Date:
20120920
Docket:
IMM-1554-12
Citation:
2012 FC 1102
Ottawa, Ontario,
September 20, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
|
|
EDWIN ANTONIO URQUILLA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board), dated January
26, 2012, finding that the applicant was not a Convention refugee or a person
in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). For the
reasons that follow the application is dismissed.
Facts
[2]
The
applicant, Edwin Antonio Urquilla, is a citizen of El Salvador. He joined the
National Civil Police in 1991 and worked as a customs officer in the Financial
Division. One day in March 2001, he and another agent received a call about an
attempted robbery in progress nearby. They attended and intervened. They
called the national police for back-up, but two officers from the Financial
Division arrived instead. The applicant and his fellow agent observed that the
two officers had failed to follow arrest protocol, assaulted the perpetrator
and then let him go.
[3]
Three
months later the applicant was relocated to the Central Financial Division in San Salvador. He was approached by two agents from the Criminal Investigation Unit who
were investigating the incident the applicant witnessed. The applicant told
the agents about the two officers assaulting the suspect and provided a
declaration, as a result of which the two officers were arrested.
[4]
The
applicant states that he and his fellow agent were both threatened if they did
not withdraw the declaration against the two officers. The officers said they
had powerful connections both in the police and in the mob and the applicant
would be killed along with his family. The applicant alleged several incidents
in which police officers approached him and threatened him.
[5]
The
applicant fled El Salvador to the United States in May 2002. In 2006, he spoke
to his brother Frank, who told him that five officers had come looking for the
applicant and had threatened him and beaten him severely. In March 2010, the
applicant began receiving suspicious phone calls at his home in the United States. He contacted his aunt in Canada, who investigated a way for him to come to Canada. He arrived on June 7, 2010 and claimed refugee protection at the border.
Decision Under Review
[6]
In
the reasons for its decision, dated January 24, 2012, the Board found that the
determinative issue was credibility, including subjective fear. The Board
found that the applicant was not credible in his testimony and it did not
believe events had occurred as he described.
[7]
The
Board identified several inconsistencies and implausibilities, including:
a. The applicant and his fellow
agent allegedly did not take the names of the victims and perpetrator when they
intervened in the assault, which was not believable since the applicant is a
police officer and knows arrest protocol;
b. The applicant and his fellow
agent watched the two officers beat the suspect, but did not attempt to stop it
or report it to their superior, which was implausible, and for which no
coherent explanation was provided;
c. The applicant gave inconsistent
evidence regarding the length of time between the incident and his transfer,
and also regarding the number of times he reported the threats he received to
the prosecutor;
d. The applicant claimed to have no
records of the declaration he made, or the notices of his court appearances;
e. The applicant claimed not to know
if the two officers were still in jail or the outcome of the case, nor did he
know the whereabouts of his fellow agent, which the Board found not credible;
f. The applicant testified that he
did not know the year his mother moved, which caused the officer to draw a
negative inference since she supposedly moved because of threats from police;
g. The officer did not believe that
the police would suddenly come looking for the applicant and beat his brother
Frank in 2006 and drew a negative inference from the failure to make the
brother available to testify by teleconference;
h. The Board noted the applicant’s
claim that his brother Juan Carlos was killed in 2010 in retaliation, but the
Board found no evidence to link that death to the applicant’s situation (since
the murder appeared to occur while he was working as a bus driver, and the documentary
evidence suggested it was committed by a gang); and
i.
The applicant
did not seek asylum while living in the United States for several years.
[8]
The
applicant’s claim was therefore refused.
Standard of Review and Issue
[9]
The
issue raised by this application is whether the Board reasonably found the
applicant not to be credible: Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[10]
The
applicant argues that a claimant’s sworn testimony is presumed to be true
unless there are reasons to doubt its truthfulness: Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (CA). The Court fully
accepts this proposition as a matter of law, but finds that the Board supplied
numerous reasons for doubting the truthfulness of the applicant’s testimony in
this instance, none of which the applicant has successfully impugned.
[11]
The
applicant claims that the Board ignored reasonable explanations provided for
alleged inconsistencies. Those explanations were open to the Board to assess
and determine; which it did. The fact that it did not consider each and every
explanation or each and every aspect of the testimony does not render a
decision unreasonable. I also note that no compelling argument is advanced in
respect of the finding that there was no credible explanation for the eight
year delay in advancing a claim while resident in the United States. This is fatal to the application.
[12]
The
applicant also argues that the Board erred in preferring the documentary
evidence over the applicant’s testimony without good reason; however, there is
again no specific reference to such a finding or an explanation for why that
finding was unreasonable.
[13]
In
sum, I agree with the respondent that the Board identified several
inconsistencies and implausibilities, and reasonably concluded that the
applicant was not credible. There is, therefore, no basis for the Court to
intervene.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review be
and is hereby dismissed. There is no question for certification.
"Donald J.
Rennie"
Email this Content