Date: 20170908

Docket: IMM-1040-17

Citation: 2017 FC 812

[ENGLISH TRANSLATION]

Ottawa, Ontario, September 8, 2017

PRESENT: The Honourable Mr. Justice Locke

JUDGMENT AND REASONS

I.                    Nature of the case

[1]               This an application for leave and judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA] of a decision on February 8, 2017, by the Refugee Protection Division (RPD or tribunal) of the Immigration and Refugee Board, whereby the applicants are not refugees pursuant to section 96 and subsection 97(1) of the IRPA. The grounds of persecution set out in the IRPA were not met.

[2]               For the following reasons, I would dismiss this application.

II.                 Facts

[3]               The principal applicant, Elmer Edgardo Lopez Soliz, his spouse, Carmen Griselda Cubas Lopez (collectively “the applicants”), and their three children, Kevin Josue Lopez Cubas, Grace Caroline Lopez Cubas, and Daniel Alejandro Lopez Cubas, are citizens of Honduras.

[4]               The principal applicant has been a member of the Church of Jesus Christ of Latter-Day Saints (the Mormon church) since 1991. He holds an important position in the church and is also responsible for its finances. His work with the church involves interventions with young offenders in certain dangerous neighbourhoods.

[5]               In early 2016, the principal applicant was advising the spouse of a leader of the criminal organization Mara 18, Alejandro Flores, known as “El Zarco”. She was pregnant and badly abused by El Zarco. On September 8, 2016, she called the principal applicant to inform him that she was leaving El Zarco, as he had advised her.

[6]               On September 10, 2016, the principal applicant received a call from El Zarco, accusing him of causing his wife to leave and demanding a high ransom. The principal applicant did not tell his spouse of that call, but spoke about it with his superior. He also changed the route he took to work each day.

[7]               On September 18, 2016, the principal applicant’s spouse received a telephone call at home insisting on the ransom as soon as possible. She was also informed that the comings and goings of her family members were known.

[8]               On September 19, 2016, the principal applicant filed a complaint with the local police, who refused to accept it. That day, the principal applicant and his family abandoned their home to hide at a friend’s home. The next day, the principal applicant received a telephone call from El Zarco, advising him that the deadline for the ransom had passed. El Zarco threatened to find him and kill him and his family.

[9]               The applicants left the country on October 11, 2016. They arrived in Canada on October 13, 2016, via the United States, and filed a refugee claim.

[10]           One final relevant detail is the fact that he applicants’ adult son is currently on a religious mission in the United States. He has a temporary two-year visa and is not involved in the refugee claim in Canada. The applicants did not inform him of the threats that took place and did not encourage him to begin his own refugee claim.

III.               Decision

[11]           The RPD dismissed the refugee claim on the ground that the applicants lacked credibility. The RPD cited several inconsistencies and contradictions in the evidence:

1. The principal applicant did not advise his spouse of the initial call from El Zarco, although he knew that he was a leader of Mara 18, that he was dangerous and well‑known in the region, and that Mara 18 is highly organized and violent and carries out its threats.
2. The principal applicant indicated that, following the initial call from El Zarco, he was satisfied that a change in his route would be enough because he did not think that El Zarco could identify him, even though he already knew his name and telephone number.
3. The applicants did not advise their son in the United States about the threats they faced in Honduras because he was far from the risk, and because he was on a religious mission that could not be interrupted by a refugee claim. The RPD did not see any reason for not advising the adult son in the United States. The RPD was not satisfied that a refugee claim would have forced him to interrupt his religious mission.
4. The principal applicant failed to mention that the church for which he carried out his duties had to close its doors due to problems with Mara 18.
5. The principal applicant testified that the police refused to process his complaint under the pretext that that type of denunciation based on threats from unknown numbers is very hard to investigate, even though the principal applicant could identify his assailant and the documentary evidence indicates that the Honduran police have a formal process for handling complaints.
6. Neither the applicants nor the RPD could obtain any information regarding a senior leader of Mara 18 known as El Zarco, despite his alleged notoriety.

[12]           The RPD concluded that each of these problems of credibility, individually, was not enough to dismiss the refugee claim, but their number and consistency led the RPD to dismiss the applicants’ story.

IV.              Analysis

[13]           The applicants submitted that the RPD erred in its analysis of:

1. the principal applicant’s failure to advise his spouse of the initial call from El Zarco;
2. the change in the applicant’s route following the initial call from El Zarco;
3. the failure to advise the adult son in the United States of the threats in Honduras;
4. the allegation that the police did not accept the denunciation by the applicants.

[14]           The applicants also submitted that the RPD erred in its conclusion that the documents submitted as evidence were only corroborated by the applicants’ testimonies.

A.                 The standard of review

[15]           There is no debate between the parties that the standard of review regarding the RPD’s conclusions is the standard of reasonableness.

B.                 The principal applicant’s failure to advise his spouse of the initial call from El Zarco

[16]           The principal applicant explained that he had been performing his duties in Honduras for a long time in a neighbourhood with a lot of criminality and that he helped dangerous people. His job required a certain tolerance for threats. He argued that it should not be surprising that he did not advise his spouse of the initial threat from El Zarco because he did not want his concerns at the office to affect his family and private life. The principal applicant submitted that the tribunal should have considered his version of the facts.

[17]           The tribunal concluded that the applicant’s explanation that he did not think the situation was dangerous was not logical because he knew that El Zarco was a leader of the Mara 18, that he was well-known, that Mara 18 was highly organized and violent and that it carried out its threats.

[18]           In my opinion, the tribunal’s conclusions in this regard are reasonable. The tribunal had a right to weigh the evidence, and it seems quite clear that the tribunal understood that the environment in which the principal applicant performed his duties was dangerous.

C.                 The change to the principal applicant’s route following the initial call from El Zarco

[19]           The principal applicant explained that, although the initial call indicated that El Zarco knew his name and telephone number, that did not necessarily mean that Mara 18 had identified him. The tribunal did not have enough evidence to reach that conclusion. Thus, the change in the principal applicant’s route was a reasonable reaction following the initial telephone call.

[20]           Again, I am of the opinion that the tribunal’s analysis is reasonable. According to the principal applicant’s statement of facts, El Zarco indicated during the initial call that he also knew that the principal applicant was responsible for the church’s finances. It is therefore clear that El Zarco’s knowledge was not limited to the principal applicant’s name and telephone number.

D.                 Failure to advise the adult son in the United States of the threats in Honduras

[21]           The principal applicant explained that his son in the United States had a visa and was not in imminent danger of returning to Honduras and, therefore, the applicants did not advise him of their departure from Honduras. The principal applicant also explained that their adult son was committed to continuing his religious mission for two years, and that a refugee claim would have interrupted his mission.

[22]           The tribunal considered those statements, but concluded that the following facts indicated that it was reasonable to expect the applicants to advise their adult son in the United States of the danger: (i) the adult son’s status in the United states was temporary (with no guarantee of being extended); (ii) the lack of evidence that the adult son’s religious mission was incompatible with a refugee claim; and (iii) the significant danger for the adult son in Honduras.

[23]           I am of the opinion that this conclusion by the tribunal is supported by the evidence and is reasonable.

E.                  The allegation that the police did not accept the denunciation filed by the applicants

[24]           The principal applicant testified that the police did not want to accept his complaint under the pretext that it would be difficult to investigate threats from an unknown number.

[25]           The tribunal did not believe the principal applicant in that regard because the documentary evidence indicates that Honduran authorities accept complaints.

[26]           However, the applicants noted that the documentary evidence does not indicate that every complaint is accepted by the police. Despite the documentary evidence, it remains possible that the police to whom the principal applicant went refused to accept or investigate the complaint.

[27]           I agree with the applicants in this regard. I am therefore of the opinion that the tribunal’s conclusion that this portion of the applicants’ allegations lacked credibility was unreasonable.

[28]           That said, I am of the opinion that this error is not enough, by itself, to overturn the tribunal’s conclusion regarding the applicant’s general lack of credibility. The several other problems regarding the applicants’ credibility remain valid.

F.                  Documentary evidence based on something other than the applicants’ testimonies

[29]           The applicants submitted that the tribunal’s conclusion regarding the fact that they relied solely on their own testimony is incorrect, and therefore unreasonable, because they also relied on the testimonies of their neighbours, who stated that they personally heard the threats against the applicants by members of Mara 18.

[30]           I do not accept that argument. First, the tribunal cited several credibility problems that led it to not believe the applicants. It is also clear that the tribunal did not fail to consider the neighbour’s testimonies. It explicitly refers to them in the decision, indicating that the testimonies were not enough to demonstrate the applicants’ allegations, or to make their testimonies credible.

[31]           Regarding the lack of evidence regarding the existence of El Zarco, the applicants noted that Mara 18 is a criminal organization. The applicants submitted that it is not surprising that one of its leaders remains anonymous. I also do not accept that argument. The principal applicant himself testified that El Zarco is well-known. He also testified that El Zarco is known to police. According to the applicants, it is clear that El Zarco is not anonymous. In my opinion, the RPD had reason to expect that such a leader of Mara 18 would be referred to in the media or in government or non-governmental organization reports.

V.                 Conclusions

[32]           Although one of the disputed conclusions by the tribunal is unreasonable, I am of the opinion that the tribunal’s general conclusion that the applicants lack credibility is reasonable. I therefore find that this application for judicial review must be dismissed.

[33]           The parties have not presented any serious questions of general importance to be certified.

JUDGMENT in IMM-1040-17

THE COURT ORDERS that:

1.      The application is dismissed.

2.      No serious questions of general importance are certified.

“George R. Locke”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: