Docket: IMM-1968-15
Citation: 2015 FC 1360
Toronto,
Ontario, December 8, 2015
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
|
ANA ADILIA
PUERTO RODRIGUEZ and ETHAN GUSTAVO MERINO PUERTO
|
Applicants
|
and
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT
AND REASONS
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division [“RPD”] of the Immigration and
Refugee Board dated March 30, 2015, wherein it was determined that the
Applicants are neither Convention Refugees nor persons in need of protection
pursuant to section 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA]. For the reasons that follow, this application is allowed.
Background
[2]
The principal Applicant, Ana Adilia Puerto
Rodriguez, and her son, the minor Applicant, Ethan Gustavo Merino Peurto, are
citizens of Honduras. The principal Applicant claims to fear her husband, who
she alleges abused her and the minor Applicant. She further alleges that the
minor Applicant is at risk from gang violence in Honduras. The Applicants left
Honduras on June 16, 2014, stayed in the United States with family for a few
months and arrived in Canada on December 20, 2014, making refugee claims upon
arrival.
[3]
The Minister of Public Safety and Emergency
Preparedness [Minister] intervened before the RPD on the inclusion aspects of
the claim as well as to canvass whether the exclusion pursuant to Article 1F(b)
of the United Nations Convention Relating to the Status of Refugees [the
Convention] applied to this claim. Section 98 of IRPA provides that a person
referred to in Article 1F(b) of the Convention is excluded from Convention
refugee status and status as a person in need of protection. Article 1F(b)
relates to a person who has committed a serious non-political crime outside the
country of refuge prior to admission to that country as a refugee in support of
the interpretation of Section 31 advanced, the Applicant places emphasis on the
use of the word “which”, not being disjunctive
and used rather than the word “or”, requires the
provision to be read as providing only one available means for amending the Rules:
a petition requiring a resolution to be issued.
RPD Decision
[4]
The RPD determined that the Applicant is
excluded from refugee protection in Canada pursuant to section 98 of IRPA and found
that the minor Applicant was not a Convention refugee or a person in need of
protection pursuant to sections 96 and 97 of IRPA. The determinative issues
were credibility and whether there were serious reasons for considering that
the Applicant had committed a serious non-political crime before coming to
Canada.
[5]
On the exclusion issue, the RPD found that there
were reasonable grounds to determine that the Applicant committed the offence
of taking the minor Applicant out of the United States to travel to Canada
without the consent of his father. The Applicant acknowledged that she did not
have such consent. The RPD found that there were serious grounds for
concluding that this would constitute an offence under Canadian criminal law,
specifically under sections 282 through 286 of the Criminal Code of Canada [Criminal
Code].It analyzed the seriousness of the crime based on the stipulated
sentencing provisions and the factors outlined in Jayasekara v Canada
(Minister of Citizenship and Immigration), 2008 FCA 404 [Jayasekara],
which include elements of the crime, mode of prosecution, penalty prescribed,
facts surrounding the crime and the mitigating and aggravating circumstances
underlying the conviction.
[6]
In considering mitigating circumstances, the
RPD noted that section 285 of the Criminal Code prescribes a defence that would
apply if either of the Applicants were escaping from danger of imminent harm.
However, while the RPD accepted that the principal Applicant was a victim of
abuse and extortion in the past, it found there was insufficient persuasive
evidence that she was escaping a danger of imminent harm when she left Honduras
and the United States. The RPD noted that the principal Applicant had not
declared to US officials that she feared return to Honduras, that she had not
sought asylum in the United States and had delayed coming to Canada, and her
failure to cut off communication with her husband while living in the United
States. It concluded that section 285 of the Criminal Code was not applicable.
[7]
With respect to the inclusion aspect of the
minor Applicant’s claim, the RPD found that the evidence did not support a
conclusion that he had been abused by his father. In relation to the risk of
gang violence, the RPD concluded that there was no link between the fear of
persecution and one of the Convention grounds such as would be required to
support a claim under section 96 of IRPA. In relation to section 97, there was
no evidence of personalized risk of harm that was targeted at the minor
Applicant by gang members. As any such risk was faced by the general population
in Honduras and this risk did not support a positive finding under section 97.
Submissions of the parties
[8]
The Applicants argue that Article 1F(b) of the
Convention refers to crimes committed outside the country of refuge prior to
admission to that country and is therefore inapplicable on the facts of this
case, as the alleged criminal act would have occurred only upon entering
Canada. The Applicants also submit that the RPD erred by ignoring and failing
to mention a Power of Attorney executed by the principal Applicant’s husband
following the Applicants’ arrival in Canada, amounting to ex post facto consent
to the principal Applicant taking him from the United States. The RPD’s reasons
also do not mention that the Minister at the conclusion of the hearing took the
position that the evidence supported a defence to the offence of child
abduction and formally withdrew the Article 1F(b) allegation.
[9]
The Applicants additionally submit that the
RPD’s credibility findings are not set out in the required clear and
unmistakable terms, given that the RPD finds that the principal Applicant was a
victim of abuse and extortion in the past but then goes on to find that she was
in no danger of imminent harm, apparently based on her failure to claim asylum
in the United States. In considering the minor Applicant’s claim, the
Applicants submit that the RPD did not consider that his uncle and father are
members of the Salva Maratrucha [Maras] gang and that specific threats had been
made by this gang against them.
[10]
The Respondent argues that the principal
Applicant abducted the minor Applicant from another country without the
father’s permission and deprived the father of possession of his child, and
that the Court should not accept the Applicants’ argument that no crime had
been committed prior to their arrival in Canada. The Respondent also submits that
the Power of Attorney does not assist the Applicants, as it was signed after
the abduction and could have been signed for numerous reasons. Further, the RPD
did not need to mention the Minister’s final position on the availability of a
defence under section 285, as the RPD is an independent decision maker and can
come to its own conclusions on the evidence and issues before it
[11]
The Respondent’s position is that the RPD’s
decision was reasonable in finding that the exclusion in Article 1F(d) applied
and that the Applicants had failed to establish that they left Honduras and
then the United States because they faced a risk of persecution or a risk faced
by the minor Applicant outside the generalized risk faced by others in that
country.
Analysis
[12]
The argument of the Applicants that resonates
with the Court is that the RPD failed to consider the evidence that specific
threats had been made by the Maras gang against the minor Applicant. In
conducting its analysis of the minor Applicant’s risk of harm under section 97
of IRPA, the RPD stated that there was no evidence before it of any
personalized risk of harm that was targeted at the minor Applicant by gang
members in Honduras. On that basis, it concluded that any gang violence he may
face would be a general risk of gang violence that is not personalized but rather
faced by the general population in Honduras.
[13]
This finding is reviewable on a standard of
reasonableness. My conclusion is that it represents a reviewable error by the
RPD, in that it failed to consider the principal Applicant’s evidence that
threats had been directed at both her and the minor Applicant. The principal
Applicant’s Basis of Claim form refers to her husband’s brother, a Maras gang
member, as having threated to kill her and her son. The evidence before the RPD
also included a document entitled Notarial Attestation, signed by an attorney
in Honduras, stating that the principal Applicant met with her on January 10,
2014 to seek assistance with making a complaint about the Maras gang.
Specifically, that the Maras gang members had been extorting her at her grocery
store business and threatened to kill both her and her son if she did not pay.
[14]
The Respondent submits that, as set out in Bouaouni
v Canada (Minister of Citizenship and Immigration), 2003 FC 1211, a
negative credibility finding under section 96 of IRPA will in most
circumstances be determinative of a claim under section 97 of IRPA, and the RPD
does not need to repeat why it found an applicant’s allegations to be not
credible under section 96 in order also to reject them under section 97. The
difficulty with the Respondent’s argument is that the RPD’s rejection of the
minor Applicant’s section 97 claim was not based on adverse credibility
determinations. In fact, the RPD had previously stated, in conducting its
exclusion analysis, that it accepted that the principal Applicant had been a
victim of extortion in the past. Rather, the RPD’s rejection of the section 97
claim was based on its incorrect observation that there was no evidence before
it of any personalized risk.
[15]
The Respondent also argued that the RPD’s
reasons should be read as a conclusion that there is no forward-looking risk to
the minor Applicant, as the grocery store that was the subject of the extortion
demands had been closed. With respect, it is not possible to read the RPD’s
reason this way, as the impugned statement is that “there
is no evidence before the panel of any personalized risk of harm that was
targeted at the minor claimant by gang members in Honduras” (my emphasis).
This does not read as a forward-looking conclusion, and the RPD’s reasons
contain no analysis to the effect that the closure of the grocery store
resulted in past risks no longer applying.
[16]
The RPD’s finding that the minor Applicant did
not face any personalized risk of gang violence cannot be characterized as a
rejection or discounting of his mother’s evidence of the threats that were
directed at both of them. While the RPD is not obliged to refer to every piece
of evidence in its reasons, and it is entitled to assess how much weight to
assign the evidence, it represents a reviewable error to make a finding based
on an erroneous conclusion that there was no evidence on a particular point in
issue.
[17]
This error requires that this application be
allowed with respect to the claim of the minor Applicant. The question
therefore arises as to the effect of this error upon the RPD’s conclusion that
the principal Applicant is excluded under Article 1F(b) of the Convention and
section 98 of IRPA. The Respondent argues that there is no relationship between
the two issues, as a finding that the RPD erred in connection with the section
97 analysis would not impact its finding that there was insufficient persuasive
evidence to conclude that she was escaping a danger of imminent harm when she
left Honduras.
[18]
My conclusion is that there is a
relationship between these issues. As the RPD failed to consider the evidence
of threats directed at the minor Applicant, it also failed to consider whether
those threats amounted to a danger of imminent harm from which the Applicants
were escaping. While those threats may not have resulted in the RPD reaching a
different conclusion on the availability of the defence that would have
prevented the finding of exclusion, the RPD was required at least to consider
that evidence before making that finding.
[19]
Also, as submitted by the Applicants, the
portion of the RPD’s reasons, where it finds the defence in section 285 of the Criminal
Code not applicable, is itself somewhat difficult to follow and arguably
reaches inconsistent conclusions. The RPD first accepts on a balance of
probabilities that the principal Applicant was a victim of abuse and extortion
in the past but then finds, based on its credibility and subjective fear
concerns, that there is insufficient evidence to conclude that she was escaping
a danger of imminent harm. The Respondent argues that these conclusions can be
reconciled by reading the latter conclusion as a finding that, notwithstanding
the existence of abuse and extortion, those risks were not motivating the
principal Applicant’s departure from Honduras and the United States.
[20]
In my view, such a reconciliation is
intelligible only if the reasons are read as concluding that the abuse and
extortion were sufficiently in the past that the fear of these risks was not a
motivating factor at the time of the departure. However, the Notarial
Attestation, which evidences the principal Applicant seeking assistance in
connection with threats from gang members, indicates that she met with the
attorney in January of 2014. Similarly, in relation to the abuse by her
husband, the affidavit of the principal Applicant’s sister, on which the RPD
appears to rely in accepting that the principal Applicant had been a victim of
abuse in the past, refers to the last violent episode occurring in February
2014. With the Applicants departing from Honduras in June of 2014, I cannot
find the Respondent’s proposed interpretation sufficiently reconciles the
contradictory conclusions so as to make this portion of the RPD’s decision
reasonable.
[21]
It is therefore my decision that this
application must be allowed with respect to the claims of both Applicants. The
Applicants raised for the Court’s consideration a proposed question for
certification, being whether Article 1F(b) of the Convention will capture an
offence alleged to have been committed upon arrival in Canada. As my decision
does not turn on the Applicants’ arguments as to the locus of the alleged child
abduction offence, no question will be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that this application for judicial review is allowed and the matter
referred back to the RPD for re-determination by a different panel member. No
question is certified for appeal.
“Richard F. Southcott”