Date: 20060412
Docket: IMM-4301-05
Citation: 2006 FC 478
Ottawa, Ontario, April 12, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
WILIAN JOSE ACEVEDO BEZA
ANA RUTH MALDONADO MARTINEZ
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
SHORE J.:
INTRODUCTION
[1]
It is up
to the person applying for refugee status to establish the subjective and
objective elements required to meet the definition of Convention refugee (Rajudeen
v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129
(F.C.A.), [1984] F.C.J. No. 601 (QL); Zambo v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 414, [2002] F.C.J. No. 539 (QL), at
paragraph 22).
NATURE OF JUDICIAL PROCEEDING
[2]
This is an
application for judicial review under subsection 71(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) of the decision
of the Refugee Protection Division of the Immigration and Refugee Board (Board)
dated June 14, 2005, according to which the applicants are not Convention
refugees or persons in need of protection within the meaning of
sections 96 and 97 of the Act.
FACTS
[3]
The
decision concerns three persons: the principal claimant before the Commission,
Bonifacio Aceve Acevedo, his son, Wilian Jose Acevedo Beza, and his
daughter-in-law, Ana Ruth Maldonado Martinez. Only the latter two are
applicants for the purposes of this application for judicial review. Bonifacio
Aceve Acevedo made a distinct application in docket number IMM‑4365‑05
of the Registry of this Court. Mr. Acevedo Beza and Ms. Maldonado
Martinez based their claims on those of Mr. Aceve Acevedo.
[4]
All three
are citizens of Guatemala.
[5]
Mr. Aceve
Acevedo was excluded from the benefit of the Convention under subparagraph 1F(a)
because he had been found guilty of complicity in crimes against humanity
committed as a military commissioner in the Chiquimula region, where he was a
voluntary collaborator of the Guatemalan army from 1983 to 1997, and where
eight massacres were committed by the army.
[6]
Mr. Aceve
Acevedo first received death threats on August 22, 2000, when a group of
persons wearing hoods allegedly yelled to him in front of his home to leave his
house. Three years later, on December 5, 2003, armed persons wearing hoods
fired shots at his house. Since they wore hoods, he could not identify them.
[7]
Mr. Aceve
Acevedo did not notify the local authorities about these incidents, because the
perpetrators had threatened to kill his entire family.
[8]
He took
refuge at the home of his friend, Antonio Guerra, the mayor of the city of
Concepcion las Minas, in the district of Chiquimula, in Quetzaltepeque. Mr.
Guerra gave him an automobile and a driver, which allowed him to flee with his
son and daughter-in-law to Mexico, from where they came to Canada.
IMPUGNED DECISION
[9]
The Board
concluded that Mr. Aceve Acevedo, whose testimony
was evasive, unconvincing and lacking in credibility, had not established a
nexus between his fear and one of the grounds specified in the Convention.
[10]
His testimony
as to the identity of his aggressors and their threats was vague and
inconclusive. The Board concluded that personal vengeance is not included in
the grounds of persecution specified in the Convention.
[11]
This
conclusion also applies to Mr. Acevedo Beza and to Ms. Maldonado
Martinez, who based their claim on that of Mr. Aceve Acevedo.
[12]
In
addition, the Board concluded that Mr. Aceve Acevedo, his son, and his
daughter-in-law, who, by the way, did not seek protection from the authorities,
could live elsewhere in Guatemala where other family members already lived. The
Board found that he did not establish that the other family members were in
danger in Guatemala.
[13]
Therefore,
the Board concluded that Mr. Aceve Acevedo, his son, and his
daughter-in-law were not Convention refugees, that they could find reasonable
refuge elsewhere in their country and that they would not be subject to any
cruel or unusual treatment.
ISSUES
[14]
Was the
Board’s decision reasonable?
ANALYSIS
[15]
Because
Mr. Acevedo Beza and Ms. Maldonado Martinez based their claims on
that of Mr. Aceve Acevedo, the principal applicant before the Board, it is
therefore on the basis of the conclusion concerning the plausibility of the
fear alleged by Mr. Aceve Acevedo that the reasonableness of the Board’s
decision must be considered.
Legislation
[16]
Section 96
of the Act describes the grounds on which a person may be recognized as a
refugee:
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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,
(a) is outside
each of their countries or nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(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.
|
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 opinion politiques :
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;
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.
|
[17]
Subsection
97(1) of the Act specifies the criteria which must be met to be recognized as a
person in need of protection:
|
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
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(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,
(iii) the risk is
not inherent or incidental to lawful sanctions, unless imposed in disregard
of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
|
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 :
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;
b) soit à
une menace à sa vie ou au risque de traitements ou peines cruels et inusités
dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu dans ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
(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 occasionnées
par elles,
(iv) la menace
ne résulte pas de l’incapacité du pays de fournier des soins médicaux ou de
santé adéquats.
|
The Standard of Review
[18]
Questions
of fact, which include matters of credibility, are subject to judicial review
according to the standard of patent unreasonableness. Because the Board has
expert knowledge in the analysis of questions of fact and credibility, this
Court must show a high degree of judicial deference (Harb. v. Canada
(Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J.
No. 108 (QL), at paragraph 14; Aguebor v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No.732, at paragraph 4).
[19]
As far as
state protection is concerned, the standard of patent unreasonableness applies
(Canada (Minister of Citizenship and Immigration) v. Elbarnes, 2005 FC
70, [2005] F.C.J. No. 98 (QL), at paragraph 9).
Lack of Nexus with Convention Grounds
[20]
The Board
concluded there was no nexus between the fear of persecution and any of the
grounds in the definition of a Convention refugee.
[21]
Mr.
Acevedo Beza and Ms. Maldonado Martinez submitted that it was unreasonable for
the Board to consider that the threats made against Mr. Aceve Acevedo only
constituted personal vengeance, and even if that was the case, they were
claiming as members of the family social group and were therefore covered by
the Convention.
[22]
The Board
concluded that Mr. Aceve Acevedo collaborated with the army and tried to
hide the role he played as a military collaborator and that his testimony on
this point and with regard to his general knowledge of the events of the civil
war and the activities carried out in his own region was not very clear.
[23]
The Board
underlined the fact that at the end of the war the military authorities gave
him an award certificate in recognition of his loyal service. The Board also
noted that, even though the government put an end to civilian patrols and the
position of military commissioner in 1995, Mr. Aceve Acevedo only left the
organization in 1997 because the government abolished it at that time.
[24]
Considering
his lack of credibility in connection with his allegations of persecution, the
Board concluded that Mr. Aceve Acevedo had not established a nexus with
the Convention or that he feared possible vengeance on the part of the victims
of acts committed in his capacity of Military Commissioner.
[25]
The Board
concluded that the answers given by Mr. Aceve Acevedo about the identity
of the assailants and the reasons for their threats were vague and inconclusive
and that this warranted the Board’s conclusion that, given the lack of clear
and relevant explanations, it could not believe his allegations of persecution.
[26]
The
assessment of objective evidence is within the Board’s mandate (Conkova v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300
(QL), at paragraph 5). It is up to the Board to assess the plausibility of the
applicants’ testimony and draw the appropriate inferences. These inferences
must be upheld insofar as they are not so unreasonable as to invite the
intervention of the Court (Aguebor, supra).
[27]
In the
circumstances, the Board’s conclusion is most reasonable and in accordance with
the principles it must follow.
[28]
In Asghar
v. Canada (Minister of Citizenship and Immigration), [2005] FC 768,
[2005] F.C.J. No. 960 (QL), at paragraph 25, Mr. Justice Edmond Blanchard
noted that the fear of reprisals motivated by vengeance and being a victim of
a criminal offence are not equivalent to a persecution ground under section 96
of the Act.
[29]
Assessment
of the risk of persecution is a question of fact which involves considerable
judicial deference (Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46 (QL)).
[30]
It is up
to the person who is claiming refugee status to establish the subjective and
objective facts required to meet the definition of a Convention refugee (Rajudeen,
supra; Zambo, supra, at paragraph 22).
[31]
In the
case at bar, the fear felt by Mr. Acevedo Beza and Ms. Maldonado
Martinez was based on the facts explained by Mr. Aceve Acevedo and had to
be assessed on the basis of the findings of fact reached by the Board about the
basis of this fear, that is, the fear of possible vengeance by the victims of
the acts committed by Mr. Aceve Acevedo as a Military Commissioner.
[32]
Because
Mr. Acevedo Beza and Ms. Maldonado Martinez did not prove that
Mr. Aceve Acevedo, the principal claimant before the Board, met the
definition of Convention refugee, their related application cannot be granted,
since there is no nexus with the persecution grounds specified in
section 96 of the Act.
[33]
In Asghar,
supra, Blanchard J. noted that, when the main victim of persecution does
not meet the definition of a Convention refugee, a derivative claim based on
membership in the family group cannot be allowed. He mentioned the following in
paragraphs 30-31:
According to Dawson J. in Gonzalez v.
Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 456,
2002 FCT 345, when the primary victim of persecution does not come within the
Convention refugee definition, any derivative Convention refugee claim based on
family group cannot be sustained. To find otherwise would result in an
anomalous situation.
To find otherwise would be to conclude
that persecutory treatment directed to family members in no way related to
discrimination or fundamental human rights would attract the protection of the
Convention. For example, if children were the victims of persecutory conduct as
a result of a parent's failure to forego a commercial opportunity or to cheat
in a sporting event, I do not believe that it is intended that the Convention
should be engaged to protect the children. That does not mean that protection
ought not to be afforded, or that it would not be afforded, but simply that the
source of the protection ought not to be the Convention.
This interpretation of "particular
social group" also avoids the anomaly that Ms. Gonzalez's parents, as the
victims of crime, can not claim the protection of the Convention, but Ms.
Gonzalez could, solely because of the relationship with her parents.
These statements are especially relevant
in this case. The applicant did not meet the burden of proving that the
principal victim, his father, meets the definition of Convention refugee. The
applicant's derivative claim therefore cannot be granted for lack of nexus with
the persecution grounds described in section 96 of the Act. As a result, the
Board's decision-that the applicant's father was not the victim of persecution
within the meaning of section 96 of the Act and that, consequently, the
applicant's fear of persecution because of his family connections was
unfounded-is not based on an error that warrants the Court's review.
[34]
According
to the Board, Mr. Aceve Acevedo, the principal
claimant, was not persecuted on one of the grounds mentioned in section 96 of
the Act. Therefore, Mr. Acevedo Beza’s and Ms. Maldonado Martinez’s
fear of persecution because of their family ties was unfounded, and the Board’s
decision contains no error reviewable by this Court.
State Protection
[35]
In this
case, Mr. Acevedo Beza and Ms. Maldonado
Martinez, like Mr. Aceve Acevedo, did not seek state protection, and the
Board had to take this into consideration. In paragraph 9 of the statement in his Personal Information Form, Mr. Aceve Acevedo stated the following:
[translation]
We did not notify the police, because
they would have obliged us to remain silent, because they told us that if we
did so, they would kill the whole family. (Applicants’ record, at
page 36).
[36]
Likewise,
when asked during the interview at the port of entry if they had complained to
the police, Mr. Acevedo Beza and Ms. Maldonado Martinez answered as
follows:
[translation]
No, because they said that when they
threatened us, we were not supposed to tell anyone.
You’re telling us about it today, so why
didn’t you go to the police?
They said not to say anything to anyone,
so we didn’t say anything to anyone. (Applicants’ record at page 88)
[37]
The fact
they requested and obtained assistance to leave the country from their friend,
the mayor of Concepcion Las Minas, does not meet the requirements for proving
they needed protection. The burden of proof was on them. As mentioned above,
and as admitted by them, they did not report the incidents in question or
request protection from the police.
[38]
It is up
to the person claiming refugee status to prove the subjective and objective
facts required to meet the definition of a Convention refugee (Rajudeen,
supra; Zambo, supra).
[39]
The
question of the protection of his own country, which a claimant must seek
before claiming the protection of another country, is an integral part of the
definition of a Convention refugee (De Baez v. Canada (Minister of
Citizenship and Immigration), 2003 CFPI 785, [2003] F.C.J. No. 1020 (QL),
at paragraph 12.)
[40]
The more a
claimant’s country has democratic institutions, the more that claimant must
exhaust the remedies available to him or her in that country before requesting
the protection of another (Kadenko v. Canada (Minister of Citizenship and
Immigration) (1996) 206 N.R. 272 (F.C.J.), [1996] F.C.J. No. 1376 (QL), at
paragraph 5).
[41]
Accordingly,
the Board’s conclusion concerning protection is well founded.
Internal Flight
[42]
The notes
at the taken at the port of entry show that Mr. Acevedo Beza’s and
Ms. Maldonaldo Martinez’s mother, brothers, sisters and children are still
in Guatemala and are safe and sound.
[43]
When
questioned on this point they answered as follows:
[translation]
Why did your father leave without his
wife, and you without your three children?
Because we thought that they would be
safe where they were.
So the threats were not so bad?
We thought they were safe, so we came.
With them, there would be too many people; it is very expensive to come here.
. . .
Do they intend to come here to be with
you?
I don’t know, maybe one day. If we have
the papers maybe we could go and see them or have them come here to see us . .
. (applicants’ record, at pages 89 to 90).
[44]
Mr.
Acevedo Beza and Ms. Maldonado Martinez submit that the Board ignored exhibits
P-5 and P-6 (applicants’ record, at pages 64 and 66). These were two letters
mentioning that Mr. Acevedo Beza’s mother had received an anonymous
message advising that her husband was being sought, and because she was afraid,
she had asked for help from Rigoberto Espinosa, who took her and all her family
into his home in another village.
[45]
The
presumption to the effect that the Board studied all the evidence must apply in
this case. In addition, exhibits P-5 and P-6 do not have any effect on the
conclusion reached by the Board concerning state protection. In fact, these
exhibits do not show that the family sought protection from the authorities.
[46]
It is
plausible to believe that, in concluding that Mr. Acevedo Beza and Ms.
Maldonado Martinez did not mention that other members of their family were in
danger in their country, the Board took into consideration exhibits P-5 and
P-6, which were not conclusive as to the question of the safety of the family
members.
[47]
The
abovementioned excerpts from the notes at the port of entry support the Board’s
conclusion to the effect that Mr. Acevedo Beza and
Ms. Maldonado Martinez could move to another region of the country.
Accordingly, this conclusion is not patently unreasonable.
Analysis Under Subsection 97(1) of the
Act
[48]
Mr. Acevedo
Beza and Ms. Maldonado Martinez submitted that the Board erred in
disregarding the notion of threats to life specified in subsection 97(1) of the
Act.
[49]
It is
important to note that a separate analysis under section 97 is not always required,
and it was not necessary in this case.
[50]
In Soleimanian
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1660, [2004]
F.C.J. No. 2013 (QL), at paragraph 22, Mr. Justice Richard Mosley wrote the
following:
This Court seems to have come to a
consensus that a separate section 97 analysis is not required if there is no
evidence that could go to establishing that the person is in need of
protection: Brovina v. Canada (Minister of Citizenship and Immigration)
2004 FC 635; Islam v. Canada (Minister of Citizenship and Immigration)
2004 FC 1391; Nyathi v. Canada (Minister of Citizenship and Immigration)
2003 FC 1119; Ozdemir v. Canada (Minister of Citizenship and Immigration)
2004 FC 1008.
[51]
In
addition, the Board’s failure to make a separate analysis in this case is not
material, taking into consideration the other conclusions it reached and which
were decisive.
[52]
In Thuraisingam
v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 1604, at paragraph 13, Madam Justice Judith
Snider concluded as follows on this point:
It would have been preferable for the
Board to have stated clearly that there was no persuasive evidence before it
that related to s. 97 grounds. However, its failure to do so in this case is
not, in my view, an error. However, even if the Board erred, I would conclude
that any error was immaterial (Athansius v. Canada (Minister of Citizenship
and Immigration), [2004] F.C.J. No. 915 (F.C.) (QL); Bouaouni v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1540 (F.C.)
(QL)).
CONCLUSION
[53]
The
Board’s decision is not patently unreasonable. Accordingly, because there is
nothing to warrant the intervention of this Court, this application for
judicial review is dismissed.
ORDER
THE COURT ORDERS that
1. The motion be
dismissed;
2. No serious question of general importance be
certified.
“Michel M.J. Shore”
Certified
true translation
Michael
Palles
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