Docket:
IMM-7045-11
Citation:
2012 FC 573
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 14, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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JORGE VALENTIN GOMEZ
ORTEGA
JHODAD GOMEZ DE LA
FUENTE
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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 pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA), of the decision by the Immigration and Refugee Board (IRB), dated
September 21, 2011, that Jorge Valentin Gomez Ortega (Mr. Ortega) and his
son, Jhodad Gomez De La Fuente (J. Fuente)(applicants), are not Convention
refugees or persons in need of protection under sections 96 and 97 of the IRPA.
[2]
For
the following reasons, the application for judicial review is dismissed.
II. Facts
[3]
The
applicants are citizens of Mexico.
[4]
In
November 2000, Mr. Ortega lost his job as the service manager of a company. In
2002, he managed to find work as an extra at Mexico’s Televisa. He worked both
as an extra and as a sales clerk in a boutique.
[5]
In
2008, Mr. Ortega was elected by the majority of the workers as the union
representative on a committee. The committee’s objective was to improve working
conditions for extras. Mr. Ortega therefore prepared a report and made a
list of demands. He presented it to the committee members, who categorically
rejected it.
[6]
According
to Mr. Ortega, the committee members were dedicated to representing the
interests of senior management. In the following months, Mr. Ortega was
harassed and even excluded by the other members. Edgar Camacho, one of the
committee members, even suggested that he leave his position. Mr. Ortega
refused to do so.
[7]
A
few days later, Mr. Ortega received an anonymous phone call from someone
demanding that he withdraw from the committee or suffer consequences. Mr.
Ortega changed his telephone number, but the threats nevertheless continued.
The harassers managed to contact Mr. Ortega’s son, J. Fuente, on his cell
phone and threatened him as well.
[8]
Both
of the applicants were victims of abuse and death threats by Mr. Camacho. After
receiving newspaper articles about kidnappings, Mr. Ortega decided to file a
complaint with the police against Mr. Camacho. The following day, the
public prosecutor told him that they did not have sufficient evidence to
prosecute Mr. Camacho.
[9]
Four
days later, he bought a plane ticket and left Mexico for Canada. He arrived in
Canada on July 5, 2009, and claimed refugee protection that same day.
[10]
The
IRB noted that the applicants did not credibly establish the essential elements
of their claim. As a result, the IRB found that the applicants are not
Convention refugees or persons in need of protection under sections 96 and 97
of the IRPA.
III. Legislation
[11]
Sections
96 and 97 of the IRPA specify the following:
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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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(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. Issue
[12]
This
application for judicial review raises two issues.
1. Did
the IRB err by finding that the applicants are not credible?
2. Did
the IRB err by failing to rule on the subjective fear of the applicants?
B. Standard
of review
[13]
In
Mejia v Canada (Minister of Citizenship and Immigration), 2009 FC
354, [2009] FCJ No 438, at paragraph 26, the Court established that the reasonableness
standard of review applies to issues with regard to a refugee claimant’s
credibility (see also Zarza v Canada (Minister of Citizenship
and Immigration), 2011 FC 139, [2011] FCJ No 196 at paragraph 16).
[14]
In
Lezama v Canada (Minister of Citizenship and Immigration), 2011 FC 986,
[2011] FCJ No 1213 at paragraph 22, the Court found that an issue concerning
“the alleged failure of the [IRB] to make findings regarding the Applicants’
subjective fear [is an issue that] touches upon the adequacy of the Decision
and as such is reviewable under a standard of correctness” (see also Martinez
v Canada (Minister of Citizenship and Immigration), 2011 FC 13 at paragraph
21).
[15]
Thus,
as stated by the Supreme Court of Canada in paragraph 47 of Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] SCJ No 9, 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”.
V. Position
of the parties
A. Position
of the applicants
[16]
The
applicants raise two arguments. First, they state that the evidence in the
record did not enable the IRB to find that they lack credibility. Furthermore,
they rely on Gracielome v Canada (Minister of Employment and Immigration),
[1989] FCJ No 463) to support that findings by the IRB with respect to their
credibility must not be arbitrary, unreasonable or capricious.
[17]
The
applicants also allege that after [translation]
“spending a lot of time finding credibility problems, the panel completely
forgot to address the main element of their claim” that is, fear for their
safety and lives because of persecution and attacks by the union mafia. In
other words, they state that the IRB failed to exercise its jurisdiction by not
ruling on the issue of their subjective fear.
[18]
The
applicants cite Attakora v Canada (Minister of Employment and Immigration)
(1989), 99 NR 168 and Djama v Canada (Minister of Employment and Immigration),
[1992] FCJ No 531, in support of their position. In those two decisions, the
Federal Court of Appeal noted that the IRB must rule on not only credibility
issues but also the well-foundedness of the fear alleged by the refugee
claimant.
[19]
The
applicants maintain that the IRB’s decision is unreasonable in light of those
errors in the application of the law.
B. Position
of the respondent
[20]
The
respondent submits that the IRB is entitled to find that the credibility of the
applicants is compromised because of certain deficiencies concerning the
central elements of their refugee claim. According to the IRB, Mr. Ortega completed
his Personal Information Form (PIF) in a vague and imprecise manner. It also
pointed out that Mr. Ortega’s testimony was incoherent.
[21]
The
respondent also alleges that the applicants did not submit the necessary evidence
to establish their claim.
[22]
The
respondent claims that a finding of a lack of credibility with respect to the
central elements of a refugee claim may extend to the other elements of the
claim. He relies on Sheikh v Canada (Minister of Employment and Immigration),
[1990] 3 FC 238, [1990] FCJ No 604 at paragraphs 7-9 (Sheikh)).
[23]
Furthermore,
the respondent argues that the applicants failed to establish a subjective fear
of persecution as well as the basis for their objective fear. The respondent
alleges that the absence of a subjective fear is fatal to a refugee claim (see Farfan
v Canada (Minister of Citizenship and Immigration), 2011 FC 123, [2011] FCJ
No 153 at paragraph 16). Moreover, the respondent points out that the
applicants are not directly challenging the IRB’s finding that they failed to
establish a subjective fear of persecution in Mexico. Because that finding
remains unchallenged, it is sufficient ground for rejecting the applicants’
refugee claim (see Cienfuegos v Canada (Minister of Citizenship and
Immigration), 2009 FC 1262 at paragraph 26).
[24]
The
respondent is of the opinion that this Court’s intervention is unwarranted in
this case because the IRB’s decision is reasonable.
VI. Analysis
1. Did
the IRB err by finding that the applicants are not credible?
[25]
The
IRB did not err by finding that the applicants are not credible.
[26]
The
Court must note that “credibility is central to most, if not all, of the
findings that the [IRB] makes when assessing asylum claims” (see Umubyeyi v Canada (Minister
of Citizenship and Immigration), 2011 FC 69,
[2011] FCJ No 76 at paragraph 11).
[27]
“The
Court should not interfere with the findings of fact and the conclusions drawn
by the [IRB] unless the Court is satisfied that the [IRB] based its conclusion
on irrelevant considerations or that it ignored evidence” (see Kengkarasa c Canada (Minister of Citizenship and Immigration), 2007 FC 714, [2007] FCJ No 970 at paragraph 7; see
also Miranda v Canada (Minister of Employment and Immigration), [1993] FCJ No 437). Our case law also specifies
that it is up to the IRB to assess the evidence and the testimony and to attach
probative value to them (see Aguebor v Canada (Minister
of Employment and Immigration), [1993] FCJ No 732 (Aguebor); and Romhaine v Canada (Minister
of Citizenship and Immigration), 2011 FC 534,
[2011] FCJ No 693 at paragraph 21).
[28]
The
Court would like to note that the IRB may draw “a negative inference with
respect to the applicant’s credibility based on the fact that he did not give a
reasonable explanation for his failure to submit evidence corroborating his
allegations” (see Soto v Canada (Minister of Citizenship and Immigration),
2011 FC 360 at paragraph 25).
[29]
In
this case, the IRB found that Mr. Ortega is not a credible witness. It wrote the
following in paragraph 8 of its decision: “The panel confronted the claimant
about the fact that his narrative does not contain any dates and it therefore
does not pinpoint when the events took place. When confronted by the panel, [Mr.
Ortega] answered that he was nervous when he wrote his narrative and that he
did not want to make any mistakes”. The IRB also noted that, at the hearing, Mr.
Ortega did not respond clearly to questions. The Board is in the best position
to assess the probative value of the evidence and the testimony. The Court
considers the IRB’s finding reasonable because Mr. Ortega did not state
the facts in his account accurately.
[30]
Also,
Mr. Ortega did not submit evidence in support of his allegation that he was part
of the extras’ union committee. “The Court would note
that the burden of proof rests on the applicants, who must present all the
evidence that is available and that they consider to be necessary to establish
their claim at the hearing” (see Pinon v Canada (Minister of
Citizenship and Immigration), 2010 FC 413, [2010] FCJ No 500 at paragraph 12).
[31]
The
applicants allege that they experienced death threats and mistreatment at the
hands of Mr. Camacho. Mr. Ortega nevertheless showed up to work and continued
to file demands with the committee. Furthermore, the IRB pointed out that Mr.
Ortega “justified his unwillingness to file a complaint with the police
following the death threats that he allegedly received and the attacks of April
2009 and May 2009 by the fact that he does not trust the police in Mexico” (see
the IRB decision at paragraph 21).
[32]
In
Aguebor, the Federal Court of Appeal specified that “[a]s 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” (see Aguebor at paragraph 4). In this case, the
IRB drew a negative inference regarding the applicants’ credibility, which
seems reasonable to us.
2. Did the IRB
err by failing to rule on the subjective fear of the applicants?
[33]
The
IRB did not fail to rule on the subjective fear of the applicants.
[34]
The
applicants contend that the IRB did not address the well-foundedness of their
fear in Mexico. The IRB wrote that “[e]ven if the claimant had credibly
established the facts alleged in his narrative, which is not the case, he still
would not have established his well-founded fear of persecution” because the
applicants did not take the necessary steps to protect themselves. (see the IRB
decision at paragraph 17).
[35]
In
Sheikh, above,
the Federal Court of Appeal specified that a lack of credibility with respect
to the central elements of a claim may extend to the other elements of the
claim (see Sheikh at paragraphs 7-9). The findings
by the IRB with respect to the lack of credibility of the applicants undermine
their allegation that they fear Mr. Camacho in Mexico. The Court therefore deems
that, in this case, there are no reasons that warrant our intervention.
VII. Conclusion
[36]
The
Court finds that the applicants’ application for judicial review must be
dismissed. The IRB reasonably found that the applicants are not credible. That
lack of credibility undermines their main allegation that they fear Mr. Camacho
in Mexico. Consequently, the applicants are not Convention refugees or persons
in need of protection.
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