Date: 20061025
Docket: IMM-7097-05
Citation: 2006 FC 1264
Ottawa,
Ontario, the 25th
day of October 2006
Present:
The Honourable Mr. Justice de Montigny
BETWEEN:
RODOLFO MANUEL TORRES RICO
QUEVEDO
VIRIDIANA ROJAS BARRIOS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The principal
applicant, Rodolfo Manuel Torres Rico Quevedo, and his wife, Viridiana Rojas
Barrios, arrived in Montréal on February 21, 2005, and claimed refugee
protection a few days later, on February 24, 2005. They allege being persecuted
in Mexico, their country of origin, by
reason of their membership in a particular social group, namely, the family.
They also claim to be “persons in need of protection” within the meaning of subsection
97(1) of the Immigration and Refugee Protection Act (IRPA).
[2]
In a
decision dated November
1, 2005, the Refugee
Protection Division of the Immigration and Refugee Board (the Board) concluded
that the applicants were not Convention refugees or persons in need of
protection and accordingly rejected their claim. These reasons concern the
application for judicial review of this decision, which was presented by the
applicants.
FACTS ALLEGED BY THE APPLICANTS
[3]
The principal
applicant is a member of a family that has been in the coffee plantation
business for generations. On January 19, 2005, he was allegedly abducted by
three armed individuals who he claims are police officers, since the blanket
they used to cover him when he was abducted bore the initials of the judicial
police. The applicant also states that his kidnappers spoke in code and used a
car radio while driving, thus proving that they were police officers.
[4]
His kidnappers
allegedly assured him that nothing would happen to him if his family and spouse
co-operated and paid the ransom demanded. He was then locked up in a windowless
room for several days. The day after his abduction, two kidnappers wearing
hoods allegedly gave him a telephone so he could call his spouse and relay the
ransom demand to her. One week later, the ransom having apparently been paid, he
was blindfolded, taken to a deserted spot, and released.
[5]
The applicant
states that, the next day, he went to the office of the state prosecutor to file
a complaint against his kidnappers. When he mentioned having been abducted by
the judicial police, he was supposedly told that this was a very serious accusation
and that it would be better if he left or otherwise he would be arrested.
[6]
In the
ensuing days, the applicant and his spouse allegedly received threatening
telephone calls during which it was mentioned that the caller knew that the
applicant had tried to file a complaint. They then decided to flee and to take
refuge in another state in Mexico, but a few days later, the
principal applicant’s spouse allegedly received a call on her cellular telephone
telling them that she and her husband would be found and killed.
[7]
Fearing
for their lives, the applicants immediately applied for passports and fled for Canada as soon as they managed to put
together enough money to do so.
THE DECISION OF THE BOARD
[8]
The Board
rejected the claims for refugee protection presented by the applicants, for two
reasons. First of all, the Board was of the opinion that several aspects of the
applicants’ narrative were implausible and undermined their credibility. Secondly,
the Board concluded that the applicants had not succeeded in rebutting the
presumption that the Mexican authorities were able to ensure their protection.
[9]
In the
Board’s findings regarding the applicants’ credibility, the following
“implausibilities” were noted:
·
The kidnappers
supposedly kidnapped the applicant without masking their faces but subsequently
wore hoods to ask him to call his wife;
·
The
applicant stated having lost all track of time because he was detained in total
darkness, but in his Personal Information Form (PIF), the applicant writes that
his kidnappers gave him a telephone [translation] “the next morning”;
·
When asked
to explain why she had not contacted the police, the female applicant answered
that she feared the kidnappers. However, at that time, she did not yet know her
husband had been kidnapped;
·
When
pressed by the panel to provide information about the ransom to be paid to save
her husband, the female applicant first replied that she was to drop off 500,000
pesos in a service station washroom as soon as possible. She then revised her
story, saying that she had to deliver the money on a Wednesday evening, at 9:00 p.m. The panel found it to be implausible that
the kidnappers would demand the payment of such an amount without specifying
the exact moment when it was to be paid, considering the risk that any person
using the washroom could discover the money and leave with it;
·
Finally,
the Board noted that the applicant stated that he had received four calls from
his kidnappers after his release, whereas he only mentioned two calls in his
PIF.
[10]
On the
question of state protection, the Board briefly referred to the documentary
evidence in the National Documentation Package on Mexico, which describes the efforts
made by the government of Mexico to eliminate corruption, and concluded that “the
male claimant did not make every effort to obtain the state’s protection from
the police officers, if his story is true.” Relying on Kadenko v. Canada
(Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532
(F.C.A.), [1996] F.C.J. No. 1376 (QL), the Board ruled that a claimant has to
do more than simply show that he or she approached some members of the police
and that his or her efforts were unsuccessful, at least where a state’s institutions are democratic.
ISSUES
[11]
Essentially,
three issues are raised in this application for judicial review:
·
What
standard of review is applicable in this case?
·
Did the
Board err in concluding that the applicants are not credible?
·
Did the
Board err in concluding that the applicants had adequate state protection in Mexico?
ANALYSIS
[12]
It is trite
law that the standard of review applicable to issues of credibility is patent
unreasonableness. The reason is that the Board is generally in a better
position to assess and appreciate the credibility of testimony. This being said,
it must be acknowledged that the patent unreasonableness of a finding based on
the plausibility of a statement, and therefore on the logic itself of an
affirmation, will be easier to determine upon judicial review than the attitude
or behaviour a person may have had before the Board. In the first case, the
assessment will be more objective; in the second, it will be based on rather more
subjective facts which are not necessarily apparent on the face of the record.
The applicant’s burden of proof will be the same in both cases, but the
evidence may be simpler to identify in the first case. As the Federal Court of
Appeal wrote in Aguebor v. Minister of Employment and Immigration
(1993), 160 N.R. 315, [1993] F.C.J. No. 732 (QL):
There is no longer any doubt
that the Refugee Division, which is a specialized tribunal, has complete
jurisdiction to determine the plausibility of testimony: who is in a better
position than the Refugee Division to gauge the credibility of an account and
to draw the necessary inferences? As long as the inferences drawn by the
tribunal are not so unreasonable as to warrant our intervention, its findings
are not open to judicial review. In Giron, the Court merely observed
that in the area of plausibility, the unreasonableness of a decision may be
more palpable, and so more easily identifiable, since the account appears on
the face of the record. In our opinion, Giron in no way reduces the
burden that rests on an appellant, of showing that the inferences drawn by the
Refugee Division could not reasonably have been drawn. In this case, the
appellant has not discharged this burden.
[13]
With
regard to the standard of review applicable to the issue of whether or not the applicant
was able to claim state protection, I have already written in a previous
decision, Villasenor v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1080, [2006] F.C.J. No. 1359 (QL), that
I concur with the analysis of my colleague Madam Justice Tremblay-Lamer in Chaves
v. Canada (Minister of Citizenship and Immigration), 2005 FC 193,
[2005] F.C.J. No. 232 (QL), to the effect that the applicable standard of
review in such a case is reasonableness simpliciter. In fact, I note
that most of my colleagues have reached similar conclusions in a series of
recent decisions: for example, in Avila v. Canada (Minister of
Citizenship and Immigration), 2006 FC 359, [2006] F.C.J. No.
439 at paragraph 23 (F.C.) (QL); Fernandez v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1132, [2005] F.C.J. No. 1389 at
paragraphs 11 and 12 (F.C.) (QL); Monte Rey Nunez v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1661, (2005) 144 A.C.W.S.
(3d) 715, [2005] F.C.J. No. 2067 at paragraph 10 (F.C.) (QL).
[14]
What about
the findings of implausibility reached by the Board with regard to various
aspects of the testimony given by the applicants in this case? After carefully rereading
the transcript of the hearing held by the Board on October 3, 2005, as well as
the PIF filled out by the applicants, I concluded that the Board erred in its assessment
of the applicants’ credibility and drew inferences from their testimony which are
more akin to speculation than rational analysis.
[15]
When
assessing an applicant’s credibility, it must be presumed that allegations made
under oath are true, unless there are serious reasons which lead the
decision-maker to doubt their truthfulness: Maldonado v. Canada
(Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.),
[1979] F.C.J. No. 248 (QL); Miral v. Canada (Minister of
Citizenship and Immigration) (1999), 86 A.C.W.S.
(3d) 1117, [1999]
F.C.J. No. 254 (QL). It is therefore only with great caution that an administrative
tribunal may find a narrative to be implausible. It is only in the clearest of
cases—for example, when there are internal contradictions in the testimony of a
claimant—that such a finding may be made. This caution is particularly
important where a claimant comes from a country where the culture and customs
are different than ours, as several judges of this Court have taken pains to
underline. Mr. Justice Muldoon reiterated this case law when he wrote the
following at paragraph 7 of Valtchev v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 776, [2001] F.C.J. No. 1131 (QL):
A tribunal may make adverse
findings of credibility based on the implausibility of an applicant’s story
provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must be
careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant’s milieu . . . .
See also to the same effect: Bains
v. Canada (Minister of Employment and
Immigration)
(1993), 63 F.T.R. 312 (F.C.), [1993] F.C.J. No. 497 (QL); Miral v.
Canada (Minister of Citizenship and
Immigration),
supra; Bastos v. Canada (Minister of Citizenship and
Immigration),2001
FCT 662, [2001] F.C.J. No. 992 (QL); Sun v. Canada (Minister of Employment and
Immigration)
(1993), 24 Imm. L.R. (2d) 226 (F.C.), [1993] F.C.J. No. 812 (QL).
[16]
Considering
these principles, I do not find the applicants’ narrative to be implausible. It
may well be that the facts mentioned at the hearing and in their PIF might not
on some points correspond to the idea one may have of a kidnapping and a ransom
demand. However, account must be taken of the erratic nature this abduction may
have had and the possible lack of experience of the kidnappers, as well as of a
possibly different modus operandi in this region of Mexico. In any event, I saw nothing
in the applicants’ allegations which could be termed implausible and which would
undermine their credibility to such an extent that their claim must be
rejected.
[17]
For
example, let us consider the apparent contradiction between the fact that the kidnappers
did not cover their faces at the time of the abduction and then masked
themselves when they entered the room where the applicant was being held. The
Board ruled that such behaviour was implausible and undermined the applicant’s
credibility. However, this is not the type of contradiction which necessarily
shows an intent to mislead the panel. It is easy to conceive that the persons
who kidnapped him were not the same as those who visited him during his detention,
or that the kidnappers did not think it useful to wear masks at the time of the
abduction because the applicant would only see them for several seconds and
they would attract less attention this way. It is even possible that the
kidnappers simply made a mistake by not wearing masks when they abducted the
applicant. In fact, all kinds of possibilities may be imagined to explain this
apparent contradiction.
[18]
The
applicant cannot be required to explain the conduct of his kidnappers. To the
extent that his narrative does not contain any objectively verifiable
inconsistencies or internal contradictions which cannot be explained in any
way, one must refrain from concluding that an applicant has no credibility by
reason of implausibility.
[19]
It seems
to me that the same thing may be said about all the other “implausibilities” noted
by the Board in its decision. The applicant was criticized for having spoken
about the [translation] “next day” and “morning” in his narrative,
even though he admitted having lost all track of time. There is nothing unusual
about that. As he stated in answer to a question put to him, he relied on his
biological clock and on the fact that he thought he slept at night to keep
track of time. He could therefore write in good faith in his PIF that he had heard
a conversation [translation] “one day in the morning” on
the basis of the fact that he had just woken up.
[20]
It is true
that in other parts of his narrative the applicant referred to a specific
number of days (the next day, one week later). Likewise, at the hearing, he was
asked after approximately how much time he was given a telephone, to which he
answered [translation] “I don’t know, four (4)
days. It’s just that I lost track of time, because I was locked up”, Tribunal Record,
page 13. The applicant obviously did not know for precisely how long he had
been detained, and his references to time could only be approximate. In fact,
he acknowledged this without any hesitation, as is shown in the following short
excerpt of an exchange between a panel member and the applicant:
[translation]
Q.
Approximately
how long after your arrival were you given a telephone?
A.
I don’t
know, four (4) days. It’s
just that I lost track of time, because I was locked up
-
Hmm, hmm.
That’s precisely what I’m wondering about—at paragraph 12 of your Personal
Information Form, you state:
“The next day,
the two (2) kidnappers came into the room wearing hoods and holding a pistol; they
said they would give me a telephone”.
Q.
How did
you know it was the next day—you were in a windowless room, there was no clock,
and your hands were tied?
A.
Because
of the notion of time, you very well know that no more than one day went by.
-
Hmm, hmm.
BY THE PRESIDING
MEMBER (to Subject
No. 1)
- Sir,
you told us I can’t say how much time they gave, after how much time I was
there when they gave me a telephone, because I lost track of time. And all of a
sudden you just got it back. In fact, you got it back very easily in your narrative.
A. Yes,
but on that day they sat me down. The day they put me in the room, you don’t
count the hours, but you know that about one day went by . . .
BY THE REFUGEE
PROTECTION OFFICER
(to Subject No. 1)
Q.
No, but
did you just testify . . . ?
A. . . . logically
Q.
How?
A. Logically.
-
O.K.
Q.
Did you
not just testify that it was four (4) days later?
A. . . . No, I meant to
say that days went by but I don’t know how many days. But in my narrative I put
that it was the next day, but maybe it wasn’t the next day, but it could have
been the day after, precisely because of the sense of time, I may have made a
mistake.
BY THE PRESIDING
MEMBER (to Subject
No. 1)
Q.
And this
morning it was how much time?
A. I couldn’t tell you
because I didn’t have a watch, no calendar, I couldn’t see the light.
-
So
therefore you confirm your first version, to the effect you lost track of time.
A. Yes.
BY THE PRESIDING
MEMBER (to
the Refugee Protection Officer)
Q. So
Mr. Colin, you say that he said four (4) days later?
A. That’s
what I understood from the testimony he just gave.
BY THE PRESIDING
MEMBER (to Subject
No. 1)
Q.
Is that
what you said, sir?
A. Yes,
that is what I told the officer. But precisely because I had lost track of
time, it could have been one (1) day or two (2) days.
-
Hmm, hmm. But
your sense of time seems to have come back to you when you wrote your narrative.
A. I
wrote that because maybe one (1) or two (2) days went by, but it would have
been better to say that I didn’t know because I didn’t know how many days were
involved.
- And
so this morning your version is different, naturally, from what you wrote in
your narrative.
A. . .
. Well, in the narrative, I maybe put, yes, it could have been one (1) day, but
I made a mistake.
[21]
What I
understand from this exchange is that, as the days went by, the applicant could
only have a vague notion of time and that his references to time and duration
were only approximations. He specifically admitted it before the Board, and his
explanations do not seem to me to be completely implausible. After all, it is
not a rare event that a person gives details he or she cannot reasonably provide,
not for the purposes of supporting the narrative, but because that person
simply believes he or she must be as specific as possible for fear of not being
believed.
[22]
The Board
also dealt at length with the manner in which the ransom was supposed to be paid
and criticized the female applicant for having contradicted herself by stating
first of all that the ransom had to be paid as soon as possible, without setting
a specific time, and then stating that she paid the ransom Wednesday evening at
9:00 p.m. With respect, I do not see any contradiction in this excerpt from her
testimony. Far from tailoring or changing her testimony, the female applicant
actually answered two questions: when she was supposed to pay the ransom, and
when she actually did so. I do not see any inkling of a contradiction.
[23]
With
regard to the fact that it may seem surprising that the kidnappers did not set
a specific time to pay the ransom, it is not up to the Board to speculate on their
methods. It is possible that the place where the money was to be paid, a
washroom in a service station, was a quiet place and that the garage operator
who kept the key to the washroom was an accomplice of the kidnappers. Once
again, it was not up to the Board to speculate on the methods generally used by
kidnappers in similar circumstances, especially considering that we know
nothing about local practices in this region of Mexico.
[24]
It does
not seem to me to be necessary to examine all the other “implausibilities”
noted by the Board in its decision. It seems to me that they all have the same
defect which I identify in the analysis I have just made. The Board concluded
that the applicants were not credible on the basis of minor contradictions (whether
the female applicant called the hospital or went there, whether the principal applicant
received three or four threatening calls) and non-existent ones (the female applicant
could in fact believe that her husband had been kidnapped even before the
ransom demand was made, considering the prevalence of these events in Mexico).
[25]
The last
remaining question is the Board’s conclusion concerning the state protection available
to the applicants. They alleged that the Board read the documentary evidence
superficially and ignored recent articles confirming that corruption is
widespread in the Mexican police and that police officers are sometimes involved
in kidnappings and demands for ransom. The applicants also submitted that the
Board examined the situation in Mexico from a narrow, legalistic point of view,
gave undue significance to government attempts to end abuses of police power,
and failed to consider the tangible results of these attempts.
[26]
I agree
with my colleague Mr. Justice Martineau when he stated that the Board must take
into consideration an applicant’s personal situation, the specific risk
alleged, the identity of the persecutor, and the situation prevailing in the
country or region where the threats were made. In other words, the Board must
conduct a detailed analysis rather than make a glib statement as to whether a
given state can or cannot provide protection. In this respect, the Board must
not be satisfied with good intentions: the person claiming to fear for his or
her life or physical integrity must be able to count on tangible results. I
therefore entirely agree with what Martineau J. wrote at paragraph 29 of Avila v. Canada (Minister of Citizenship and Immigration), supra:
Accordingly, when the
government is not the persecuting agent, and even when it is a democratic
state, it is still open to an applicant to adduce evidence showing clearly and
convincingly that it is unable or does not really wish to protect its nationals
in certain types of situation: see Annan v. Canada (Minister of Citizenship
and Immigration, [1995] 3 F.C. 25 (F.C.T.D.); Cuffy v. Canada (Minister
of Citizenship and Immigration), [1996] F.C.J. No. 1316 (F.C.T.D.)
(QL); Elcock v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1438 (F.C.T.D.) (QL); M.D.H.D. v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 446 (F.C.T.D.) (QL).
It should be borne in mind that most countries might be prepared to try to
provide protection, although an objective assessment could establish that they
are not in fact able to do so in practice. Further, the fact that the
applicant must place his life at risk in seeking ineffective state protection,
simply in order to establish such ineffectiveness, seems to be contrary to the
purpose of international protection (Ward, supra, at paragraph 48).
[27]
In the
case at bar, I am of the opinion the Board did not sufficiently take into
consideration the fact that the alleged persecutors were police officers. Not
only did their colleagues discourage the applicants from laying a complaint,
but they even tipped off the alleged kidnappers, who lost no time making death
threats against the applicants. In these circumstances, it was not unreasonable
to stop seeking state protection and flee the country as soon as possible. In
fact, it would be illogical to do otherwise, as Mr. Justice La Forest stated in
Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689, at page 724:
. . . [I]t would seem to defeat the purpose of
international protection if a claimant would be required to risk his or her
life seeking ineffective protection of a state, merely to demonstrate that
ineffectiveness.
See also: Chaves v.
Canada (Minister of Citizenship and
Immigration),
supra; and Espinosa v. Canada (Minister of Citizenship and Immigration), 2005 FC 1393, [2005] F.C.J.
No. 1737 (QL).
[28]
For all
these reasons, I am therefore of the opinion that the application for judicial
review must be allowed and that the case must be referred back to a differently
constituted panel for redetermination of the applicants’ claim in light of this
order. Counsel did not suggest any serious question of general importance for
certification.
JUDGMENT
THE COURT ALLOWS the application for judicial
review, sets aside the Board’s decision dated November 1, 2005, and refers the applicants’ case
back to a differently constituted panel for rehearing and redetermination. No
serious question of general importance is certified by the Court.
“Yves de Montigny”
Certified true
translation
Michael Palles
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