Docket: IMM-701-13
Citation:
2014 FC 593
Ottawa, Ontario, June 20, 2014
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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NELSON VASQUEZ GUTIERREZ
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision dated December 17, 2012 of the Refugee
Protection Division [RPD] of the Immigration and Refugee Board of Canada. The Board Member determined that the applicant, Nelson Vasquez Gutierrez, was not
a convention refugee or person in need of protection under sections 96 and 97
of IRPA.
[2] For
the reasons that follow the application is dismissed.
II.
Facts
[3] The applicant is a citizen of Honduras. He entered the United States illegally on September 12, 2007, and remained there
until April 1, 2011, at which time he entered Canada. His common law partner
and their American born daughter had already entered Canada in March 2011,
and claimed refugee protection.
[4] The applicant alleged that
beginning in 2005, he feared physical harm or death at the hands of his
ex-girlfriend’s family while living in Honduras. In 2005, he had fathered a
child with his ex-girlfriend, Rosa Deras. The essence of the applicant’s claim
is that Ms Deras’ cousins, Victor Landaverde and Hugo Orellana, who were
members of the gang known as Mara-Salvatrucha 18 (MS 18), threatened to kill
him if he did not give them money to support his son.
[5] The applicant testified that he
had met Ms Deras in August 2004, and in February 2005 she informed him that she
was pregnant with their child and that she wanted to end the relationship. On
October 26, 2005, the applicant went to Ms Deras’ house to see the baby and
introduce himself as the father of the child to Ms Deras’ family. Her family
insulted him because he came from a poor family. They told him to leave.
[6] The applicant alleges that in
November 2005, Ms Deras’ cousins beat him up and demanded 3000 Lempiras (the
Honduran currency) as child support. When the applicant was unable to give them
this money, they pulled out a gun and threatened him. One of the cousins hit
him on the foot with a machete and he spent 10 days in hospital as a result. He
never reported this incident to the police, alleging that he does not trust
that the police will do anything about crime in Honduras.
[7] Some four months later, in March
2006, the applicant left Honduras for the first time and illegally entered the United States in May 2006. US immigration authorities subsequently deported him back to Honduras. The applicant alleges that Ms Deras’ cousins found out he was back in the country
and went looking for him.
[8] In July 2007, he left Honduras again and arrived in the United States in September 2007. He did not seek asylum in the US on either occasion, alleging that he was fearful of being deported.
[9] In July 2008 he met his current
common law partner, and their daughter was born on December 8, 2010.
[10] The
applicant alleges that if he is returned to Honduras, he will be extorted or
killed by Ms Deras’ cousins.
III.
Decision under Review
[11] The
RPD determined that the applicant was neither a Convention refugee nor a person
in need of protection pursuant to sections 96 and 97(1) of IRPA.
[12] First, under section 96, the RPD
determined that the applicant had not demonstrated a nexus with a Convention
ground. The Member observed that this Court has repeatedly held that victims of
crime, corruption or vendettas generally fail to establish a link between their
fear of persecution and one of the Convention grounds. In this particular case,
the Member determined that the applicant’s fear is not linked to race, religion,
nationality, political opinion or membership in a particular social group. She
concluded that the claimant’s fear of being victimized by gangs and
specifically extortion under the threat of harm is a risk faced by other
citizens of Honduras and therefore his claim fails under section 96 of IRPA.
This aspect of the Member’s decision is not in contention.
[13] As for the question of
personalized versus generalized risk under section 97, the Member found that
the risks alleged by the applicant are risks generally faced by other citizens
of Honduras, who are subject to the same intimidation tactics at the hands of
criminal gangs. The Member referred to documentary evidence which indicates
that crime, especially gang-related violence, is prevalent in Honduras, and that the MS gangs are responsible for many homicides in Honduras, making Honduras one of the most violent countries in the world. Furthermore, the police have been
associated with criminal activity.
[14] As for the issue of personalized
risk, the Member conducted an analysis of the applicant’s narrative of his
relationship with Ms Deras. She found that the applicant had not produced any
objective evidence corroborating his allegations; specifically, evidence to
support his allegation that he had been viciously attacked with a machete
causing serious injury to his foot resulting in his hospitalization for 10
days.
[15] The Member noted that the
claimant’s father had not indicated in his notarized statement that the
applicant had been threatened or assaulted with a machete and hospitalized.
[16] The Member questioned the
applicant as to how he came to have a 2011 birth certificate for his child in his
name that was procured by Ms Deras, considering that the birth of their child
was at the root of his protection claim. The Member concluded that these
circumstances did not corroborate his allegations regarding extortion and
physical injury.
[17] The
Member also stated that the applicant’s failure to seek protection elsewhere
and/or sooner than four years after he fled Honduras undermined the credibility
of his allegations that he subjectively feared for his life in Honduras. She concluded on a balance of probabilities that he moved to the United States
for economic reasons to provide financial support to his extended family, and
not because he feared for his life at the hands of Ms Deras’ cousins.
IV.
Issues
[18] The
applicant advances the following specific allegations, which the court adopts
for the purposes of review, and which are restated as follows:
1.
In her account of the applicant’s allegations,
the Board Member noted the very personal circumstances that gave rise to the
applicant’s persecution. However, she ignored this personal context when she
decided that the risk feared by the applicant was generally faced by other
citizens in Honduras subjected to the same criminal gangs.
2.
The Board Member closed her mind to the
explanations offered by the applicant as to his reasons for not claiming
protection in the United States, and instead allowed an abstract, textbook
approach, which was not reasonable in the circumstances of this case.
V.
Standard of Review
[19] The Member’s assessment of whether
the applicant’s risk is personalized or generalized is reviewable on a standard
of reasonableness (Balcorta Olvera v Canada (Minister of Citizenship and
Immigration), 2012 FC 1048 at para 28; Samuel v Canada (Minister of Citizenship and Immigration), 2012 FC 973).
[20] In reviewing the Officer’s
consideration and treatment of evidence, the appropriate standard of review is
reasonableness (see, for example, Y.Z. v Canada (Minister of Citizenship and
Immigration), 2009 FC 749, [2009] FCJ No 904 at para 22).
VI.
Analysis
[21] While I
do not agree that the Member did not apply the proper test to determine whether
the claimant would face a personal risk to his life, this issue was ultimately
subsumed by the Member’s credibility conclusion that the applicant left Honduras not out of fear of personal harm, but for economic reasons to materially support
his extended family.
[22] Reading the decision as a whole,
it is clear that the Member did not find the applicant credible in respect of
his allegations that threats and violence induced him to leave Honduras. This conclusion is supported by the evidence.
[23] To begin with, the applicant’s
failure to seek protection elsewhere and/or sooner than four years after he
fled Honduras supports an unfavourable credibility conclusion that he feared
for his life in Honduras.
[24] The Member further noted that the
claimant’s first response when asked why he illegally went to the United States was that he wanted to be able to help his family by working there. He
testified that he was always trying to enter the United States in order to be
able to send food to his parents and siblings. He also provided child support
to Ms Deras during this time. The Member pointed out that he had been working
in the United States from the day he arrived until the day he left.
[25] As a further credibility concern
the Member noted the inconsistency between the applicant’s Personal Information
Form and other immigration forms that stated that he lived at the same address
in Honduras before and after his deportation from the United States, and his
testimony at his hearing, where he stated that when he returned to Honduras after
he was first deported from the US he lived in a different town, namely Tierra
Blanca.
[26] Finally, the member noted the
implications of the fact that the applicant was in possession of his daughter’s
birth certificate, which was issued in 2011 in his name, and according to the
applicant, had been provided by Ms Deras. The applicant’s explanation that the
birth certificate had been provided by Ms Deras because he had explained to her
that refugee status would be used to help their son was further evidence that
the claimant had left Honduras for economic reasons to provide financial
support to his extended family.
[27] I am satisfied that there is a
sufficient evidentiary basis to support the Member’s credibility conclusion
that the applicant did not leave Honduras out of fear for his personal safety,
but rather for unrelated reasons of economic betterment.
[28] Accordingly, I judge the decision
to be reasonable and sufficiently articulated as required by the precepts
outlined in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The
application is dismissed. Neither counsel requested a certified question.
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