Date: 20050518
Docket: IMM-4402-04
Citation: 2005 FC 716
Ottawa, Ontario, May 18, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
ERBIN SALOMON ROSALES SALGUERO
CARMEN DE LEON DE ROSALES
ROBIN ERBIN ELI ROSALES DE LEON
MANOLO EVIN SALOMON ROSALES DE LEON
MAYNOR ESTUARDO ROSALES DE LEON
GLENDI ROSANA GARCIA HERNANDEZ
and
APRIL ROXANA ROSALES
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are a Guatemalan family who claim to fear persecution at the hands of the Guatemalan army because of Mr. Rosales' union activity. The Refugee Protection Division of the Immigration and Refugee Board did not believe that the family had been persecuted as alleged because of implausibilities in Mr. Rosales' story. The Board further found that the family's 16 year delay in seeking refugee protection and their repeated visits to Guatemala were inconsistent with a subjective fear of persecution on their part.
[2] The applicants seek judicial review of the Board's decision, asserting that the Board erred in relation to several of its implausibility findings. The applicants assert that the Board also erred in failing to properly consider the explanation that they provided for their delay in seeking refugee protection, as well as their explanation for their repeated visits to Guatemala.
Reavailment
[3] The adult applicants left Guatemala in 1984. After spending six months in Mexico, they moved to the United States, and ultimately to Canada. The couple returned to Guatemala in 1988, 1993, twice in 1994, and in 1996.
[4] In the Board's view, this conduct was inconsistent with a subjective fear of persecution on the part of the applicants.
[5] The applicants submit that the Board erred in failing to properly consider their explanations for their frequent visits to Guatemala. I do not agree. In its reasons, the Board states that the adult applicants returned to Guatemala for the purpose of bringing their children to the United States, and for "other family matters". While the Board did not specifically mention the applicants' claim that they returned to Guatemala on one occasion in 1994 to test the situation, in light of a recent peace accord, in all of the circumstances I am not satisfied that this explanation was overlooked by the Board.
[6] In the Board's view, this behaviour was incompatible with the applicants' claim that they believed that their lives were at risk in Guatemala. I see no basis for interfering with the Board's conclusion in this regard.
Delay
[7] As noted above, the applicants left Guatemala in 1984. They resided in Mexico for six months, and then moved to the United States, where they lived from 1985 until 2001, when they came to Canada.
[8] In the Board's view, the failure of the applicants to seek asylum in the United States, coupled with their regular travels back to Guatemala, belied their claim to have a subjective fear of persecution in that country.
[9] The applicants testified as to the various steps that they took to regularize their status in the United States. According to the applicants, they were told by American legal advisers that they would not be successful if they sought refugee protection in that country. As a consequence, the applicants applied for, and obtained, work permits under an amnesty program for farm workers. These permits were renewed several times over the period in which the applicants were in the United States.
[10] According to the applicants, the Board erred in failing to properly consider their explanation for their failure to seek refugee protection in the United States. Once again, the reasons of the Board do not bear this out. The Board makes specific reference in its decision to the explanation offered by the applicants for their failure to seek asylum in the United States, and indicates why it does not accept that explanation.
[11] The applicants also submit that the Board erred in applying the wrong test in relation to the issue of delay. Pointing to the Board's use of the words "duty" and "obligation" in its discussion of this issue, the applicants say that the Board erred in law in appearing to have imposed a requirement that applicants seek refugee protection in a safe third country. In support of this assertion, the applicants rely on the decisions of this Court in Mendez v. Minister of Citizenship and Immigration, [2005] F.C.J. No. 152 and Gavryushenko v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 1209.
[12] It should first be noted that, while observing that the failure to claim asylum in a safe third country cannot be determinative of a Canadian refugee claim, the Court in Mendez goes on to observe that "It has frequently been found by this Court that a short stay in a third country en route is not necessarily considered a material enough sojourn to oblige the claimant to declare there on his or her way to Canada" (emphasis added).
[13] What we have here is not a short stay in a safe third country, en route to Canada, but a 16 year residence in the United States. In my view, it was entirely reasonable of the Board to have considered the failure of the applicants to seek asylum in the United States as compelling circumstantial evidence as to their state of mind.
[14] Moreover, a review of the Board's reasons as a whole discloses that the issue of delay was not found by the Board to have been determinative. Rather, it was one of several factors considered by the Board in coming to the conclusion that the applicants did not have a subjective fear of persecution in Guatemala. In my view, the Board did not err in this regard: see Tudela-Flores v. Minister of Citizenship and Immigration, [2005] F.C.J. No. 571.
The Board's Plausibility Findings
[15] The Board found that much of Mr. Rosales' story of having been targeted by the Guatemalan army was implausible. I have reviewed the record, including the transcript of the proceedings, and while I would not necessarily have come to the same conclusion as did the Board on every point, I am not persuaded that the majority of the Board's plausibility findings were patently unreasonable.
[16] I am satisfied, however, that the Board erred in failing to consider the medical evidence which could have potentially corroborated Mr. Rosales' claim that he was shot in 1983. Similarly, the Board should have referred to the death certificate for Mr. Rosales' cousin.
[17] That said, I am not satisfied that these errors, by themselves were sufficiently grave as to vitiate the entire decision.
Conclusion
[18] For these reasons, the application is dismissed.
Certification
[19] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
______"Anne Mactavish"________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4402-04
STYLE OF CAUSE: ERBIN SALOMON ROSALES SALGUERO
CARMEN DE LEON DE ROSALES
ROBIN ERBIN ELI ROSALES DE LEON
MANOLO EVIN SALOMON ROSALES DE LEON
MAYNOR ESTUARDO ROSALES DE LEON
GLENDI ROSANA GARCIA HERNANDEZ and
APRIL ROXANA ROSALES
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MAY 12, 2005
REASONS FOR ORDER
AND ORDER: MACTAVISH, J.
DATED: MAY 18, 2005
APPEARANCES:
Mr. Douglas Lehrer FOR THE APPLICANTS
Ms. Angela Marinos FOR THE RESPONDENT
SOLICITORS OF RECORD:
VanderVennen Lehrer
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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