Date: 20100330
Docket: IMM-4450-09
Citation: 2010 FC 345
Ottawa, Ontario, March 30, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
FRANKLIN
ANTONIO PEREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dated August 20, 2009, wherein the Board found the applicant not to be a
Convention refugee nor a person in need of protection under section 96 or 97 of
the Act.
Factual
Background
[2]
The
applicant, Franklin Antonio Perez, was born and raised in Honduras. In 2003,
the applicant had several encounters with a gang known as Mara Salvatrucha 13.
[3]
The
applicant was involved in three incidents with several gang members. During the
first incident on February 15, 2003, the applicant alleges that several gang
members approached him and demanded that he get a tattoo and buy certain types
of clothing in order to join them. They also beat him and robbed him. In the
following days, the applicant did not comply with their directions.
[4]
In
the second incident on February 24, 2003, a group of gang members accosted the applicant
and beat him. They said he had to join the gang.
[5]
On
the third occasion on March 4, 2003, two gang members shot the applicant on the
street and a bullet grazed his knee.
[6]
The
applicant went to the police on February 24 and on March 4, 2003 and copies of the
police reports were filed. After the third incident on March 4, 2003, the
police told the applicant they would try to investigate but they made no
promises because they had insufficient resources.
[7]
The
applicant sought medical treatment after the second and third incidents and
copies of medical certificates dated February 24 and March 4, 2003 were filed.
[8]
On
April 1, 2003, neighbours and friends told the applicant’s mother that gang
members were asking for someone of his description in the neighbourhood. The applicant
hid in a local church for several days and then left Honduras, heading
north. He arrived in the United States in May 2003 where he
stayed until coming to Canada on June 1, 2008.
[9]
The
applicant filed a refugee claim the next day after arriving in Canada on the
basis that he feared persecution by reason of his membership in a particular
social group and that he faced a risk to his life or of cruel and unusual
treatment or punishment in the Republic of Honduras.
[10]
While
in the United
States,
the applicant did not seek asylum. The applicant states in his Personal
Information Form (PIF) that he did not know that he could make such a claim.
While in the United
States,
the applicant made several unsuccessful applications under the Temporary
Protected Status (TPS) Program and he was finally asked to stop submitting any
further applications.
[11]
The
TPS Program is a program granting temporary immigration status to eligible
nationals of designated countries. Temporary protected status is granted to foreign
nationals who are temporarily unable to safely return to their home country
because of ongoing armed conflict, an environmental disaster or other
extraordinary and temporary conditions. A person who is acknowledged as a TPS
may remain in the United States and may obtain a work authorization, but
this status does not lead to permanent resident status.
[12]
The
applicant chose to attempt to be acknowledged as a beneficiary under the TPS Program.
It is known that the asylum process in the United States is difficult
and claimants are frequently returned to their home country. The applicant was
afraid he would be sent back to Honduras.
[13]
At
the hearing, the applicant filed various material concerning the TPS Program,
including a decision of the “Administrative Appeals Office” dated August 24,
2007, which states, among other things:
The applicant’s motion to re-open
consists of forwarding a copy of his passport and documentation relating to his
claim of continuous residence since December 30, 1998, and continuous physical
presence since January 5, 1999, in the United States.
[14]
One
of the necessary conditions of the TPS Program is continuous physical presence
and continuous residence in the United States. After numerous application
attempts by the applicant, he was informed that because he was not continuously
a resident in the United States since December 30, 1998, or continuously
physically present in the United States since January 5, 1999,
he did not qualify under the program.
Impugned
Decision
[15]
The
determinative issues in this case were the applicant’s credibility, subjective
fear and whether the applicant faced a generalized risk.
[16]
Regarding
the applicant’s credibility, the Board rejected his explanation regarding the
delay to claim refugee status, more particularly his failure to claim asylum in
the United
States.
Based on the decision of the Administrative Appeals Office in the United
States,
the applicant made an application relating to “his claim of continuous
residence since December 30, 1998, and continuous physical presence since
January 5, 1999, in the United States”. The Board found this
to be inconsistent with the applicant’s claim that he experienced events in Honduras in 2003
which made him flee that country for his safety. When the applicant was asked
to explain this inconsistency, he only submitted that he did not say he was in
the United
States
prior to 2003. The Board concluded that the applicant’s testimony was less than
wholly credible or trustworthy.
[17]
The
Board noted that although the applicant perhaps lied in the United States in
order to benefit from the TPS Program, the events in Honduras may have in
fact happened in 2003, especially since the applicant provided corroborating
statements. The Board thus considered the substance of the claim based on those
allegations and concluded that the applicant was not in need of refugee
protection.
[18]
The
applicant waited five years in the United States without making a claim
for asylum and without coming to Canada to make a claim for
refugee protection. The Board found this was a significant delay in seeking
help for serious potential harms such as persecution, death and cruel and
unusual treatment or punishment which required an explanation.
[19]
The
applicant said he was unaware he could make a refugee claim in the United
States
but the Board did not accept this explanation. The applicant was able to
discover he could make an application under the TPS Program, which is part of
the immigration system in the United States. The Board did not find
credible that the applicant did not also learn about the possibility of claiming
asylum or seeking some form of refugee protection.
[20]
The
applicant explained he was afraid to make a claim for asylum because he risked deportation
if he came to the attention of the American authorities. The Board rejected this
explanation, noting that the applicant made repeated applications under the TPS
Program until he was asked to stop submitting applications. According to the
Board, the applicant was clearly bringing himself to the attention of the
American authorities on a repeated basis. The applicant solicited the help of
the United
States
in remaining in that country and the Board concluded he was not too afraid of
the refugee determination authorities to approach them.
[21]
The
Board also found there was insufficient evidence that the applicant was treated
differently from others who are the target of recruitment gangs in Honduras. The Board
concluded that the applicant did not face a personalized risk, but rather, a
risk which is faced generally by others in Honduras.
[22]
The
Board further noted that there were approximately 36,000 gang members in Honduras in 2007 and
2008, whereas others put the estimate as high as 70,000. Gangs in Central
America, including Honduras, are heavily involved in the drug trafficking
industry and they are also involved in kidnapping, human trafficking, as well
as auto and weapons smuggling. Gang-related violence reportedly accounts for up
to 50% of violence in Honduras. The Board recognized
this problem but did not have much information about the internal structures of
gangs, including the gang Mara Salvatrucha 13.
[23]
The
Board concluded that the applicant was treated in a manner which is faced
generally by other individuals in or from Honduras and there is nothing in the applicant’s
story which would lead the Board to find that he was subject to a different
recruitment experience from that faced generally by other individuals.
Issues
[24]
This
application raises the following issues:
1. Did
the Board err in finding that the applicant is less than wholly credible or
trustworthy?
2. Did the Board base
its decision that the applicant has not proven that he has a subjective fear of
persecution on an erroneous finding of fact without regard to the material
before it?
3. Did the Board err
in finding that the applicant does not face a risk to his life under section 97
of the Act and that this risk is faced generally by other individuals in and
from Honduras?
Analysis
Standard of
Review
[25]
The
applicant and the respondent both argue, and the Court agrees, that the
standard of review to be applied in the case at bar is reasonableness.
[26]
Assessing
credibility and weighing the evidence fall within the jurisdiction of the
administrative tribunal called upon to assess a refugee claimant’s allegation
of subjective fear (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 at par. 14). The
Court will only intervene if the Board based its decision on an erroneous
finding of fact made in a perverse of capricious manner or if it made its
decision without regard to the material before it (Aguebor v. Canada
(Minister of Employment and Immigration), (1993), 160 N.R. 315, 42 A.C.W.S.
(3d) 886 (F.C.A.)). Since Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, the applicable standard of review is reasonableness.
1. Did the Board err in finding
that the Applicant is less than wholly credible or trustworthy?
[27]
The
applicant argues that he provided a detailed answer and explanation to the
questions of the Board and he explained the TPS Program. The Board referred to
an inconsistency which is based on a misinterpretation of the decision of the
Administrative Appeals Office regarding TPS Program applications. The applicant
submits that the dates referred to in the Administrative Appeals Office letter
are based on the requirement of the TPS Program to be consistently in the
United States to qualify and does not imply that the applicant was physically
in the United
States
during that time.
[28]
The
Court notes that the Board is in the best position to assess the explanations
provided by the applicant with respect to the perceived inconsistencies and it
is not up to the Court to substitute its judgment for the findings of fact
drawn by the Board concerning the applicant’s credibility (Singh v. Canada
(Minister of Citizenship and Immigration), 2006 FC 181, 146 A.C.W.S. (3d)
325 at par. 36; Mavi v. Canada (Minister of Citizenship and Immigration),
(2001), 104 A.C.W.S. (3d) 925, [2001] F.C.J. No. 1 (QL)).
[29]
In
this case, the Board’s finding was not unreasonable given the inconsistencies
in the applicant’s testimony and evidence. The applicant did not provide convincing
evidence of his subjective fear as he waited five years to claim refugee
protection in Canada. His
explanation, that he was unaware he could claim asylum in the United States, is
implausible, particularly considering his multiple application attempts under
the TPS Program and that the TPS Program is part of the immigration system in
the United States. The applicant also failed to adequately explain the
inconsistency concerning his residence and physical presence in the United
States
stemming from the decision of the Administrative Appeals Office.
2. Did
the Board base its decision that the applicant has not proven that he has a
subjective fear of persecution on an erroneous finding of fact without regard
to the material before it?
[30]
The
applicant submits his numerous attempts to be recognized as a beneficiary under
the TPS program in the United States, clearly demonstrate
his subjective fear of persecution. The applicant argues he provided a
reasonable explanation that he did not file a claim for asylum because he was
scared he would be returned to his home country by the American authorities.
The applicant submits it is a well known fact that the American asylum program
is very difficult and the applicant decided to attempt to obtain beneficiary
status under the TPS program.
[31]
The
applicant further alleges that the very fact he left the United States for
Canada when he realized he did not qualify under the TPS program and may be
returned to Honduras is proof of his consistency and demonstrates that he was
still scared to be returned to Honduras. When the applicant arrived in Canada, he
immediately filed a refugee claim as he knew that Canada does not
have an equivalent to the TPS program.
[32]
According
to the respondent, the Board reasonably found the applicant’s actions were inconsistent
with a subjective fear of persecution. The Board found that the applicant’s
failure to claim asylum in the United States adversely affected his claim of a
subjective fear and also his credibility regarding the events in Honduras and it was
reasonably open to the Board to find that these actions were not consistent
with a subjective fear of persecution. As noted in Riadinskaia v. Canada
(Minister of Citizenship and Immigration), (2001), 102 A.C.W.S. (3d) 967,
[2001] F.C.J. No. 30 (QL), it was open to the Board to find that if the applicant
had really feared for his life, protecting his life would have been his
greatest concern.
[33]
The
applicant must satisfy two components in order to establish a well-founded fear
of persecution: a subjective fear and an objective basis for the fear. This
Court confirmed that failure to show a subjective fear of persecution is fatal
to a claim (Rodriguez v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 292, 119 A.C.W.S. (3d) 999 at
par. 32; Herrera v. Canada (Minister of
Citizenship and Immigration), 2007 FC 979, 161 A.C.W.S. (3d) 469 at
par. 23-24). The Court finds that the Board’s conclusion of a lack of
subjective fear was reasonable, particularly given that the applicant waited
five (5) years before coming to Canada to claim refugee
status. Indeed, in Mejia v. Canada (Minister of Citizenship and Immigration),
2006 FC 1087, 151 A.C.W.S. (3d) 509, the Court found that the Board committed
no error in finding that a stay of fifteen (15) months in the United States was
inconsistent with a subjective fear. In the case at bar, the Court is therefore
of the view that a stay of five (5) years in the United States, without seeking
asylum, is inconsistent with a subjective fear.
3. Did
the Board err in finding that the Applicant does not face a risk to his life
under section 97 of the Act and that this risk is faced generally by other
individuals in and from Honduras?
[34]
The
applicant submits that this Court, in Surajnarain v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1165, 336 F.T.R. 161, correctly found
that for a claim to be accepted, a claimant should face a risk which is not
indiscriminate or random and can be faced by a small group of the population.
If the risk is faced by the whole population, the claim would not succeed.
[35]
The
respondent submits that on the particular facts of this case, where a large
subgroup of the population of a country is concerned, the large subgroup may be
considered a general population, as was found in Osorio at par. 22 to
27. As noted in Osorio, it would be unreasonable that every young man in
Honduras would qualify for protection if they were only able to come to Canada.
[36]
The
fact that the recruitment is personal does not necessarily mean that the risk
is personalized. It does not mean that the activity is not one which is not
faced generally by other individuals since, as mentioned by the Board, “the
very nature of recruitment is putting individual people into organisation”.
[37]
The
documentary evidence demonstrates that gangs are a serious problem in Honduras and that
most people are at some risk from them. As for recruitment faced by the applicant,
the Court is of the view that, based on the evidence, a large subset of the
population, basically all young men, are at risk of recruitment strategies
similar to that alleged by the applicant and this was considered by the Board.
[38]
In
Gabriel, this Court recently analyzed whether a large sub-group of a
population constitutes a personal risk or a risk faced by a general population.
In Gabriel, the Court found at par. 23 that the risk must be
particularized to the personal circumstances of the claimant. As such, in this
case, the applicant must demonstrate a personalized risk not applicable to
every other young man in Honduras and the respondent
argues that the Board was not unreasonable in finding that he had not done so.
[39]
Based
on the jurisprudence of this Court, I am of the view that the applicant does
not face a personalized risk that is not faced generally by other individuals
in or from Honduras. The case
law states that a generalized risk need not be experienced by every citizen and
a subgroup of the population can face a generalized risk. As noted in Gabriel
at par. 20: “a generalized risk could be one experienced by a subset of a
nation’s population thus, membership in that category is not sufficient to
personalize the risk”. In this case, the applicant could not personalize his
risk beyond membership to the subgroup of young men who are recruited to become
members of gangs in Honduras. The applicant’s own corroborating evidence
from the pastor explains that many young men are targeted by these gangs.
[40]
Hence,
in light of the above, the Court finds that the Board conducted a thorough and
proper analysis and did not make a reviewable error in assessing the evidence
or applying the law. The outcome falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and in law (Dunsmuir;
Canada (M.C.I.) v. Khosa, 2009 SCC 19).
[41]
The
Court’s intervention is thus not warranted and for these reasons, the
application for judicial review is dismissed. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
“Richard
Boivin”
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