Date: 20120501
Docket: IMM-8216-11
Citation: 2012 FC 502
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, May 1, 2012
PRESENT: The Honourable
Mr. Justice Shore
BETWEEN:
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LOPEZ ESPINOZA, ESTEBAN
FELIPE
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
I. Introduction
[1]
The
applicant’s credibility is at the heart of this application for judicial
review. As the Federal Court of Appeal stated in Sellan v Canada (Minister
of Citizenship and Immigration), 2008 FCA 381:
[3] In our view, that question should be
answered in the following way: where the Board makes a general finding that
the claimant lacks credibility, that determination is sufficient to dispose of
the claim unless there is independent and credible documentary evidence in
the record capable of supporting a positive disposition of the claim. The
claimant bears the onus of demonstrating there was such evidence. [Emphasis added].
II. Legal proceeding
[2]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision by
the Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB]
dated October 18, 2011, which determined that the applicant is neither a Convention
refugee as defined in section 96 of the IRPA nor a person in need of
protection under section 97 of the IRPA.
III. Facts
[3]
The
applicant, Esteban Felipe Lopez Espinoza, is a Mexican citizen.
[4]
The
applicant alleges that he fears Rodrigo Sanchez, the ex‑spouse of
his ex‑spouse, Erendira Campos Palomo, with whom he has a daughter.
[5]
The
applicant and his ex‑spouse left Mexico for Canada on December 28, 2008,
the date on which they claimed refugee protection.
[6]
The
morning of the hearing, the applicant changed his narrative to allege that he
feared a criminal group named Los Pelones [LP], which had forced him to
take drugs and drink for a number of years.
IV. Decision that is the subject of this
judicial review
[7]
The
RPD rejected the refugee claim primarily because of the applicant’s lack of
credibility. The RPD noted that the applicant was not a reliable witness
because his testimony was peppered with hesitations, contradictions and inconsistencies.
The RPD also criticized the applicant for the lack of evidence corroborating
his narrative.
[8]
The
RPD drew an adverse inference regarding the applicant’s credibility from the
fact that he substantially amended his Personal Information Form [PIF] the
morning of the hearing by adding facts that he did not mention to the
immigration officer when he entered Canada. The RPD found that that there was
no credible basis for the refugee claim under subsection 107(2) of the
IRPA because the applicant had not adduced any credible evidence.
V. Issue
[9]
Is
the RPD’s decision reasonable?
VI. Relevant statutory provisions
[10]
The
following provisions of the IRPA apply to this case:
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Convention
refugee
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,
(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
(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.
Person
in need of protection
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
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(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
Decision
107. (1) The Refugee
Protection Division shall accept a claim for refugee protection if it
determines that the claimant is a Convention refugee or person in need of
protection, and shall otherwise reject the claim.
No
credible basis
(2) If the Refugee Protection Division
is of the opinion, in rejecting a claim, that there was no credible or
trustworthy evidence on which it could have made a favourable decision, it
shall state in its reasons for the decision that there is no credible basis
for the claim.
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Définition
de « réfugié »
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:
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;
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.
Personne
à protéger
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:
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;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(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,
(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,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(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.
Décision
107. (1) La Section de la
protection des réfugiés accepte ou rejette la demande d’asile selon que The
applicant a ou non la qualité de réfugié ou de personne à protéger.
Preuve
(2) Si elle estime, en cas de rejet,
qu’il n’a été présenté aucun élément de preuve crédible ou digne de foi sur
lequel elle aurait pu fonder une décision favorable, la section doit faire
état dans sa décision de l’absence de minimum de fondement de la demande.
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VII. Position of the parties
[11]
The
applicant is primarily disputing the RPD’s credibility findings. He contends
that the RPD could not question the truthfulness of his narrative with respect
to his fear of Rodrigo Sanchez because another RPD member accepted his ex‑spouse
as a refugee on the same ground. The applicant’s testimony, however, focused on
this fact during the hearing. The applicant is also disputing the RPD’s failure
to give reasons for its no credible basis finding.
[12]
The
respondent takes the position that the RPD’s findings on the applicant’s
credibility are justified and that the RPD was not bound by findings made in
the context of the refugee claim of the applicant’s ex‑spouse. With
respect to the finding that there was no credible basis for the refugee claim,
the respondent submits that the RPD is not required to provide reasons for this
finding.
VIII. Analysis
[13]
Assessing
credibility based on the facts falls within the RPD’s expertise. Accordingly, a
high level of judicial deference is required with respect to this type of
finding, and the appropriate standard of review is reasonableness (Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708).
[14]
It
is well established in the jurisprudence that differences between statements at
the port of entry and testimony at the hearing may affect credibility where
these contradictions bear on elements that are central to the narrative (Gomez
v Canada (Minister of Citizenship and Immigration), 2011 FC 578).
[15]
In
this case, a number of factors diminished the applicant’s credibility in the RPD’s
view:
(a) The
applicant stated that he had seen Rodrigo Sanchez three times but was
unable to specify the dates of these encounters.
(b) The
applicant was unable to describe Rodrigo Sanchez because his ex‑spouse
had not given him any information.
(c) The
applicant admitted that Rodrigo Sanchez had not lived with his ex‑spouse
but that she had dated him for two months, contrary to what he stated in his
PIF.
(d) The
applicant contradicted himself by testifying that he had lived with his
maternal aunt before leaving for Canada while his PIF states that he had lived
with his parents.
(e) The
applicant amended his narrative the morning of the hearing to allege that he
feared the LP gang, which had persecuted him in the city of Leon for years. He
justified this omission in his port‑of‑entry statement by saying
that he was ashamed of his past.
(f) The
applicant contradicted himself during his testimony on the issue of the
complaint he filed with the Public Ministry against Rodigo Sanchez. He did
not have a copy of the complaint with him at the hearing.
(g) The
applicant contradicted himself on his relationship with his family members in Canada.
[16]
The
applicant challenges in particular the credibility findings with respect to his
ex‑spouse’s narrative, which the RPD accepted in another case. In the
applicant’s view, since the RPD was in possession of this information, it could
not doubt that the persecutor existed.
[17]
In
this regard, it is important to mention that each case turns on its own facts.
Since the subjective fear analysis is based on the facts, the RPD is not bound
by a decision made in another claim (Bakary v Canada (Minister of Citizenship
and Immigration), 2006 FC 1111; Rahmatizadeh v Canada (Minister of Employment
and Immigration), [1994] FCJ No 578 (QL/Lexis)).
[18]
Concerning
the no credible basis finding, the Court refers to the reasoning of
Justice Yvon Pinard in Kouril v Canada (Minister of Citizenship
and Immigration), 2003 FCT 728:
[15] The respondent argues, on the other hand,
that there is case authority for the proposition that the Board is not required
to give reasons for its “no credible basis” finding. However, in each case
which the respondent cites, the Board had found the claimant's testimony not to
be credible before concluding that there was no credible basis for the claim.
In such cases, there may be no requirement for a further explanation other than
that given on the question of the claimant's personal credibility, as I have
stated in Nizeyimana v. Minister of Citizenship and Immigration (March
30, 2001), IMM-1789-00, 2001 FCT 259 . . .
[19]
In
this case, the RPD gave sufficient reasons concerning the applicant’s credibility
to support its no credible basis finding.
IX. Conclusion
[20]
For
all the aforementioned reasons, the applicant’s application for judicial review
is dismissed.
JUDGMENT
THE COURT ORDERS
that
the applicant’s application for judicial review is dismissed. No question of
general importance to certify.
“Michel
M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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