Docket: IMM-1706-17
Citation:
2017 FC 1019
[ENGLISH TRANSLATION]
Montréal, Quebec, November 8, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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JORGE CASTILLO
CAMBARA
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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
I.
Introduction
[1]
The applicant himself acknowledged that he came
to Canada for economic reasons. This is what the panel noted in its decision.
[translation]
As well,
when the panel asked him if he came to Canada for economic reasons, the
applicant spontaneously responded: “It was to pay him”, suggesting Roberto. Hesitating,
he added: “And to be with my wife. The goal was to be with my wife.”
(RPD Reasons, at para 19.)
[2]
The RPD did not err in concluding that the
applicant did not have a well-founded fear of persecution because he did not
claim protection any in other country “as quickly as
possible” (Pissareva v Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 2001 (QL), at para 27).
II.
Nature of the case
[3]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], from a decision rendered on March 28, 2017, by the Refugee
Protection Division [RPD or panel] of the Immigration and Refugee Board. In
that decision, the RPD concluded that the refugee claimant did not qualify as a
refugee within the meaning of the Convention Relating to the Status of Refugees
[the Convention] or as a person in need of protection. The RPD therefore
dismissed the refugee claim under section 96 and subsection 97(1) of the IRPA.
III.
Facts
[4]
The applicant, 36 years old, is a citizen of
Cuba.
[5]
On July 8, 2016, the applicant married a
Canadian citizen of Cuban origin. In July 2016, the applicant was allegedly
dismissed from his work after telling his employer that he was leaving for
Canada to be with his spouse.
[6]
To be able to leave Cuba, the applicant
allegedly borrowed $8,000 from Roberto Garcia Lopez. The applicant had to repay
Roberto $10,000, including $2,000 in interest.
[7]
On August 17, 2016, the applicant left Cuba and
went to Mexico with a work visa. However, the applicant apparently never
received the salary promised by his employer in Mexico. He therefore left for
the United States and requested protection from that country in order to
legally cross the Canadian border.
[8]
On August 19, 2016, the applicant was unable to
enter Canada. Thus, on August 23, 2016, he applied for protection in Canada to
achieve his alleged goal of being with his spouse.
[9]
On September 5, 2016, the applicant apparently
learned from his mother that Roberto, his lender, had allegedly made threats
against him to obtain repayment of the $2,000 loan. The applicant feared
Roberto because he was reportedly a bandit. Since being in Canada, the
applicant alleged that he has repaid $1,500 to Roberto.
IV.
Decision
[10]
On March 28, 2017, the RPD dismissed the refugee
claim under section 96 and subsection 97(1) of the IRPA. The panel concluded
that the applicant lacked general credibility. He apparently improvised and
adjusted his testimony at the hearing. The panel found that the applicant’s
primary objective was monetary. Convinced that the applicant’s reasons for
coming to Canada were economic, the panel therefore dismissed his explanations.
[11]
The panel found that the applicant did not
satisfactorily demonstrate that he feared the police or a representative of the
Cuban state. The panel therefore dismissed the refugee claim under paragraph
97(1)(a) of the IRPA. Finally, the panel found that, if the applicant had truly
feared for his life in Cuba, he would have taken advantage of having sought the
protection of the United States to ensure his safety. The panel also noted that
the applicant had not sought the protection of Mexico. That is the decision
that is the subject to this application for judicial review.
V.
Issue
[12]
This case raises just one issue: Is the RPD
decision reasonable?
[13]
The Court considers that the standard of review
applicable to the RPD decision regarding the applicant’s credibility and the
assessment of the evidence is the standard of reasonableness (Devanandan v
Canada (Citizenship and Immigration), 2016 FC 768, at para 15; Aguebor v
Canada (Minister of Citizenship and Immigration), (1993), 160 NR 315 (FCA),
at para 4).
[14]
The Court can only intervene if the RPD’s
reasons are not justified, transparent, or intelligible. To satisfy the
standard of reasonableness, the decision must fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and the law” (Dunsmuir v New Brunswick, 2008 SCC 9, at para
47 [Dunsmuir]; Irma v Canada (Minister of Citizenship and
Immigration), 2013 FC 641, at para 27).
VI.
Relevant provisions
[15]
The following provisions are relevant to this
case.
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Convention refugee
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Définition de réfugié
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person in need of protection
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Personne à protéger
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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
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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 :
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(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
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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;
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(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
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b) soit à une menace à sa vie ou au risque de traitements ou
peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling to
avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards, and
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(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,
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(iv) the risk is not caused by the inability of that country to
provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité du pays
de fournir des soins médicaux ou de santé adéquats.
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Decision on Claim for Refugee Protection
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Décision sur la demande d’asile
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107 (1)
The Refugee Protection Division shall accept a claim for refugee protection
if it determines that the claimant is a Convention refugee or person in need
of protection, and shall otherwise reject the claim.
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107 (1) La Section de la protection
des réfugiés accepte ou rejette la demande d’asile selon que le demandeur a
ou non la qualité de réfugié ou de personne à protéger.
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VII.
Submissions by the parties
A.
Applicant’s submissions
[16]
The applicant claims that the RPD’s decision is
unreasonable. It should not have concluded that the applicant was not credible
and that he did not actually fear for his life. The applicant stated that his
conduct was always that of a person who feared for his safety if he were to
return to Cuba. The RPD also allegedly erred in concluding that the applicant
could have found refuge in the United States or Mexico. The applicant explained
that he protection of those countries is not a determining factor of itself and
the panel should have found that his explanations at the hearing were credible.
[17]
The applicant also submitted that the panel
should not have concluded that he improvised in his account during his
testimony. Among other things, at the hearing before the RPD, the applicant
allegedly made a mistake in his response to a question about a date, but
apparently quickly corrected it before being confronted with the contradiction.
According to the applicant, there is no perfect testimony (Desmond v Canada
(Citizenship and Immigration), 2007 CanLII 68307 (CA IRB), at para 16). The
applicant considers that his testimony related the same facts as his written
account (Zhou v Canada (Minister of Citizenship and Immigration), 2006
FC 70, at
para 9).
B.
Respondent’s submissions
[18]
The respondent claims that it was reasonable for
the panel to dismiss the refugee claim. Indeed, the applicant admitted to
fearing a specific individual, not a social group or the Cuban state. The burden
was on the applicant to show that he was a person in need of protection and the
panel was not satisfied that the applicant had discharged that burden.
[19]
The respondent then submitted that “The purpose of the refugee system both in international and
domestic law is not to provide an easy means for immigrants to find a new and
more desirable country of residence; it is to furnish a safe haven to those who
rightly fear they will be persecuted in their country of origin” (Akthar
v Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 513
(QL), at para 18). The claim process aims to protect people who truly need it (Urbanek
v Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 556 (QL),
at para 4 [Urbanek]). The respondent is of the opinion that the
applicant did not need Canada’s protection, as his primary goal was to come to
Canada for economic reasons.
[translation]
The panel considers that that clearly shows
that the applicant was looking for a way of immigrating to Canada, as his
spouse did not have the means to sponsor him.
(RPD’s Reasons, at para 22.)
[20]
The respondent also argued that the applicant’s
testimony was not credible in general, as significant gaps were noted regarding
elements central to his refugee claim. The RPD is a specialized tribunal and “the Court owes deference to findings of credibility made by
the RPD” (Paul v Canada (Citizenship and Immigration), 2015 FC
1324, at para 13); the RPD has the advantage of observing and hearing the
applicant at the hearing. After hearing the explanations provided by the
applicant, the RPD deemed them to be unsatisfactory.
[21]
Finally, the respondent submitted that, at the
hearing, the RPD found the applicant’s conduct to be inconsistent with that of
a person with a reasonable fear of persecution. The applicant explained that he
allegedly applied for protection in Canada, rather than Mexico or the United
States, because his spouse was in Canada. The respondent submitted that the
applicant’s explanation is not “is an unacceptable
reason to delay seeking asylum in another country and strongly indicates a lack
of subjective fear of persecution” (Gebetas v Canada (Citizenship and
Immigration), 2013 FC 1241, at para 32). The panel could consider the fact
that the applicant did not “serious measures” to
protect himself in Mexico and the United States (Mardones v Canada (Minister
of Citizenship and Immigration), [1997] F.C.J. No. 351 (QL), at para 2).
VIII.
Analysis
[22]
For the following reasons, this application for
judicial review is dismissed.
A.
Is the RPD decision reasonable?
[23]
The Court is satisfied that the RPD could
reasonably conclude that the applicant lacked general credibility, particularly
because the applicant adjusted his responses a few times. The RPD noted
inconsistencies and contradictions in the applicant’s testimony that were
central to his refugee claim and that could not justify why the applicant
should obtain protection from Canada, including:
- The applicant replied that he did not seek
protection in Mexico because the pay was not good and he has no family in that
country, while claiming that he feared for his life and safety. (Reasons for
Decision, at para 16)
- The applicant himself admitted that he
came to Canada for economic reasons, not to find refuge. (Reasons for Decision,
at para 19)
- The applicant also mentioned spontaneously
that he came to Canada to pay Roberto, his lender. However, he adjusted his
testimony to add that the goal was also be with his wife. (Reasons for Decision,
at para 19)
- The applicant abandoned his application
for protection in the United States, saying in his testimony: “I have no one in
the United States. I have my wife here in Canada”. (Reasons for Decision, at
para 23)
- The applicant also stated in his testimony
that he apparently only applied for refugee status in the United States to be
able to travel and come to Canada (Reasons for Decision, at para 24)
[24]
Following these inconsistencies, the RPD then
gave the applicant an opportunity to provide explanations regarding them.
However, it deemed them to be unsatisfactory. The Court notes that the RPD can
consider inconsistencies in assessing the applicant’s credibility (Selvam v Canada
(Minister of Citizenship and Immigration), 2007 FC 513, at para 29). “However, the inconsistencies must be rationally related to
the applicant’s credibility and must be major enough by themselves to call into
question the applicant’s credibility” (Kambanda v Canada (Minister of
Citizenship and Immigration), 2012 FC 1267, at para 42).
[25]
In the case at hand, the RPD also concluded that
the applicant had no subjective fear, as the inconsistencies and adjustments in
his testimony were related to important facts in his account. Indeed, the
applicant, who alleged fearing for his life and safety, did not seek protection
in Mexico after having left Cuba and abandoned his refugee claim in the United
States. The applicant also admitted himself that he came to Canada for economic
reasons. This is what the panel noted in its decision.
[translation]
As well, when the panel asked him if he
came to Canada for economic reasons, the applicant spontaneously responded: “It
was to pay him”, suggesting Roberto. Hesitating, he added: “And to be with my
wife. The goal was to be with my wife.”.
(RPD Reasons, at para 19.)
[26]
The Court notes that the panel has to
opportunity to hear witnesses and observe their demeanor (Rahal v Canada
(Citizenship and Immigration), 2012 FC 319, at para 42 [Rahal]). In
this case, the RPD concluded that the applicant’s demeanor was that of someone
who did not fear for his live, given the factual nuances in the evidence. In
short, “the RPD [could] legitimately have regard to
witness demeanor, including hesitations, vagueness and changing or elaborating
on their versions of events.” (Rahal, at para 45). It must also
be remembered that the applicant specified in one of his responses to the
member that he is not in Canada for one of the five reasons for which a
claimant can claim refugee status in Canada, as set out in the Convention.
[27]
Finally, without wanting to be repetitive, the
Court states that the claim process serves to protect people who truly need it
(Urbanek, at para 4). The Court considers that not applying for
protection in Mexico because the pay left a lot to be desired, and not
continuing with the refugee process in the United States because the applicant
had no family in that country, cannot justify his choice to move to Canada to
apply for refugee status (Garavito Olaya v Canada (Citizenship and
Immigration), 2012 FC 913, at para 54). The RPD did not err in concluding
that the applicant did not have a well-founded fear of persecution because he
did not claim protection any in other country “as
quickly as possible” (Pissareva v Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 2001 (QL), at para 27).
[28]
For these reasons, the Court should not intervene
in this case, as it was up to the specialized tribunal to decide on the
applicant’s claim based on the evidence on record. The RPD’ decision is
reasonable and falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law”
(Dunsmuir, at para 47).
IX.
Conclusion
[29]
This application for judicial review is
dismissed.
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