Docket: IMM-2265-11
Citation:
2011 FC 1356
Ottawa,
Ontario, November 24, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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CESAR HERNANDEZ TERRIQUEZ
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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 ORDER AND ORDER
[1]
There
are several reasons why this application for judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada,
dismissing Mr. Hernandez Terriquez’ refugee claim, should be dismissed.
[2]
The
first reason is that the application for leave and judicial review was filed
late. The fact that leave was granted does not relieve the applicant from
justifying the delay. The granting of leave did not touch upon the fact that
the application was filed late. No extension of time was ever requested, and
the record gives no indication, whatsoever, of facts which would justify an
extension. I rely upon the decision of Madam Justice Bédard in Chen v Canada (Minister of
Citizenship and Immigration), 2010 FC 899, [2010] FCJ No 1096 (QL).
[3]
The
second reason is that the lack of credibility finding was reasonable. Mr.
Hernandez Terriquez’ story is that he is a Mexican long-distance truck driver.
He was carrying a load of sacs of sugar. He was stopped by corrupt police and
ordered to carry a sac of cocaine.
[4]
En
route, before the next checkpoint, he threw the cocaine in a field and fled to Canada. The
decision maker was of the view that this defied common sense. That was not an
unreasonable finding. If true, he would have been killed on the spot.
[5]
The
third reason is a finding of lack of subjective fear. Mr. Hernandez Terriquez
was in Canada for a year
before he filed his refugee claim. The member noted that this was not, in itself,
determinative, but was certainly a factor to consider. There was no valid
excuse offered. On the contrary, when first interviewed he said he delayed
because he did not know how to go about it. However, he later testified that he
was living with his brother who had filed a successful refugee claim four years
earlier. It was unlikely that he would not know how to file a claim when he was
following in his brother’s footsteps. He wanted to stay in Canada because it
was a good place to be.
[6]
The
fourth reason is that if he were credible, he was a victim of criminality. Such
victims are not refugees within the meaning of the United Nations Convention
and section 96 of the Immigration and Refugee Protection Act. Rather,
his claim would come under section 97 of the Act. Among other things, the risk
faced must be a risk not faced generally by other individuals in or from Mexico. The risk need
not be faced by everyone in the country. It is sufficient that the risk be
faced by a subgroup to exclude a claimant from the protection accorded under
section 97 (Paz Guifarro v Canada (Minister of
Citizenship and Immigration), 2011 FC 182, [2011] FCJ No 222 (QL)). In
this case, the subgroup was identified as long-distance truck drivers. This was
a general risk and not a risk personal to Mr. Hernandez Terriquez. This was a
reasonable conclusion. For the difference between generalized risk and personal
risk, one might contrast Jimenez Palomo v Canada (Minister of
Citizenship and Immigration), 2011 FC 1163, [2011] FCJ No 1430 (QL), with
Ponce Uribe v Canada (Minister of
Citizenship and Immigration), 2011 FC 1164, [2011] FCJ No 1431
(QL).
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
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