Date:
20101202
Docket: IMM-2084-10
[Unrevised certified
translation] Citation: 2010 FC 1219
Ottawa, Ontario, December 2,
2010
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
SOFIA RAMIREZ ONOFRE
JOSE MANUEL RAMOS ROMERO
DIEGO OMAR RAMOS RAMIREZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review by the principal applicant, Sofia Ramirez
Onofre (the female applicant), her spouse, Jose Manuel Ramos Romero (the male
applicant), and their minor son, Diego Omar Ramos Ramirez, under subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated March 24, 2010, rejecting their claim for refugee protection.
Background
[2]
The
applicants’ claim for refugee protection is based on the following allegations:
the female applicant worked for the company Cablecom from December 2005, first
as a journalist, and later as an editor. In March 2007, a work colleague whom
she had befriended was dismissed without cause. On April 13, 2007, the father
of this colleague, who was the owner of the newspaper Imagen, seeking to avenge
his daughter’s dismissal, published an article revealing the illegal activities
of two of Cablecom’s managers, specifically activities linked to drug
trafficking and the production of pornographic material.
[3]
A few days
later, when she had stayed at the office to work late, the female applicant stumbled
upon the same two managers in possession of packages containing drugs. One of
the managers told her to leave and warned her not to say anything. The day
after this incident, a second article about Cablecom and the illegal activities
of its directors was published in the Imagen newspaper.
[4]
The female
applicant maintains that the managers immediately suspected her of having
leaked information to the journalists who had written the incriminating articles.
The female applicant was dismissed on April 30, 2007. On May 10, 2007, she
received threats from one of Cablecom’s managers. She filed a complaint with
the public prosecutor, but in spite of her requests for follow-up, the
investigation went nowhere.
[5]
In February
2008, the female applicant was informed that a new article incriminating the
Cablecom managers was about to be published. On February 14, 2008, the male
applicant was accosted and beaten when he was leaving work by two individuals in
the pay of Cablecom who told him to give his spouse the message to stop
disclosing information. He was hospitalized for two days after the assault and
later filed a complaint with the public prosecutor. In spite of the applicants’
follow-up, their complaint was never acted upon. On March 20, 2008, the
applicants consulted a lawyer who confirmed to them that no state protection
was available to people in situations such as theirs.
[6]
On March
30, 2008, the female applicant was the subject of an attempted kidnapping by
the Cablecom managers but managed to escape. After this incident, the
applicants left their home and went to stay with a friend who lived in a town
that was two hours away by car from their residence. On May 10, 2008, the
female applicant received death threats over the telephone. The applicants
subsequently decided to leave Mexico. They arrived in Canada on June 1, 2008, and claimed
refugee protection four days later.
Impugned decision
[7]
The Board
found that the applicants were neither refugees nor persons in need of protection.
The Board determined that the alleged behaviour of the applicants was not
compatible with that of people fearing for their lives. It based its finding on
three main points:
- The fact that the applicants
remained at their residence until March 30, 2008, in spite of a series of
related assaults;
- The fact that the applicants
did not leave Mexico until June 1, 2008, even though they had received their
child’s passport on April 17, 2008;
- The fact that the applicants
waited a few days after arriving in Canada
before claiming refugee protection.
Issues
[8]
The
present application for judicial review raises the following two issues:
a. Did the Board assess the
evidence in an unreasonable manner by failing to consider the evidence submitted
by the applicants?
b. Was the Board unreasonable in
its assessment of the applicants’ credibility?
Analysis
Standard of review
It is settled law that findings of fact by the Board, and
more particularly its assessment of the evidence and of the applicant’s
credibility, are reviewable on a reasonableness standard. It is not for the
Court to substitute its own assessment of the facts for the Board’s, and it
will intervene only if the Board’s findings were made in a perverse or
capricious manner or without regard for the material before it (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339; Martinez v. Canada (Minister of
Citizenship and Immigration), 2009 FC 798, [2009] F.C.J. No. 933; Allinagogo
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 545, [2010] F.C.J. No. 649.
[9]
The
Court’s role in a judicial review of a decision on a standard of reasonableness
was established in Dunsmuir, at paragraph 47:
… In judicial
review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But
it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
1. Did the Board assess the evidence in
an unreasonable manner by failing to consider the evidence submitted by the
applicants?
[10]
The
applicants argue that the Board failed to consider or address in its decision
the following evidence submitted by them, evidence which corroborates their
narrative:
- The female applicant’s press
card;
- The newspaper articles
published about Cablecom;
- The complaint filed by the
female applicant with the public prosecutor on May 10, 2007;
- The medical certificate
describing the injuries suffered by the male applicant and his hospitalization after
he was assaulted on February 14, 2008;
- The complaint filed by the
male applicant with the public prosecutor on February 16, 2008;
- The statement by the female
applicant’s former work colleague;
- The statement by the
applicants’ friend who had let them stay with her from March 30 until June 1, 2008.
[11]
It is
settled law that the Board is presumed to have considered all of the evidence
before it and that it is not required to mention every single piece of evidence
in its decision. In addition, the Board’s reasons are not to be read
hypercritically by the reviewing Court. The Court should instead verify whether
the totality of the evidence would reasonably support its findings.
[12]
Moreover, the
case law has established that the Board must, in its decision, mention evidence
which relates to an important element and which contradicts the findings made
by the decision-maker. In Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), 157
FTR 35, [1998] F.C.J. No. 1425, Justice Evans aptly outlined the principles to be applied:
[15] The Court may infer that the
administrative agency under review made the erroneous finding of fact
"without regard to the evidence" from the agency's failure to mention
in its reasons some evidence before it that was relevant to the finding, and
pointed to a different conclusion from that reached by the agency. …
[16] On the other hand, the reasons
given by administrative agencies are not to be read hypercritically by a court
(Medina v. Canada (Minister of Employment and
Immigration)
(1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to
every piece of evidence that they received that is contrary to their finding,
and to explain how they dealt with it (see, for example, Hassan v. Canada
(Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
That would be far too onerous a burden to impose upon administrative
decision-makers who may be struggling with a heavy case-load and inadequate
resources. A statement by the agency in its reasons for decision that, in
making its findings, it considered all the evidence before it, will often
suffice to assure the parties, and a reviewing court, that the agency directed
itself to the totality of the evidence when making its findings of fact.
[17] However, the more important
the evidence that is not mentioned specifically and analyzed in the agency's
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and
Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). …
[13]
Applying these principles to the case at bar, I
cannot conclude that the Board failed to consider the evidence that was before
it. I agree that the Board did not mention in its reasons the material evidence
submitted by the applicants. However, in its decision, the Board considered and
analyzed all of the factual elements relied on by the applicants and its
finding was based on its assessment of their behaviour, which it found to be
incompatible with that of people fearing for their lives.
[14]
Some of the evidence submitted by the applicants
does corroborate a few of their allegations, such as the complaints filed with
the public prosecutor and the statement of the person the applicants stayed
with. Nonetheless, this evidence does not directly contradict the Board’s
findings with respect to the length of time it took for the applicants to leave
their residence, to leave their country and to claim refugee protection in Canada.
[15]
It appears from the decision that it was the
applicants’ behaviour, from the time of Mr. Ramos Romero’s assault (February
14, 2008) until the time they left Mexico, that was determinative for the Board and that this
finding was based on its assessment of all of the facts.
[16]
There is nothing before me in the case at bar
to suggest that the Board failed to consider evidence submitted to corroborate
certain facts which the Board clearly addressed in its decision. I consider the
fact that the Board mentioned “analyzing all the evidence” in its decision to
be sufficient in the case at bar. There is therefore no reason for the Court to intervene on
this ground.
2. Was the Board unreasonable in its
assessment of the applicants’ credibility?
[17]
The
applicants also criticize the Board for allegedly making unreasonable
implausibility findings and for having dismissed the applicants’ explanations
without regard for the evidence. It appears from the following passages that
the Board made two negative inferences with regard to the plausibility of the
applicants’ narrative.
[18]
The Board
explained its reasoning with regard to the fact that the applicants continued
to remain in the same place until March 30, 2008, as follows:
[18] The panel does not see, in the
fact that the claimants remained all that time in the same place, behaviour
that is compatible with that of someone who fears for their life. The panel is
of the opinion that it is not plausible, under the circumstances, that the
female claimant could have feared her former bosses, who threatened to kill
her, to that extent, and yet she did not move after being warned that an
article was about to be published that would likely raise their ire, and after
her spouse was beaten. The female claimant cannot allege in the same breath
that she stayed in the same place because she believed that the police would be
able to protect her and, at the same time, maintain that the police were
totally ineffective in her case, and that she had been advised by a lawyer that
the Mexican State could not protect her. This
is not a reasonable explanation under the circumstances.
[19]
The Board
also drew a negative inference from the fact that the applicants did not leave Mexico until June 1, 2008, and found
their explanation for this to be unreasonable:
[19] On March 30, 2008, after the
principal female claimant was followed, the claimants allegedly moved in with a
friend who was living two hours away from their usual place of residence. They
did not leave Mexico until June 1, 2008. In answer
to the panel’s question as to why they had not left their country earlier, the
claimants replied that they could not obtain a passport for their child without
the child being examined by a paediatrician. In reply to the panel when it was
pointed out to the principal female claimant that their child obtained his passport
on April 17, and that this did not explain why they stayed in the country until
June 1, the female claimant replied that they wanted to travel during peak
season and that the travel agency could not get them any tickets before then.
…
[21] Once again, the panel does not
see behaviour that is compatible with that of someone who fears for their life.
The panel retains the fact that the claimants stayed with their friend from
March 30 until June 1, although they had already decided to leave Mexico and they had all the
necessary documents to do so. The panel does not believe that it is plausible,
under circumstances, that the female claimant would have put the life of her
entire family in danger while they waited for airline tickets for Canada. The panel cannot understand
how seats could not be found on a flight destined for Canada during all that time.
[20]
The Board
drew a third negative inference about the applicants’ credibility from the fact
that they did not claim refugee protection immediately upon their arrival in Canada.
[21]
In Khaira
v. Canada (Minister of Citizenship and Immigration), 2004 FC 62, [2004] F.C.J. No.
46 at para. 14, Justice Martineau aptly summarized the latitude enjoyed by the
Board in assessing credibility and the parameters within which a reviewing Court
may intervene:
[14] … In effect, the role of this
Court, in the context of an application for review, is not to reassess the
evidence filed before the Board. To the contrary, if the findings on
credibility are reasonably supported by the evidence, this Court must not
intervene. The Board is the trier of facts and is entitled to make reasonable
findings regarding the credibility of a claimant's story based on
implausibilities, common sense and rationality (Ahmed v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 629 (F.C.T.D.) (F.C. 1re inst.) (QL),
at paragraph 4). Bear in mind, it was the Board that heard the testimony, asked
questions and noted the answers. Accordingly, the Board is in a better position
than this Court to make these findings.
[22]
I share
the view of my colleague and find that, in the case at bar, the Board’s
findings regarding the plausibility of certain aspects of the applicants’
narrative and its overall assessment of their behaviour are not unreasonable.
The Board clearly identified the elements of the applicants’ narrative which
led it to conclude that certain aspects of their narrative were implausible and
lacked credibility. Moreover, its reasons are clearly expressed, its reasoning
is logical and its findings are reasonably supported by the evidence.
[23]
Where
the Board’s findings fall within a range of possible, acceptable outcomes in
respect of the evidence, the Court should not substitute its own assessment and
its own opinion for those of the Board, even if a different outcome would have been
preferred by the Court.
[24]
The Court’s
intervention is therefore not warranted.
[25]
The
parties submitted no question for certification.
JUDGMENT
THE COURT ORDERS
that the
application for judicial review be dismissed. No question is certified.
“Marie-Josée Bédard”
Certified
true translation
Sebastian
Desbarats, Translator
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