Date: 20040422
Docket: IMM-2236-03
Citation: 2004 FC 598
Toronto, Ontario, April 22nd, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
JAIME FERNANDO EGAS FUENTES
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Fuentes is a 37-year-old citizen of Ecuador. His refugee claim was dismissed by the Refugee Protection Division of the Immigration and Refugee Board (RPD). He seeks judicial review of that decision.
[2] The father of Mr. Fuentes, a well-known career military officer, wanted his son to follow in his footsteps and made constant efforts to interest him in a military career. Mr. Fuentes had a regimented upbringing and was required to attend military camps, a cadet college and military training school. When it became clear that Mr. Fuentes preferred a non-military career (he is a tennis instructor), his father was very angry and assumed that his son was a homosexual. His father's perception was reinforced when Mr. Fuentes displayed a lack of interest both in girlfriends and an arranged marriage.
[3] Mr. Fuentes submits that the RPD misconstrued the basis of his claim. He argues that his claim was based on being a member of a particular social group, a perceived homosexual. The board failed to analyze his claim and Ecuador is a country where, as delineated in the documentary evidence, homosexuals are subjected to torture and ill-treatment, death threats, and arbitrary detention.
[4] Despite the articulate submissions of counsel, I am not persuaded that the RPD "got it wrong".
[5] I have reviewed the record and it is clear that the basis of the applicant's claim was his fear of his father, who perceived him as a homosexual. The narrative portion of the personal information form (PIF) is 21 paragraphs and constitutes a recitation supporting the applicant's fear of his father. The sole reference in paragraph 21 to "perceived homosexuality" relates to the context of the previous 20 paragraphs, i.e., the perception of his father.
[6] During the hearing, the board specifically requested counsel to focus on certain areas. The presiding member stated as follows:
PRESIDING MEMBER: I would like to know who the agent of persecution is. What - what his motives are. And what is going to happen - What does the claimant fear should he return to Ecuador? Whether he has any risk of life should he return to Ecuador?
[7] Mr. Fuentes responded to his counsel's questions in the following manner:
COUNSEL: [...] You returned to Ecuador in November, 1999, correct?
CLAIMANT: Yes.
COUNSEL: And you testified that you did so because your father had let it be known that his attitude had changed. Correct?
CLAIMANT: Yes.
COUNSEL: Now you have testified that when you went back to Ecuador, you were in hiding. Is that correct?
CLAIMANT: Yes.
COUNSEL: Why would you be in hiding if your father said things were going to be better?
CLAIMANT: I didn't trust him. I have to continue in hiding and he still wanted me to be a military person.
COUNSEL: All right. Now how do you know that your father still wanted you to be a military person?
CLAIMANT: Not directly but I know that from my mother.
COUNSEL: Okay. You went back to Ecuador in November '94. How long did it take for you to realise that your father's attitude had not changed?
CLAIMANT: Years.
RPO: I beg your pardon?
CLAIMANT: Years.
COUNSEL: Well, did you remain in hiding for all this time?
CLAIMANT: Yes.
COUNSEL: Why did you stay in hiding all this time if you didn't - if you didn't believe that your father's attitude was unchanged?
CLAIMANT: I was afraid of his character and his decisions.
COUNSEL: All right. Let's move on [...]
Later, the following exchange occurred:
COUNSEL: Okay. I'm going to ask you to respond to certain issues that have been identified as particularly important for this claim. Who do you think would harm you if you went back to Ecuador now?
CLAIMANT: My father.
[8] Counsel completed the examination of Mr. Fuentes and there was no reference to being perceived as a homosexual by anyone other than his father. Near the end of the questioning by the refugee protection officer (RPO), Mr. Fuentes stated, for the first time, that there could be "discrimination" because of "homosexuality". When pressed by the RPO for specifics, he related difficulties with his uncles (his father's brothers). When questioned further, he extended the group to include friends and neighbours and stated, "the discrimination is very strong". In response to questions regarding what these people did, he stated, "No physical harm. But they will sort of put me aside. They will ignore me". Finally, when asked why he left Ecuador, he stated:
There are two reasons. The first one is he tried to kill me and I could be in hiding all my life. And the second is the discrimination because they were treating me as a gay person. That's all.
[9] When asked why he had not included this information on his PIF, he responded, "Because I am not gay".
[10] The claim was rejected solely on the basis of multiple credibility concerns. The applicant suggests that some of the board's determinations that the PIF and the oral evidence were inconsistent are irrelevant. With respect, when regard is had to the PIF and the basis of the claim as presented therein, it cannot be said that inconsistencies on the number of times his father threatened him with a gun and on his reasons for returning from Peru are irrelevant. It was open to the board to disbelieve that Mr. Fuentes would not have been naturalized in Peru due to his father's influence.
[11] Mr. Fuentes had left Ecuador at various times and returned. From August, 1989 to August, 1991, he stayed in Columbia with his maternal uncle; from January, 1994 to November, 1994, he lived in Peru; from January, 1998 to February, 1998, he visited the United States; and from October, 1998 until February, 1999, he visited Canada.
[12] I agree that the RPD has a duty to assess an advanced basis for a claim, even if it is not specifically referred to in the PIF. However, in this case, it was reasonably open to the board to reject the claim based on its belief that the exclusion of relevant information from the PIF was not inadvertent. There were a number of inadequately explained inconsistencies between the PIF and the oral testimony. Mr. Fuentes was allegedly in hiding for four years, but was travelling in Ecuador giving tennis lessons. He did not mention in his PIF a report made to a judge regarding his father. He failed to mention in his PIF that it was not only his father who perceived him to be a homosexual.
[13] The issue of being in hiding, and the omissions from the PIF of information that could have gone toward establishing subjective fear (the written complaint and a fear of discrimination from others) were problems with the claim that went to the heart of the subjective fear analysis. Having reviewed the record, I cannot fault the board for rejecting the claim based solely on subjective considerations. There was no need to proceed to an analysis of objective fear when the RPD did not believe the basis of the subjective fear. The credibility findings, in my view, are sound. There is no basis upon which to intervene.
[14] Counsel did not suggest a question for certification. This matter does not raise a serious issue of general importance.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is dismissed. No question is certified.
"Carolyn Layden-Stevenson"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2236-03
STYLE OF CAUSE: JAIME FERNANDO EGAS FUENTES
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 20, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY: Mr. Yehuda Levinson
For the Applicant
Ms. Rhonda Marquis
For the Respondent
SOLICITORS OF RECORD: Levinson & Associates
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20040422
Docket: IMM-2236-03
BETWEEN:
JAIME FERNANDO EGAS FUENTES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER