Date:
20120203
Docket: IMM-2728-11
Citation: 2012 FC 150
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, February 3, 2012
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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RODRIGO OCAMPO AGUILAR
IRMA GORDILLO ENCISO
VICTOR MANUEL OCAMPO
GORDILLO
CARLOS ALBERTO OCAMPO
GORDILLO
JOSE SALVADOR OCAMPO
GORDILLO
RODRIGO OCAMPO GORDILLO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review, submitted in accordance with subsection 72(1)
of the Immigration
and Refugee Protection Act,
SC 2001, c 27 (IRPA), of the decision by the Immigration and Refugee
Board (panel), dated April 4, 2011, that Rodrigo Ocampo Aguilar (principal
applicant), his spouse, Irma Gordillo Enciso, and their four children, Victor
Manuel, Carlos Alberto, both minors, and Jose Salvador and Rodrigo Ocampo Gordillo,
both the age of majority (applicants), are not Convention refugees or persons
in need of protection under section 96 and subsection 97(1) of the IRPA.
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
The
applicants are all citizens of Mexico.
[4]
The
principal applicant was a taxi driver in Mexico City. He alleges that he had
several problems with two drug traffickers, El Pelon and El Cejon, who live
close to his house.
[5]
On
March 21, 2008, the principal applicant returned from work and noticed El Pelon
and El Cejon doing business in front of his house. He asked them to leave
the premises, but the two individuals refused. An argument ensued and escalated
into a fight. The principal applicant’s children as well as other neighbours
intervened and made the individuals leave.
[6]
The
principal applicant did not file a complaint with the police against the two
men because he feared the consequences for him and his family. Furthermore, he
alleges that his neighbour Francisco already experienced problems with them and
mysteriously disappeared in November 2007. His body was found one month
later.
[7]
The
principal applicant and his parents went to see El Pelon and El Cejon the day
after their fight to ask them to stop. The two men refused and threatened to
kill them if they decided to file a complaint with the authorities.
[8]
On
April 15, 2008, the principal applicant returned home in his taxi. He again noticed
the two men blocking his driveway. A new argument ensued. One hour later, one
of them rang the principal applicant’s doorbell and asked him to step outside,
but the principal applicant refused. The man threatened to kill him, alleging
that he was interfering with their business. The principal applicant and his
son Rodrigo tried to restrain him, but he managed to break loose and run away. The
man climbed into a Volkswagen vehicle and fired some shots. The principal applicant
and his son avoided being hit.
[9]
The
principal applicant still did not file a complaint with the police because he
believes that the authorities are in collusion with traffickers.
[10]
The
applicants left Mexico on July 3, 2008.
III. Legislation
[11]
Sections
96 and 97 of the IRPA read as follows:
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Convention
refugee
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Définition
de « réfugié »
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96. A Convention refugee
is a person who, by reason of a well-founded fear of persecution for reasons
of race, religion, nationality, membership in a particular social group or
political opinion,
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person
in need of protection
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Personne
à protéger
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97. (1) A person in
need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
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97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
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(a) to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article 1
of the Convention Against Torture; or
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a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life
or to a risk of cruel and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
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(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
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(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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Person
in need of protection
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Personne
à protéger
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(2) A
person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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IV. Issues and standard of review
A. Issues
[12]
This
application for judicial review raises two issues:
1. Did
the panel breach its duty of procedural fairness by failing to share its
concerns about the contradictions it identified between the applicants’ account
and their testimony at the hearing?
2. Did
the panel err by finding that the applicants’ factual story was not credible?
B. Standard of
review
[13]
The
panel’s obligation to allow the principal applicant to respond to its concerns about
the contradictions is a question of procedural fairness to be assessed on the
standard of correctness (see Azali v Canada (Minister of
Citizenship and Immigration), 2008 FC 517 at paragraph 12 (Azali)).
[14]
The
Court also finds, in Mejia v Canada (Minister of Citizenship and
Immigration), 2009 FC 354, [2009] FCJ No 438 at paragraph 26, that the
standard of review applicable to assessing credibility is reasonableness (see
also Zarza v Canada (Minister of Citizenship and Immigration),
2011 FC 139, [2011] FCJ No 196 at paragraph 16).
V. Positions of
the parties
A. Position of
the applicants
[15]
The
principal applicant maintains that the panel’s findings surrounding the events
of March 21, 2008, are unreasonable. He claims that the panel erred
by stating that it is implausible that the altercation with his attackers
occurred inside his taxi. The principal applicant emphasizes that he has only
nine years of education and that it is possible that he failed to specifically
mention getting out of his taxi on March 21, 2008, when he replied to the
questionnaire in his Personal Information Form (PIF).
[16]
The
principal applicant also argues that the panel never informed him of its
concerns with respect to the events on March 21, 2008, and thus breached its
duty of procedural fairness (see Tanase v Canada (Minister
of Citizenship and Immigration), [2000] FCJ No 32).
[17]
The
principal applicant alleges that the panel drew an unreasonable inference from his
failure to include background on the events of March 22, 2008 in his PIF. The
panel wrote, at paragraph 20 of its decision, “[that it] does not believe that
the claimant went to the home of these two drug dealers . . . he does not
mention in his narrative that they accompanied him”. The principal applicant
contends that this finding is perverse because this was an innocent omission, as
the Court explains in Basseghi v Canada (Minister of
Citizenship and Immigration), [1994] FCJ No 1867 (QL) (Basseghi).
[18]
The
principal applicant also submits that the panel erred by finding that there was
an apparent contradiction between his PIF and his testimony at the hearing. The
panel wrote the following at paragraph 18 of its decision: “ . . . On that
topic, the panel asked whether, on March 22, these men had said anything else
to him, and he replied [translation] ‘not that I remember’ . . . . The panel
noted that it is stated in his narrative that he received death threats on that
day, and the claimant stated emphatically that he did not receive death
threats, which surprised the panel”. The principal applicant points out that he
provided a reasonable explanation by stating that he received, instead, implicit
threats by the two drug traffickers.
[19]
Furthermore,
the principal applicant characterizes the contradiction between his testimony
and that of his son concerning the incident of April 15, 2008, as minor. Contrary
to what the panel wrote in its decision, the principal applicant’s son did not
mention that two men came to the family home to have a discussion with his
father. Rather, he explained the situation to the immigration officer in
general terms.
[20]
The
panel did not consider the facts surrounding the murder of Jose Ocampo Aguilar,
the principal applicant’s brother. The principal applicant emphasizes the
importance of this omission because the panel must examine the risks the
applicants would face if they were to return to Mexico. According to the principal
applicant, the panel made a fundamental error by excluding this important piece
of evidence from its analysis.
[21]
The
principal applicant argues that the accumulation of material errors committed
by the panel warrants the intervention of this Court.
B. Position of
the respondent
[22]
In
reply, the respondent argues the contrary. The panel made a reasonable finding
that there was a major contradiction between the principal applicant’s PIF and
his testimony on the altercation of March 21, 2008. The principal applicant
provided an exhaustive description of the March 21 events in his PIF and did
not mention the fact that the traffickers forced him to get out of his car
before physically attacking him. The respondent emphasizes that it is
recognized in case law that omissions from a PIF may be a basis for negative
conclusions as to credibility (see Navaratnam v Canada (Minister of
Citizenship and Immigration), 2011 FC 856 at paragraph 17; Chavez v
Canada (Minister of Citizenship and Immigration), 2002 FCT 738; Kabengele
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1866).
[23]
Furthermore,
the respondent claims that the principal applicant’s education level is of no
relevance in this case. All applicants have an obligation to submit a reliable
application, especially when they received legal advice. Thus, when there is a
major difference between an applicant’s PIF and his or her testimony at the hearing,
the panel may draw negative inferences and make a finding of lack of
credibility.
[24]
According
to the respondent, the panel was entitled to think that it was implausible that
the principal applicant met with El Pelon and El Cejon the day after the altercation.
Furthermore, the principal applicant adjusted his testimony to make it conform
to the account in his PIF. He initially talked about death threats uttered
against him and his family and then about insults and then went back to his earlier version. The respondent
emphasizes that given such variations in a testimony, it becomes entirely open
to the panel to make a finding of lack of credibility for the applicant.
[25]
Regarding
the sequence of events on April 15, 2008, the panel noted a major contradiction
between the principal applicant’s statements and those of his son, Rodrigo. The
principal applicant claims that a man came to his house to threaten him. The principal
applicant’s son provided a different version during his interview with the
immigration officer on August 4, 2008. The principal applicant’s son claimed
that two men came to their home instead of one. However, he tried to adjust his
testimony during the hearing stating that one of them arrived later and did not
enter the principal applicant’s home.
[26]
The
respondent notes that it is settled law that answers provided to an immigration
officer and a contradictory testimony or account before the Immigration and
Refugee Board of Canada (IRB) may undermine an applicant’s credibility (see Carranza
v Canada (Minister of Citizenship and Immigration), 2010 FC 914 at
paragraph 20; Cienfuegos v Canada (Minister of Citizenship and
Immigration), 2009 FC 1262 at paragraph 1). The respondent argues that it
was open to the panel to find that the refugee claim was unfounded.
[27]
The
respondent also maintains that the principal applicant was unable to establish
a connection between his brother’s murder and the problems with his two
neighbours.
[28]
The
respondent alleges that the panel based its lack of credibility finding on the accumulation
of omissions, contradictions and implausibilities surrounding the key elements
of the principal applicant’s account. The panel heard the applicants orally and
was therefore able to adequately assess their credibility (see Berhane v
Canada (Minister of Citizenship and Immigration), 2011 FC 510 at paragraph
45; Asashi c Canada (Minister of Citizenship and Immigration),
2005 FC 102 at paragraph 8).
[29]
Finally,
the respondent points out that a reviewing Court must not usurp the role conferred
on the panel and carry out its own assessment of the evidence (see Nanton
v Canada (Minister of Citizenship and Immigration), 2011 FC 266 at
paragraph 7; Garas v Canada (Minister of Citizenship and
Immigration), 2010 FC 1247 at paragraph 22).
VI. Analysis
1. Did
the panel breach its duty of procedural fairness by failing to share its
concerns about the contradictions it identified between the applicants’ account
and their testimony at the hearing?
[30]
The
panel did not breach its duty of procedural fairness to the principal applicant
in this case.
[31]
“Their duty of fairness does not require that the applicants
be confronted with information which they themselves supplied” (see Mahdoon
v Canada (Minister of Citizenship and Immigration), 2011 FC 284 at paragraph 22; Azali, above, at
paragraph 26).
[32]
Justice Tremblay-Lamer addressed a similar issue in Ngongo v Canada (Minister of Citizenship
and Immigration), [1999] FCJ No 1627. She
wrote the following at paragraph 16 of her decision:
[16] In
my view, regard should be had in each case to the fact situation, the
applicable legislation and the nature of the contradictions noted. The
following factors may serve as guidelines:
1. Was the contradiction found
after a careful analysis of the transcript or recording of the hearing, or was
it obvious?
2. Was
it in answer to a direct question from the panel?
3. Was
it an actual contradiction or just a slip?
4. Was
the applicant represented by counsel, in which case counsel could have
questioned him on any contradiction?
5.
Was the applicant communicating through an interpreter?
Using an interpreter makes misunderstandings due to interpretation (and thus,
contradictions) more likely.
6.
Is the panel’s decision based on a single contradiction or on a number of
contradictions or implausibilities?
[33]
The
case law cited above applies for determining whether the Court is faced with a
breach of procedural fairness. In this case, we are of the opinion that the
panel correctly communicated to the principal applicant its concerns on the plausibility
of his account.
[34]
At
page 472 of the IRB file, the panel reminded the principal applicant of the
following: [translation] “Sir,
you stated in your account that, on March 21, you returned home from work and saw
them selling drugs in front of your house. And seeing this you stated: ‘I went
to see them to tell them to go elsewhere to conduct their business’. And then
you tell us today that they forced you to get out of the car”. It is clear and
unequivocal that the panel communicated its concerns clearly to the principal
applicant with respect to his version of the events of March 21, 2008. There
was no breach of procedural fairness.
2. Did
the panel err by finding that the applicants’ factual story was not credible?
[35]
Assessing
an applicant’s credibility is a question of fact. Thus, it is within the
expertise of the panel and is to be reviewed on the standard of reasonableness (see
Benmaran v Canada (Minister of Citizenship and Immigration),
2011 FC 755 at paragraph 5 (Benmaran)). The Supreme Court in Dusmuir
v New Brunswick, 2008 SCC 9 at paragraph 47, reminds us that it
must be determined whether the decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”. The
Court must show deference towards the panel in regards to credibility findings as
long as these are reasonable and find basis in the elements of the evidence
submitted (see Benmaran, above, at paragraph
5).
[36]
In this case, the panel looked at three critical events of the refugee
claim and identified several contradictions or omissions between the principal
applicant’s PIF and his testimony at the hearing.
[37]
First, the panel made an implausibility finding regarding the
events of March 21, 2008, because it identified significant contradictions with
respect to the confrontation between the principal applicant and the two drug
traffickers. In his PIF, the principal applicant wrote the following:
[translation]
. . . I returned from work
and noticed that El Cejon and El Pelon were selling drugs in front of my house.
Seeing this, I went to see them to tell them to go elsewhere to do their business.
They replied that they were on public property, that they could do what they wanted
and that they would not go away . . . .
When they refused to leave
the front of my house, I kept insisting that they go in front of their house to
do their dirty work . . . . Because they would not listen, voices escalated and
insults started flying all over the place. The situation deteriorated into an fist
fight . . . .
[38]
The
panel may “make reasonable findings based on implausibilities, common sense and
rationality and may also reject uncontradicted evidence if it is not consistent
with the probabilities affecting the case as a whole”
(see Osornio v Canada (Minister of Citizenship and Immigration), 2011 FC 684 at paragraph
16). In this case, the panel noted a major contradiction on an essential
element of the applicants’ refugee claim.
[39]
The principal applicant recognizes his omission regarding the
sequence of events on March 22, 2008. In his PIF, he does not mention
going to the traffickers’ house with his parents. The principal applicant refers
to Basseghi. In that case, the Court stated the following: “It is not
incorrect to say that answers given in a PIF should be brief but it is
incorrect to say that the answers should not be complete with all of the
relevant facts. It is not enough for an applicant to say that what he said in
oral testimony was an elaboration. All relevant and important facts should be
included in one’s PIF. The oral evidence should go on to explain the
information contained in the PIF.” (see Basseghi at paragraph 33).
[40]
In the Court’s opinion, the panel had reason to find that this
omission undermined the credibility of the applicants.
[41]
The principal applicant also notes that the panel erred by stating
that he failed to mention in his testimony the death threats uttered against
him by the drug traffickers. At the hearing, the principal
applicant maintained this position. Nevertheless, the panel noted
that the principal applicant wrote the following at lines 61 to 63 of his PIF: [translation] “they told us that if we
made the mistake of filing a complaint against them, a member of my family
would pay very dearly for it (they even went as far as telling us that they were
going to kill us)” (see page 33 of the Tribunal Record). The Court recognizes
the correctness of the respondent’s position emphasizing, at paragraph 15 of
his supplementary memorandum, that [translation]
“the words ‘were going to kill us’ are explicit and are not implied, but
clearly stated”. This is an apparent contradiction and the panel correctly identified
it.
[42]
The Court agrees with the principal applicant’s position that the contradiction
between his testimony and that of his son is minor. Nevertheless, the panel was
entitled to find that this contradiction diminishes his credibility because it
is in addition to other deficiencies. The panel wrote the following at paragraph
25 of its decision: “Because of these omissions and contradictions, the panel
does not believe that the events of March 21 and 22 and of April 15 took place”.
The accumulation of contradictions was fatal to the applicants’ credibility.
This finding falls within the possible outcomes in this case.
[43]
Finally, it is important to note that the panel reasonably
concluded that the murder of Jose Ocampo Aguilar, the principal applicant’s
brother, has nothing to do with the applicants’ refugee claim. The principal applicant
was not successful in establishing the connection between his brother’s death
and his refugee claim in Canada.
VII. Conclusion
[44]
The panel reasonably found that the applicants are not credible
and that they are not Convention refugees or persons in need of protection
under section
96 and subsection 97(1) of the IRPA. The Court also wishes to emphasize that there
was no breach of procedural fairness by the panel.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that
1.
The
application for judicial review is dismissed; and
2.
There
is no question of general importance to certify.
“André
F.J. Scott”
Certified
true translation
Janine
Anderson, Translator
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