Docket:
IMM-11396-12
Citation: 2014 FC 89
Ottawa, Ontario, January 24, 2014
PRESENT: The Honourable
Madam Justice Strickland
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BETWEEN:
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LICAO, JULIE CANTEROS
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LICAO, TROOPER JIM ASUNCION
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LICAO, MELIDA ASUNCION
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LICAO, CHARIZ VANIA ASUNCION
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Applicants
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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 of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated October 11,
2012, in which it concluded that the Applicants were not Convention refugees
nor persons in need of protection under sections 96 or 97, respectively, of the
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). This
application is brought pursuant to section 72 of the IRPA.
Background
[2]
The Applicants, Julie
Canteros Licao (the Principal Applicant), his wife, Melida Asuncion Licao, and
their children, Chariz Vania Asuncion Licao, and Trooper Jim Asuncion Licao
(collectively, the Applicants) are citizens of the Philippines.
[3]
They claim that in
2004 the Principal Applicant, who ran a trucking business, entered into a
contract with the Pepsi Cola Company to transport bottles from a plant to
distribution centres around the Philippines. In the course of his operations
he was routinely hijacked by individuals who would steal parts of his load. He
reported this to the police who were reluctant to respond. The Principal
Applicant later purchased additional trucks and expanded his business.
[4]
In May 2006, three
individuals carrying rifles came to his home in Dabong and informed him that
they were from the New People’s Army (NPA) and were collecting donations for
their group. The Principal Applicant advised them that he did not have any
money at his home. They gave him two months to pay and said that they would
take action against his family if he failed to do so. The Principal Applicant
had knowledge of the NPA and believed they were serious about carrying out
their threats.
[5]
Two weeks later the
family left their residence in Dabong and moved to the city of Cagayan De Oro.
Their former home was subsequently vandalized which they reported to the police
who responded that this sort of thing was to be expected if the home was
unoccupied.
[6]
In 2006 the Principal
Applicant dismissed an employee who, in response, threatened to kill the
Applicant and his family and who also identified himself as an active member of
the NPA. The employee stated that he applied for the job for the purposes of
determining if the Principal Applicant had money to pay to the NPA and that
most of the thefts from the Principal Applicant’s trucks had been arranged by
him and carried out by the NPA. The Principal Applicant reported this event to
the police. No arrests were made despite the fact that the police knew the
identity of the individual responsible.
[7]
The Principal
Applicant and his wife arrived in Canada on February 12, 2007 on visitor
visas. Their children followed on May 25, 2007, also on visitor visas. The
Applicants applied for refugee protection on December 22, 2009.
[8]
The Applicants claim
that they are at risk of harm from the NPA as a result of these events. On
October 11, 2012, the Board denied their claims for refugee protection
(Decision). This is the judicial review of that Decision.
Decision under Review
[9]
The Board
found that the Applicants were not Convention refugees or persons in need of
protection pursuant to sections 96 and 97, respectively, of the IRPA primarily
because of their delay in claiming protection which they filed two and a half
years after arrival in Canada. The Board found that this delay was
inconsistent with an allegation of being at risk.
[10]
While the
Board was satisfied that the Principal Applicant had the commercial profile
that he alleged and was subject to financial demands from time to time by the
NPA, it was not satisfied that the Applicants came to Canada to claim refugee
protection for that reason. The Board noted their conduct during times
material to their claims, namely the period between when they arrived in Canada
and when they filed their refugee claim, as well as their delay in claiming
protection, which it found was inconsistent with persons at risk.
[11]
The Board
noted the Applicants’ explanations for the delay being that in the intervening
period they learned from their family members in the Philippines that, should
they return, their lives continued to be at risk. Prior to this they had not
wanted to remain in Canada permanently. Further, that they had the protection of
valid visitor visas during this time. The Board did not accept this as an
adequate explanation for their failure to claim refugee protection at the port
of entry or for the exceptional and significant delay in making their claim in
the context of their circumstances.
[12]
The Board
further noted the female Applicant’s oral testimony that they came to Canada to
relax because of the difficult situation they were facing in the Philippines.
[13]
The Board
found that the family was familiar with refugee status and the general criteria
for advancing refugee claims in Canada, yet did not file protection until it
became clear that they remained at a risk. The Board found that it had not
been established on sufficient reliable evidence that the Applicants had a
credible reason to believe that their circumstances in the Philippines would
improve so substantially that they would no longer be at a risk of serious
harm. Since the Applicants had the benefit of staying in Canada for six months
by way of their initial visitor visas, this would have been sufficient for them
to “go beyond undertaking internet research in order to obtain more definitive
and reliable guidance on how best to safeguard their interests in Canada for
the longer term”.
[14]
The Board
also noted interpretation issues including that several scheduled dates for the
hearing were postponed due to the unavailability of a Cebuano dialect
interpreter. The interpreter requested for the day of the subject hearing was
a Cebuano interpreter, however, a Tagalog interpreter was present. The Board
declined counsel’s request to postpone the hearing based on its own examination
of the level of proficiency and facility of the Applicants in the various
languages which they used to communicate with counsel at his office in the
absence of a Cebuano translator. The Board found that the Applicants would be
able to provide testimony and participate meaningfully with the assistance of
the Tagalog language interpreter because the only issue that had to be
addressed was delay in seeking refugee status in Canada and because the
Applicants confirmed during the hearing that they were able to follow the
examination and understood the questions asked and answers provided. The Board
noted that the Principal Applicant’s wife was able to respond to questions
around the issue of delay, that no questions needed to be asked with respect to
any of the events alleged in the PIF and that the Principal Applicant’s wife
was therefore in an equal position to be the representative witness.
[15]
The Board
briefly addressed state protection and found that the country documentation
reflected that state authorities are making serious efforts to protect their
citizens and to correct and address the forms of mistreatment alleged in the
Applicants’ claims. The Board found that the Applicants’ conduct in Canada and
the declarations they made on their arrival supported its finding that state
protection in the Philippines for persons similarly situated, while not
perfect, was adequate and effective in most cases. The Applicants had not
established a serious possibility that they would continue to face acts of
mistreatment. The Board concluded that they did not have a well-founded fear
of persecution on any Convention ground or a risk to their lives, risk of cruel
and unusual punishment or treatment or danger of torture.
Issues
[16]
In my
view, the issues can be framed as follows:
1.
Did the
Board breach its duty of procedural fairness?
2.
Did the
Board err in making a negative credibility finding because of delay and in disposing
of the refugee claims on this basis?
3.
Is the
Board’s state protection finding reasonable?
Standard of Review
[17]
In Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 57 [Dunsmuir], the
Supreme Court of Canada held that reviewing courts need not conduct a full
standard of review analysis if prior jurisprudence has established a standard
of review applicable for a given decision-maker in the circumstances.
[18]
To the extent that
the Applicants’ submissions on the first issue raise issues of procedural
fairness such as interpretation, prior jurisprudence has established that these
are reviewed on a correctness standard (Dunsmuir, above, at para 59; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC
12, [2009] 1 S.C.R. 339 at para 43 [Khosa]; Francis v Canada (Minister
of Citizenship and Immigration), 2012 FC 636 at para 2). No deference is owed to decision-makers on these issues (Dunsmuir,
above, at para 50).
[19]
It is also
established jurisprudence that credibility findings, described as the “heartland
of the Board’s jurisdiction”, are essentially pure findings of fact that are
reviewable on a reasonableness standard (Zhou v Canada (Minister of Citizenship
and Immigration), 2013 FC 619 at para 26; Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 (QL) (CA)). The Board’s
review of the facts to support a section 96 and 97 claim, including that of
state protection, is also reviewed on a reasonableness standard (Hinzman v
Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para 38 [Hinzman];
Rajadurai v Canada (Minister of Citizenship and Immigration), 2013 FC 532
at para 23). Therefore, the remaining issues are reviewed on a reasonableness
standard.
[20]
When reviewing a
decision on a standard of reasonableness, the analysis will be concerned with
“the existence of justification, transparency and intelligibility within the
decision-making process” (Dunsmuir, above, at para 47; Khosa,
above, at para 59).
Issue 1: Did the Board breach its duty
of procedural fairness?
Applicants’ Submissions
[21]
The Applicants submit
that the Board breached its duty of procedural fairness, section 14 of the Canadian
Charter of Rights and Freedoms, the Bill of Rights and the Refugee Protection Division Rules, SOR/2012-256 (Rules) as they had requested a “Cebuan (dialect
of) Tagalog interpreter” but the interpreter that was provided at the hearing
only spoke Tagalog. The Board is required to provide an interpreter where a
party does not understand or speak the language in which the hearing is
conducted. Further, the Board considered an irrelevant consideration being
that the Applicants’ communicated with their counsel, in his office, without a
Cebuan interpreter. The criteria for acceptable interpretation are that it
must be continuous, precise, competent, impartial and contemporaneous.
Further, no actual prejudice need be demonstrated to make out a claim for a
breach of a right to an interpreter (Mohammadian v Canada (Minister of
Citizenship and Immigration), 2001 FCA 191 [Mohammadian]).
[22]
The ability to
understand the proceeding is not sufficient to permit a matter to proceed
absent an interpreter (Faivi v Canada (Minister of Employment and
Immigration), [1983] FCJ No 41 (TD) at para 12 (QL) [Faivi]). Here,
the interpretation was not continuous because of the differences in dialect.
The Applicants submit that they did not waive their right to interpretation.
The fact that the children understood the interpreter is not a reason to relax
the interpretation standards for the other claimants.
Respondent’s Submissions
[23]
The Respondent
submits that the quality of translation did not compromise the fairness of the
Applicants’ hearing. Mohammadian, above, does not excuse the Applicants
from demonstrating that translation fell below a reasonable standard. The
right to adequate translation is not a right to perfect translation; the
fundamental value is linguistic understanding (Mohammadian, above; R
v Tran, [1994] 2 S.C.R. 951 [Tran]; Singh v Canada (Minister of
Citizenship and Immigration), 2010 FC 1161 at para 3 [Singh]; Marma
v Canada (Minister of Citizenship and Immigration), 2012 FC 777 at para 27
[Marma]). Further, that the Applicants must demonstrate a material
failure of understanding (Fu v Canada (Minister of Citizenship and
Immigration), 2011 FC 155 at para 10 [Fu]).
[24]
The Respondent
submits that the Applicants have adduced no evidence that the hearing was
compromised. While the interpreter spoke a different dialect which at times
may have made their understanding challenging, the Applicants’ evidence was
that, on balance, they understood the interpreter.
[25]
The Applicants’
reliance on Faivi, above, is misplaced. There, the Board forced the
claimant to provide evidence without any interpretation and without being
satisfied that he could understand the language of the inquiry. Here, prior to
commencing the hearing, the Board made inquiries to satisfy itself that the
Applicants could understand the Tagalog interpreter and confirmed this on more
than one occasion throughout the hearing. The Applicants have also not
demonstrated any translation errors or instances in which they were unable to
understand or communicate meaningfully at the hearing or, arising later upon
review of the transcript. Accordingly, they have not demonstrated a material
failure of understanding (Mohammadian, above; Marma, above). The
Board cannot be faulted for proceeding with the hearing and there is no basis
for this Court’s intervention.
Analysis
[26]
Singh, above, summarizes the principles of law applicable to
issues of interpretation and translation:
Both counsel agree the question of the quality of the interpretation is
governed by the Federal Court of Appeal's decision in Mohammadian v. Canada
(MCI), 2001 FCA 191, [2001] F.C.J. No. 916, applying the Supreme Court of
Canada's decision in R. v. Tran, [1994] 2 S.C.R. 951. In my view, the
principles enunciated in Mohammadian may be briefly summarized as
follows:
a. The interpretation must be precise,
continuous, competent, impartial and contemporaneous.
b. No proof of actual prejudice is required
as a condition of obtaining relief.
c. The right is to adequate translation not
perfect translation. The fundamental value is linguistic understanding.
d. Waiver of the right results if an
objection to the quality of the translation is not raised by a claimant at the
first opportunity in those cases where it is reasonable to expect that a
complaint be made.
e. It is a question of fact in each case
whether it is reasonable to expect that a complaint be made about the
inadequacy of interpretation.
f. If the interpreter is having difficulty
speaking an applicant's language and being understood by him is a matter which
should be raised at the earliest opportunity.
[Emphasis in original]
[27]
The standard is not
perfection as interpretation is, as noted by Chief Justice Lamer (as he then
was) in Tran, above, at 987, an “inherently human endeavour which takes
place in less than ideal circumstances.”
[28]
Further, the right to
interpretation can also be waived as the Federal Court of Appeal stated in Mohammadian,
above, at paras 18-19, if an applicant fails to object to the quality of the interpretation
at the first opportunity.
[29]
The Applicants met the
requirement of subsection 19(1) of the Rules which states that if a claimant
requires an interpreter for a proceeding, he or she must indicate the language
or dialect of the interpreter in the PIF. They indicated in their PIFs that
their first language was Tagalog and that the language and dialect that they
spoke most fluently was Cebuan. Each requested an interpreter for the
proceeding in “Cebuan/Tagalog” or “Cebuan or Tagalog.” However, each Applicant
also declared that they were able to read English and understood the entire
content of their PIFs and their attachments. Subsequently, the Principal
Applicant also amended his PIF to state that he also spoke English.
[30]
At the start of the
hearing, the Principal Applicant again stated that they required a Cebuan
interpreter. The interpreter who was present interpreted for Tagalog, but not
Cebuan. The Board asked if any of the other claimants spoke or understood
Tagalog and was advised that all of them did. He then asked if there was
something different about the Principal Applicant’s understanding, and was
advised that Cebuan was used for communication within the family and was the
Principal Applicant’s “real language”. The Principal Applicant also confirmed
that he spoke some English, but could not understand difficult words. He also
confirmed when asked by the Board during the hearing that he was able to follow
the proceeding.
[31]
The Board stated that
it had only one issue to address which concerned the delay in making the
refugee claims. The Board inquired of counsel as to how he and his staff had
been communicating with the Applicants in preparing for the hearing and was
advised that the female Applicant acted as the principal narrator and would
translate his questions into Cebuan and the answers back to English. The Board
stated that its approach during the hearing was not different than that undertaken
by counsel. Further, that while the female Applicant was a party with an
interest in the outcome of the proceeding, the Board was satisfied that the
hearing could proceed because of the brief and general nature of the questions
to be asked concerning the delay. The Board found that its inquiries could be
just as appropriately and easily answered by one of the other Applicants. It
proceeded over the objection of counsel who submitted that the interpretive
environment in his office was completely different from that of a refugee
hearing and that the Principal Applicant would have only a basic understanding
of the proceeding in the absence of a Cebuan interpreter. The Board proceeded
and examined the female Applicant as she testified that she could understand
and speak Tagalog.
[32]
The Certified
Tribunal Record (CTR) indicates that the hearing was originally scheduled to be
heard on March 2, 2011 but was postponed because a Cebuan interpreter was
requested. On the next hearing date, October 19, 2011, the matter was again
postponed because an interpreter of the Cebuan dialect was required. On the
next hearing date, December 21, 2011, the matter was again postponed this time
due to illness of counsel; the hearing information sheet noted that a Cebuano interpreter
was to be booked for the rescheduled hearing. The matter was next scheduled
for March 19, 2012 but was again postponed this time due to unavailability of
counsel; the same notation for the need for a Cebuan interpreter was affixed.
[33]
Given this, the
Boards’ frustration in facing yet another delay given the absence of a Cebuan
interpreter is understandable as is the need to process refugee claims as
quickly as possible (Mohammadian, above, para 17; Ahamat Djalabi v Canada (Minister of Citizenship and Immigration), 2007 FC 684 at para
24). It is also quite clear, given that the Principal Applicant raised the
issue at the start of the hearing and counsel’s objection, that the Applicants
did not waive their right to a Cebuan interpreter.
[34]
In these circumstances,
it really becomes a question of whether, on a practical level, a Cebuan rather
than a Tagalog translator was needed in order to preserve procedural fairness.
[35]
In Tran,
above, the Supreme Court of Canada considered the need for an interpreter as
the first step in an analysis as to whether a breach of section 14 of the Charter
had occurred and stressed that courts should be generous and open-minded when assessing an
accused's need for an interpreter.
[36]
In the present case,
the female Applicant’s affidavit filed in support of the judicial review
states:
3. I understand English well enough to understand this affidavit
but I need an interpreter for a hearing or interview. We could understand the
interpreter only after a lot of effort and changing the words that we used, and
the same for the interpreter. We were extremely stressed during the hearing as
a result and could not concentrate. This affected how we answered. This was
not a fair hearing. We told the member that we understood but this was after a
lot of back and forth between the interpreter and us. My children understood
much better and speak English well.
[37]
In Marma,
above, the applicants therein submitted that the translation was not adequate
as they did not understand some of the terms of the interpreter, thus breaching
their right to procedural fairness. Justice Zinn found each of the alleged errors and failures
in translation were not material and did not impact the Board’s understanding
of their testimonies.
[38]
Here, the female
Applicant’s affidavit does not point to any material errors in the interpretation that impacted
the decision. Nor does it
state how the answers given by the female Applicant would have differed if a
Cebuan translator had been provided. Nor do the Applicants point to any aspects of the hearing they could not
understand or identify any portion of the hearing that could have been better
explained by the Principal Applicant than by his wife. Significantly, the
Principal Applicant did not file any affidavit evidence in support of the
judicial review. He did not assert that he did not understand the proceeding
or that, had he been responding to the questions posed by the Board, he would
have given answers that in any way differed from the evidence given by the female
Applicant. I would also note that the documentation filed by the Applicants in
support of their claim, such as the certificate of business name registration,
the application for sole proprietorship, the business permit, the contract with
Pepsi-Cola, were all written in English and signed by the Principal Applicant. And, importantly, the Board confirmed the Applicants’
understanding on several occasions during the hearing.
[39]
In Fu, above,
the applicant therein asserted that an error in translation deprived him of
procedural fairness. Justice Rennie looked at the legal effect of the
translation error and whether, assessed in the light of the decision as a
whole, the applicant was denied procedural fairness. He concluded:
[10] The fact that there was an error
in translation, which in turn formed the incorrect foundation of one of the
adverse findings of credibility does not mean that the decision should be set
aside. It is clear that the IRB rejected Mr. Fu’s claim because it found
him, over the course of his testimony, not to be credible - not just because
the IRB thought he had not mentioned Jesus Christ by name. In sum, Mr.
Fu’s right to procedural fairness was not breached as the breach could not,
once again in regard to the decision as a whole, have affected the outcome of
the decision under review: Canada
(Minister of Citizenship and Immigration) v Patel 2002 FCA 55; Mobile Oil Canada Ltd. v
Canada-Newfoundland Offshore Petroleum Board [1994] 1 S.C.R. 202, p. 228.
Despite the translation error, and the inference drawn from it, the IRB
findings with respect to Mr. Fu’s credibility are reasonable…
[40]
Applicants are
entitled to the interpreter of the language that they have requested and it is
not the role of the Board to determine whether or not an applicant needs an
interpreter of a different dialect than the one provided. Thus, a decision to
proceed in the absence of a translator of the dialect requested by an applicant
would, in most cases, comprise a breach of procedural fairness. However, I do
not think that it amounts to such on the particular facts and the evidence in
this matter.
[41]
In this case, the
Applicants have failed to demonstrate how the hearing was compromised by the
lack of a Cebuan interpreter. Specifically, they have not demonstrated how their
factual evidence concerning the sole issue addressed at the hearing, which was
delay, would have differed if they had a Cebuan translator and have not
identified any errors in the interpretation that impacted the decision (Marma,
above, at para 28; Singh, above, at para 24). Therefore, in my view,
they have not established that they were denied procedural fairness.
Issue 2: Did the Board err in making a
negative credibility finding because of delay and in disposing of the refugee claims on this basis?
Applicants’ Submissions
[42]
The Applicants appear
to suggest that the Board did not make its credibility findings in clear and
unmistakable terms (Hilo v Canada (Minister of Employment and Immigration),
(1992) 15 Imm LR (2d) 199 (CA) at para 6). Additionally,
that a delay in making a refugee claim is insufficient to negate a subjective
fear pursuant to section 96 and is not determinative (Hue v Canada
(Minister of Employment and Immigration), [1988] FCJ No 283 (QL)(CA) [Hue];
Heer v Canada (Minister of Employment and Immigration), [1988] FCJ No
330 (QL)(CA); Huerta v Canada (Minister of Employment and Immigration),
[1993] FCJ No 271 (QL)(CA) [Huerta]). Further, that the Board erred in law in rejecting their section 97
claim on the basis of delay because this, and subjective fear, is not relevant
to that analysis (Trujillo Sanchez v Canada (Minister of Citizenship and
Immigration), 2007 FCA 99).
[43]
The
Applicants submit that their explanations for the delay were reasonable. If an
individual fearing a risk acts according to their understanding, the Board
cannot substitute its understanding of the situation (Gurusamy v Canada
(Minister of Citizenship and Immigration), 2011 FC 990 at para 36; Hue,
above). There is jurisprudence which has held that the Board erred in failing
to consider the existence of a student visa as an acceptable explanation for
delay which is equally applicable in this case (El Balazi v Canada (Minister
of Citizenship and Immigration), 2006 FC 38 at paras 7-10 [El Balazi]).
The Applicants submit that the Board’s reasons are not entirely clear and are
contradictory.
[44]
The
Applicants submit that only one of the cases cited by the Respondent to justify
that credibility is determinative under both section 96 and 96 was decided
after section 97 was enacted which is Niyas v Canada (Minister of
Citizenship and Immigration), 2005 FC 321 [Niyas]. The Applicants
also submit that the Respondent attempts to supplement the Board’s reasons on
risk by clarifying its Decision.
Respondent’s Submissions
[45]
The Respondent
submits that the Board was entitled to draw a negative inference from the
Applicants’ failure to claim protection at an early opportunity. Further,
absent a reasonable explanation, the delay undermines an applicant’s subjective
fear and, consequently, their credibility (Niyas; Singh; both
above; Ilie v Canada (Minister of Citizenship and Immigration), [1994]
FCJ No 1758 (TD) (QL); Sellathamby v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 839 (TD)(QL); Calderon Garcia v Canada
(Minister of Citizenship and Immigration), 2012 FC 412 at paras 19-20 [Garcia]).
[46]
The Applicants had a
relatively sophisticated understanding of Canada’s immigration and refugee
system even before leaving the Philippines. The parents left the Philippines
“for a holiday” leaving their children behind to join them later. Taken
together with the delay in seeking refugee status, the Board reasonably found
that the delay undermined the credibility of their claim and, therefore, that
they did not claim refugee status as a result of risk but as an alternate means
of immigrating to Canada. The existence of an alternative explanation does not
mean that the Board’s decision is unreasonable (Sahota v Canada (Minister of
Citizenship and Immigration), 2008 FC 123 at para 30; Rahal v Canada
(Minister of Citizenship and Immigration), 2012 FC 319 at paras 24-46; Khosa,
above).
[47]
The
Respondent submits that the Board’s findings on the Applicants’ credibility
were determinative of both their sections 96 and 97 claims. The Board did not
entirely accept their allegation of risk, nor did it reject it solely for a
failure to evidence a subjective fear. The Board found that the delay in
claiming protection was inconsistent with the alleged mistreatment and risk
that the Applicants claimed to face in the Philippines. While it accepted that
the Principal Applicant had been subjected to financial demands from time to
time, the Board did not believe that the Applicants had consequently been
threatened or that their lives were at a risk as a result. Their lack of
urgency in seeking to remain in Canada reasonably cast doubt on the seriousness
of their situation in the Philippines.
Analysis
[48]
The Decision does not question the credibility
of the Applicants other than in the context of their delay in claiming refugee
protection. The Board was satisfied that the Principal Applicant had the
commercial profile that he alleged and had been subject to the financial
demands from the agents of persecution that he had identified. However, the
Board found that there was insufficient reliable evidence to establish that the
Applicants left the Philippines and came to Canada for that reason. Their
conduct and the delay in making their refugee claims were inconsistent with the
actions of persons facing the risk, experience and fear alleged by the
Applicants.
[49]
In Garcia,
above, Justice Near had occasion to review and apply the relevant jurisprudence
of the Court concerning delay:
[19]
Delay in making a refugee claim “is not a decisive factor in itself” but it is
a “relevant element which the tribunal may take into account in assessing both
the statements and the actions and deeds of a claimant” (Huerta v Canada
(Minister of Employment and Immigration) (1993), 157 NR 225, [1993]
FCJ no 271 (CA)). It is reasonable to expect that the Applicants would
make a claim at the first possible opportunity (see Jeune v Canada (Minister
of Citizenship and Immigration), 2009 FC 835, [2009] FCJ no 965 at para
15).
[20]
Recent jurisprudence also suggests that while the delay itself is not
determinative, it “may, in the right circumstances, constitute sufficient
grounds upon which to dismiss a claim” (Duarte v Canada (Minister of
Citizenship and Immigration), 2003 FC 988, [2003] FCJ no 1259 at para
14). Absent a satisfactory explanation for the delay, it “can be fatal to
such claim, even where the credibility of an applicant’s claims has not
otherwise been challenged” (Velez v Canada (Minister of Citizenship and
Immigration), 2010 FC 923, [2011] FCJ no 1138 at para 28).
[50]
There is case law
which indicates that a delay in making a claim can ground both a negative
credibility finding and a lack of subjective fear (Ortiz Garzon v Canada
(Minister of Citizenship and Immigration), 2011 FC 299 at para 30 [Ortiz
Garzon]; Goltsberg v Canada (Minister of Citizenship and Immigration),
2010 FC 886 at para 28 [Goltsberg]).
[51]
There is also case law that indicates that delay
itself is insufficient to cause a refugee claim to fail (Brown v Canada (Minister of Citizenship
and Immigration), 2011
FC 585 at paras 39-40; Juan v Canada (Minister of Citizenship and
Immigration), 2006 FC 809 at para 11; Delgado Ruiz v Canada (Citizenship
and Immigration), 2012 FC 163 at para 6).
[52]
In Trejos v Canada (Minister of Citizenship
& Immigration), 2011
FC 170 at para 48, Justice Kelen noted that, “Whether
a delay in claiming refugee protection will on its own be
sufficient for finding a lack of subjective
fear of persecution and disposing of a refugee claim depends upon the
facts of the case.”
[53]
As the Court stated in Espinosa
v Canada (Minister of Citizenship and Immigration), 2003 FC 1324 at para
17, what is fatal to a refugee claim is an inability to provide a satisfactory
explanation for the delay (see also Dion John v Canada (Citizenship and
Immigration), 2010 FC 1283 at para 23).
[54]
The Applicants cite El
Balazi, above, for the proposition that the Board errs
if it fails to consider the existence of a visa as an acceptable explanation
for delay. Indeed, there is jurisprudence that indicates that the possession
of a visa is a factor that has led the Court to determine that such a delay was
reasonable (El Balazi, above; Hue, above; Houssainatou Diallo
v Canada (Minister of Citizenship and Immigration), 2002 FCT 2004).
However, in El Balazi, Justice Pinard also stated
that in some circumstances, a claimant’s conduct may be enough to deny a
refugee claim:
The respondent
correctly says that the IRB may take into account a claimant’s conduct when
assessing his or her statements and actions, and that in certain circumstances
a claimant’s conduct may be sufficient, in itself, to dismiss a refugee claim (Huerta
v. Minister of Employment and Immigration (March 17, 1993), A-448-91, Ilie
v. Minister of Citizenship and Immigration (November 22, 1994),
IMM-462-94 and Riadinskaia v. Minister of Citizenship and Immigration
(January 12, 2001), IMM-4881-99).
[55]
Here, the Board considered the existence of the
Applicants’ visas and noted that they extended them several times. In fact, at
the time the Applicants applied for refugee status, their visas were about to
expire and they were in the process of renewing them the fourth time.
[56]
The Applicants
arrived in Canada on February 12, 2007 and filed for refugee protection on
December 22, 2009, approximately two years later. The female Applicant
explained their delay in seeking refugee status as follows:
Member: …Why did you not make
refugee claims until December 2009, almost 2010?
Co-Claimant: Our primary purpose of coming to Canada was just basically
to rest and relax…
…..
Co-Claimant: ….And to be able to forget the situation back home.
We were waiting for the situation in the Philippines to calm down and we
kept waiting and we wanted to go back home as soon as it did.
But we came to know that through telephone calls we regularly make to our
relatives in the Philippines like my father and my brother that up to this time
they are still looking for us in the Philippines.
So we were, so we were advised by my brother and my parents who is there
[ph] not to come home meantime, or not to go home at all. Our lives were at
risk that we might be killed by the people who are looking for us. It was at
that time that we decided to file a claim.
[57]
The female Applicant
gave evidence that they utilized the internet and learned that they could not
stay in Canada without status and, therefore, always filed for an extension
before their visas expired. They were familiar with the concept of a refugee
claim, either before or after leaving the Philippines, and knew that refugees
were persons in need of protection. When the female Applicant was questioned
about why they sought and renewed their visitors visas, she replied:
Co-Claimant: We really wanted to go back home because our family is
there, our kids grew up there. It will be…and we understood and knew that it
could be very difficult for us to stay here for good. But our choices are
actually limited; we really do not know what choice to make: it is either stay
there and die or stay in Can…or to move on here.
[58]
She also testified that upon their entry to
Canada, they stated that the purpose of their visit was to have a vacation and
let the situation in the Philippines calm down.
[59]
The Board concluded that there was an
unreasonable delay in the Applicants claiming refugee status after their
arrival in Canada. It found that as a result of this delay, the Applicants did
not have a subjective fear of persecution. It did not find their explanation
for the delay to be acceptable and also found that
“the evidence on the material issue raised in the claims, delay in making a
refugee claim in Canada, has not been credible.”
[60]
In essence, the Board did not accept that a family who had left the Philippines because of fear for
their lives as they described would take the chance that their visitor visas
would be renewed on four occasions, prior to seeking refugee status. That is,
their conduct was inconsistent with that of persons exposed to the risk,
experience and fear that they alleged. As stated in Niyas, above, at para
10, “It was open to the RPD to rely on the delay to question his fear and draw
an adverse credibility inference”. Delay is also a relevant element which the
Board may take into account in assessing the statements and the actions of a
claimant (Huerta, above). The Applicants’ credibility, in the
circumstances of this case, was therefore sufficient to dispose of their
refugee claims under both sections 96 and 97 (Garcia, above, at
para 22).
[61]
Thus, while I may have found
differently, the Board’s finding was reasonably open to it based on the
authorities above and the facts of this specific case.
Issue 3: Did the Board err in
its state protection analysis?
Applicants’ Submissions
[62]
The
Applicants submit that the Board’s state protection analysis is flawed because
it did not consider their evidence that they made reports to the police which
were dismissed despite being aware of the agent of persecution. Further, the
Board erred in failing to evaluate the Applicants’ own risk and the actions of
the state. “Serious efforts” is not the test for adequate state protection (Vigueras
Avila v Canada (Minister of Citizenship and Immigration), 2007 FC 359 at
para 27; Streanga v Canada (Minister of Citizenship and Immigration),
2007 FC 792 at para 5; Araujo Garcia v Canada (Minister of Citizenship and
Immigration), 2006 FC 79 at para 14; Mitchell v Canada (Minister of
Citizenship and Immigration), 2006 FC 133 at para 10).
Respondent’s Submissions
[63]
The
Respondent submits that the Board is entitled to rely on evidence that the
state is making serious efforts to provide protection and it is the Applicants’
onus to demonstrate they are inadequate. Neither the persistence of
criminality nor local failures in policing are sufficient (Hinzman,
above at paras 40-46, Jimenez v Canada (Minister of Citizenship and
Immigration), 2011 FC 1523 at para 34; Zhuravlvev v Canada (Minister of
Citizenship and Immigration), [2000] 4 FC 3 at para 31; Kaleja v Canada
(Minister of Citizenship and Immigration), 2011 FC 668 at para 26).
[64]
The Board
reasonably treated the Applicants’ minimal efforts to obtain protection and the
evidence of violent crime in Philippines as not determinative of state
protection. The Board reasonably found that there was insufficient evidence to
rebut the presumption of state protection.
Analysis
[65]
The Board indicated
at the hearing and in its Decision that the only issue to be addressed
concerned the Applicants’ delay in seeking refugee status. It did not include
a state protection analysis other than stating that the country conditions
documentation reflected that state authorities are making serious efforts to
protect its citizens and serious efforts are being made to correct and address
the forms of mistreatment alleged in the Applicants’ claims. Further, that the
Applicants’ conduct in Canada and the declarations made on their arrival
supported its finding that state protection in the Philippines for persons
similarly situated to the claimants, while not perfect, is adequate and
effective in most cases. The Applicants had not established a serious
possibility that they would continue to face acts of mistreatment.
[66]
As the Board found
that the Applicants had not established evidence to ground their fears and to
demonstrate that they left the Philippines and came to Canada for the reasons
cited in their refugee claims, its state protection finding was unnecessary.
As stated in Vergara v Canada (Minister of Citizenship and Immigration), 2005 FC 1100:
[9] In view of the Court's conclusion, it is not necessary to address
whether there is adequate state protection in the parts of the Philippines
where the rebel groups operate. The Court acknowledges that selected excerpts
from the documentary evidence show that the Abu-Sayaff group and New People's
Army control parts of the Philippines, not the police. However, other evidence
shows that the police, aided by the United States military, are trying to
control the rebel and communist groups. The fact remains that neither applicant
has established the evidence necessary to support either a subjective or
objective fear of persecution.
[67]
Therefore, while
there may be potential flaws in the Board’s analysis on state protection, in
this case they are not determinative in view of the Board’s findings on
credibility and the Applicants’ section 96 and 97 claims (see also Gonzalez Ventura v Canada (Minister of Citizenship and Immigration), 2012 FC 10 at para 62; Di Mpasi Mansoni v Canada (Citizenship
and Immigration), 2012 FC 62 at para 37; Argueta Calderon v Canada (Minister of Citizenship and
Immigration), 2013 FC 229 at para 5).
[68]
For these reasons,
the application for judicial review is dismissed.
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