Date: 20121221
Docket: IMM-4499-12
Citation: 2012 FC 1540
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, December 21, 2012
PRESENT: The Honourable Mr. Justice
Simon Noël
BETWEEN:
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EDGARD EDUARDO ALVARENGA
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division (the RPD) of the Immigration and Refugee Board dated April 25,
2012, pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA]. The RPD determined that the
applicant is neither a Convention refugee under section 96 of the IRPA nor
a person in need of protection under section 97 of the IRPA.
I. Facts
[2]
The
applicant is a citizen of El Salvador. He owned a television repair shop, and
his ex-partner, Nilda Nuryst, had a beauty salon. He is the father of two
children, who live in Spain with his ex-wife.
[3]
In
May 2009, a member of the Maras came to his home to demand that he pay
$200 a month as of June. The applicant allegedly paid this sum in June, July
and August. He was informed that the amount would be increased to $400 as of September 2009.
Since he was threatened by telephone, he disconnected his telephone and decided
not to pay the requested amount. He also closed his shop and continued to live
at his home for two months, before leaving the country.
[4]
In
October 2009, his partner, who had a visa for the United States, left El
Salvador. The applicant arrived in Texas by land on January 19, 2010. He
made his way to Virginia, to his partner’s family, where he stayed for a month.
[5]
The
applicant then left for Canada, where he has family. He arrived in Lacolle on
February 21, 2012, and claimed refugee protection on the day of his
arrival. The immigration officer at Lacolle denied his partner entry.
[6]
On
April 16, 2012, four days before the hearing, the RPD issued a decision in
which it refused to hear the testimony of the applicant’s mother, arguing that
more probative evidence had to be presented to confirm the status of the
applicant’s children in Spain, such as report cards, official Spanish documents
or identity cards.
II. Decision under review
[7]
The
RPD found that the applicant is neither a Convention refugee nor a person in
need of protection under section 97 of the IRPA. The RPD’s decision is
mainly based on the applicant’s lack of credibility.
[8]
First,
the RPD found that the applicant had been the victim of a crime and that, as
such, he could not demonstrate that he was the member of a group that is
subject to persecution. Therefore the applicant cannot establish a claim for
refugee protection.
[9]
Second,
the RPD found that the applicant had not established to its satisfaction the
factors on which his claim to be recognized as a person in need of protection
is based. He did not submit any evidence to establish that he owned a business
yet produced evidence to establish the existence of his partner’s beauty salon.
[10]
Furthermore,
the fact that the applicant stopped paying the Maras yet did not suffer
retaliation at his home shows that he is not a person of interest to this
group. The applicant alleges that the Maras told him that they knew that he
had family in Canada who could pay the money being demanded. However, they did
not come to his home even though they knew where he lived.
[11]
Lastly,
the applicant was questioned about his partner’s efforts to obtain refugee
status. The RPD found that the applicant lacked credibility given that he first
claimed not to know whether she had made any such efforts. Second, he claimed
that he had not been in touch with his ex-partner since April 2010 and
that she was with someone else.
[12]
Regarding
the applicant’s fear of returning to El Salvador, the RPD found that the
applicant did not establish that he would be at risk. In fact, given that he
failed to prove to the panel’s satisfaction that he had been threatened by the
Maras before leaving El Salvador, it cannot be established that a return would
put him at risk especially as the applicant no longer owns the television
repair shop. Moreover, being single and childless, he would be able to move to
the capital of El Salvador.
[13]
Lastly,
the RPD was of the opinion that if the Maras were truly interested in the
applicant, which was not clearly established, he would have left El Salvador
before November 2009.
III. Applicant’s position
[14]
The
applicant submits that the panel’s refusal to allow the testimony of his
mother, Daysi Alvarenga, about his ex-wife’s leaving for Spain with their
children is incorrect. According to the applicant, this testimony was to
establish a fact relevant to the claim, namely that his children are in Spain
without legal status and could be returned to El Salvador.
[15]
Moreover,
the reason provided by the RPD to justify its decision not to hear the
testimony, namely that it was not [translation]
“credible, corroborating evidence” is erroneous since the RPD cannot rule on
the credibility of a testimony without hearing it. The applicant had expressed
his disagreement with the RPD’s decision not to hear his mother’s testimony. Consequently,
given that this evidence was not examined by the RPD, the RPD erred in its
decision.
[16]
Second,
the applicant submits that the RPD erred because it focused on the examination
of the applicant in regard to his ex-wife and children, and his ex-partner, factors
that are of no relevance to his claim for refugee protection.
[17]
Third,
the applicant submits that the panel erred in its assessment of the credibility
of his relationship with his partner. In fact, the applicant is of the opinion
that the panel did not have full knowledge of his file, including his Personal
Information Form (PIF), which was amended to add the fact that the applicant is
no longer in a common-law relationship with his ex-partner, and that this is a
reviewable error.
[18]
Fourth,
the applicant submits that the RPD erred in its decision by stating that it had
examined the applicant about the possibility of his going to live in the capital,
San Salvador, while the applicant was actually questioned about the possibility
of his going to live in La Paz, where his ex-mother-in-law lives.
[19]
Fifth,
the applicant is of the opinion that the RPD erred in finding that the
applicant had not provided any evidence as to the existence of his business. In
fact, given that his partner’s beauty salon was at the same place as his repair
shop and his partner had also been threatened, it was unreasonable for the RPD
to find that no evidence had been provided to establish the basis of his claim
for refugee protection.
[20]
Sixth,
the RPD erroneously found that the fact that the Maras did not return to his
home to threaten him disregarded the fact that he had sold all of his property
before leaving quietly and that he had organized his partner’s departure in
order to protect her.
IV. Respondent’s position
[21]
The
respondent submits that the RPD’s decision is reasonable since the applicant
failed to establish that he should be recognized as a Convention refugee or a
person in need of protection.
[22]
The
RPD’s finding regarding the applicant’s lack of credibility is reasonable, and
the RPD correctly found that the applicant would not be at risk if he returned
to El Salvador.
[23]
Regarding
the applicant’s allegation that the RPD erred in not allowing him to produce
his mother’s testimony, it is the respondent’s view that the applicant is
precluded from submitting such an argument given that this should have been
raised before the RPD and the applicant failed to do so when he had the
opportunity. Moreover, the testimony of the applicant’s mother would have dealt
with facts that are irrelevant to the present matter.
[24]
Regarding
this allegation, the respondent also submits that the member hearing the claim
based his decision not to hear the testimony of the applicant on the fact that
there was more objective evidence to establish the status of the applicant’s
ex-wife and children. It was therefore not necessary to hear the applicant’s
mother.
V. Issues
(1) Did the RDP err in denying the applicant the right
to present his mother’s testimony?
(2) Is the decision to deny the applicant refugee
status or status as a person in need of protection reasonable?
VI. Standard of review
[25]
The
RPD’s decision not to hear the testimony of the applicant’s mother is
reviewable on the correctness standard as this is an issue of procedural
fairness (Baker v Canada (Minister of Citizenship and Immigration),
1999] 2 SCR 817 at para 22, 243 NR 22, Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339). The RPD’s decision
not to grant the applicant refugee status or the status of a person in need of
protection shall be reviewed on a standard of reasonableness since it is a
question of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at
paras 164-166, [2008] SCR 190).
VII. Analysis
(1) Did the RDP err in denying the applicant the
right to present his mother’s testimony?
[26]
The applicant
cannot demonstrate that the member hearing his claim breached the principles of
natural justice by refusing to hear his mother’s testimony. In fact, the
applicant was first informed of the RPD’s refusal to hear his mother’s
testimony in a decision dated April 16, 2012, informing him that he should
submit evidence with probative value instead. At the hearing, the applicant was
examined about the status of his children and that of his ex-wife in Spain. Even
though this factual element was the subject of questions from the member during
the RPD hearing, it is not central to the applicant’s claim for refugee
protection.
[27]
At
the hearing before the RPD, it would have been reasonable for the applicant to
formally express his opposition to this decision, by stating that, if he was
unable to provide more probative evidence, he wished his mother’s testimony to
be heard. In fact, given that, at the hearing, the RPD questioned him about the
status of his ex-wife and that of his children and given that the member
considered these facts to be relevant, the applicant should have made a formal
request on the basis of the principles of natural justice to ask the member to
reconsider his decision.
[28]
The
applicant is therefore precluded from arguing a breach of the principles of
natural justice on judicial review as he did not raise an objection at the first
opportunity (Irving Shipbuilding Inc. v Canada (Attorney General), 2009
FCA 116 at para 48, [2010] 2 FCR 488). In fact, in his submissions before
the RPD, counsel for the applicant expressed his disagreement with the RPD’s
decision not to hear the testimony of the applicant’s mother. However, this was
not a clear, formal request to the member to reconsider his decision not to
hear the testimony.
(2) Is the decision to deny the applicant refugee
status or status as a person in need of protection reasonable?
[29]
The
RPD’s decision is reasonable, and no intervention is required by this Court. The
member rendered a decision on the basis of the evidence before him, and his
findings on the applicant’s credibility are reasonable.
[30]
Regarding
the applicant’s amendment to his PIF, it is clear from the reading of the
hearing transcript that the member simply asked whether the applicant’s PIF had
been amended to reflect the applicant’s change in circumstance. The decision is
not incorrect as the decision maker mentioned that the applicant was no longer
with his partner. Consequently, the applicant’s argument according to which the
member did not know the file is unfounded.
[31]
Second,
the applicant’s argument that the RPD took irrelevant factors into
consideration when assessing the merit of the applicant’s claim cannot be
accepted. It is clear from the transcripts of the hearing before the RPD that
the member questioned the applicant on all the elements that were relevant to
his claim on the basis of sections 96 and 97 of the IRPA. The argument
that the member based his findings mainly on irrelevant elements therefore has
no merit.
[32]
Moreover,
the Court noted a contradiction in the arguments made by the applicant related
to his criticism of the member for not admitting the testimony of the applicant’s
mother. In fact, the applicant first criticizes the decision maker for
considering factors that, in his opinion, are irrelevant to the claim, namely
his relationship with his ex-wife and his children, describing this as an error.
He then submits that the RPD should have heard his mother’s testimony regarding
his ex-wife and his children given that this is pertinent to his refugee claim.
[33]
Then,
the applicant raises the argument that the RPD erred in stating that it
examined the applicant about the possibility of his going to live in the
capital while the applicant was actually questioned about the possibility of
his going to live in La Paz, where his ex-mother-in-law lives. Upon reading the
decision, it seems that the member only erred with regard to the name of the
city. In reality, it was therefore the decision maker’s intention to mention
that the applicant was questioned at the hearing about the possibility of his
going to live in La Paz and not in the capital of El Salvador.
[34]
Moreover,
the RPD’s finding that the applicant could have submitted documents to
demonstrate the existence of his business is also reasonable. In fact, the
applicant has the burden of demonstrating the facts on the basis of which his
claim is made. Given therefore that he had a repair shop and that, as a result,
the Maras were demanding a monthly payment from him, it was reasonable to require
that he supply proof of the existence of his shop.
[35]
Lastly,
the RPD’s finding that the Maras were no longer interested in the applicant has
merit. In fact, this negative finding about the applicant’s credibility is
reasonable in the circumstances (Rajaratnam v Canada (Minister of Employment
and Immigration), 135 NR 300 at para 14, 1991 CarswellNat 851 (FCA)).
[36]
The
parties were invited to submit a question for certification, but none was
submitted.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for judicial review is dismissed, and no question will be
certified.
“Simon Noël”
Certified true translation
Johanna Kratz, Translator
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