Date: 19991110
Docket: IMM-572-99
OTTAWA, ONTARIO, NOVEMBER 10, 1999
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
Between:
ARMANDO NEHEMIA OVILA ARCHILA
AURA ALICIA MORALES VARGAS
JULIO NEHEMIA OLIVA MORALES
JEISSI MARIELA OLIVA MORALES
Applicants
- and -
THE MINISTER
Respondent
O R D E R
The application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
Certified true translation
Peter Douglas
Date: 19991110
Docket: IMM-572-99
Between:
ARMANDO NEHEMIA OVILA ARCHILA
AURA ALICIA MORALES VARGAS
JULIO NEHEMIA OLIVA MORALES
JEISSI MARIELA OLIVA MORALES
Applicants
- and -
THE MINISTER
Respondent
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board, dated January 4, 1999, that the applicants are not Convention refugees.
[2] The applicants are citizens of Guatemala. They are a family: Armando Nehemia Oliva Archila, his wife and their two children. Mr. Archila alleges a well-founded fear of persecution because he fears the Guatemalan army, who he says accused him of being a guerrilla collaborator. His wife and children, as family members, base their claim on his.
[3] The panel found that after the applicants left, there was a change in circumstances in Guatemala leaving no reasonable chance they would be persecuted in the event of their return to Guatemala. This finding was mainly based on a "Response to Information Request" from the D.I.R.B. in Ottawa explaining how the various guerrilla groups have gradually evolved into a political party. The government tolerates their existence and allows them to meet officially.
[4] The panel also noted that the applicants did not claim refugee status during their stay in the United States, and that this behaviour was inconsistent with a subjective fear of persecution.
[5] The applicant argued that the panel erred in its assessment of the change in circumstances since the peace accords.
[6] I agree with the applicant that the documentary evidence paints a gloomy picture of the political situation in Guatemala since the 1996 peace accords. However, it does mention a change of attitude toward guerrilla groups, who need no longer fear being targeted, because they are officially recognized. Given that they are no longer in danger, it was not patently unreasonable for the Refugee Division to find that the applicant, who played only a minor role as a sympathizer, no longer has anything to fear.
[7] The at-risk groups are chiefly identified as human rights activists, journalists, students, trade unionists, judges and lawyers. The applicant does not belong to any of these at-risk groups. He expressed his fear solely as a guerrilla sympathizer, not as a human rights activist.
[8] With respect to the panel's particular reliance on one document, there is a presumption that the panel had regard to all the evidence.[1] In addition, the case law has established that among the documentary evidence, the panel may rely on that which is most consistent with reality. In A.V. v. Canada (M.C.I.),[2] Mr. Justice Noël said:
I also reject the applicants' argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did.[3]
[9] With respect to the delay in claiming status, the applicant submitted that it was a relevant but not deciding factor, to be viewed in the context of other relevant factors. The respondent, on the other hand, pointed out that the fact that the applicant stayed in Mexico for ten days and in the United States for two months without claiming refugee status showed that he did not act like a person with a subjective fear of persecution.
[10] In Ali v. Canada (M.C.I.),[4] I reviewed the case law on the effect of a delay in making a claim and held that the panel may take this factor into account in assessing a claimant's subjective fear:
As stated by the Board and by the respondent, the cases of Heer, Huerta, Ilie, Bogus, and Hue v. M.E.I. stand for the proposition that the Board is entitled to take into account delay in making a claim to refugee status. As submitted by the respondent, notwithstanding U.S. immigration law, it was open for the Board to make an inference about the applicant's state of mind from the fact that he did not make a refugee claim in the U.S. The U.S. law in question was not before the Board, and it is not necessarily the case that the applicants knew of, and considered this law at the relevant times. The inference that a person with a well-founded fear of persecution would have made a refugee claim at an earlier time once in the U.S. was reasonably open to the Board to draw.[5]
[11] Thus the panel rightly noted this fact, which in any event was of little consequence, as the applicant was considered credible.
[12] For these reasons, the application for judicial review is dismissed.
[13] Counsel for the applicant suggested that a question be certified regarding the appropriate standard of review in this matter. Given that the Supreme Court of Canada recently clearly set out the test for the standard of review in Pushpanathan v. Canada (Minister of Citizenship and Immigration)[6] and Baker v. Canada (Minister of Citizenship and Immigration),[7] in my view no question should be certified.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
November 10, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-572-99
STYLE OF CAUSE: ARMANDO NEHEMIA OVILA ARCHILA
AURA ALICIA MORALES VARGAS
JULIO NEHEMIA OLIVA MORALES
JEISSI MARIELA OLIVA MORALES
v.
THE MINISTER
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: NOVEMBER 4, 1999
REASONS FOR ORDER OF MADAM JUSTICE TREMBLAY-LAMER
DATED NOVEMBER 10, 1999
APPEARANCES:
WILLIAM SLOAN FOR THE APPLICANTS
SIMON RUEL FOR THE RESPONDENT
SOLICITORS OF RECORD:
WILLIAM SLOAN FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA