VB3-03230

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : VB3-03230 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal (a.k.a. XXXX XXXX XXXX XXXX) Appeal considered / heard at Appel instruit à Date of decision March 20, 2014 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Bjorn Harsanyi Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] Fernando XXXX XXXX (also known as XXXX XXXX XXXX XXXX XXXX (the "appellant"), a national of Honduras, appeals the November 15, 2013 decision of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. The claim was heard by the RPD on September 23, 2013 and October 18, 2013, with a written decision rendered on October 31, 2013. The RPD found that the appellant was neither a Convention refugee nor a person in need of protection. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA" or the "Act"),1 the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the appellant is neither a Convention refugee pursuant to section 96 of IRPA nor a person in need of protection pursuant to section 97 of that Act. The appeal is, therefore, dismissed. BACKGROUND [3] Appellant's counsel at the RAD was also counsel before the RPD. While the Minister intervened by "documents only" at the RPD, the Minister has not intervened in this appeal. [4] A transcript of a portion of the RPD hearing is included in the Appellant's Record (AR),2 while references to time-codes of extracts from the RPD hearing found on the compact disc (CD)3 of the RPD proceedings are also included in the appellant's memorandum.4 [5] The appellant does not seek to present documentary evidence to the RAD pursuant to subsection 110(4) of Act, nor does he seek an oral hearing pursuant to subsection 110(6) of the Act. Basis of the Claim [6] The appellant is a 32-year-old man who is a national of Honduras. [7] As is briefly summarized in the reasons of the RPD5 and the appellant's Basis of Claim form (BOC) narrative,6 the appellant fears an individual in Honduras, Mr. XXXX, who he believes wants to kill the appellant to prevent him from taking revenge against Mr. XXXX for Mr. XXXX having killed the appellant's father. The father was shot by Mr. XXXX in XXXX 2000, allegedly due to jealousy over the father's financial situation and because of the father's Nicaraguan nationality or ethnicity. [8] The appellant and his family received death threats from Mr. XXXX and his associates by telephone and the appellant was shot at on more than one occasion. In XXXX 2001, the appellant learned from two men that they had been offered money to kill the appellant. [9] The appellant left Honduras to live in the United States (US) in XXXX 2001 where he lived without lawful immigration status until later moving to Canada. The appellant made no claim for asylum or refugee protection at any time in the US. He has never returned to Honduras since his 2001 arrival in the US. [10] The appellant's bother, XXXX, also fled to the US in 2005 because of problems with Mr. XXXX. He returned to Honduras in 2008 and was allegedly murdered by Mr. XXXX four years later in XXXX 2012. [11] The appellant entered Canada unlawfully for the first time in 2008, but remained for only a few days before returning to the US. In XXXX 2013, the appellant again entered Canada illegally and again returned to the US shortly thereafter. [12] Finally, on XXXX XXXX, 2013, the appellant was intercepted by Canadian immigration authorities near the US/Canada border and arrested for entering Canada unlawfully, for lack of identity documents and because of his admission that he had illegally entered Canada on previous occasions. He made a claim for refugee protection on July 25, 2013. RPD Decision [13] The RPD accepted that the appellant was a national of Honduras. The RPD determined that the appellant had not established a well-founded fear of persecution based on a Convention ground, nor had he established, on a balance of probabilities, that he would face a risk to his life, a risk of cruel and unusual treatment or punishment, or a danger of torture should he return to Honduras. [14] The determinative issues in the claim were credibility and subjective fear. [15] In coming to its decision the RPD concluded that the appellant's conduct demonstrated a lack of subjective fear such that it also contributed to the assessment of the likelihood of the appellant facing a risk or danger in Honduras as defined under section 97 of Act. [16] The RPD found that, although the appellant alleged a fear of persecution and of section 97 risks or danger should he be returned to Honduras, he never applied for any legal immigration status, including asylum or refugee protection, in the approximately 12 years he had been in either the US or Canada from XXXX 2001 until finally making a claim for protection in Canada after his arrest here in XXXX 2013. The RPD found that he had lived with the risk of his being deported to Honduras for all of that time, while doing nothing substantial to protect himself from deportation. [17] The RPD rejected a number of explanations offered by the appellant as to why he had acted as he did. [18] The first explanation was that, when the appellant first arrived in the US in 2001, he "did not have a clear" idea as to what he should do to seek protection. By the time he sought legal advice in 2003, the appellant alleges he was told by a lawyer that because he had not made a claim within the first year after his arrival, there would be no point in making an application. [19] The RPD did not accept this allegation as there was no reasonable explanation provided as to why the appellant would have waited for two years before seeking advice or what had changed between 2001 in 2003 that led him to inquire about his legal options at that time. [20] The appellant also alleged that the lawyer had told him that the best way to obtain immigration status in US was to get married and be sponsored by his wife. The appellant did get married in 2005 but, contrary to the lawyer's advice, no application for immigration status was made because the couple were busy with their work and studies and did not have the time or money to resolve his immigration status. Moreover, the appellant alleged that things were "calm" at that time. [21] The RPD did not accept this explanation inasmuch as the appellant's evidence was that Mr. XXXX had started to make threats against his brother, XXXX, in 2004, which threats led his brother to also flee to the US in 2005. The RPD concluded that, based on what had allegedly happened to his brother at that time, the problems with Mr. XXXX were ongoing. In light of the appellant's allegations of possible death should Mr. XXXX locate him if he were returned to Honduras, the RPD also did not find it reasonable that the appellant would not take steps to prevent being removed to that country due to having "other priorities" in terms of time and money. In addition, the explanations offered above as to why he took no steps in the US do not explain why he failed to seek protection on the two occasions he travelled to Canada before finally being apprehended on his third trip in July 2013. [22] With respect to the first trip in 2008, when the appellant entered Canada illegally in Alberta, he alleged he had come to find work. However, after having travelled 38 hours by car to make the trip, he immediately turned around and returned to the US because "he missed his wife". The RPD rejected this explanation as to why the appellant had not sought protection in Canada because he missed his wife, in light of the appellant's evidence as to the difficulties he had in obtaining any lawful status in the US, given the nature of the risks the appellant stated he faced if he was returned to his home country. The RPD found that the failure to even make inquiries about seeking Canadian protection was also not reasonable. [23] In what the RPD found was further evidence of a lack of subjective fear were the repeated unlawful crossings of the US/Canada border by the appellant which the RPD found was behavior that put him at an increased risk of being detected by either Canadian or US authorities and being sent back to Honduras. The RPD did not find reasonable the appellant's explanation that he had not even considered the possibility of being caught for illegally crossing the border. Going over the border three times meant that the appellant was exposed on five occasions to being apprehended, the last crossing leading to his ultimate arrest. [24] The RPD points out evidence that the brother who had returned to Honduras in 2008 was allegedly killed by Mr. XXXX four years later in XXXX 2012 and that his sisters are said to have continued to receive death threats. Despite the family situation becoming worse, including the brother's death in 2012, the appellant took no proactive action to prevent the possibility of his being returned to Honduras and, "instead engaged in the high risk activity of making illegal crossings of the Canada/US border". [25] The RPD found that it could give little weight (or, as the RPD puts it, "insufficient weight") to written statements provided by the appellant. With respect to statements from the appellant's mother, while questioning her impartiality because of their relationship, the RPD finds notable the absence in her statement of any indication of actual attempts made on the appellant's life before he left the country as was alleged by the appellant in his claim. [26] Another written statement was not given weight as insufficient evidence was provided as to who the author might be or how he could have come to know of the appellant's situation to the extent that he could make a broad general conclusion that the appellant would be at risk if he returned to Honduras. The RPD found that the author's "pronouncement" that "because of the information he has" the appellant could not return to his country was, in essence, the precise determination the RPD is to make based on its independent review of the evidence. [27] The RPD found that the appellant's section 96 IRPA claim to have a well-founded fear of persecution failed because he had not established the subjective component of that fear. Not only had the appellant not sought protection during the years he had been outside of Honduras but he "actually engaged in behavior that put him further at risk by making repeated, largely inexplicable illegal crossings of the Canada/US border". [28] The RPD extended its above-noted analysis to include the appellant's claims under subsection 97(1) of the Act. The RPD noted that it accepted that death certificates had been provided such that it could be concluded that the appellant's father and brother were deceased and, "may even have been murdered". However, due to little weight being given to the claimant's credibility or documentary evidence, the RPD found that the appellant had failed to establish that the two deaths were linked or that their circumstances created a personal risk for the appellant. In summation, the RPD found that, "In assessing the actual risk to the claimant's life that exists in Honduras, the Panel places the greatest weight on the claimant's own perception of this risk, which as evidenced by his actions appears minimal". GROUNDS OF APPEAL [29] The appellant raises the following grounds on appeal: a) What is the applicable standard of review? b) Did the RPD conduct an incorrect implausibility analysis? c) Did the RPD err by using an alleged lack [of] subjective fear to overall impugn the appellant's credibility and corroborating evidence? d) Did the RPD err in discounting evidence because it came from a close family member? REMEDY SOUGHT [30] The appellant seeks an order that the decision of the RPD be set aside and that the RAD refer the matter to the RPD for a re-determination by a different Panel, giving directions to the RPD that the RAD considers appropriate. STANDARD OF REVIEW [31] The determinative issues in the RPD's decision were credibility and the lack of subjective fear. Credibility findings are those generally based on fact or mixed fact and law. A determination of a lack of subjective fear is based upon mixed fact and law. As was determined by the Chief Justice in the 2012 Federal Court (the "Court") decision in Kaur,7 the standard of review with respect to both issues is reasonableness. [32] The appellant made a brief submission on the standard of review which should be applied by the RAD in this case and concludes that the appropriate standard is that of correctness. As stated by the appellant: The language used to describe the powers of the RAD indicates that the RAD can make a decision to return a claim to the RPD that is wrong in law, in fact or in mixed fact and law. The plain definition of the word "wrong" is "incorrect" or "not true". It is thus submitted that standard of review is the standard of correctness.8 [33] While not making a direct reference to the sections of the Act, I infer from the above that the appellant is directing the RAD's attention to subsection 110(1) and section 111 of IRPA: 110(1). Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. And: 111(1). After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate (2). The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. (RAD emphasis) [34] I do not agree with the appellant's submission that correctness is the appropriate standard of review in this case. [35] By way of illustration, subsection 18.1(4) of the Federal Courts Act,9 which is concerned with the grounds of review regarding applications for judicial review to the Court, provides: 18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. (RAD emphasis) [36] The plain definition of the word "erroneous" is also "wrong" or "not correct". However, there is a myriad of judicial authority of long-standing at all court levels to the effect that, on judicial review, erroneous findings of fact and of mixed fact and law are to be analyzed on the standard of reasonableness and not correctness. Therefore, the appellant's logic that the mere use of the word "wrong" in subsection 111(2) dictates that the standard of review should be "correctness" is ill-founded and unsupported. The appellant cites no case authority for his proposition. [37] When considering standards of review with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada ("SCC") in Dunsmuir10 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is well settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [38] The RAD is a new appellate administrative tribunal about which, to the best of my knowledge, the Court has yet to comment on the question of what standard of review the RAD should apply under various circumstances that might come before it. [39] However, some RAD decisions which, inter alia, set out detailed analysis establishing standards of review to be applied by the RAD, have now been made publicly available. [40] The RAD has previously determined that appeals based on issues such as those of fact or mixed fact and law are to be assessed on a reasonableness standard.11 I agree with those conclusions. [41] In assessing reasonability, the SCC in Dunsmuir12 noted in paragraph 47 of its decision: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [42] The SCC has made it clear that on judicial review a court should not lightly interfere with a decision to which the standard of reasonability applies, even when the decision may not have been the one which the reviewing court would have reached on its own. As the SCC noted further in its subsequent decision in Khosa:13 There may be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [43] Based on the earlier RAD analysis referred to earlier, I find there is no substantive reason why a similar approach on the question of reasonableness should not be applied in this case. ANALYSIS OF THE MERITS OF THE APPEAL [44] As noted in the appellant's introduction to his first argument,14 the appellant's basic submission is that the RPD made "plausibility findings which did not meet the standard of the 'clearest of cases'." In so doing, the RPD did "not rely on any demonstrated objective evidentiary base [sic] but are simply made on the basis of what an ideal refugee or the Panel would do". The appellant alleges that he "provided reasonable explanations to the Panel's concerns and they were unreasonably disregarded without any meaningful rationale". [45] As will be evident from the following discussion, I disagree with the appellant's submissions on all counts. [46] It must be emphasized that while the appellant places much reliance on the RPD's alleged improper use of "plausibility findings", a review of the RPD's decision reveals that it made not a single finding on the basis of "plausibility" and that the word itself appears nowhere in the decision. The RPD findings are couched in terms of "contradiction", "insufficient evidence", "negative credibility inferences", "balance of probabilities" and the like. The appellant's explanations as to why he did or did not do certain things with regard to the topic of a lack of subjective fear are described by the RPD in terms of "unreasonable", "not reasonable" or "insufficient". [47] There are numerous judicial authorities that caution decision-makers to be very careful in coming to a conclusion that something is "implausible". As is evidenced by the examples of the cases referred to by the appellant in his memorandum, considerable judicial effort has been expended with regard to the exploration of and proper limits of such findings. [48] However, where, as here, the RPD does not venture into the realm of implausibility but, rather, properly in my view, draws its credibility conclusions in the context of a balance of probabilities or reasonability, this initial submission of the claimant gains no traction. The appellant is arguing that the RPD drew conclusions on an improper basis which, I find, it simply did not do. [49] In this regard, the appellant is inviting the RAD to substitute its own credibility findings for that of the RPD on the flawed basis that the RPD made impermissible implausibility findings when, in fact, the RPD made no such findings. [50] Following his "implausibility" argument, the appellant then submits that the RPD came to its findings without reliance on any "demonstrated objective evidentiary basis". Again, I have reviewed the RPD's findings with respect to the evidence of the appellant's travels to the US and Canada and the long period of time he spent outside of Honduras without ever seeking asylum or protection and conclude that all of that evidence emanates directly from the appellant himself. When considering the viability of the appellant's explanations as to why at various times he did not take steps to protect himself or, in fact, put himself at risk by repeatedly illegally crossing international borders, I also find that the RPD considered the explanation offered in light of facts supplied directly through the appellant's own evidence. [51] While the submission is not completely clear to me, when the appellant speaks in terms of a lack of "demonstrated objective evidentiary basis", I take him to mean that there was no direct evidence before the RPD to support conclusions such as: if one alleges a risk of losing one's very life upon returning to their country of alleged persecution and fears what would happen should they be deported back into danger, logic would dictate, on a balance of probabilities, that such a person who truly feared the consequences or truly believed their life would be in danger, would take reasonable steps to avoid such a return. [52] I come to the above conclusion with respect to this aspect of the appellant's submission in part because other portions of the appellant's argument contain significant extracts from a document called, Risk Theory and Subjective Fear: the Role of Risk Perception, Assessment and Management in Refugee Status Determinations. The author is Hillary Evans Cameron. This nearly 20 page 2008 paper is included in the Appellant's Record.15 The author is described as being a Canadian refugee lawyer who heads the Refugee and Immigration Division of the University of Toronto's Community Legal Clinic. Beyond that description, no further curriculum vitae is provided. While it cites no judicial authority beyond a brief reference to the Supreme Court of Canada decision in Ward,16 a number of references to psychology articles and the like are set out in the footnotes. I do not propose to provide a synopsis of this article for a number of reasons. [53] The first is that there is no indication from the appellant in the AR or in the Refugee Protection Division Record that the article was disclosed to the RPD. I find that, if this evidence is deemed material by the appellant, it should have been presented to the RPD. I am aware that appellant's counsel is an experienced lawyer regarding refugee matters who, I would reasonably expect, would be alive to the prospect that the question of a lack of subjective fear would likely arise and be an issue in a claim where the claimant had been out of their country for a dozen years, in either the US or Canada, without seeking refugee protection. The appellant has made no application under subsection 110(4) for this evidence to be presented to the RAD and no explanation has been offered by way of statement or affidavit as to why this 2008 document was not, or could not have reasonably been expected to have been disclosed at the RPD. On this basis, the document is not accepted as evidence before the RAD. [54] I take from the balance of this portion of the memorandum17 that the appellant, if not challenging the fundamental concept that a lack of subjective fear, being a matter of credibility, may completely undermine a Convention claim, is, at a minimum, suggesting that there were other factors that the RPD should of, but did not, take into account when assessing the question of subjective fear. [55] As was made abundantly clear by the SCC in the seminal case of Ward,18 a successful Convention claimant must demonstrate with credible and trustworthy evidence the "objective" and "subjective" basis of their claim. Many subsequent decisions at all judicial levels have concluded that, a failure to satisfactorily demonstrate either basis will likely defeat a claim. [56] The appellant writes:19 Tethering a decision to an alleged lack of subjective fear alone is a shaky proposition. Subjective fear is exactly that: subjective. There are many factors that may influence a refugee claimant's actions, including risk perception, assessment and management. [57] As authority for the last sentence, the appellant cites the article noted above I have found should not be accepted as evidence in this appeal. Following in the memorandum, numerous references are made to the article so as to enable the appellant to argue a number of "facts" the appellant alleges with respect to the conditions, perceptions and context of illegal immigrants in the US. For example, the appellant makes a number of submissions about the conditions of illegal immigrants in the US which could lead to a conclusion that not seeking protection may make more sense than to seek it, fail and then be deported. I have also read the lengthy submissions appellant's counsel made to the RPD which run in a similar vein. In both cases, I find that the submissions largely have not been based on evidence before the RPD or the RAD but are, rather, in the nature of broad-brush opinions, essentially unsupported by evidence. [58] However, the appellant does submit for example that, at least when he began his over a dozen years in the US, he was but 19 years old and, allegedly, unsophisticated. The memorandum states that, for years, everything was "safe" and "calm" for the appellant in the US and his situation did not substantially change due to his brother's death in 2012. What the submission ignores, but what was considered by the RPD, is that for the entirety of that time, the appellant was at risk of being returned to the country where he alleges he fears persecution, risk, danger or even death. [59] In this instance, the evidence is clear that the claimant never made any attempt to seek protection at any time, aside from obtaining advice on one occasion early in his stay in North America which he, nonetheless, did not follow. No meaningful steps were taken until after he was arrested in Canada in XXXX 2013. The RPD made inquiries of the appellant as to his rationale or lack of same in not taking steps to protect himself or why he had increased his risk of deportation by illegally crossing international borders on multiple occasions. It is proper that the RPD seek such explanations and, I find, it is also appropriate for the RPD to determine whether or not the explanations are reasonable so as to potentially displace the conclusion that the appellant demonstrated a lack of subjective fear. In my assessment, a reading of the decision indicates that each explanation offered by the appellant as to why he took no meaningful steps to regularize his immigration status outside of Honduras was considered by the RPD. [60] As he did before the RPD, the appellant refers to the 2010 Court decision in Hidalgo20 for the proposition that it is unwise for a Board to find a lack of subjective fear when there is no general issue as to credibility. The RPD distinguished this case on the basis that the RPD did not accept the appellant's rationale for his failure to claim in either Canada or the US during the years he was outside of Honduras and was thus, not credible. Moreover, rather than seek protection, the appellant "actually engaged in behavior that put him further at risk by making repeated, largely inexplicable illegal crossings of the Canada/US border".21 I find that the RPD reasonably distinguished the case for good reason. [61] Cases such as Hidalgo are premised on findings of general credibility regarding the claimant. Clearly, that was not the case in the matter before me. The assessment of credibility extends to the explanations offered by a claimant with regard to matters such as a delay in making a claim, a failure to claim, delay in leaving a country of alleged persecution or re-availment back to such a country. [62] In the Court decision of Justice De Montigny in Niyonkuru22 the Justice observed: [22] The Board attached considerable importance to the fact that the applicant had let a month go by before claiming refugee status. Clearly this was a relevant point which the panel could take into account in assessing the applicant's credibility, even if it could not be a determinative factor in itself (Huerta v. M.C.I. (1993), 157 N.R. 225, [1993] F.C.J. No. 271 (F.C.A.) (QL); Rahim v. M.C.I., [2005] F.C.J. No. 56 (QL)). [23] It is true that the applicant had a visa which allowed him to remain in Canada until January 2003. The fact remains that his actions were not those of someone truly fearing for his life if he were to return home. Not only are the reasons he gave for waiting for the end of his training before going to the Immigration Canada office unconvincing, but it was also apparent from the transcripts that he had the time to travel on weekends. [24] Even if one were inclined to believe the applicant when he mentions his workload during the training as an explanation for his delay, there is other evidence which undermines his credibility. In particular, consider the fact that the applicant waited over two years after being approached by the rebel commander and over one year after his cattle were killed to leave his country, together with the ambiguity surrounding the position taken by him following his first meeting with the commander of the FNL Palipehutu. (RAD emphasis) [63] I take from the foregoing, that in assessing a claimant's credibility, matters such as delay are legitimate or relevant points to take into account. The Justice notes that the delay in that case, while useful in assessing credibility, would not be sufficient in and of itself to be determinative. However, the Justice comments further that there were other such events that were "not those of one fearing for their life" which were established and left unsatisfactorily explained. In the result, the Justice concluded that the RPD's determination regarding subjective fear was "not unreasonable and could be inferred from the facts placed before it". [64] As was noted by Justice Rouleau of the Federal Court in Espinosa:23 [16] It is trite law, as the Board recognized, that in assessing an applicant's subjective fear of persecution, the Board can take into consideration the applicant's behaviour. The Federal Court of Appeal in Heer v. M.E.I. (13 April 1988) Doc. No. A-474-87 (F.C.A.) recognized that an applicant's delay in claiming refugee status "is an important factor which the Board is entitled to consider in weighing a claim for refugee status". As the Board states, delay points to a lack of subjective fear of persecution, the reasoning being that someone who was truly fearful would claim refugee status at the first opportunity. [17] The Board states correctly that while the delay is generally not a determinative factor in a refugee claim, there are circumstances where the delay can be such that it assumes a decisive role; what is fatal to the applicant's claim is his inability to provide any satisfactory explanation for the delay. (RAD emphasis) [65] Justice O'Keefe in the 2011 Court decision of Ortiz Garzon24 assessed an RPD finding of a lack of subjective fear based on the fact that the claimant had not made serious efforts to apply for asylum in the US during the one-half years that he lived there. After concluding that such a failure to apply for refugee status in a foreign state is a factor which a Board is entitled to consider in assessing the appellant's subjective fear, and that the RPD's finding that the effort to make such application was "not serious" as reasonable, the Court concluded at paragraph 30: A finding that the applicant lacked subjective fear due to his failure to apply for asylum in the United States is sufficient, alone, for the Board to reasonably deny the refugee claim (see Goltsberg v. Canada (Minister of Citizenship and Immigration), 2010 FC 886 at paragraph 28; Gamassi c.Canada (Ministre de la Citoyenneté et de l'Immigration) (2000), 194 F.T.R. 178 at paragraph 6). [66] Justice O'Keefe then found that because of the finding on the subjective fear issue, "I need not deal with the remaining issues as an applicant needs to have a subjective fear in order to succeed in a refugee claim" and dismissed the judicial review. [67] Justice Gauthier stated in Ghasemian: [14] The absence of a subjective fear is fatal to a claim under s. 96 of the Act. Once the Board found that the applicant had failed to establish such a fear, there was no need for it to comment on the evidence presented to establish the objective element of her claim for that reason. [15] Even though normally, delay is not a determinative factor in a refugee claim, (as mentioned in Huerta v. Canada (Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 271 online: QL, which was cited by the Board in its decision), it has been found that in certain circumstances, it could be so (Gamassi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1841 online: QL, at para. 6). I agree with the respondent that it is for the Board to decide, on the basis of the evidence before it, the significance of delay in a particular case (Canada (Minister of Citizenship and Immigration) v. Sivalingam-Yogarajah, 2001 FCT 1018, [2001] F.C.J. No. 1414. (RAD emphasis) [68] I take then from the foregoing authorities that a claimant must establish a subjective fear in order to succeed with regard to a section 96 IRPA claim. A failure to do so will likely be dispositive of the matter. As well, a lack of subjective fear is a question of credibility which, as noted by Justice De Montigny, may be undermined due to its lack. [69] In my assessment, the RPD properly sought explanations for the various indicators of a lack of subjective fear arising from the facts in this case, spread over many years and reasonably determined that the appellant had failed to provide a satisfactorily credible response. While not every bit of evidence in this regard is referenced by the Member in his reasons, I find that the RPD made reasonable determinations with regard to material evidence raised by the appellant justifying the RPD's conclusion that the appellant had failed to demonstrate subjective fear. [70] Unlike some cases, where a short delay in leaving a country or in making a claim in the country of proposed refuge has been found to be insufficient to justify a lack of subjective fear finding, this case has numerous examples where the RPD considered what the appellant had or had not done over a long period of time and found the explanations wanting. Even though the appellant maintained that the threat from Mr. XXXX persisted from 2000 to 2013, always presenting him with a threat if he returned to Honduras, the appellant took no reasonable steps to try to ensure that he would not be sent back to that country. In particular, the RPD's conclusions on a lack of subjective fear arising from the appellant's multiple illegal trips across international borders is particularly telling in my assessment in demonstrating that the appellant's actions were not those of someone truly fearing for their life if they were to be returned home. I find the RPD's conclusions reasonable. [71] Finally, the appellant submits that the RPD erred when it allegedly disregarded the letter from the appellant's mother, in the appellant's words, "simply because it emanates from individuals connected to the person concerned"25. In support of this submission counsel cites the Federal Court authority of Ndjizera26 for the proposition that discounting evidence based on this premise is to be in error. Justice Gagne states: In my view, the Board made a reviewable error when it rejected the evidence emanating from the applicant's mother, aunt and boyfriend for the sole reason that the applicant has a close relationship with these persons. (RAD emphasis) [72] It is to be noted that, while the RPD commented that, "As the claimant's mother, this individual's impartiality in providing statements is questionable", the Member went on to observe that, "Notably absent from these statements is any indication of the actual attempts made on the claimant's life prior to him leaving Honduras." [73] In other words, it was not simply because the letter was written by the mother that it was not given significant weight. A more complete reading of Justice Gagne's decision in Ndjizera, (and, in particular paragraph 31 where he extensively cites the decision of Justice Kane in Gilani27), reveals that, while it may be unreasonable to disregard evidence solely because it emanates from a relative, there may be other reasons to devalue the evidence. In that regard, Justice Kane had stated: [28] Similarly in Ray v Canada (Minister of Citizenship and Immigration), [2006] FCJ 927, at para 39, Justice Teitelbaum stated that while it is an error to attribute ittle probative value on the basis that the documents are self serving, other basis may support the low probative value attributed. (Court's emphasis) [74] Thus it was that the letter was given little weight not simply because it emanated from the mother but because it did not include an indication of actual attempts made on the claimant's life before he left his country. This finding together with other credibility issues led then the RPD to conclude: The Panel's analysis under section 96 of the Act extends to its analysis under subsection 97(1). The claimant has provided insufficient evidence to establish on a balance of probabilities that XXXX XXXX will kill him or cause him to suffer cruel or unusual treatment or punishment if he returns to Honduras. Based on the death certificates provided, the Panel accepts that both the claimant's father and brother are deceased, and may even have been murdered. However, in assigning little weight to the claimant's testimony or documentary evidence, the Panel finds the claimant has failed to establish that these deaths are linked, or that the circumstances of these deaths creates a personal risk for the claimant. In assessing the actual risk to the claimant's life that exists in Honduras, the Panel places the greatest weight on the claimant's own perception of this risk, which as evidenced by his actions appears minimal. [75] Aside from the issues noted in the discussions above, the appellant raises no other specific grounds of appeal tied to his subsection 97(1) claim or the RPD's determination in that regard. CONCLUSION [76] For the foregoing reasons, the determination of the RPD that XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) is neither a Convention refugee nor a person in need of protection is confirmed and his appeal is dismissed. (signed) "Philip MacAulay" March 20, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Refugee Appeal Division (RAD) Exhibit 2, Appellant's Record (AR), pp. 181-206. 3 RAD Exhibit 3, Refugee Protection Division Record (RPDR), found in envelope attached at back of RPDR. 4 RAD Exhibit 2, AR, pp. 10-25. 5 RAD, Exhibit 3, RPDR, pp. 3-10. 6 RAD, Exhibit 3, RPDR, Basis of Claim, pp. 11-22 and as amended pp. 133-143. 7 Kaur v. Canada (Minister of Citizenship and Immigration), 2012 FC 1379, at para. 13. 8 RAD Exhibit 2, AR, p. 14, para. 17-18. 9 Federal Courts Act, R.S.C. 1985, c.F-7 as am. 10 Dunsmuir v. New Brunswick, 2008 SCC 9. 11 For example see X (Re), 2013 CanLII 82622 at para. 29 (IRB); X (Re), 2013 CanLII 67015 at para. 29 IRB): X (Re), 2013 CanLII 76397 at para. 18 (IRB); X (Re), 2013 CanLII 76473 at para. 28 (IRB); X (Re), 2013 CanLII 76390 at para. 27 (IRB). Decisions on CanLII are publicly available at <http://canlii.org>. 12 Dunsmuir v. New Brunswick, 2008 SCC 9. 13 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para.59. As well, see Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 and Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10. 14 RAD Exhibit 2, AR, p. 10. 15 RAD Exhibit 2, AR, pp. 207-225. 16 Canada (Attorney General) v. Ward [1993] 2 SCR 689. 17 RAD Exhibit 2, AR, pp. 16-30, para.24-30. 18 Canada (Attorney General) v. Ward [1993] 2 SCR 689. 19 RAD Exhibit 2, AR, p. 16, para.24. 20 Hidalgo v. Canada (Minister of Citizenship and Immigration), 2010 FC 793. 21 RAD Exhibit 3, RPDR, p. 9, para.26. 22 Niyonkuru v. Canada (Minister of Citizenship and Immigration) 2005 FC 174; See also Kunin v. Canada (Minister of Citizenship and Immigration) 2010 FC 1091 at para. 20 that "A finding that a claimant lacks a subjective fear of persecution necessarily impugns any claimant's credibility." 23 Espinosa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1324. 24 Ortiz Garzon v. Canada (Minister of Citizenship and Immigration), 2011 FC 299. 25 RAD Exhibit 2, AR, pp. 22-23. 26 Ndjizera v. Canada (Minister Of Citizenship and Immigration), 2013 FC 601. 27 Gilani v. Canada (Minister of Citizenship and Immigration), 2013 FC 243. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-03230 RAD.25.02 (February 7, 2014)