Geron v. Canada (Minister of Citizenship and Immigration)

Between
Fernando Bilog Geron, Afroniana Geron and Fernando Jr.
Geron, applicants, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 1640
2002 FCT 1204
Docket IMM-4951-01

Federal Court of Canada - Trial Division
Toronto, Ontario
Blanchard J.

Heard: August 28, 2002.
Judgment: November 22, 2002.
(26 paras.)

   Aliens and Immigration — Admission, refugees — Credible basis for claim — Grounds, well-founded fear of persecution — Appeals or judicial review, whether claim reasonable — Evidence.

   Application by Geron for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board that found him and his family not to be Convention refugees.  Geron and his family were citizens of the Philippines.  They claimed to have a well-founded fear of persecution on the grounds of their political opinion and their membership in a particular social group, which was their family.  In 1979 Geron joined the Philippines army.  He was involved in combat against Communist rebels.  He left the Philippines and sought refugee status after the rebels visited his sister's home and threatened to kill any relatives and their families who had been in the military.  He left the Philippines in March 1998 and arrived in Canada on June 18, 1998.  They initially entered Canada with valid visitor visas.  They applied for refugee status in January 2000 after they were unable to obtain working permits. The Board found Geron and his family not to be credible.  This was based on omissions, inconsistencies and contradictions in their evidence.  The Board also found their testimony to be evasive and vague.  The Board found that the lengthy delay between their arrival in Canada and the date they made their refugee claims impugned their subjective fear of persecution.

   HELD:  Application dismissed.  The Board's conclusions about Geron's plausibility, credibility and their lack of a subjective fear of persecution were reasonably open to it. This was based on the evidence.  The Board provided detailed reasons in support of its conclusions.

Statutes, Regulations and Rules Cited:

Counsel:

REASONS FOR ORDER AND ORDER

1      BLANCHARD J.:—  This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated September 10, 2001, in which the applicants, Fernando Bilog Geron, Afroniana Geron and Fernando Geron Jr., were found not to be Convention refugees.

FACTS

2      The applicants are citizens of the Philippines and claim to have a well-founded fear of persecution on the grounds of their political opinion and membership in a particular social group namely, the family. The female, Afroniana Geron, and the minor applicant, Fernando Geron Jr., based their claim on that of the male applicant, Fernando Bilog Geron, (the "applicant").

3      In October 1979, the applicant joined the Philippines Army, and after his initial training was stationed at Hulo Solo, Mindanao, where the Philippines military was fighting Muslim rebels. In 1982, he was transferred to Kalinga Apayaw where the military was fighting the Communist New People's Army ("NPA"). In 1985, he had become a detachment commander in charge of 12 people.

4      The female applicant went to Italy in 1978 to work as a nanny. In 1987, she married the applicant and on December 16, 1987, the minor applicant was born in Italy.

5      In his Personal Information Form (PIF) narrative, the applicant wrote that he left the Philippines Army in 1998 and joined his wife in Italy. There he worked as a driver from March 1998 through June of 1998.

6      The applicant claims that in 1998 he learnt that the NPA had visited his sister's home in his hometown and threatened to kill any person who was in, or had been in the military, as well as their family members. This news allegedly caused the applicant to seek refugee status in Canada.

7      On June 18, 1998, the applicants arrived in Canada on valid visitor visas. The alleged purpose of their trip was to visit the female applicant's sister who had had a stroke in Canada. On October 31, 1998, the female applicant's sister passed away and the applicants decided to remain in Canada to care for the female applicant's mother.

8      The applicants' visitor visas originally issued for six months were extended for one month.

9      The applicants had temporary residence permits in Italy which were valid until December 3, 1998 for the applicant, and until January 3, 2000 for the female applicant.

10      The applicant claims to have contacted an immigration consultant in order to obtain working permits for Canada. When that fell through, they claimed refugee status on January 19, 2000. Their hearing took place on August 27, 2001.

THE BOARD'S DECISION

11      The Board found the applicants to be not credible based on omissions, inconsistencies and contradictions in their evidence. The Board also found the applicants' testimony to be evasive and their answers vague.

12      The Board also found that the lengthy delay between the date the applicants arrived in Canada and the date they made their claims impugned their subjective fear of persecution. A negative inference was also drawn regarding the applicants' departure from, and failure to return to, Italy where they had valid residence permits. Those permits expired during the time that the applicants remained in Canada illegally.

13      The Board found that there was no credible or trustworthy evidence upon which it could make a determination that the applicants are Convention refugees.

ISSUES

14      The applicants raise the following issues in this application:

(1)              Did the Board err in failing to consider that the applicants could have a well-founded fear of persecution upon their return to the Philippines by reason of the applicant having served in the Philippines Army and having fought the NPA?              

(2)              Did the Board err in impugning the applicants' subjective fear of persecution on the basis that they failed to claim refugee status in England and Italy and delayed in making a claim on their arrival in Canada?      

(3)              Did the Board err in law in finding that the minor applicant was excluded under Article 1E? 

ANALYSIS

15      The applicant contends that as a former member of the Philippines Army fighting against the NPA, he belongs to a group against whom it is likely that reprehensible acts would be committed. It is also submitted that the female applicant and minor applicant, as family members, also belong to such a group. The applicants submit that the Board failed to analyse the applicants' fear based on the evidence and in so doing erred in law.

16      I do not accept the applicants' contention. It is settled law that, in order to be a Convention refugee, a claimant must establish a well-founded fear of persecution which requires both a subjective and an objective basis for their fear. [Ward v. Canada, [1993] 2 S.C.R. 689 at p. 723]. The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself is sufficient to warrant dismissal of the claim.

17      The Board found that the applicants did not have a subjective fear of persecution based on their failure to claim refugee status in Italy and that they waited until over 18 months after their arrival in Canada to make their claims. On the evidence, I find the Board's conclusion to be reasonably open to it.

18      The Board provided detailed reasons in support of its conclusion that the applicants lacked credibility. These reasons included a number of contradictions and implausibilities regarding the 1998 incident in the Philippines which was central to and formed the basis of their claim. The Board is recognized, as a specialized tribunal, as having complete jurisdiction to make plausibility and credibility findings. Unless such findings are patently unreasonable, they are not open to judicial review. [Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315].

19      I am of the view that the Board's plausibility and credibility findings were reasonably open to it. The applicants' arguments afford no legal basis upon which this Court could properly intervene.

20      Having determined that there was no credible or trustworthy evidence before it to support the applicants' subjective fear, the Board did not err in failing to consider whether such fear could be well-founded in the objective sense. Both components of the test are required and it was open to the Board to dismiss the claim on this basis.

21      The applicant also argues that the Board erred by impugning the female applicant's credibility for failing to claim refugee status in England. The applicants argue that, at the time the female applicant lived in England from 1984 to 1987, there was no reason for her to claim refugee status. The fear claimed by the female applicant only arose after she left England.

22      The respondent concedes that the Board erred by impugning the female applicant's credibility for failing to claim in England. The respondent further contends that the applicants' failure to claim in Italy and the delay to claim in Canada for over 18 months were sufficient factors to support the Board's conclusion of no subjective fear. Consequently, the respondent argues that the error is of no consequence to this decision. I agree with the respondent.

23      The applicants also argue that the Board's finding that the minor applicant was excluded under Article 1E is clearly perverse and capricious as there is no evidence at all to support the finding.

24      Even if I were to accept the applicants' contention that the minor applicant was erroneously excluded, his claim will still fail. The minor applicant based his claim to Convention refugee status on the claim of his father. As it was determined there was no credible or trustworthy evidence on which the father's claim could have succeeded, there was no evidence on which the minor applicant's claim could have succeeded. Consequently, the Board did not err in determining the minor applicant not to be a Convention refugee.

25      For the above reasons this application for judicial review will be dismissed.

26      The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.

ORDER

         THIS COURT ORDERS:                                                                                

1.            The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board is dismissed.                                                    

BLANCHARD J.