Date: 20061026
Docket: IMM-1499-06
Citation: 2006 FC 1272
Ottawa, Ontario, October 26, 2006
Present: The Honourable Mr. Justice
Shore
BETWEEN:
OSCAR
MARQUEZ HERRERA
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
[23]
A panel hearing a claim for
refugee status must be allowed reasonable latitude, consistent with its
statutory mandate, in questioning a claimant. Extensive and energetic
questioning alone will not, in itself, give rise to a reasonable apprehension
of bias: Osorio v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 1792, 2005 FC 1459; XXXX v. Canada
(Minister of Citizenship and Immigration), [2005]
F.C.J. No. 1831, 2005 FC 1499.
(Bankole v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1581, [2005] F.C.J. No. 1942
(QL), as stated by Mr. Justice
Richard Mosley).
NATURE OF THE PROCEEDING
[2]
This is an application for judicial review of a
decision by the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (panel) dated February 23, 2006, that the applicant is
neither a “Convention refugee” nor a “person in need of protection” under
sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c.-27 (the Act).
[3]
The applicant, Mr. Marquez Herrera,
is a citizen of Mexico. According to the Personal Information Form submitted in
support of his refugee claim, he was born on March 14, 1976. He is
single and his entire family lives in Mexico.
[4]
Mr. Herrera states that, as a homosexual,
he was a victim of physical and mental abuse on numerous occasions, both in his
private life and at work.
[5]
According to Mr. Herrera, seven students
assaulted him on September 19, 1990. He sustained second-degree burns
to his neck.
[6]
In February 1996, Mr. Herrera met Ricardo
Perez Berrera, a colleague at work, and began a relationship with him. In July
1997, rumours about his relationship with Mr. Berrera circulated, and the
work environment became more hostile and intolerant towards him. The manager
threatened to dismiss him and his partner. They were subsequently transferred
to other departments. Mr. Herrera was dismissed in May 2000. Four months
later, his partner met the same fate.
[7]
On September 15, 2000, Mr. Herrera was forced
into a police van as he was leaving a gay bar. The police officers struck him
in the face. He suffered contusions and underwent rhinoplasty. However, he did
not inform the authorities because he did not know the identity of his
assailants. Mr. Herrera and Mr. Berrera separated after this
incident.
[8]
In October 2001, Mr. Herrera began working
at the Banca Serfin, S.A. At a party in February 2002, he was badly beaten
by other employees. He was subsequently dismissed again.
[9]
On January 4, 2003, Mr. Herrera began a
relationship with Alejandro Lara Oropeza, who owned an aesthetics salon where
Mr. Herrera went to have his hair cut. As he was leaving the salon on
February 1, 2003, Mr. Oropeza invited Mr. Herrera to his
home for dinner. Upon arriving at Mr. Oropeza’s apartment, they discovered
that it had been robbed. According to Mr. Herrera, Mr. Oropeza and
his sister reported the robbery to the police, because they suspected their
neighbours of this crime; the neighbours had previously threatened
Mr. Oropeza about his sexual orientation. Mr. Herrera recognized one
of the suspects in this incident, Victor Portilla Rea, who was a
police officer himself. Mr. Herrera was present when the report was made.
[10]
Finally, when Mr. Herrera was at
Mr. Oropeza’s aesthetics and hairdressing salon on March 3, 2003, six
individuals entered the establishment, destroyed the furniture, and took money
and valuables from the salon. Mr. Herrera knew three of the six
individuals (Jorge Portilla Rea, Osvaldo Argeta and Sergio Trujano).
He and his friend were beaten and threatened with death. Although
Mr. Herrera claims this incident was the subject of a police
investigation, he did not report it to the police for fear that the assailants
would retaliate.
[11]
On March 28, 2003, passport in hand,
Mr. Herrera left Mexico for Canada via the United States. On
April 25, 2006, he claimed refugee protection based on a fear of
persecution by the Portillo Rea family in Mexico by reason of his
homosexuality.
DISPUTED CLAIM
[12]
The panel determined that Mr. Herrera’s subjective
fear of persecution should he return to his native country was not credible,
and rejected his claim.
ANALYSIS
[13]
The Court reviewed the written and oral
representations of the parties, and heard the submissions of counsel.
[14]
Mr. Herrera challenges the panel’s adverse
findings of credibility, and submits that the panel erred, essentially on three
issues: (1) in assessing the applicant’s evidence, (2) in analyzing
the possibility of an internal flight alternative, and (3) by breaching the
rules of natural justice.
[15]
The standard of review applicable to the
panel’s adverse findings of credibility is patent unreasonableness. The panel
has a well-established expertise in determining questions of fact, and
particularly in evaluating a refugee claimant’s credibility and subjective fear
of persecution. The Court must accord considerable deference, because it is for
the panel to assess the claimant’s testimony and to evaluate whether his
allegations are credible. If the panel’s findings are reasonable, no intervention
is warranted. However, its decision must be supported by the evidence; it must
not be made capriciously, based on an erroneous finding of fact or without
regard to the evidence (Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration, [1998] F.C.J. No. 1425 (QL), at
paragraph 14; Mugeserav v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39
(QL), at paragraph 38; Aguebor v. Canada (Minister of
Citizenship and Immigration), [1993] F.C.J. No. 732 (QL), at
paragraph 4).
[16]
After reviewing all the evidence in this
matter, including the transcript of the hearing, the Court is not persuaded
that the panel’s decision was patently unreasonable, given that it was based on
significant contradictions and improbabilities in Mr. Herrera’s written
and testimonial evidence that were directly linked to the crux of the claim:
(a) Mr. Herrera’s evidence
regarding the identity of the people in his country whom he claimed to fear was
quite vague. At the hearing, the applicant stated that he feared the police and
his assailants. He subsequently withdrew the reference to the police and added
the Portillo Rea family, as well as someone named Edgar, and Sergio Trujillano.
It was only during the hearing that the panel learned that one member of the
Portillo Rea family is also employed by the judicial police. However,
Mr. Herrera’s declaration at the point of entry did not emphasize that he
feared the police, but rather the current level of crime in his country.
(b) Mr. Herrera and his
friend, Mr. Berrera, separated after the incident of
September 15, 2000. However, upon their arrival in Canada, they both
claimed refugee protection the same day, although they arrived on different
flights.
(c) With regard to the incident of
March 3, 2003, Mr. Herrera was able to file only medical documents
(he suffered a broken foot and had a chest X-ray taken). On that occasion,
Mr. Oropeza was hospitalized and lapsed into a coma. According to the
documentary evidence, when people are victims of crimes, the doctors must make
a report to the police; it is therefore surprising that the applicant did not
file documents from the Mexican authorities about this incident.
Mr. Herrera stated that he is still in touch with Mr. Oropeza’s sister,
and she sent him only the medical report.
(d) With regard to the incident that occurred at
Mr. Oropeza’s apartment on February 1 , 2003, there was a
police investigation. It is strange that in the case of an offence against
property, Mr. Herrera was present when the report was made to the
authorities, whereas following the unfortunate events allegedly committed
against persons, including a friend of the applicant who was reportedly in a
coma, Mr. Herrera did not file a complaint with the police. It is very odd
that Mr. Herrera was unable to file a copy of the police report of such a
serious incident.
(e) In addition, Mr. Herrera testified that he filed a
complaint about his dismissal with the relevant authorities, and obtained
satisfactory compensation. Thus it appears that when the applicant made the
effort to complain, he obtained satisfaction.
[17]
It is not the role of the Court to re-assess
the evidence or to substitute itself for the panel. A judicial review is not an
appeal, and even where the decision is referred for a rehearing by a panel
composed of different members, the RPD is an independent tribunal that
evaluates and makes decisions as to credibility based on the evidence before
it. The jurisdiction of a specialized first level tribunal must be respected.
The Court can intervene only where the tribunal has acted beyond its
jurisdiction in a capricious, malicious or inherently illogical manner, which
is not the case here.
[18]
Despite finding that Mr. Herrera was not
credible, the panel appropriately reviewed the applicant’s documentary
evidence. On that issue, in Sheikh v. Canada (Minister of Employment
and Immigration), [1990] 3 F.C. 238, [1990] F.C.J. No. 604 (QL), the
Federal Court of Appeal ruled that a finding that the claimant’s testimony is
not credible may extend to all evidence emanating from his testimony. Although
decided under the former Immigration Act, that decision is still valid.
In fact, under the current Act, “A tribunal’s perception that a claimant is not
credible on an important element of their claim can amount to a
finding that there is no credible evidence to support the claim” (Chavez v.
Canada (Minister of Citizenship and Immigration), 2005 FC 962,
[2005] F.C.J. No. 1211 (QL), at paragraph 7; Touré v.
Canada (Minister of Citizenship and Immigration), 2005 FC 964,
[2005] F.C.J. No. 1213 (QL), at paragraph 5).
[19]
In this case, contrary to Mr. Herrera’s
assertions, the panel reasonably determined that an internal flight alternative
existed in Mexico. According to the documentary evidence, there are places in
Mexico, such as Mexico City, that are open to homosexuality, but the applicant
stated that he had problems in that city. Asked whether he could not live
elsewhere in the country, such as Cancun, the applicant maintained he could
not, because the Portillo brothers would find him anywhere in the country. It
was reasonable for the panel to doubt this statement, given that the country
has a population of over 100 million, and that the applicant had not attempted
to live in any other city to try to ease the problems he claims to have
experienced.
[20]
The panel could reasonably draw a negative
inference from Mr. Herrera’s failure to seek protection in Mexico after the
incident of March 3, 2003, especially considering that on February 1,
2003, he was present when a complaint was made to the authorities, and that he
had obtained satisfaction from the authorities after being dismissed from his
employment.
[21]
Mr. Herrera arrived in Canada on March 28,
2003, fearing for his life and aware that Canada offered refugee protection.
However, he did not request refugee protection until a month later, on April
23, 2003. He gave no valid explanation for the delay (Riadinskaia v.
Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 30
(QL).
[22]
The Court believes that the panel properly determined that
Mr. Herrera’s behaviour failed to establish a subjective fear and seriously
called into question his credibility and that of his allegations. With regard
to Mr. Herrera’s assertions that the panel erred in not giving any probative
value to the documentary evidence, the Federal Court has already decided that a
finding of a lack of subjective fear in and of itself warrants dismissal
of the refugee claim, because both elements of the alleged fear of persecution,
subjective and objective, must be met in order to fall within the definitions
of “refugee” and “person in need of protection”
(Kamana v. Canada (Minister of Citizenship
and Immigration), [1999] F.C.J. No. 1695 (QL); Fernando v. Canada
(Minister of Citizenship and Immigration), 2001 FCT No. 759, [2001]
F.C.J. No. 1129 (QL), at paragraph 3).
[23]
The Court is also of the view that there has
been no breach of the principles of natural justice or procedural fairness in
this case. In Thamotharem v. Canada (Minister of Employment and
Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL) at paragraphs 91 and 92,
Mr. Justice Edmond P. Blanchard held that the order of
questioning at a hearing before the panel does not in itself result in a breach
of the principles of natural justice, because there is no inherent right to an
examination-in-chief at a refugee protection hearing. It is not possible at the
outset to state that the panel is required by the rules of natural justice to
allow counsel for an applicant to be the first to question his client and
witnesses, if any. Moreover, Blanchard J. states that Guideline 7 in
and of itself does not affect a panel member’s role in refugee determination
hearings. The RPD is an administrative tribunal with investigatory powers, and
thus the panel member can take measures that are useful in the conduct of
refugee proceedings.
[24]
With regard to the discretion of the member
hearing the refugee claim, in Thamotharem, above, Blanchard J.
determined that where the member feels bound by Guideline 7 and thus prevented
from proceeding in the most appropriate manner to achieve a just and equitable
hearing, his discretion has been fettered. Everything is a question of
circumstances and how the member perceives and interprets Guideline 7. However,
it must be noted that this decision is under appeal to the Federal Court of
Appeal. Mr. Justice Mosley arrived at a quite a different conclusion on the
issue of a member’s discretion in Benitez v. Canada (Minister of
Employment and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 (QL) at
paragraph 171:
There is considerably more evidence before me as to the
manner in which Guideline 7 is actually being applied by RPD members than there
was before my colleague in Thamotharem. On that evidence in these
proceedings, I am not satisfied that the applicants have demonstrated that the
discretion of RPD members to determine the procedure to be followed in the
refugee proceedings before them has been fettered by the implementation of
Guideline 7.
[25]
There is no evidence in this case to suggest
that the panel’s discretion was fettered. The member explained to Mr. Herrera
why he exercised his discretion to question him first, instead of his own
counsel. It is evident from the panel’s decision that proceeding in this manner
did not prevent Mr. Herrera from presenting his case, since he was able to
adduce his evidence and testify as to the facts of his refugee claim. The Court
notes that the panel clearly understood Mr. Herrera’s account. Therefore
it cannot be said that the order of questioning in this case gave rise to a
denial of natural justice.
[26]
In short, the panel’s findings of fact are reasonable.
Moreover, the panel did not breach the principles of natural justice.
Accordingly, the intervention of this Court is not warranted.
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