Docket: IMM-3839-15
Citation:
2016 FC 144
Vancouver, British Columbia, February 5, 2016
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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FRANCISCO
JAVIER MENDOZA HERNANDEZ
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Applicant
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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 Applicant, Francisco Javier Mendoza
Hernandez, a 22 year-old citizen of Guatemala, seeks judicial review of the
decision of the Refugee Protection Division of the Immigration Refugee Board of
Canada (RPD), dated July 30, 2015. In its decision, the RPD concluded that the Applicant
was not a Convention refugee pursuant to s 96 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA or “the Act”) and is not a
person in need of protection pursuant to s 97 (1) of the Act. Further, pursuant
to s 107 (2) of IRPA, the RPD found there was no credible basis for his
claim.
[2]
The issues in this application are whether the
RPD’s no credible basis finding and specific credibility findings were
unreasonable and whether a breach of procedural fairness by the RPD was
sufficiently material to require that the matter be sent back for
reconsideration by a different Member.
[3]
The parties agree and I accept that the
appropriate standard of review of the RPD’s findings on both credibility and no
credible basis is reasonableness: Pournaminivas v Canada (Minister of
Citizenship and Immigration), 2015 FC 1099, at para 5 [Pournaminivas].
There is also no controversy that the appropriate standard of review for
questions of procedural fairness in this context is correctness: Dunsmuir v New
Brunswick, 2008 SCC 9, at para 50.
[4]
The Applicant has a checkered immigration
history. He entered the United States illegally in 2009 and was apprehended and
incarcerated for a minor public order offense in 2011. He was subsequently
deported but returned illegally in 2013 where he remained until October or
November 2014. He then entered Canada without authorization and did not make a
refugee claim until arrested for public drunkenness on May 9, 2015. The Applicant
and his girlfriend then misled their first counsel about the time that they had
been cohabiting with the intent to submit a common-law sponsorship application.
[5]
Upon being interviewed by a CBSA officer on May
10, 2015, the Applicant stated that the basis for his refugee claim was that
members of a gang wanted to kill him because a co-worker had “lots of enemies”. In an interview with another
officer on May 11, 2015, the Applicant first stated he left Guatemala in May
2014 and then later recanted and said he left in 2013. At that point, he
indicated that he was at risk because he had worked for certain religious
leaders in Guatemala.
[6]
The RPD found that the Applicant’s retelling of
the allegations was inconsistent with an amended basis of claim form (BOC) filed
June 23, 2015. In his initial interview Mr. Hernandez said, among other things,
that his reason for being in Canada was to be with his spouse. The RPD drew a
negative credibility assessment from that discrepancy and from other
inconsistencies between the interviews with the two CBSA officers. The Applicant
admitted that he lied in his interview with the first officer and stated that
his reason was that he did not have a lawyer and was nervous. The RPD did not
accept this explanation.
[7]
The RPD found discrepancies in letters from the Applicant’s
former employer, the Sacral Archbishop of the Guatemalan Mayan Orthodox Church,
his aunt and sister, and drew negative credibility inferences from the
inconsistencies and the lack of supporting documentary evidence. The affidavit
of his spouse was given little weight as she acknowledged having lied, along
with the Applicant, to an immigration counsel whom they approached to help them
with his status.
[8]
Two newspaper articles from 1988 and 1992, excerpts
from a seminary blog and a national documentation package for Guatemala were
also considered. The RPD drew a negative credibility inference from the lack of
documentary evidence on recent attacks or threats on other members of the Church,
including its leaders. The RPD found that this also spoke to a lack of an
objective basis for the claim. The only evidence linking the Applicant’s
allegation of an attack or threats to his work with the Church was his
testimony.
[9]
The RPD determined that there was no nexus upon
which to find that the Applicant is a convention refugee. The risk that he may
face in Guatemala is a generalized risk, not a risk to life or cruel and
unusual punishment. The RPD determined that the Applicant was not credible and
that the “credibility concerns are so serious as to
destroy the claim.” Given the serious credibility concerns, the RPD
found that there was “no credible or trustworthy
evidence on which I could have made a favorable decision” and,
therefore, held that there was no credible basis for the Applicant’s claim.
[10]
A “no credible basis” finding carries serious
consequences. If made, a claim is ineligible for review by the Refugee Appeal
Division, and the claimant is not entitled to a statutory stay pending the outcome
of any judicial review. Because of these consequences, the threshold for this
finding is high, and the RPD must ensure that there is no credible or
trustworthy evidence in support of the claim before arriving at that
conclusion: Rahaman v Canada (Minister of Citizenship and Immigration), 2002
FCA 89, paras 51-52.
[11]
In my view, the RPD’s finding that there was no
credible basis for the claim was reasonable. The documentary evidence, assessed
without the Applicant’s testimony, was insufficient at law to establish a claim
under s 96 of s 97 (1) of the Act. The objective country documentation linking
threats to the priests of the Church is more than 20 years old. It was open to
the RPD to find that the letter from the Archbishop was insufficient to
establish an objective basis for the Applicant’s claim, and there was no other
objective evidence of current threats to members of the Church. The only
remaining evidence is the letters submitted by the Applicant’s sister and aunt.
The RPD did not specifically address this evidence but generally noted that
there was a lack of objective, credible documentary evidence on the recent risk
to staff of the Church.
[12]
The letters from the aunt and the sister lacked
key details to be sufficient to support the claim on their own, and the
independent and objective documentary evidence did not support the existence of
a current risk. Although the Father’s letter was accepted, it alone was
insufficient at law to establish a claim under the Act. Accordingly, it was
reasonable for the RPD to make a no credible basis finding.
[13]
This case is distinguishable from Pournaminivas
(above), where Justice Boswell found it unreasonable for the RPD not to
consider the substantial documentary evidence about the persecution of
homosexuals in India, and the unchallenged testimony of one of the Applicant's
witnesses.
[14]
As for the specific adverse credibility
findings, the RPD drew reasonable inferences from the lies that the Applicant
told a CBSA officer and counsel, inconsistencies between the interviews and his
amended BOC, the delay in claiming, and the lack of detail in his supporting
letters. These findings did not suffer from microscopic analysis or exaggerate
minute inconsistencies. The RPD took the Applicant’s explanations into account,
but they carried little weight. Avoiding deportation is not a justification for
lying, and the assessment of credibility lies at the heart of the RPD’s
responsibility.
[15]
The breach of natural justice argument arises
because the RPD cited the Applicant’s failure to make a refugee claim in the United
States in support of its decision.
[16]
Midway through his submissions at the RPD
hearing, counsel for the Applicant specifically sought clarification as to
whether the Mr. Hernandez’s failure to make a claim in the US remained an
issue. The Presiding Member answered “no”. As
such, the Applicant submits that the RPD denied him the opportunity to make
submissions on this issue.
[17]
The Respondent acknowledges that the RPD erred
by relying on the Applicant’s failure to make a claim in the US in its assessment
of his credibility. The Respondent argues that in cases where there has been a
breach of natural justice the court retains the discretion not to grant a
remedy where the result is nevertheless inevitable: Mobile
Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 pp 228-229; Sketchley v Canada (AG), 2005
FCA 404, para 125.
[18]
If notwithstanding the breach, it is apparent
that the decision maker would have reached the same decision and by remitting
it for reconsideration nothing would be achieved, the decision should stand.
However, that will not apply where, at a fresh hearing, a new tribunal could
arrive at a different conclusion on credibility: Abasalizadeh v Canada
(Minister of Citizenship and Immigration), 2004 FC 1407, at para 24.
[19]
The RPD’s comments on the Applicant’s failure to
claim in the US appear in one of 22 paragraphs in the decision. The conclusion
drawn at the end of that paragraph is an adverse credibility inference resulting
from the Applicant’s failure to make a refugee claim in Canada until
detained by the police. That was the material issue and, in fact, what counsel
turned to in his submissions when the RPD Member responded to his inquiry about
the failure to claim in the US.
[20]
When asked during the judicial review hearing
what additional submissions could have been made on the Applicant’s behalf
about his failure to claim in the US, counsel suggested that reference may have
been made to the Applicant’s fear of being deported again due to his prior
removal. That, in my view, would have made no difference to the outcome.
Ultimately, even without addressing the Applicant’s failure to claim in the US,
the RPD had a sufficient basis to find that he was not credible.
[21]
In the result, I am satisfied that the decision
was reasonable and that the Applicant was not denied procedural fairness in the
RPD’s analysis and decision.
[22]
No questions were proposed and none will be
certified.
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