Date: 20110210
Docket: IMM-2779-10
Citation: 2011 FC 156
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, February 10, 2011
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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ANDRES ANTONIO MARTINEZ ZAPATA
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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 in
accordance with subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act), of a decision
dated April 23, 2010, by the Immigration and Refugee Board,
Refugee Protection Division (panel). In its decision, the panel ruled that the
applicant was not a Convention refugee or a person in need of protection as
defined in sections 96 and 97 of the Act.
Factual background
[2]
The
applicant, Andres Antonio Martinez Zapata, is a 26-year-old citizen of Colombia. His mother
still lives in Colombia, and he has a brother in the United States and
a sister in Canada.
[3]
Mr. Martinez
Zapata alleges that, in 1999, he started receiving phone calls from urban
militia members of the National Liberation Army (ELN). The ELN is the second
largest rebel group, after the FARC, involved in Colombian armed conflict. Mr. Martinez
Zapata allegedly received these phone calls because they wanted him to join
their cause.
[4]
In
April 2001, Mr. Martinez Zapata went to Spain and stayed
there for one month. Upon his return to Colombia, his mother
purportedly prepared a false passport for him. On June 6, 2001, Mr. Martinez
Zapata left Colombia for
Venezuela and then he went to the United States.
[5]
Mr. Martinez
Zapata stayed in the United States illegally for more than
five years. He never claimed asylum in Venezuela or the United
States.
[6]
On
November 3, 2007, Mr. Martinez Zapata flew from Atlanta to New York
City.
The next day, he drove from New York City to Canadian customs in Lacolle, Quebec,
where he claimed refugee protection.
Impugned
decision
[7]
In
its decision dated April 23, 2010, the panel rejected
Mr. Martinez Zapata’s refugee claim for two reasons. First,
the panel found that Mr. Martinez Zapata and his account lacked
credibility. Second, the panel determined that there was a lack of subjective
fear.
[8]
The
panel noted that there were inconsistencies in the evidence. For example, the
panel noticed deficiencies in Mr. Martinez Zapata’s testimony as to the
exact number of calls he allegedly received from the ELN.
[9]
Furthermore,
the panel took note of Mr. Martinez Zapata’s testimony that his family
tried to leave Colombia well before members of the ELN phoned him. The
panel found that this fact undermined Mr. Martinez Zapata’s credibility
with respect to his fear of persecution.
[10]
The
panel also pointed out the incident involving Mr. Martinez Zapata’s cousin.
During his interview before a customs officer, Mr. Martinez Zapata said
that his cousin had received several calls from members of the ELN and that one
day, a grenade exploded in front of his house killing his mother and a child
playing nearby. The panel found that during the hearing there were certain inconsistencies
between what Mr. Martinez Zapata had said to the customs officer and his
testimony before the panel. The panel also found that there was no evidence
that could demonstrate that the grenade had been left in front of the house
with the aim of punishing the cousin who had refused to join the ELN.
[11]
With
respect to Mr. Martinez Zapata’s stay in Spain, the panel
found it strange that he had not submitted a refugee claim. When questioned about
this by the panel, Mr. Martinez Zapata provided various answers, including
the fact that he purportedly lost his passport. These excuses led the panel to
find that his testimony was not credible.
[12]
When
questioned on the reasons why he did not claim asylum while living in the United
States,
Mr. Martinez Zapata replied that he feared being returned to Colombia and that the
process would be too long and difficult because of the fact that he had entered
illegally. Quoting
Huerta v Canada (Minister of Employment and Immigration)
(FCA), [1993] FCJ No 271, 40 ACWS
(3d) 487, which states that a delay in making a claim for refugee status
is not a decisive factor in itself, the panel noted that in this case, substantial
weight must be attributed to this factor. To this end, the panel noted that Mr. Martinez
Zapata had had several opportunities to make a refugee claim: in Spain, in Venezuela and in the United
States.
[13]
On
this point, the panel proceeded with its analysis by indicating that Mr. Martinez
Zapata’s credibility was undermined as the case law indicates that a failure to
make a refugee claim in a country that is signatory to the Convention contradicts
the allegations of an applicant with respect to his or her fear of persecution
(see Ilie v Canada (Minister of Citizenship and Immigration)
[1994] FCJ
No 1758, 88 FTR 220, and Assadi v Canada (Minister
of Citizenship and Immigration) [1997] FCJ No 331, 70 ACWS (3d) 892, at para 14).
The panel therefore found that Mr. Martinez Zapata’s failure to
make a refugee claim undermines his credibility and demonstrates a lack of subjective
fear that he would be persecuted in Colombia.
Relevant provisions
[14]
Sections 96 and 97 of the Immigration
and Refugee Protection Act read as follows:
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Convention
refugee
96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of nationality,
is outside the country of their former habitual residence and is unable or,
by reason of that fear, unwilling to return to that country.
Person
in need of protection
97.
(1) A
person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Définition
de « réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97.
(1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la
Convention
contre la torture;
b) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant
:
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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Issue
[15]
In this application for judicial review, the issue is
whether the panel erred in finding a lack of subjective fear on the part of the
applicant.
Standard of review
[16]
It
is well established that questions of credibility, assessing the facts and
weighing the evidence fall entirely within the jurisdiction of the
administrative tribunal called upon to assess the allegation of a subjective
fear by a refugee claimant (see Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No
1425, 157 FTR 35, at para 14), and it is not up to the Court to substitute its weighing
of the evidence for that of the panel.
[17]
Furthermore, this Court stated in Acosta
v Canada (Minister of Citizenship and Immigration), 2009 FC
213, [2009] FCJ No 270, that
deference must be given to the decisions of administrative tribunals when these
decisions are based on the application of sections 96 and 97 of the Act because
this is a question of mixed fact and law.
Analysis
[18]
Mr. Martinez
Zapata’s counsel submitted that the panel completely undermined his credibility
for no apparent reason. To support her claims, she cited Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302, [1979]
FCJ No 248, which states that when an applicant swears that certain facts are
true, there is a presumption that they are true unless there is a valid reason
to doubt their truthfulness.
[19]
In fact, the applicant is asking this Court to
reweigh the evidence submitted. The case
law is consistent that the onus of demonstrating that the panel erred in its
assessment of the evidence is on the applicant and judicial review does not permit
the Court to re-assess the evidence (see Zrig v Canada
(Minister of Citizenship and Immigration) (C.A.), 2003 FCA 178, [2003] FCJ No 565).
[20]
The Court is of the opinion that, in this
case, this was not a negative inference drawn from a mere error of fact.
Contrary to the applicant’s claims, the panel drew a negative inference from
the contradictory explanations put forward by the applicant.
[21]
In Gilgorri v
Canada (Minister of Citizenship and Immigration),
2006 FC 559, [2006] FCJ No
701, at paras 23 to 26, Justice Shore reiterated the principles of law and a
range of case law that state that a claimant has the burden of establishing both
the subjective and objective element of his or her fear:
[23] Further, the Board
made a negative finding with respect to the conduct of Mr. Modernell
Gilgorri and his family, which was incompatible with the conduct of persons
having a well-founded fear of persecution. The Board points out that they left Uruguay for Canada via 12 South
American, Central American and North American countries. They did not claim
protection from any of these countries.
[24] In Ilie v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1758 (QL), at
paragraph 2, Mr. Justice Andrew MacKay states the following:
The basis of that conclusion
was that his conduct subsequent to leaving Romania in July 1992 was
inconsistent with a fear of persecution and his delay in claiming refugee
status until he arrived in Canada in February 1993 negated a well-founded fear of persecution.
[25] Similarly, in Assadi
v. Canada (Minister of Citizenship and Immigration), [1997]
F.C.J. No. 331 (QL), at paragraph 14, Mr. Justice Max Teitelbaum
states as follows:
. . . Failure to
immediately seek protection can impugn the claimant's credibility, including
his or her testimony about events in his country of origin . . .
[26] In Leul v. Canada (Secretary of
State), [1994] F.C.J. No. 833 (QL), at paragraphs 7 and
12, Mr. Justice Francis Muldoon writes the following:
. . . One might observe
that he passed through Amsterdam and that The Netherlands is a convention refugee signatory, but
apparently he did not think to claim refugee status there.
. . .
. . . Just as I would not
wish to send back to his country a person who stood in jeopardy of a reasonable
chance of persecution, so I just do not wish to leave in Canada a person who
isn't entitled to be here; a person who passed through a country which was a
signatory to the convention and did not think to claim refugee status there.
[22]
In this case, the applicant pointed out that the
panel relied on details and not a direct contradiction to draw an adverse
inference. However, the Court deems that it was not unreasonable for the panel
to find that Mr. Martinez Zapata’s explanations were insufficient in
justifying his inaction to claim refugee protection in the three countries that
are signatories to the Convention (Spain, Venezuela and the United States),
where he stayed before coming to Canada. More specifically, the applicant stayed in the United States as an adult from 2001
to 2007 without seeking asylum there. It was reasonable for the panel to find
that, especially in light of this fact, the applicant’s conduct was
inconsistent with that of a person truly fearing a return to his or her country
of origin. This
in itself demonstrates a lack of subjective fear (Caicedo v Canada (Minister of
Citizenship and Immigration), 2010 FC 1092, [2010] FCJ No 1365; Garcia
v Canada (Minister of
Citizenship and Immigration), 2010 FC 847, [2010] FCJ No 1051).
[23]
In light of the above-mentioned
jurisprudential principles and the facts of this case, the Court is of the
opinion that it was not unreasonable for the panel to find that Mr. Martinez
Zapata’s explanations and conduct were inconsistent with the conduct of a
person fearing for his or her life.
[24]
For all of these reasons, the Court is of the opinion that
the panel’s decision is not unreasonable. The panel’s decision is a possible
and acceptable outcome (Dunsmuir). Consequently, this Court’s
intervention is not warranted. The application for judicial review will be
dismissed. No question will be certified.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that this application for
judicial review be dismissed. No
question is certified.
“Richard
Boivin”
Certified
true translation
Janine
Anderson, Translator
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