Docket: IMM-7165-13
Citation:
2014 FC 817
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, August 21, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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REYNA JOHANA LOYO DE XICARA
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EILYN FERNANDA XICARA LOYO
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HILLARY ANDREA XICARA LOYO
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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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JUDGMENT AND REASONS
I.
Preliminary remarks
[1]
A court is not bound by its reasons or by its
conclusions in a decision when a new hearing is held. A hearing de novo is
a new hearing, from start to finish, including the eventual decision after the
case has been considered (Hernandez Rodriguez v Canada (Minister of
Citizenship and Immigration), 2012 FC 1331 at para 4).
[2]
This means that a new hearing must be considered
as a complete whole, in its context as fully set out again by a new hearing.
[3]
The record as a whole reveals major
inconsistencies and gaps, as well as a lack of credibility on the part of the
principal applicant. The panel’s decision is based on the evidence in the
record. This initial decision, by how it was analyzed, shows that the panel
came to a reasonable decision within a range of outcomes which are defensible
in respect of the facts and law, and that the decision maker’s conduct was
acceptable.
II.
Introduction
[4]
This is an application pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], for judicial review of decision dated October 15, 2013,
of the Refugee Protection Division of the Immigration and Refugee Board [RPD]
rejecting the applicants’ claim for protection as refugees or persons in need
of protection within the meaning of section 96 and 97 of the IRPA.
III.
Facts
[5]
The principal applicant, Reyna Johana Loyo de
Xicara, and her two minor daughters, Eilyn and Hillary, are citizens of Guatemala.
[6]
She alleges that in September 2008, members
of Mara Salvatrucha [Maras] demanded that her husband pay them 15,000 quetzals.
Her husband allegedly paid this amount to avoid putting his family in danger.
[7]
That same day, the Maras allegedly demanded
another payment of 150,000 quetzals, threatening to kill the family if the
money was not paid.
[8]
On November 3, 2008, the applicant’s
husband allegedly filed a complaint with the police. It is alleged that three
days later, he was beaten and taken to hospital.
[9]
Four months later, on February 27, 2009,
the applicant’s husband left the country and came to Canada, where he claimed
refugee protection on March 7, 2009. The applicant allegedly continued to
live at her home with her daughters, even though she had obtained a visa for
the United States, valid until 2018.
[10]
In June 2009, the applicant’s husband returned
to Guatemala because one of his daughters was seriously ill.
[11]
On June 1, 2010, a year after her husband returned,
the applicant allegedly received a call from the Maras telling her that they
knew that her husband was back. She claims that she filed a complaint with the
police. A few days later, the Maras allegedly fired on her home while the
family was out.
[12]
On June 7, 2010, the applicant claims to
have contacted the Public Prosecutor to ask that her house be placed under
surveillance. The applicant, her husband and her children left Guatemala for
the United States the next day.
[13]
On July 11, 2010, the applicant and her
children entered Canada illegally, without seeking asylum in the United States.
It is alleged that her husband did not seek asylum in the United States either
and to this day continues to live there illegally.
IV.
Decision under review
[14]
The RPD rejected the applicants’ claim for
refugee protection because it found it not to be credible.
[15]
The RPD found that there were several significant
omissions in the principal applicant’s narrative and that she added significant
facts, particularly that she did not in fact remain at home after her husband
left for Canada and instead went to live with her husband’s grandmother. The
RPD did not accept the applicant’s explanation that she did not know that her
Personal Information Form [PIF] had to be as detailed as that. The RPD noted
that this detail was central to the issue of the risk that the Maras posed to
the family. The RPD did not find this part of her narrative to be credible. In
addition, the RPD did not give any weight to the allegations relating to her complaint
to the Public Prosecutor, nor did it give any weight to allegations that the
Maras were now extorting money from her parents and had taken over the
applicant’s house, the latter facts not having been raised before the date of
the hearing.
[16]
The RPD also did not believe the applicant when
she stated that the Maras were watching her house and had fired on her
residence, as they nevertheless stayed there until June 8, 2010. This
behaviour, in the RPD’s view, did not show that she genuinely feared for her life.
Moreover, the allegation that the Maras were watching her house did not appear
anywhere in her PIF. This second omission further undermined the applicant’s
credibility.
[17]
Furthermore, the RPD concluded that the
applicant and her daughters were not personally subjected to a risk as
described in section 97 of the IRPA. The risk that the applicants faced
was the same as the general risk faced by other Guatemalans.
[18]
The RPD noted that the applicant’s husband was
targeted by the Maras because he was perceived as being rich. They therefore
extorted money from him twice in 2008 on this basis. No one in Guatemala is
safe from extortion, or from the extortion-related violence committed by the
Maras.
V.
Issue
[19]
Did the RPD err in finding that the applicants
were not credible?
VI.
Relevant legislative provisions
[20]
Sections 96 and 97 of the IRPA apply in
this case:
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Convention refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person in need of
protection
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Personne à protéger
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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
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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 :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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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;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards, and
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(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,
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(iv) the risk is not caused by the inability of that country to
provide adequate health or medical care.
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(iv) la menace ou
le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
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Person in need of
protection
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Personne à protéger
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(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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(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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VII.
Positions of the parties
[21]
The applicants make three key arguments in their
submissions to the Court:
(a)
The RPD rendered an unreasonable decision in
finding that the principal applicant was not credible, when a previous panel
had found that she was credible;
(b)
The RPD rendered an unreasonable decision in
finding that there are significant omissions in the record, when a previous
panel found that the narrative was plausible and contained no omissions;
(c)
The RPD rendered an unreasonable decision in
failing to assess the applicant’s personal situation in relation to the general
situation in the country.
[22]
Regarding the first and second arguments, the
respondent submits that the applicant behaved in a manner that was inconsistent
with a genuine fear for her life. Similarly, the applicant’s narrative
contained significant omissions that she could not satisfactorily explain. The
RPD also noted inconsistencies in the applicant’s testimony. These factors were
sufficient to conclude that the applicant was not credible.
[23]
Regarding the third argument, the respondent
submits that the burden of proof was on the applicant to establish the truth of
her allegations. She did not succeed in establishing that the alleged facts had
indeed taken place, for example, the death threats. The applicant did not
behave like someone who feared the Maras when she returned to live in her home
19 months after receiving death threats.
VIII.
Analysis
[24]
The issues will be addressed together.
[25]
The credibility problems are dispositive of this
case. Here, there are simply too many omissions for the story to be credible.
Moreover, over the years, the principal applicant did not at all act as if she
feared for her life. She remained at her house after her husband left, despite
the fact that she could have left for the United States on a visa that was
valid until 2018. When the principal applicant finally left for the United
States, she did not seek asylum there for herself or her children. Regarding
the principal applicant’s allegation that the previous panel found her to be
credible, the case law confirms that RPD members are not bound by the previous
decisions of other members (Hernandez Rodriguez, above).
[26]
The principal applicant presented new facts that
were not in her previous file (Loyo de Xicara v Canada (Minister of
Citizenship and Immigration), 2013 FC 593, 433 FTR 263).
[27]
In addition, the principal applicant did not
raise an apprehension of bias in a timely manner; rather, she did not show any
blameworthy conduct in this regard (Committee for Justice and Liberty v
Canada (National Energy Board), [1978] 1 S.C.R. 369).
IX.
Conclusion
[28]
For all the above reasons, the applicants’
application for judicial review is dismissed.
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