Ottawa, Ontario, April 12, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
ANA RUTH MALDONADO MARTINEZ
Applicants
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
SHORE J.:
INTRODUCTION
[1] It is up to the person applying for refugee status to establish the subjective and objective elements required to meet the definition of Convention refugee (Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), [1984] F.C.J. No. 601 (QL); Zambo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 414, [2002] F.C.J. No. 539 (QL), at paragraph 22).
NATURE OF JUDICIAL PROCEEDING
[2] This is an application for judicial review under subsection 71(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated June 14, 2005, according to which the applicants are not Convention refugees or persons in need of protection within the meaning of sections 96 and 97 of the Act.
FACTS
[3] The decision concerns three persons: the principal claimant before the Commission, Bonifacio Aceve Acevedo, his son, Wilian Jose Acevedo Beza, and his daughter-in-law, Ana Ruth Maldonado Martinez. Only the latter two are applicants for the purposes of this application for judicial review. Bonifacio Aceve Acevedo made a distinct application in docket number IMM‑4365‑05 of the Registry of this Court. Mr. Acevedo Beza and Ms. Maldonado Martinez based their claims on those of Mr. Aceve Acevedo.
[4] All three are citizens of Guatemala.
[5] Mr. Aceve Acevedo was excluded from the benefit of the Convention under subparagraph 1F(a) because he had been found guilty of complicity in crimes against humanity committed as a military commissioner in the Chiquimula region, where he was a voluntary collaborator of the Guatemalan army from 1983 to 1997, and where eight massacres were committed by the army.
[6] Mr. Aceve Acevedo first received death threats on August 22, 2000, when a group of persons wearing hoods allegedly yelled to him in front of his home to leave his house. Three years later, on December 5, 2003, armed persons wearing hoods fired shots at his house. Since they wore hoods, he could not identify them.
[7] Mr. Aceve Acevedo did not notify the local authorities about these incidents, because the perpetrators had threatened to kill his entire family.
[8] He took refuge at the home of his friend, Antonio Guerra, the mayor of the city of Concepcion las Minas, in the district of Chiquimula, in Quetzaltepeque. Mr. Guerra gave him an automobile and a driver, which allowed him to flee with his son and daughter-in-law to Mexico, from where they came to Canada.
IMPUGNED DECISION
[9] The Board concluded that Mr. Aceve Acevedo, whose testimony was evasive, unconvincing and lacking in credibility, had not established a nexus between his fear and one of the grounds specified in the Convention.
[10] His testimony as to the identity of his aggressors and their threats was vague and inconclusive. The Board concluded that personal vengeance is not included in the grounds of persecution specified in the Convention.
[11] This conclusion also applies to Mr. Acevedo Beza and to Ms. Maldonado Martinez, who based their claim on that of Mr. Aceve Acevedo.
[12] In addition, the Board concluded that Mr. Aceve Acevedo, his son, and his daughter-in-law, who, by the way, did not seek protection from the authorities, could live elsewhere in Guatemala where other family members already lived. The Board found that he did not establish that the other family members were in danger in Guatemala.
[13] Therefore, the Board concluded that Mr. Aceve Acevedo, his son, and his daughter-in-law were not Convention refugees, that they could find reasonable refuge elsewhere in their country and that they would not be subject to any cruel or unusual treatment.
ISSUES
[14] Was the Board’s decision reasonable?
ANALYSIS
[15] Because Mr. Acevedo Beza and Ms. Maldonado Martinez based their claims on that of Mr. Aceve Acevedo, the principal applicant before the Board, it is therefore on the basis of the conclusion concerning the plausibility of the fear alleged by Mr. Aceve Acevedo that the reasonableness of the Board’s decision must be considered.
Legislation
[16] Section 96 of the Act describes the grounds on which a person may be recognized as a refugee:
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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,
(a) is outside each of their countries or nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(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. |
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 opinion politiques :
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;
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. |
[17] Subsection 97(1) of the Act specifies the criteria which must be met to be recognized as a person in need of protection:
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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
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
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 :
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;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu dans ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(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 occasionnées par elles,
(iv) la menace ne résulte pas de l’incapacité du pays de fournier des soins médicaux ou de santé adéquats.
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The Standard of Review
[18] Questions of fact, which include matters of credibility, are subject to judicial review according to the standard of patent unreasonableness. Because the Board has expert knowledge in the analysis of questions of fact and credibility, this Court must show a high degree of judicial deference (Harb. v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (QL), at paragraph 14; Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No.732, at paragraph 4).
[19] As far as state protection is concerned, the standard of patent unreasonableness applies (Canada (Minister of Citizenship and Immigration) v. Elbarnes, 2005 FC 70, [2005] F.C.J. No. 98 (QL), at paragraph 9).
Lack of Nexus with Convention Grounds
[20] The Board concluded there was no nexus between the fear of persecution and any of the grounds in the definition of a Convention refugee.
[21] Mr. Acevedo Beza and Ms. Maldonado Martinez submitted that it was unreasonable for the Board to consider that the threats made against Mr. Aceve Acevedo only constituted personal vengeance, and even if that was the case, they were claiming as members of the family social group and were therefore covered by the Convention.
[22] The Board concluded that Mr. Aceve Acevedo collaborated with the army and tried to hide the role he played as a military collaborator and that his testimony on this point and with regard to his general knowledge of the events of the civil war and the activities carried out in his own region was not very clear.
[23] The Board underlined the fact that at the end of the war the military authorities gave him an award certificate in recognition of his loyal service. The Board also noted that, even though the government put an end to civilian patrols and the position of military commissioner in 1995, Mr. Aceve Acevedo only left the organization in 1997 because the government abolished it at that time.
[24] Considering his lack of credibility in connection with his allegations of persecution, the Board concluded that Mr. Aceve Acevedo had not established a nexus with the Convention or that he feared possible vengeance on the part of the victims of acts committed in his capacity of Military Commissioner.
[25] The Board concluded that the answers given by Mr. Aceve Acevedo about the identity of the assailants and the reasons for their threats were vague and inconclusive and that this warranted the Board’s conclusion that, given the lack of clear and relevant explanations, it could not believe his allegations of persecution.
[26] The assessment of objective evidence is within the Board’s mandate (Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (QL), at paragraph 5). It is up to the Board to assess the plausibility of the applicants’ testimony and draw the appropriate inferences. These inferences must be upheld insofar as they are not so unreasonable as to invite the intervention of the Court (Aguebor, supra).
[27] In the circumstances, the Board’s conclusion is most reasonable and in accordance with the principles it must follow.
[28] In Asghar v. Canada (Minister of Citizenship and Immigration), [2005] FC 768, [2005] F.C.J. No. 960 (QL), at paragraph 25, Mr. Justice Edmond Blanchard noted that the fear of reprisals motivated by vengeance and being a victim of a criminal offence are not equivalent to a persecution ground under section 96 of the Act.
[29] Assessment of the risk of persecution is a question of fact which involves considerable judicial deference (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46 (QL)).
[30] It is up to the person who is claiming refugee status to establish the subjective and objective facts required to meet the definition of a Convention refugee (Rajudeen, supra; Zambo, supra, at paragraph 22).
[31] In the case at bar, the fear felt by Mr. Acevedo Beza and Ms. Maldonado Martinez was based on the facts explained by Mr. Aceve Acevedo and had to be assessed on the basis of the findings of fact reached by the Board about the basis of this fear, that is, the fear of possible vengeance by the victims of the acts committed by Mr. Aceve Acevedo as a Military Commissioner.
[32] Because Mr. Acevedo Beza and Ms. Maldonado Martinez did not prove that Mr. Aceve Acevedo, the principal claimant before the Board, met the definition of Convention refugee, their related application cannot be granted, since there is no nexus with the persecution grounds specified in section 96 of the Act.
[33] In Asghar, supra, Blanchard J. noted that, when the main victim of persecution does not meet the definition of a Convention refugee, a derivative claim based on membership in the family group cannot be allowed. He mentioned the following in paragraphs 30-31:
According to Dawson J. in Gonzalez v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 456, 2002 FCT 345, when the primary victim of persecution does not come within the Convention refugee definition, any derivative Convention refugee claim based on family group cannot be sustained. To find otherwise would result in an anomalous situation.
To find otherwise would be to conclude that persecutory treatment directed to family members in no way related to discrimination or fundamental human rights would attract the protection of the Convention. For example, if children were the victims of persecutory conduct as a result of a parent's failure to forego a commercial opportunity or to cheat in a sporting event, I do not believe that it is intended that the Convention should be engaged to protect the children. That does not mean that protection ought not to be afforded, or that it would not be afforded, but simply that the source of the protection ought not to be the Convention.
This interpretation of "particular social group" also avoids the anomaly that Ms. Gonzalez's parents, as the victims of crime, can not claim the protection of the Convention, but Ms. Gonzalez could, solely because of the relationship with her parents.
These statements are especially relevant in this case. The applicant did not meet the burden of proving that the principal victim, his father, meets the definition of Convention refugee. The applicant's derivative claim therefore cannot be granted for lack of nexus with the persecution grounds described in section 96 of the Act. As a result, the Board's decision-that the applicant's father was not the victim of persecution within the meaning of section 96 of the Act and that, consequently, the applicant's fear of persecution because of his family connections was unfounded-is not based on an error that warrants the Court's review.
[34] According to the Board, Mr. Aceve Acevedo, the principal claimant, was not persecuted on one of the grounds mentioned in section 96 of the Act. Therefore, Mr. Acevedo Beza’s and Ms. Maldonado Martinez’s fear of persecution because of their family ties was unfounded, and the Board’s decision contains no error reviewable by this Court.
State Protection
[35] In this case, Mr. Acevedo Beza and Ms. Maldonado Martinez, like Mr. Aceve Acevedo, did not seek state protection, and the Board had to take this into consideration. In paragraph 9 of the statement in his Personal Information Form, Mr. Aceve Acevedo stated the following:
[translation]
We did not notify the police, because they would have obliged us to remain silent, because they told us that if we did so, they would kill the whole family. (Applicants’ record, at page 36).
[36] Likewise, when asked during the interview at the port of entry if they had complained to the police, Mr. Acevedo Beza and Ms. Maldonado Martinez answered as follows:
[translation]
No, because they said that when they threatened us, we were not supposed to tell anyone.
You’re telling us about it today, so why didn’t you go to the police?
They said not to say anything to anyone, so we didn’t say anything to anyone. (Applicants’ record at page 88)
[37] The fact they requested and obtained assistance to leave the country from their friend, the mayor of Concepcion Las Minas, does not meet the requirements for proving they needed protection. The burden of proof was on them. As mentioned above, and as admitted by them, they did not report the incidents in question or request protection from the police.
[38] It is up to the person claiming refugee status to prove the subjective and objective facts required to meet the definition of a Convention refugee (Rajudeen, supra; Zambo, supra).
[39] The question of the protection of his own country, which a claimant must seek before claiming the protection of another country, is an integral part of the definition of a Convention refugee (De Baez v. Canada (Minister of Citizenship and Immigration), 2003 CFPI 785, [2003] F.C.J. No. 1020 (QL), at paragraph 12.)
[40] The more a claimant’s country has democratic institutions, the more that claimant must exhaust the remedies available to him or her in that country before requesting the protection of another (Kadenko v. Canada (Minister of Citizenship and Immigration) (1996) 206 N.R. 272 (F.C.J.), [1996] F.C.J. No. 1376 (QL), at paragraph 5).
[41] Accordingly, the Board’s conclusion concerning protection is well founded.
Internal Flight
[42] The notes at the taken at the port of entry show that Mr. Acevedo Beza’s and Ms. Maldonaldo Martinez’s mother, brothers, sisters and children are still in Guatemala and are safe and sound.
[43] When questioned on this point they answered as follows:
[translation]
Why did your father leave without his wife, and you without your three children?
Because we thought that they would be safe where they were.
So the threats were not so bad?
We thought they were safe, so we came. With them, there would be too many people; it is very expensive to come here.
. . .
Do they intend to come here to be with you?
I don’t know, maybe one day. If we have the papers maybe we could go and see them or have them come here to see us . . . (applicants’ record, at pages 89 to 90).
[44] Mr. Acevedo Beza and Ms. Maldonado Martinez submit that the Board ignored exhibits P-5 and P-6 (applicants’ record, at pages 64 and 66). These were two letters mentioning that Mr. Acevedo Beza’s mother had received an anonymous message advising that her husband was being sought, and because she was afraid, she had asked for help from Rigoberto Espinosa, who took her and all her family into his home in another village.
[45] The presumption to the effect that the Board studied all the evidence must apply in this case. In addition, exhibits P-5 and P-6 do not have any effect on the conclusion reached by the Board concerning state protection. In fact, these exhibits do not show that the family sought protection from the authorities.
[46] It is plausible to believe that, in concluding that Mr. Acevedo Beza and Ms. Maldonado Martinez did not mention that other members of their family were in danger in their country, the Board took into consideration exhibits P-5 and P-6, which were not conclusive as to the question of the safety of the family members.
[47] The abovementioned excerpts from the notes at the port of entry support the Board’s conclusion to the effect that Mr. Acevedo Beza and Ms. Maldonado Martinez could move to another region of the country. Accordingly, this conclusion is not patently unreasonable.
Analysis Under Subsection 97(1) of the Act
[48] Mr. Acevedo Beza and Ms. Maldonado Martinez submitted that the Board erred in disregarding the notion of threats to life specified in subsection 97(1) of the Act.
[49] It is important to note that a separate analysis under section 97 is not always required, and it was not necessary in this case.
[50] In Soleimanian v. Canada (Minister of Citizenship and Immigration), 2004 FC 1660, [2004] F.C.J. No. 2013 (QL), at paragraph 22, Mr. Justice Richard Mosley wrote the following:
This Court seems to have come to a consensus that a separate section 97 analysis is not required if there is no evidence that could go to establishing that the person is in need of protection: Brovina v. Canada (Minister of Citizenship and Immigration) 2004 FC 635; Islam v. Canada (Minister of Citizenship and Immigration) 2004 FC 1391; Nyathi v. Canada (Minister of Citizenship and Immigration) 2003 FC 1119; Ozdemir v. Canada (Minister of Citizenship and Immigration) 2004 FC 1008.
[51] In addition, the Board’s failure to make a separate analysis in this case is not material, taking into consideration the other conclusions it reached and which were decisive.
[52] In Thuraisingam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1604, at paragraph 13, Madam Justice Judith Snider concluded as follows on this point:
It would have been preferable for the Board to have stated clearly that there was no persuasive evidence before it that related to s. 97 grounds. However, its failure to do so in this case is not, in my view, an error. However, even if the Board erred, I would conclude that any error was immaterial (Athansius v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 915 (F.C.) (QL); Bouaouni v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1540 (F.C.) (QL)).
CONCLUSION
[53] The Board’s decision is not patently unreasonable. Accordingly, because there is nothing to warrant the intervention of this Court, this application for judicial review is dismissed.
ORDER
THE COURT ORDERS that
2. No serious question of general importance be certified.
“Michel M.J. Shore”
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4301-05
STYLE OF CAUSE: WILIAN JOSE ACEVEDO BEZA
ANA RUTH MALDONADO MARTINEZ v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 4, 2006
REASONS FOR ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
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Michel Le Brun
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FOR THE APPLICANTS |
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Sylviane Roy
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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MICHEL LE BRUN Montréal, Quebec
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FOR THE APPLICANTS |
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JOHN H. SIMS Q.C. POUR LA PARTIE DÉFENDERESSE Deputy Attorney General of Canada
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FOR THE RESPONDENT |