Docket:
IMM-913-13
Citation: 2013 FC 1173
Ottawa, Ontario, November 19, 2013
PRESENT: The Honourable
Madam Justice Mactavish
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BETWEEN:
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AMAYA GARCIA, CARLOS RAUL
URIAS, SANDRA PATRICIA,
AMAYA URIAS, DANIELA EUNICE
AMAYA URIAS, NICOLE ALEXANDR
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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]
The refugee claim filed by Carlos Raul Amaya
Garcia and his family based upon their alleged fear of the Mara Salvatrucha
(MS) gang was rejected by the Refugee Protection Division of the Immigration
and Refugee Board on credibility grounds. The Board further found that state
protection was available to the family in El Salvador and that they also had an
internal flight alternative within El Salvador.
[2]
For the reasons that
follow, I have concluded that the Board’s finding that the claim was not
credible was one that was reasonably open to it on the record before it. Given
that this is determinative of the claim, it is not necessary to deal with the
issues of state protection and internal flight alternative. The application
will therefore be dismissed.
Background
[3]
The principal
applicant worked as the chief of production at a linens factory in the town of Santa Tecla in El Salvador. He asserts that in October or November of 2010, he witnessed a
machine operator by the name of Andres Elias misusing machinery. After
confronting Elias about his conduct, the principal applicant reported the
incident to his boss. Elias was then reprimanded and was threatened with
dismissal if he was caught doing anything inappropriate in the future.
[4]
Over the next two
weeks, Elias allegedly gave the principal applicant threatening looks. The principal
applicant states that he and his family also received death threats by phone on
December 2, 2010 and again on December 8, 2010. In this second call, the caller
allegedly advised the principal applicant’s wife that he belonged to the MS
gang.
[5]
The principal
applicant says that he filed a report with the authorities the following day.
The police said that they would look into the matter, and suggested that the
family change their telephone number. However, no police protection was
provided to them.
[6]
On December 10, 2010,
a co-worker of the principal applicant warned him to be careful because Elias
was a member of MS. The co-worker told the principal applicant that he had
overheard Elias on the phone saying something like “Hey Mara, is everything
ready?”
[7]
That same day, the principal
applicant received another call at home threatening to kill him and his family.
The family disconnected their phone and moved to the wife’s sister’s house, which
was a few kilometres from their own, the following day.
[8]
The principal
applicant says that Elias approached him at work on December 13, 2010 and said
“we are going to kill you all.” He further alleges that he was afraid to go
back to the police because he was concerned that they had been infiltrated by
the MS. The principal applicant claims that he stopped going to work on
December 17, 2010, and his wife stopped working on December 23, 2010.
[9]
The family left the
country on December 27, 2010, spending three days in the United States before coming to Canada. The applicants report that Elias has since been dismissed
from his job at the linens factory on the pretext of a “restructuring”, and
that the principal applicant’s wife’s sister has been approached several times
by strangers asking about their whereabouts.
Analysis
[10]
The Board had
numerous reasons for doubting the credibility of the applicants’ story.
[11]
The Board questioned
why the family waited until December 11, 2010 to go into hiding after first
receiving phone threats on December 2, 2010, finding that this delay undermined
their credibility.
[12]
The applicants say
that they went into hiding immediately after the principal applicant’s co‑worker
warned him that Elias was a member of MS on December 10, 2010. However, the principal
applicant also says that his wife had been told in the December 8, 2010 call
that the caller belonged to the MS gang, yet there is no suggestion that the
applicants went into hiding after that call.
[13]
More troubling is the
fact that even though the family had allegedly gone into hiding on December 11,
2010 the principal applicant continued to report to work – the very place where
Elias was located – until December 17, 2010. One has to wonder what the point
of going into hiding was if the principal applicant continued to attend work
where he knew Elias could find him. In addition, the principal applicant’s wife
continued to go to work until December 23, 2010. According to the principal
applicant, her place of work was near to the linens factory.
[14]
The applicants’
explanation for their failure to return to the police after Elias’ December 13,
2010 threat is also problematic. The principal applicant asserted that they did
not go back to the police after the December 13, 2010 threat, as they knew by
this point that the MS were involved, and they were afraid that the police had
been infiltrated by the gang. However, the principal applicant also claims that
his wife had been told in the December 8, 2010 call that the caller belonged to
the MS. This information did not, however, prevent the principal applicant from
going to the authorities the next day.
[15]
There was also an
inconsistency in the evidence of the principal applicant’s co-worker. According
to the principal applicant, his co-worker had reportedly overheard Elias on the
telephone saying something like “Hey Mara, is everything ready?” However, the
letter provided to the Board from the co-worker told quite a different story.
According to the letter, the co-worker had actually “witnessed the fact that …
[Elias] … threatened to kill the [principal applicant] because of a
work-related reprimand …”
[16]
The applicants say
that the Board erred in basing a negative credibility finding on such a minor
or peripheral inconsistency in the evidence. I do not agree that that this was
a minor or peripheral inconsistency. The letter from the co-worker was key independent
evidence corroborating the existence of Elias, his membership in the MS, and
the threats made to the principal applicant. Indeed, it
was the only piece of independent evidence linking Elias to the MS. It was thus central to the case, and it
was entirely reasonable for the Board to be concerned about the material
inconsistencies in the evidence.
[17]
Similarly, it was not
unreasonable for the Board to question Elias’ membership in the MS, given that
he had allegedly been working at the factory for five years at the time of
these incidents. The Board Member noted that according to his specialized
knowledge, MS members do not hold regular employment but rather, “work the
streets and are involved in full-time criminality.” While the applicants have
pointed to evidence suggesting that some MS members infiltrate businesses in
order to take them over, there is nothing to suggest that in his five years
working as a machine operator at the linens factory, Elias had been doing
anything of the sort.
[18]
It was also not
unreasonable for the Board to have doubts about the applicants’ story, given
that Elias lost his job at the linens factory, and yet no problems were
encountered by the principal applicant’s boss who had terminated Elias’
employment.
[19]
The applicants argue that
it was unfair for the Board to consider the fact that Elias did not have any of
the tattoos that one would normally expect to see on a member of the MS, given
that the principal applicant was never asked whether Elias had any tattoos. I
might have been inclined to agree with the applicants on this point had there
been any evidence before me as to what the principal applicant would have said,
had he been asked the question, but there is none.
[20]
Finally, the
principal applicant failed to explain the inconsistencies between his Point of
Entry interview and the narrative in his Personal Information Form (PIF). At
the port of entry, he claimed that he thought the threats to him and his family
“could be involved with the people where I work” and that “[s]ome of them might
be involved with the gangs” but that there was “not anyway to identify them”
[sic]. However, his PIF narrative clearly identified Elias as the MS member
behind the threats. These are material inconsistencies, further undermining the
applicants’ credibility.
Conclusion
[21]
As a consequence, I
am satisfied that the Board’s conclusion that the applicants’ story was not
credible was one that was well within the range of possible acceptable outcomes which are
defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. The
application for judicial review is therefore dismissed. I agree with the
parties that the case does not raise a question for certification.
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