Ottawa, Ontario, August 8, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LESBIA ARACELY GARCIA DE LOPEZ
KELLY ADELAIDA LOPEZ
(a.k.a. KELLY LOPEZ)
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicants are Guatemalan citizens. The principal applicant (Applicant) is a 35-year-old male; the other, dependant applicants are his wife and minor child. The other applicants relied entirely on the Applicant’s case which was based on political persecution.
[2] The Immigration and Refugee Board (Board) denied the refugee application based on its findings that there was no objective fear, no reasonable subjective fear and, most importantly, the availability of state protection. This is the judicial review of this negative decision.
II. Facts
[3] The Applicant claimed that he had been involved in recruiting for the Republican Front Party (FRG). The FRG was the party of a former head of the Guatemalan government, General (retired) Efrain Rios Montt – a government said to have engaged in politically motivated murders.
[4] The Applicant alleged that he became the target of rival political parties. In early 2004 he began to receive anonymous death threats. The threats escalated and when he went to the police and Public Ministry, they declined to help him because they did not have the resources to protect him.
[5] As the threats continued and escalated, the Applicant left Guatemala and entered Canada in February 2005.
[6] The Board’s principal findings can be summarized as follows:
· there was insufficient evidence of objective fear because the only persons at any risk are human rights leaders, of which the Applicant was not one;
· the subjective fear element was missing as the two adult applicants had worked in the U.S., returning to Guatemala repeatedly, suggesting economic migration rather than refugee migration; and
· the Applicant had not rebutted the presumption of state protection in Guatemala, a country where there exists a functioning state apparatus that brings politically motivated murders to justice, and as a document heavily relied on by the Applicant (a police report) appeared not to be genuine due to its contradiction with other evidence.
III. Analysis
[7] The Board’s finding of state protection would be sufficient to uphold the decision. The Applicant, however, disputes this finding, arguing that the Board performed a superficial analysis of the evidence of state protection.
[8] While there may be some issue in this Court as to the standard of review on questions of state protection (reasonableness versus patent unreasonableness), it is unnecessary here to resolve that matter. For purposes of this analysis, the less deferential standard of reasonableness is applied.
[9] It is evident that the Board turned its mind, in some detail, to the issue of state protection and referred specifically to both the Human Rights Watch World Report, Guatemala, 2003 and the U.S. Department of State Report – Guatemala Country Reports on Human Rights Practices – 2003. The 2004 Department of State Report was not available at the time of the Board hearing.
[10] A key problem with the Applicant’s position is that he was held not to be credible on major issues touching on state protection. Credibility findings are held to a standard of review of patent unreasonableness. (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315)
[11] There was an issue as to when the Applicant’s problems with threats began; early 2004 or July 2004. While this matter would not, in itself, sustain the adverse credibility finding, it is a factor in the overall assessment of his story.
[12] The more damning evidence was the inconsistency between his Personal Information Form (PIF) where he says he was shot by a machine gun, his testimony where the incident is described as a single shotgun shot, and the police report which makes no mention of the use of a firearm. The exaggeration goes directly to the Applicant’s credibility on the subjective elements of his refugee claim. To attempt to explain away the difference of machine guns versus shotgun as immaterial is to ignore the significant difference between the nature and character of the two weapons and to stretch credibility.
[13] The Board had at least reasonable grounds for its finding that state protection was available to the Applicant and for its findings on credibility.
[14] Therefore, this application for judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5054-05
STYLE OF CAUSE: JOSE GUILLERMO LOPEZ OCHOA
LESBIA ARACELY GARCIA DE LOPEZ
KELLY ADELAIDA LOPEZ
(a.k.a. KELLY LOPEZ)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
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Mr. Loftus Cuddy
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Mr. David Joseph
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SOLICITORS OF RECORD:
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GERTLER & ASSOCIATES Barristers & Solicitors Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Ottawa, Ontario |