Docket:
IMM-4079-13
Citation: 2014 FC 428
Ottawa, Ontario, May 6,
2014
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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GLORIA ARACELI AYALA SOSA,
PEDRO LUIS MONGE AYALA SOSA and
NELSON EDUARDO LINARES CRUZ
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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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JUDGMENT AND REASONS
[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”) dated
April 8, 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 are citizens of El Salvador. The principal applicant, Gloria Araceli Ayala Sosa, is a 42 year-old woman. Pedro Luis
Monge Ayala Sosa is her 23 year-old son. Nelson Eduardo Linares Cruz is her 23
year-old common law husband. The applicants allege a fear of persecution at the
hands of the Maras, but their claims are distinct and the Board considered each
separately.
[4]
The principal applicant recounted that her
troubles with the Maras began while she worked in a restaurant where the Maras congregated. In November 2005, a clash occurred at the restaurant between rival
factions of the Maras. During that incident, the principal applicant hid her
cousin, Hugo, who she initially described as a gang affiliate, and as a result,
she was sought out by the rival faction.
[5]
In December 2005, she fled to the US, leaving her children in El Salvador. In August 2006, her children asked her to return home
because they had been threatened by the Maras and had stopped going to school. She
returned to her small village in El Salvador in January 2007.
[6]
On November 19, 2009, the principal applicant
stumbled upon a rape and murder perpetrated by the Maras and was warned by the Maras to stay quiet. She reported what she had discovered to the police but refused to
testify. On November 25, 2009, she received threats on her cell phone that she
believed were from the Maras. The next day, she reported to the police and the
chief, Carlos, took her report and said that extra patrols would be sent to her
neighbourhood.
[7]
On November 30, 2009, the principal applicant
fled El Salvador. She arrived in the US on December 3, 2009, again without her
children. While in the US, she purportedly sought legal advice but was told
that she did not qualify for protection. She then came to Canada on August 3, 2010.
[8]
The co-applicant son, Pedro, recounts that his
problems began in 2006. Walking home from school, he was approached by four Maras gang members, who asked him where his Mother was and encouraged him to join the
gang. He refused. In September 2009, he again refused to join the Maras. In February 2010, the same gang members who previously attempted to recruit him
threatened that if he did not tell them where his mother was and join the gang,
he would pay. He then left for the US on March 21, 2010 and found work. He
later joined his mother in Canada on September 1, 2010.
[9]
The co-applicant common law husband, Nelson,
lived in a different part of El Salvador and had encounters with another group
of the Maras who attempted to recruit him when he was 18 years old. On
September 14, 2008, he was beaten and robbed by members of the Maras. He complained to the police, who promised to investigate. On or around September 25,
2008, he moved to his uncle’s farm but was advised that three young men had
gone to his home to look for him. He fled El Salvador and entered the US illegally on January 15, 2009. He did not seek asylum based on the advice of his
landscaping co-workers who told him that he would be deported if he applied.
Since his departure from El Salvador, the Maras have continued to ask his
mother about his whereabouts. He arrived in Canada on August 10, 2012.
The decision
[10]
The Board found the applicants to be neither
Convention refugees nor persons in need of protection pursuant to sections 96
and 97(1) of the Act.
[11]
With respect to the co-applicant common law
husband, the Board rejected his claim of being in a particular social group of “young, impoverished and uneducated teenagers living in
small, gang-riddled rural communities who refuse to be recruited because of a
strongly held political opinion that disagrees with Mara activities”. The Board noted that young men are not the only
sub-group of the general population targeted by street gangs, that he is no
longer a teenager, that education and wealth are not immutable characteristics,
and that he never indicated an anti-gang political opinion. In the alternative,
the Board concluded that even if such a particular social group did exist, it
was not systematically persecuted by the Maras.
[12]
For largely the same reasons, the principal
applicant and her son were not found to be a part of a particular social group.
[13]
The Board found the determinative issue to be
credibility. The Board concluded that its credibility findings alone were
dispositive of the applicants’ claims.
[14]
The Board noted that the principal applicant had
many opportunities to claim protection in the US during the two periods of time
she spent there and failed to do so. The Board rejected her explanation that
she sought the advice of a lawyer but was told that she would be deported if
she claimed refugee protection.
[15]
The Board considered her explanation why she
would face a higher risk than others if returned to El Salvador and found it to
be incoherent. The Board noted that, when asked why she did not relocate from
her small village, she answered “I did not think
the threats were so serious” which contradicted
her other statements regarding the serious nature of threats from Maras. The Board also noted that it was implausible that she would not have at least been
threatened after coming across the rape and murder committed by the Maras and her subsequent report to the police.
[16]
The Board also noted contradictions in her
testimony regarding why she was unable to obtain a police report if the police
chief had taken a report.
[17]
The Board also found the co-applicant son to be
not credible. The Board noted that he did not claim refugee protection despite
many opportunities to do so prior to coming to Canada. The Board noted that he
was sought for recruitment by the Maras at 16 years of age, which contradicted
the documentary evidence that the average recruitment age is 12 years old.
Moreover, the Board made negative credibility findings against him on the basis
that, despite having refused the Maras three times over several years, he was
not harmed nor did he make attempts to relocate. The Board also drew a negative
inference regarding his assertion that, at 22 years old, he is still a “defenceless child”.
[18]
The Board also found the co-applicant common law
husband, who arrived in Canada in 2012, to be not credible. The Board remarked
that he did not claim refugee protection despite many opportunities to do so
prior to coming to Canada. The Board considered a police report submitted by
him but found it to be riddled with inconsistencies, noting that it was filed
in January 2013 by his mother and did not mention that he had sought help from
the police in 2008. The Board also found his alleged fear to be not credible
since, at age 22, he is now beyond the age of a typical recruit.
Generalized
Risk
[19]
Despite noting that its credibility findings
were dispositive, the Board engaged in a lengthy review of the jurisprudence regarding
generalized risk and personalized risk and concluded that the applicants faced
only a generalized risk upon their return.
[20]
The Board cited long passages from Prophète v
Canada (Minister of Citizenship and Immigration), 2009 FCA 31, 387 NR 149 [Prophète],
Guifarro v Canada (Minister of Citizenship and Immigration), 2011 FC
182, [2011] FCJ No 222 [Guifarro] and De Parada v Canada (Minister of
Citizenship and Immigration), 2009 FC 845, [2009] FCJ No 1021 [De Parada],
for the proposition that both a personalized risk and heightened risk can
constitute generalized risk. The Board also considered Malvaez v Canada
(Minister of Citizenship and Immigration), 2012 FC 1476, 423 FTR 210 [Malvaez],
and Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC
678, 409 FTR 290 [Portillo], but noted that these cases did not follow
the Court of Appeal in Prophète and commented that these cases were “patently wrong” in stating
that a heightened risk for a particular sub-group would be sufficient to take
it out of the generalized category of risk.
[21]
In this case, the Board found that the
applicants faced only a generalized risk in El Salvador and that, while they
may be personally at risk from the Maras because they may have been personally
targeted in the past, their risk is the same as a large sub-group of people in their
country. In the case of the principal applicant, the Board found that she faces
no more risk than others in El Salvador who have rebuffed the Maras. In the
case of the male co-applicants, the Board found that they face a generalized
and random risk no different than other young men who have resisted recruitment
by the Maras (Arias v Canada (Minister of Citizenship and Immigration),
2010 FC 1029, [2010] FCJ No 1344 [Arias]).
[22]
Despite the Board’s comments regarding Portillo,
the Board noted that its conclusion would be the same even if it had applied
what it characterized as the competing case law in Malvaez and Portillo.
Issues
[23]
The applicants submit that the Board erred in:
finding that they did not have a nexus to a Convention ground under section 96;
finding that they lacked credibility and subjective fear; and concluding that
they did not face a personalized risk in El Salvador.
Standard
of Review
[24]
The standard of reasonableness applies to the
review of decisions of fact, mixed fact and law and credibility. The role of
the Court on judicial review is, therefore, 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 may be several reasonable
outcomes and “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).
[25]
Credibility findings are factual and case
specific and rely on the assessment by the decision-maker of several factors
including the observation of the witnesses and their responses to questions
posed. The Board is entitled to draw inferences based on implausibility, common
sense and rationality (Aguebor v Canada (Minister of Employment and
Immigration) (1993), 160 NR 315, [1993] FCJ No 732 at para 4 (FCA)). 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).
The Board’s finding that the
applicants lacked nexus to a section 96 ground was reasonable
[26]
The male co-applicants submit that they provided
sufficient evidence to establish membership in a particular social group. They submit
that they are bound to these groups by innate characteristics and voluntary
association for reasons fundamental to their human dignity. They submit that,
being part of a particular social group, the Board erred by not considering
whether there is a serious possibility of persecution in the event they are
returned to El Salvador (Bonilla v Canada (Minister of Citizenship and
Immigration), 2013 FC 656 at para 43, [2013] FCJ No 724 [Bonilla]).
As noted above, they claim to be part of the group of “young,
impoverished and uneducated teenagers living in small, gang-riddled rural
communities who refuse to be recruited because of a strongly held political
opinion that disagrees with Mara activities”.
[27]
In Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689 at para 70, 103 DLR (4th) 1 [Ward], the Supreme Court
articulated the test for membership in a particular social group as follows:
70 The meaning assigned to
"particular social group" in the Act should take into account the
general underlying themes of the defence of human rights and
anti-discrimination that form the basis for the international refugee
protection initiative. The tests proposed in Mayers, supra, Cheung, supra, and
Matter of Acosta, supra, provide a good working rule to achieve this result.
They identify three possible categories:
(1) groups defined by an innate or unchangeable
characteristic;
(2) groups whose members voluntarily associate for reasons so
fundamental to their human dignity that they should not be forced to forsake
the association; and
(3) groups associated by a former voluntary status,
unalterable due to its historical permanence.
The first category would embrace individuals
fearing persecution on such bases as gender, linguistic background and sexual
orientation, while the second would encompass, for example, human rights
activists. The third branch is included more because of historical intentions,
although it is also relevant to the anti-discrimination influences, in that
one's past is an immutable part of the person.
[28]
The Board reasonably found that the applicants’
lack of money, lack of education, and place of residence were not immutable
characteristics as defined in Ward. The same conclusion has been reached
by the Court in several previous occasions. In Bonilla, above at para 55,
Justice Russell found that “[t]here is ample
jurisprudence stating that victims of criminal activity do not constitute a
particular social group”. In Ventura v Canada (Minister of Citizenship and Immigration), 2011 FC 1107 at para 16, [2011] FCJ
No 1361, Justice Near (as he then was) held that “[i]t
was reasonable for the Board to find that individuals targeted by the MS-13 are
not members of a marginalized social group who face systematic discrimination”.
[29]
Despite the specific description of the particular
social group alleged by the co-applicants, once all the qualifiers that are not
unchangeable (such as youth, poverty and education) are taken away, they are in
essence alleging that being targeted by the Maras makes them part of a
particular social group. This proposition has been rejected by the Court.
Otherwise, the applicants have not provided evidence that they are a
marginalized social group who face systematic persecution at the hands of the Maras.
The Board’s credibility
determinations were reasonable
[30]
The applicants submit that the Board
unreasonably concluded that they were not credible and did not have a
subjective fear of persecution simply because they did not claim refugee status
in the United States. The applicants note that they gave plausible explanations
to the Board, i.e. they either did not know they could claim refugee status in Mexico and Guatemala or were told to refrain from doing so in the US because they would be detained
and then deported.
[31]
The applicants submit that the Board improperly
conducted a microscopic examination of issues that were irrelevant or
peripheral to their claim, and applied North American logic and reasoning to
their behaviour. The applicants submit that they are uneducated and
unsophisticated refugees and faced language and other barriers when giving
their evidence and that their credibility should be considered in this light.
[32]
The respondent notes that the Board’s
credibility findings are to be given significant deference. The respondent
submits that the failure to seek protection in another country is not
determinative of a lack of subjective fear but is a relevant factor which can
affect an applicant’s credibility. Moreover, the respondent submits that the
inconsistencies and deficiencies in the applicants’ testimony went to the heart
of their claims for protection and cumulatively undermined their credibility to
such an extent that their story was not believed. As such, the respondent
submits that the Board’s negative credibility findings were sufficient to dispose
of the applicants’ claims in their entirety.
[33]
I agree that the Board’s credibility findings
were reasonable. It is trite law that the Board is best placed to evaluate the
credibility of refugee claimants. The Board is well aware and has taken into account
that refugee claimants are often intimidated, unfamiliar with the customs of Canada and have language and cultural barriers.
[34]
Considering the principal applicant’s failure to
claim protection in a safe third country, the US, during two significant periods
of time spent there and the numerous inconsistencies, deficiencies and
implausibilities in her testimony and evidence, as well as between her
testimony and that of the co-applicants, the Board made a reasonable general
adverse credibility finding against all the applicants that eroded their
alleged subjective fear. Similarly, the co-applicants’ failure to seek asylum
in the US while living there, and the inconsistencies and implausibility of
their alleged fears, provide more than sufficient justification for the Board’s
negative credibility findings.
[35]
As I recently noted in Lopez v Canada (Citizenship and Immigration), 2014 FC 102 at paras 35-36, [2014] FCJ No 123:
36 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.
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.
[36]
Although the applicants argue that their
explanations for not claiming protection in the US were unreasonably rejected
by the Board and argue that they remain fearful of the Maras in El Salvador, the Board’s finding is reasonable given the applicants’ immigration history.
The principal applicant returned to El Salvador after spending two years in the
US and remained in El Salvador for a period of almost three years, then fled
again to the US in 2009 and remained for another year before seeking refugee
protection in Canada. Her common law husband spent three and a half years in
the US before joining her in Canada. The record indicates that he came to Canada to join the principal applicant and their child who had been born in Canada 18 months earlier. The co-applicant son spent almost 10 months in the US without seeking protection. The applicants’ reliance on information from friends that
they would not be successful in seeking protection in the US and would risk deportation may have seemed reasonable to them, but it was not a
reasonable explanation to the Board and the Board was justified in so
concluding. It is expected that refugees should make every effort to seek
protection at the earliest opportunity if they have a genuine fear of
persecution in their home country.
[37]
I am of the opinion that the Board’s credibility
findings are sufficient to dispose of their claims. The Board itself concluded
at paras 64 and 81 of its decision that its negative credibility findings alone
are dispositive. Moreover, the applicants did not provide independent objective
evidence to support that they would face a personalized risk, especially since
the co-applicants are currently past the age of recruitment for the Maras and the principal applicant has not provided credible evidence with respect to her
heightened risk due to gang affiliations through her cousin Hugo (who is now
deceased). While the co-applicant common law husband did provide a police
report, it was found by the Board to be devoid of credibility, as it was dated
2013 and did not address whether he had reported to the police in 2008.
[38]
However, since the Board considered, in the
alternative, the section 97 analysis and commented on the jurisprudence, and
because the applicants focussed their arguments at the hearing of this
application for judicial review almost exclusively on the issue of the personalised
risk they would face upon return to El Salvador, the issue has been addressed.
Was the Board’s finding that
the applicants faced only a generalized risk under section 97 reasonable?
[39]
The applicants submit that the Board’s section
97 analysis leads to an absurd result, because the greater the danger and the
number of people affected, the harder it will be to claim protection under
section 97 of the Act.
[40]
The applicants submit that the personalized risk
they faced does not simply become generalized because others may be subjected
to the same risk; once an allegation of violence has been received as credible,
it will not suffice to declare that other individuals might face the same risk
to foreclose a section 97 claim. The applicants submit that they are like the
claimants in Bonilla, who faced a heightened and different risk not
faced by others in El Salvador.
[41]
The applicants further note that Portillo,
de Jesus Aleman Aguilar v Canada (Minister of Citizenship and Immigration),
2013 FC 809, [2013] FCJ No 855 [de Jesus Aleman Aguilar], Roberts v
Canada (Minister of Citizenship and Immigration), 2013 FC 298, [2013] FCJ
No 325 [Roberts], Gomez v Canada (Minister of Citizenship and
Immigration), 2011 FC 1093, 397 FTR 170 [Gomez], and Martinez De
La Cruz v Canada (Minister of Citizenship and Immigration), 2013 FC 1068,
[2013] FCJ No 1150 [Martinez De La Cruz], are recent examples of this
Court accepting the proposition that while a claimant may initially face risk
arising from generalized crime, the risk becomes particularized the moment that
the claimant is targeted specifically by gang members.
[42]
In this case, the applicants submit that they
have all been specifically targeted by the Maras for retaliation; in the case
of the principal applicant, because she reported to the police and in the case
of the co-applicants, because they refused to be recruited by the Maras. The applicants submit that the risk they face rises above that which is faced
generally by Salvadoran business people, male youth and the population at
large, because specific threats were made to them.
[43]
The respondent reiterates that the Board’s
credibility findings were dispositive, but offered helpful submissions on the
jurisprudence regarding section 97 and how the Board reached a reasonable
conclusion that the applicants, if believed, would face only a
generalized risk.
[44]
The respondent submits that the Board’s
disagreement with the test as proposed by Justice Gleason in Portillo
does not negate its conclusion, since the Board ultimately conducted a personalized
assessment of the applicants’ risk, as required by the case law. The Board
still concluded that no evidence was produced to demonstrate that the risk
faced by the applicants upon return to El Salvador would be intrinsically
different from others who refused to accede to gang demands (Arias, above
at para 47).
The Board reasonably found
that the applicants face only a generalised risk
[45]
The Board suggested that it preferred to rely on
earlier case law and expressed the view that there was inconsistency in the
case law or that it was “mixed”. I acknowledge that there is a great deal of
case law on the application of section 97 and how particularized risk and
generalised risk is to be distinguished, but I do not share the Board’s view
that the current case law is irreconcilable.
[46]
Even if the Board took a different approach to
the section 97 analysis, and failed to embrace the evolving case law, the Board
did not err because it ultimately conducted the proper analysis under section
97. In addition, its credibility findings remain dispositive of the applicants’
claims.
[47]
It appears that the Board rejected the approach
in Portillo and Malvaez, referring to these cases as “patently
wrong by saying that the risk would be found to be not a generalized risk if it
is of a different degree”. The Board thus concluded in its decision, at para
89:
[…] I believe the same principles [in Prophète,
Guifarro and De Parada] apply. These are people who may be
personally at increased risk from the gangs as they have been personally
targeted, but their risk is the same as large sub-groups of people in their
country. […] There is nothing in their testimony to establish that the risks
they would face on return would be intrinsically different from those, who like
them, have refused to accede to gang demands, whether the demand is tell us
where [your cousin] is, or don’t talk to the police, or join us or die. A
heightened degree of risk is insufficient by itself to take it out of the
generalized category.
[48]
Justice Gleason stated in Portillo, above
at para 36:
36 As noted, in my view, the
interpretation given by the RPD to section 97 of IRPA in the decision is both
incorrect and unreasonable. It is simply untenable for the two statements of
the Board to coexist: if an individual is subject to a personal risk to his
life or risks cruel and unusual treatment or punishment, then that risk is no
longer general. If the Board's reasoning is correct, it is unlikely that there
would ever be a situation in which this section would provide protection for
crime-related risks. Indeed, counsel for the respondent was not able to provide
an example of any such situation that would be different in any meaningful way
from the facts of the present case. The RPD's interpretation would thus largely
strip section 97 of the Act of any content or meaning.
[49]
However, the Board did not go on to set out the
test that Justice Gleason proposed, which has been endorsed in subsequent case
law. In my view, the test in Portillo is not a significant departure
from the previous case law, but rather an approach to the analysis of whether
the risk faced by an applicant is generalized or particularized.
[50]
In Portillo, above at paras 40-41,
Justice Gleason set out the approach as follows:
[40] In my view, the essential starting
point for the required analysis under section 97 of IRPA is to first
appropriately determine the nature of the risk faced by the claimant. This
requires an assessment of whether the claimant faces an ongoing or future risk
(i.e. whether he or she continues to face a “personalized risk”), what the risk
is, whether such risk is one of cruel and unusual treatment or punishment and
the basis for the risk. Frequently, in many of the recent decisions
interpreting section 97 of IRPA, as noted by Justice Zinn in Guerrero at
paras 27-28, the “… decision-makers fail to actually state the risk
altogether” or “use imprecise language” to describe the risk. Many of the
cases where the Board’s decisions have been overturned involve determinations
by this Court that the Board’s characterization of the nature of the risk faced
by the claimant was unreasonable and that the Board erred in conflating a
highly individual reason for heightened risk faced by a claimant with a general
risk of criminality faced by all or many others in the country.
[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.
[51]
The Board is certainly entitled to critically
evaluate the case law and it may be that the Board’s comments were made at a
time when it did not have the benefit of the developing case law which has
adopted the approach in Portillo and which has not found Portillo
inconsistent or irreconcilable with earlier jurisprudence (for example, in de
Jesus Aleman Aguilar, Roberts, Gomez, and Martinez De La
Cruz).
[52]
Under the Portillo approach, if the Board
had found the applicants to be credible and accepted that they have been
personally targeted, then the Board would have first identified the specific
risk faced by the applicants and then compared the risks faced by the
applicants to those faced by a significant group in El Salvador to determine
whether the risks are of the same nature and degree.
[53]
This type of comparative analysis appears to be
exactly what the Board undertook, although it relied on other case law. In
addition, the Board explicitly stated at para 93 of its decision that the male
co-applicants would have failed the section 97 test, even under the Portillo
analysis. The Board found that the risk faced by the applicants was of the same
nature and degree faced by a significant group in El Salvador.
[54]
The applicants strenuously argue that they do
face a personalised risk if returned to El Salvador because they have had
specific threats made to them. As noted above, the role of the Court is not to
re-weigh the evidence or re-make the decision of the Board, but to determine
whether the decision made by the Board was reasonable. In this case, the
Board’s credibility findings are justified and the decision, as a whole, is beyond
reproach. The Board assessed all of the evidence presented and provided clear
reasons for each finding. The decision meets the Dunsmuir standard as it
“falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47, [2008] 1 S.C.R. 190).
[55]
The application for judicial review is
dismissed. No question was proposed for certification.
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