
and Immigration), 2004 FC 87 at para 10).
[23]
The Respondent further contends that the RPD was open
to draw a negative inference from the Applicants’ failure to produce
documentary evidence by which to corroborate their claims (Ramirez v
Canada (Minister of Citizenship and Immigration), 2009 FC 442 at para 15).
[24]
Lastly, the Respondent affirms that it was also
reasonable for the RPD to draw negative credibility findings in regard to the
omissions and contradictions between the facts alleged in the Applicants’ PIF
and their testimony (Basseghi v Canada (Minister of Citizenship and
Immigration), [1994] FCJ No 1867 (QL/Lexis)) at para 33; Feradov v
Canada (Minister of Citizenship and Immigration), 2007 FC 101 at para 18).
VI. Analysis
Standard of Review
[25]
The applicable standard of review in respect to the
weight of the evidence and as to findings of credibility is that of reasonableness
(Aguebor v Canada (Minister of Employment and Immigration) (1993), 160
NR 315 (FCA) at para 4).
[26]
The applicable standard of review as for the second
issue, determining whether an applicant faces a generalized risk, is also that
of reasonableness as it is a question of mixed fact and law (Acosta v Canada
(Minister of Citizenship and Immigration), 2009 FC 213 at para 9-11).
[27]
Lastly, the standard of review on a question of an IFA
is also that of reasonableness (Agudelo v Canada (Minister of Citizenship
and Immigration), 2009 FC 465 at para 17).
(1) Is the RPD’s credibility determination reasonable?
[28]
This Court has repeatedly confirmed that the
accumulation of contradictions between an applicant’s testimony, port of entry
statements and Personal Information Form [PIF], as well as the omission of
elements in the PIF, crucial to his or her claim, may legitimately serve as a
basis for a negative credibility finding (Cienfuegos v Canada (Citizenship
and Immigration), 2009 FC 1262 at para 1).
[29]
These findings can also be based on common sense,
implausibility and an inherent logic to an applicant’s narrative (Shahamati,
above). When such findings are made, they are dispositive of a claim; unless
the record contains reliable and independent documentary evidence to rebut it (Sellan
v Canada (Minister of Citizenship and Immigration), 2008 FCA 381).
[30]
In the present case, the Court finds that the
Applicants’ narrative contains a number of important contradictions and
implausibilities regarding the central allegations of their claim. The RPD,
therefore, had reason to make a negative credibility finding. The negative
inferences drawn by the RPD are not just based on “minor or trivial variations
or omissions”, but, rather, on the central elements of their claim (Chavez v
Canada (Minister of Citizenship and Immigration), 2007 FC 10 at para 13-15;
Moscol v Canada (Minister of Citizenship and Immigration), 2008 FC 657
at para 21-22; Nsombo v Canada (Minister of Citizenship and Immigration),
2004 FC 505).
[31]
In their PIF narrative, the Applicants’ stated that
they were “afraid to go back to school or even leave the house” after their
attacks and moved to their aunt’s home in another neighbourhood to seek safety
in June 2005 (at para 14, 18); however, they indicated later in their PIF that
they continued to attend the school where they were attacked (and persistently
harassed) until November 2005. When asked about this contradiction at the oral
hearing, the Applicants changed the dates, stating that they had, in fact, both
withdrawn from school shortly subsequent to the attacks out of fear of the
MS-13. The Applicants were not able to provide a reasonable explanation for
this inconsistency between their PIF and their testimony.
[32]
In the Court’s view, this contradiction seriously
undermines their credibility as it is a key detail to their claim; it relates
directly to their alleged fear of persecution by the MS-13. The fact that the
Applicants would have continued attending school for 6 months, following the
attacks, despite their persecutors forcibly recruiting members at that
location, demonstrates a lack of subjective fear of the gang. It is, in the
Court’s opinion, sufficient to form the basis for an adverse finding on
credibility.
[33]
The Applicants could not satisfactorily explain to the RPD
why they were not able to identify a single member of the MS-13; although, they
were allegedly well-known in the community. They also did not provide any
objective evidence supporting their explanation as to why they were being
targeted by the MS-13 or how the attacks took place (e.g. medical reports,
police reports, etc.).
[34]
The only documentary evidence provided to the RPD as to
the alleged attacks consisted of medical certificates issued by a Montreal
medical clinic in 2009 that confirmed that both Applicants had suffered past
injuries. The RPD gave this evidence little probative value as it had only
recently been obtained and merely repeated a version of the facts that the RPD
considered to be implausible; the certificates did not confirm the source of
the Applicants’ injuries. The RPD was entitled to find that this documentary
evidence was insufficient to give credence to the Applicants’ narrative; and,
therefore, chose to give it little weight.
[35]
As stated by this Court on numerous occasions, general
findings of lack of credibility can affect all related evidence submitted by
an applicant, including documentary evidence, and ultimately cause the
rejection of a claim (Ayub v Canada (Minister of Citizenship and
Immigration), 2004 FC 1411, at para 8-9; Nijjer v Canada (Minister of
Citizenship and Immigration), 2009 FC 1259; Alonso v Canada (Minister of
Citizenship and Immigration), 2008 FC 683).
[36]
In their written representations, the Applicants mainly
criticize the RPD for not having considered specific passages in the documentary
evidence prior to contradicting their narratives (see documents in Certified
Tribunal Record [CTR] at pp 132, 183). The Court cannot agree with the
Applicants’ view that the RPD erred in its decision by ignoring or
misconstruing this evidence.
[37]
The Court is of the view that the RPD’s findings were
fully supported by the documentary evidence when considered in its totality. It
is evident in reading the RPD’s decision that it took all of the documentary
evidence into account and was aware of its contradictory aspects vis-à-vis the
Applicants’ evidence. In its decision, the RPD explicitly stated that the “preponderance
of research holds that the Mara does not resort to ‘forced recruitment’”
[emphasis added]; it did not rule that the documentary evidence unanimously
pointed to this conclusion, as the Applicants suggest the RPD did. It is also
clear that the RPD relied on the documentary evidence in finding that the
Applicants did not have a profile that would typically attract the MS-13 (RPD Decision
at para 18, 19). Almost all of the objective evidence before the RPD
demonstrated that new recruits to the MS-13 are generally from a background of
poverty, unemployment and family breakdown (see Immigration and Refugee
Board of Canada, Honduras: The recruitment of Mara Salvatrucha (MS) and 18th
Street (Calle 18 or Mara 18) gang members; whether individuals are forced to
participate in gang activity (2007-December 2011), CTR at p 132; How the Street
Gangs Took Central America, CTR at p 142; Central America and Mexico
Gang Assessment, Annex 3: Honduras Profile, CTR at p 165). Based on
the evidence on file, the Court agrees that this profile does not correspond to
that of the Applicants.
[38]
This being said, the Court nonetheless finds that when
read in their entirety (and not only the highlighted excerpts), none of the
contradictory passages advanced by the Applicants in their written
representations detract from the RPD’s conclusions with regard to the MS-13’s
recruitment pattern or the Applicants’ profiles.
[39]
The Court finds that the RPD appropriately weighed the
evidence, preferring its findings as to the majority of the sources in the country
condition documentary evidence to that of the information advanced by the
Applicants. This does not constitute a reviewable error. The Applicants are, in
effect, asking the Court to reweigh the evidence which was before the RPD; and,
to come to a different conclusion. The Court cannot, however, enter into such
an exercise.
[40]
It was for the RPD, as a specialized tribunal and
finder of fact, to weigh the evidence before it and to give it the probative
value it considers appropriate. The Court cannot infer that the RPD did not
consider all of the evidence before it because it did not refer to every piece
of potentially contradictory information submitted in its decision (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35).
[41]
Overall, the Court concludes that the RPD’s credibility
determination falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47). The Applicants’ written
representations do not advance any argument that invalidates the RPD’s
decision.
(2) Is the
RPD’s determination that the Applicants faced a generalized risk reasonable?
and,
(3) Is the RPD’s
determination that there is an IFA available in Honduras reasonable?
[42]
This Court has long held that an applicant’s failure to
prove that the RPD’s credibility findings are unreasonable is sufficient to
defeat an application (Cienfuegos v Canada (Minister of Citizenship
and Immigration), 2009 FC 1262 at para 25; Salim v Canada (Minister of Citizenship and Immigration), 2005 FC 1592 at para 31).
[43]
As the RPD’s decision was centered on a negative
credibility finding, the generalized nature of the risk or the availability of
an IFA cannot, in and of itself, provide a basis for intervention by the Court.
For this reason, these issues need not be examined.
VII. Conclusion
[44]
For all of the above reasons, the Applicants’
application for judicial review is dismissed.
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