Date : 20031112
Docket : IMM-5667-02
Citation : 2003 FC 1324
BETWEEN :
ROBERTO PABLO HERNANDEZ ESPINOSA
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review pursuant to section 18.1(3)b) of the Federal Court Act, R.S.C. 1985, c. F-7, with respect to a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated October 3, 2002, wherein the Board determined that Roberto Pablo Hernandez Espinosa (the "applicant") is not a Convention refugee and is not a person in need of protection.
[2] The applicant is a 29-year-old citizen of Mexico who claims a well-founded fear of persecution by reason of his homosexuality. He alleges to have suffered from harassment by the Mexican police because of his sexual orientation and that he has been subject to hostility from the family of a woman he has impregnated in Mexico.
[3] The Board found the applicant not to be a Convention refugee or a person in need of protection, determining that the applicant lacked a subjective fear of persecution.
[4] To reach its conclusion, the Board focussed on the applicant's long delay in making a refugee claim in Canada. Indeed, the applicant arrived in Canada on March 25, 1999, but did not submit a refugee claim until May 2000. Considering the applicant's claim of fear of imprisonment, torture and death in Mexico, the Board found this 14 months delay to be inexplicable.
[5] After a thorough analysis of the case law on the relevance of delay in making a refugee claim, the Board stated that such delay may indeed point to a lack of subjective fear of persecution. The Board stated that the importance one gives to the element of delay depends on the circumstances of each case, the more inexplicable the delay, the greater the probability that subjective fear is absent.
[6] The Board concluded that the circumstances of this case are such that the element of delay is not only relevant but assumes a decisive role.
[7] The Board noted that while the applicant was granted admission as a visitor for the first six months and may not have felt a pressing need to make a claim during this time, he was unable to explain his later delays. The Board found this delay to be all the more unexplainable given that according to the applicant's Personal Information Form (PIF), he spoke with a lawyer who advised him to make a refugee claim "a few months" after arriving in Canada :
"At one point, he said he was focused upon earning money. At another point, he said that the peace and tranquility he found in Canada had lulled his sense of danger. He had apparently lost all sense of time. Asked what would have happened if his illegal status had been discovered, the claimant had no reply to give. Asked if he had gone into the Internet to find out information on how to make a claim, he replied that he had not. All this is extremely surprising in that the claimant had four years study of law in Mexico and was on the verge of graduating with a degree in law. If any claimant was equipped to inform himself on the Canadian refugee system, this was the claimant. Yet he did nothing."
Application Record, Reasons, pp.12-13
[8] The Board pointed out that the applicant had no mental or personality problems and was in full command of his senses. The Board concluded that his inaction following his arrival in Canada can be interpreted to mean that he has no fear of serious harm in Mexico. Thus, it rejected the applicant's claim for its lack of subjective basis.
[9] The applicant argues that it was irrational for the Board to conclude that the only possible explanation for the applicant not making a refugee claim for 14 months after arrival in Canada was a lack of fear of serious harm in Mexico.
[10] The applicant submits that, while the applicant's PIF narrative may be
imprecise and misleading on the point, he first went to see a lawyer about his options some 8 or 9 months after arriving in Canada (as opposed to "a few months" indicated in his PIF) and as such, this aspect of the delay was much shorter than the Board indicated. Furthermore, the applicant agues that the Board totally ignored his explanation as to why he did nothing after consulting the first lawyer; his excuse was that he had no money to finance a refugee claim and was put off by the lawyer that he first met.
[11] Furthermore, the applicant argues that Board misconstrued the evidence, especially the psychological report. The applicant argues that while the psychological report found that the applicant was not currently suffering from any psychological problems, it alleged that he had suffered from clinically significant symptoms of depression and anxiety while living in Mexico.
[12] The applicant argues that the Board erred in concluding that all persons fleeing persecution or serious harm are always motivated to make a refugee claim at the first practicable opportunity.
[13] The applicant's most persuasive argument that delay is a significant factor to be considered in refugee claims but not decisive in itself and cannot be examined in isolation. The applicant submits that the Board did not assess his credibility nor the risk of harm to him in Mexico, and thus erred by basing its decision solely on the delay.
[14] Regarding the psychological report, the respondent notes that this report makes no findings as to the applicant's delay in claiming refugee status, nor does it reference any symptoms applicable to the applicant after his arrival in Canada that would render him incapable of submitting a refugee claim for 14 months.
[15] Referring to the applicant's affidavit filed in support the respondent argues that even at the time the applicant submitted his refugee claim he was not totally convinced he wanted to stay in Canada; that the impetus for his decision to "commit himself to staying into Canada" was not his fear of persecution in Mexico but rather the initiation of a serious relationship in Canada; had the applicant really feared for his security and his life as alleged, this concern should have taken precedence over other considerations.
[16] It is trite law, as the Board recognized, that in assessing a 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.
[18] Indeed, despite the applicant's alleged fear of imprisonment, torture and death in Mexico, his background (legal training for four years) and his admission that he consulted a lawyer who advised him to make a refugee claim between a few months and 8 months of his arrival in Canada contradicts his assertion. The applicant's explanations included that he "was focused on earning money", that the peace and tranquillity in Canada "lulled his sense of danger", that he did "not in fact enter into a serious relationship with anyone until about 18 months after [he] had arrived in Canada and until then [he] did not really feel a strong desire to commit [himself] to staying permanently in Canada". This so-called justification is certainly not persuasive.
[19] Regarding the psychological report, dated August 28, 2002, it is written that the applicant was "not currently suffering from any psychological problems"; an observation also noted by the Board. The report was based on a single interview held on August_22, 2002 and it asserts that he may have been suffering from clinically significant symptoms of depression and anxiety "while living in Mexico". It does not provide any medical explanation justifying the applicant's inaction during the 14 months.
[20] This Court accepts that it was not unreasonable for the Board to conclude, based on the evidence before it, that the applicant's inaction following his arrival in Canada demonstrated that he had no fear of serious harm in Mexico and thus "no subjective basis to his claim". Furthermore, the Board correctly analysed the jurisprudence pertaining to the delays.
[21] There is no doubt that the jurisprudence is clear; the delay of a refugee claim is related to the existence of a subjective fear of persecution, the essential element of a claim. The Board did not accept the applicant's evidence or his explanation to justify the delay and rejected them as unsatisfactory. There is no error of law.
[22] For these reasons, I hereby dismiss the application for judicial review.
JUDGE
OTTAWA, Ontario
November 12, 2003
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET : IMM-5667-02
STYLE OF CAUSE : ROBERTO PABLO HERNANDEZ ESPINOSA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 30, 2003
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: November 12, 2003
APPEARANCES:
Mr. John Guoba FOR THE APPLICANT
Ms. Andrea Hammell FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Guoba
2425 Eglinton Avenue East
Suite 211
Toronto, Ontario
M1K 5G8 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT