Docket:
IMM-1755-13
Citation: 2014 FC 102
Ottawa, Ontario, January 29, 2014
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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LOPEZ, WILMER
RECINOS AMAYA, KELVIN
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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
[1]
The applicants seek judicial review pursuant to
section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27
[the Act] of the decision of the Refugee Protection Division of the
Immigration and Refugee Board (the “Board”) made on January 15, 2013, which
determined that they were not Convention refugees pursuant to section 96, nor
persons in need of protection pursuant to section 97 of the Act.
[2]
For the reasons that follow, the application is
dismissed.
Background
[3]
The applicants, Wilmer Lopez (“Wilmer”) and Kelvin
Recinos Amaya (“Kelvin”), are half brothers and citizens of El Salvador who allege persecution by the criminal gang, the “Maras”. The Board rejected their claim
for protection on the basis that they lacked credibility and subjective fear of
persecution.
[4]
Wilmer alleged that he was repeatedly approached
by members of the Maras 13 gang controlling his neighbourhood, who threatened
him when he would not join the gang. His claim was based on specific incidents
described in his Personal Information Form [“PIF”], including a knife threat by
El Snarf in December 2004, a threat by four members of the gang, including El
Snarf, later in December 2004, and a demand for money by El Gato in August 2005
with a threat of bodily harm. In September 2005, he fled to the US, where he remained for approximately four and a half years. He arrived in Canada with his father and Kelvin in 2010.
[5]
Kelvin alleged that he lived in a neighbourhood
controlled by the Maras 18 gang and was harassed and extorted by members of the
gang. He referred to specific incidents in his PIF. In 2004, he was assaulted
and threatened with death by gang members, including El Seco, for refusing to
join the Maras. In March 2004, while riding his bicycle, he refused to stop as
requested by the gang and a rock was thrown at him, and threats were uttered.
In 2005, after changing schools to avoid the gang, he was attacked by four gang
members; two months later, El Seco told him he was attacked for refusing to
join the gang and also that he should break up with his girlfriend, who was of
interest to El Seco. In 2006, he was assaulted and later threatened, along with
his girlfriend, for accidentally scratching the car of a gang member. About a
month later, he was again assaulted by gang members for unknowingly asking
their girlfriends to dance.
[6]
On April 5, 2007, several of his friends were
murdered by members of the Maras while attending Easter events.
[7]
On April 23, 2007, he left El Salvador for the US, where he remained for over three years. He arrived in Canada with his father and Wilmer in 2010.
[8]
Neither of the applicants sought asylum in the US.
The decision under review
[9]
The Board issued one decision in two distinct
parts with respect to Wilmer and Kelvin.
[10]
The Board found Wilmer’s credibility to be
undermined by major omissions and contradictions between his PIF and his
testimony that go directly to the heart of his refugee protection claim.
[11]
The Board noted that Wilmer had omitted from his
narrative the fact that, in addition to threatening him, El Snarf also demanded
money. The Board remarked that, at the hearing, Wilmer testified that he was
approached and threatened in December 2004 by three members of the Maras, which contradicted his narrative, in which he stated that he was approached and
threatened by four individuals, two of whom he knew and two of whom he
recognized. The Board noted that when confronted with this contradiction,
Wilmer further contradicted himself by stating that he meant he recognized
three of the individuals.
[12]
The Board remarked that when asked if he was
harassed by the Maras between December 2004 and August 2005, Wilmer initially
said no but then indicated that he had received numerous insults. The Board
noted that these incidents were not mentioned in his narrative and refused to
accept Wilmer’s explanation that he had omitted them because there were more
significant incidents to recount. The Board also referred to other errors made
by Wilmer during the hearing, including misdating the year of the incident that
prompted him to leave El Salvador. The Board noted Wilmer’s explanation for
these omissions and contradictions – that he was nervous and had not remembered
– but found it to be unpersuasive because: he had confirmed that he knew and
understood the content of his PIF; that there were several inconsistencies and
omissions; and the fact that he could have reviewed his PIF at leisure prior to
attending the hearing.
[13]
The Board noted that Wilmer had stayed illegally
in the US for over four years without claiming asylum and that during this
period, he risked being deported at any time. The Board found this behaviour to
be inconsistent with that of a person who truly fears being persecuted upon
return to their country of origin. The Board was not persuaded by Wilmer’s
explanation that he was advised by those around him to not claim asylum in the US and that he had no money to contact a lawyer.
[14]
The Board also found Kelvin’s credibility to be
undermined by major omissions that go directly to the heart of his refugee
protection claim.
[15]
The Board noted that Kelvin had omitted from his
narrative the fact that the March 2004 incident, when he was knocked off his
bicycle by members of the Maras, and continual intimidation by the Maras between May 2006 and April 2007, were the result of his refusal to join the gang.
[16]
The Board also noted that Kelvin was unable to
provide precise dates for most of the events alleged. The Board found that, in
some cases, he was unable to remember neither the date, month, or year of the
incident, while in other cases, his account was uncertain.
[17]
The Board gave no probative weight to a document dated
September 21, 2011, produced by Kelvin, which alleges that his mother had been
threatened and extorted by the Maras and that she had filed a complaint with
the police in El Salvador. The Board found this document to be self-serving and
produced only to support his refugee protection claim. The Board found Kelvin’s
explanation for providing the document to the Board only three days prior to
the hearing to be implausible and far-fetched. Kelvin stated that he had
forgotten about it and had only remembered when he received the notice for his
hearing. The Board also drew an adverse credibility inference from the fact
that Kelvin had forgotten to bring to the hearing a copy of the police report
referred to in the letter, purportedly because he was rushing to catch the bus.
[18]
The Board also concluded that Kelvin’s behaviour
is inconsistent with his alleged fear. The Board noted that, in response to a
question by counsel about why he could not live elsewhere in El Salvador, Kelvin referred only to financial and work reasons but did not mention that he feared
the Maras would be able to find him.
[19]
Moreover, the Board noted that Kelvin had stayed
in the US illegally for three years without claiming asylum. During this
period, he risked being deported at any time. The Board found this behaviour to
be inconsistent with that of a person who truly fears being persecuted upon
return to their country of origin. The Board found Kelvin’s explanation for not
claiming asylum in the US to be unpersuasive.
The issues
[20]
The applicants allege that the Board’s decision
is not reasonable for four reasons: the Board erred in its assessment of the
applicants’ credibility by misunderstanding their evidence and by exaggerating
minor inconsistencies and omissions; the Board erred in finding that the
applicants lacked subjective fear; the Board erred in failing to conduct a
separate analysis under section 97 of the Act; and, the Board erred in
failing to consider the Canada-US Safe Third Country Agreement (the “Safe Third
Country Agreement”).
Standard of review
[21]
The parties agree that the applicable standard of
review is that of reasonableness. The jurisprudence emphasizes that where the standard of reasonableness applies, the role of
the Court is to determine whether the Board’s decision “falls within ‘a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law’ (Dunsmuir, at para.
47). There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome.” (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 59). The Court will not re-weigh the
evidence or remake the decision.
[22]
It is well-established that boards and tribunals
are ideally placed to assess the credibility of refugee claimants (Aguebor v Canada (Minister of Employment and Immigration), 160 NR 315, [1993] FCJ No 732 at para 4 (FCA)); and that given its
role as trier of fact, the Board’s credibility findings should be given significant
deference (Lin v Canada (Minister of Citizenship and Immigration),
2008 FC 1052 at para 13, [2008] FCJ No 1329; Fatih v
Canada (Minister of Citizenship and Immigration),
2012 FC 857 at para 65, 415 FTR 82).
[23]
As stated by Justice Martineau at para 7 of Lubana v
Canada (Minister of Citizenship and Immigration), 2003 FCT
116, 228 FTR 43:
7 The determination of an applicant's
credibility is the heartland of the Board's jurisdiction. This Court has found
that the Board has well-established expertise in the determination of questions
of fact, particularly in the evaluation of the credibility and the subjective
fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38
(QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998), 157 F.T.R. 35 at para. 14.
Were the Board’s credibility findings reasonable?
[24]
Although the applicants submit that the
inconsistencies and omissions that the Board seized upon were either minor or
exaggerated, and that discrepancies must be real and significant, these
inconsistencies and omissions related to the majority of the incidents that
Wilmer relied upon to establish his claim.
[25]
I agree that it would be possible to reconcile
Wilmer’s initial account, in which he stated that he encountered four members
of the Maras, two of whom he knew and two of whom he recognized, with his later
answer that he recognized three of them. However, the Board probed this
contradiction and gave Wilmer an opportunity to explain himself. Similarly, his
mistake in referring to August 2005 rather than August 2004 as the date of the
knife threat which precipitated his decision to leave for the US could have been a simple misstatement of the year. The Board acknowledged that an
inconsistency or omission, taken on its own, could be attributed to
nervousness. However, the Board’s adverse credibility finding was based on the
cumulative nature of the several contradictions and omissions in Wilmer’s
narrative.
[26]
The Board noted that Wilmer did not mention a
fear of the Maras if he were returned to El Salvador and rather referred to
financial difficulties. This is not entirely accurate. Wilmer indicated that he
had no money to relocate and that if he visited his family he feared being
killed by the Maras.
[27]
With respect to Kelvin, he submits that the
Board should not be conducting a memory test and that his failure to provide
precise dates is not as important as the fact that he described the incidents
of threats. For example, he submits that he could not recall the dates of his
short-lived relationship with his girlfriend because it was a teenage
relationship long ago.
[28]
The Board’s credibility findings regarding
Kelvin were reasonably open to the Board. The Board was not testing his precise
memory but noted that he was unable to provide any specific dates for many of
the key events that he alleged in his claim. However, in his PIF he provided
more precise dates that had other significance, including his birthday and the
incident that occurred at Easter.
[29]
In addition, the fact that he claimed to have
forgotten to bring a key document to his hearing, which had been scheduled for
months, reasonably led the Board to draw a negative credibility inference.
[30]
The Board is entitled to draw reasonable
conclusions with respect to credibility based on implausibility, common sense
and rationality of an applicant’s narrative, and may reject testimony if it
does not accord with the probabilities. As noted by Justice Shore in Singh v
Canada (Minister of Citizenship and Immigration), 2007 FC 62 at para 1,
[2007] FCJ No 97:
[1] The Court is of the opinion that the
Board may draw reasonable conclusions based on implausibilities, common sense
and rationality and may reject testimony if it does not accord with the probabilities
affecting the case as a whole: (Aguebor v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL); Alizadeh
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11
(QL); Shahamati v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 415 (QL))
[31]
The jurisprudence has established that internal
inconsistencies in an applicant’s story, as well as inconsistencies between an
applicant’s story and other evidence, may provide the basis for the Board’s
negative credibility findings (Nadarajah v Canada (Minister of Citizenship
and Immigration), 2006 FC 1204 at paras 11-14, [2006] FCJ No 1516).
[32]
Given that the Board had the benefit of hearing and
probing the applicants’ testimonies and that the Board’s credibility findings
are to be given significant deference, it was open for the Board to make
adverse credibility findings on the whole of the applicants’ evidence, which
revealed inconsistencies and omissions regarding many of their key allegations.
Did the Board err in finding that the applicants did not have a
subjective fear?
[33]
The applicants submit that the Board erred in
finding that their prolonged stay in the US without claiming refugee protection
demonstrates a lack of a subjective fear of persecution in El Salvador, since both provided reasonable explanations. The applicants note that they
arrived in the US as teenagers, were advised by their father not to claim
asylum, and that they did not have the resources to get legal advice.
[34]
The respondent submits that delay in claiming
refugee status and failure to claim protection in the US may also undermine an applicant’s credibility (Mejia v Canada (Minister of Citizenship and
Immigration), 2011 FC 851 at paras 14-15, [2011] FCJ No 1062 [Mejia]).
[35]
Although the failure to claim refugee status in
another country is not determinative of a lack of subjective fear, it is a
relevant factor which also affects credibility (Gavryushenko v Canada (Minister of Citizenship and Immigration) (2000), 194 FTR 161, [2000] FCJ No
1209 at para 11.
[36]
In Mejia, supra at paras 14-15,
Justice Mosley addressed this issue noting;
[14] This Court
has held that delay in seeking refugee protection is an important factor to
consider when weighing a claim for refugee status: Heer v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 330 (F.C.A.) (QL); Gamassi
v. Canada (Minister of Citizenship and Immigration) (2000), 194 F.T.R.
178. Delay points to a lack of subjective fear of persecution or negates
a well-founded fear of persecution. This is based on the rationale that someone
who is truly fearful would claim refugee status at their first available
opportunity: Espinosa v. Canada (Minister of Citizenship and Immigration),
2003 FC 1324 at para. 16;
[15] Recently, in Jeune v. Canada (Minister of Citizenship and Immigration), 2009 FC 835 at para. 15, this Court
found that the applicant’s failure to claim asylum at his first opportunity
further undermined his credibility. The same is true in the case at bar. The
principal applicant remained in the United States for seven years. For five of
those years she had a tourist visa. After the visa expired she still took no
steps to seek protection in the United States. It was reasonable for the Board
to expect that “if she were truly in fear” of being deported, she would have
looked into the matter of filing an asylum claim as soon as possible. There is
no reasonable explanation on file as to why she did not do this, other than her
attempt to resort to a marriage of convenience.
[37]
In the present case, the Board gave the
applicants an opportunity to explain why they did not make a refugee protection
claim in the US, but found their explanations – that they were told not to risk
deportation or could not afford legal counsel – not compelling considering the
length of time spent in the US. The Board also based its conclusion on the fact
that, when asked why they could not relocate within El Salvador, the fear of
the Maras was not mentioned by Kelvin, and was mentioned by Wilmer as a risk he
would face if he visited his family, but that financial, work and housing
issues were referred to first.
[38]
The Board reasonably concluded that the
applicants’ failure to seek asylum in the US, despite being there for an
extended period of time, was inconsistent with a subjective fear of the Maras.
Did the Board err in failing to conduct a Section 97 analysis?
[39]
The applicants submit that a negative
credibility determination, which may be determinative of a refugee claim under
section 96 of the Act, is not necessarily determinative of a claim under
subsection 97(1) in cases, such as this one, where independent and objective
evidence points to the situation that young Salvadorian males living in Maras-controlled
neighbourhoods are at risk of gang violence. The applicants note that, even if
they are not entirely credible, there is no dispute that they are young
Salvadorian males living in a Maras-controlled neighbourhood.
[40]
The respondent’s position is that a negative
credibility finding is sufficient to dispose a claim under both sections 96 and
97, unless there is objective evidence of a risk (Canada (Minister of
Citizenship and Immigration) v Sellan, 2008 FCA 381 at para 3, [2008] FCJ
No 1685 [Sellan]). The respondent submits that there is no merit in the
applicants’ claim that their risk profile as young males in a Maras-controlled
neighbourhood warranted a separate section 97 analysis; a risk under section 97
must be personalized, as opposed to generalized.
[41]
The Board did not err in not conducting a
separate section 97 analysis. As established in Sellan, supra at
para 3, a negative credibility finding is sufficient to dispose a claim under
both sections 96 and 97, unless there is independent and credible documentary
evidence in the record capable of supporting a positive disposition of the
claim.
[42]
The applicants rely on documentary evidence
which indicates that young Salvadorian males in Maras-controlled neighbourhoods
are at risk of gang violence. These documents seek to demonstrate a generalized
risk experienced by all young Salvadorian males in neighbourhoods controlled by
the Maras. However, personalized risk, as opposed to generalized risk, is
required under subparagraph 97(1)(b)(ii) of the Act.
[43]
This Court has considered the application of
section 97 in many cases and has clarified how the section 97 analysis, which
differentiates between personalized and generalized risk, should be conducted.
In Arenas v Canada (Minister of Citizenship and
Immigration), 2013 FC 344 at para 9, [2013] FCJ No
377, Justice Gleason referred to her previous decision in Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC 678, 409 FTR 290 [Portillo],
which canvassed a long line of jurisprudence.
[9] As I held
in Portillo, section 97 of the IRPA mandates the following inquiry.
First, the RPD must correctly characterize the nature of the risk faced by the
claimant. This requires the Board to consider whether there is an ongoing
future risk, and if so, whether the risk is one of cruel or unusual treatment
or punishment. Most importantly, the Board must determine what precisely the
risk is. Once this is done, the RPD must next compare the risk faced by the
claimant to that faced by a significant group in the country to determine
whether the risks are of the same nature and degree.
[44]
In Portillo, supra at para 41,
Justice Gleason explained the steps in the section 97 analysis:
[41] The next
required step in the analysis under section 97 of IRPA, after the risk has been
appropriately characterized, is the comparison of the correctly-described risk
faced by the claimant to that faced by a significant group in the country to
determine whether the risks are of the same nature and degree. If the
risk is not the same, then the claimant will be entitled to protection under
section 97 of IRPA. Several of the recent decisions of this Court (in the first
of the above-described line of cases) adopt this approach.
[45]
The applicants acknowledge that the result of
the section 97 analysis is not guaranteed: even if the analysis had been
conducted, the Board might have concluded that the risk was a generalized risk.
However, their position is that the Board erred in not considering the section
97 risk at all.
[46]
To reiterate, I do not agree that the Board
erred. As noted, the negative credibility findings are sufficient to foreclose
the section 97 analysis unless there is independent objective evidence to
support that the particular applicants would face a personalized risk. The documentary
evidence addressed only the risk faced by some young males in El Salvador. The applicants did not provide objective and credible evidence of the risk faced by
them, which is the starting point for the section 97 analysis. The evidence
presented by the applicants was found to not be credible.
Did the Board err in not considering the Safe Third Country Agreement?
[47]
The applicants submit that the Board should have
considered the Safe Third Country Agreement before drawing adverse conclusions
based on their failure to claim asylum in the US, because they eventually came
to Canada to reunite with their relatives.
[48]
The applicant also notes that the principles of
the Act include the goals of family reunification.
[49]
In my view, the Safe Third Country Agreement has
no application to the facts of this case in the context of the applicants’
refugee claims. The applicants were allowed to enter Canada despite the fact
that they had remained in the US for three and four and a half years,
respectively. The Safe Third Country Agreement permitted their entry into Canada and to have their refugee claim considered, because they asserted at the port of entry that
they had relatives in Canada.
[50]
The Board was not required to consider the Safe
Third Country Agreement before concluding that the applicants’ lengthy stay in
the US undermined their credibility and subjective fear of the Maras.
[51]
The provisions of the Act empowering the
Governor-in-Council to enter into the Safe Third Country Agreement are intended
to address the sharing of responsibility for the consideration of
refugee claims with countries that comply with the relevant Articles of the
Conventions and have an acceptable human rights record (Canadian Council for
Refugees v Canada, 2008 FCA 229 at para 75, 73 Imm LR (3d) 159).
Paragraph 101(1)(e) of the Act achieves this objective by providing that
a person entering Canada from a "designated country" is ineligible to
have his or her claim for refugee protection considered by the Refugee
Protection Division. The US was named a designated country pursuant to section
159.3 of the Immigration and Refugee Protection Regulations. The Safe
Third Country Agreement provides four exceptions to the application of
paragraph 101(1)(e) of the Act: family member exceptions; unaccompanied
minors exception; document holder exceptions; and public interest exceptions.
[52]
In this case, the applicants were not barred
from having their refugee protection claim considered by the Board. Ultimately,
the Board considered their claims but determined that they were not convention
refugees or persons in need of protection.
Conclusion
[53]
The Board reasonably found that the applicants
lacked credibility and that their failure to seek protection in the US during their lengthy stay there undermined their subjective fear. The Board’s decision
is justified, transparent and intelligible. It falls within the range of
possible acceptable outcomes which are defensible in respect of the facts and
the law.
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