Date:
20120126
Docket:
IMM-2325-11
Citation:
2012 FC 104
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, on
January 26, 2012
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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FRANCISCO JAVIER AGUILAR
MONCADA
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Applicant
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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]
Francisco Javier Aguilar Moncada (Applicant) filed this
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), challenging the decision
by the Refugee Protection Division of the Immigration and Refugee Board (IRB)
rendered on March 24, 2011, that they were not Convention refugees or persons
in need of protection within the meaning of sections 96 and 97 of the
IRPA.
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
The
applicant is a Mexican citizen.
[4]
He
left his family home at a very young age because he was being mistreated by the
members of his family. At the age of 17, the applicant immigrated illegally to
the United States where he stayed until his removal in May 2007.
[5]
When
he returned to Mexico, he went to the family residence. However, his sisters
and their spouses greeted him in a very bad manner, fearing that he would claim
his part of the inheritance left by his deceased parents.
[6]
The applicant alleges that his brothers-in-law assaulted him
physically.
After the assault, the applicant took refuge at the
home of one of his childhood friends who allegedly shot at him with a firearm
in 1993.
[7]
Fearing for his safety, he left Mexico on October 3, 2007. He arrived in Montréal the same day and filed his refugee
claim with representatives of the Department of Employment and Immigration at
the Pierre-Elliott-Trudeau airport.
[8]
The applicant states that he fears persecution in his country
because he belongs to a particular social group.
[9]
Considering himself to be a person in need of protection, he also
claims protection from Canada, first, because of threats against his life and a
risk of cruel and unusual treatment or punishment and, second, because of a
risk of torture.
[10]
In its decision, the IRB indicated that the applicant’s lack of
credibility is due to new facts added that were not included in his
Personal Information Form (PIF) and the implausibility and inconsistency of his
story, which is fraught with contradictions. For all these reasons, the IRB
found that the Applicant was not a Convention refugee or a person in need of
protection pursuant to sections 96 and 97 of the IRPA.
III. The
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. Issue and
standard of review
A. The Issue
[12]
This case raises the following issue:
·
Did the IRB err in finding that the applicant was
not credible?
B. Standard of
review
[13]
Issues
of credibility are reviewable on the standard of
reasonableness (see Mejia v Canada (Minister of Citizenship and
Immigration), 2009 FC 354, [2009] FCJ No 438, at paras 24 and 26;
see also Zarza v Canada (Minister of Citizenship and Immigration),
2011 FC 139, [2011] FCJ No 196, at para 16).
V. Positions
of the parties
A. Position
of the applicant
[14]
The applicant maintained that the panel’s finding that he is not
credible is unreasonable because he has problems testifying. The panel
did not give full weight to his answer for question 31 in his PIF. He
wrote the following:
[TRANSLATION]
“My name is Francisco Javier
Aguilar Moncada, I was born in San Luis Potosi, Mexico, on September 14,
1978. I would like to point out that I do not know how to read or
write. My friend who lives in the same apartment
as I do (Martin Bernal) helped me write my story, which is that I was forced to
leave my country after being deported from the United States. I also have to say that I have a lot of trouble remembering
specific dates and locations where I have lived in the past 10 years.
[My] ex-wife, who currently lives in the United
States with my son, helped me provide some of the information that I included
in my form”.
[15]
He also alleged that the IRB did not take into consideration his
difficulties in remembering important dates in his story. For example, he referred to paragraph 12 of the panel’s
decision:
[12] This explanation is not
credible. As the claimant himself demonstrated at the hearing by pointing to
the part of his body where he had been shot, this has nothing to do with having
gone to school or not. This is, in fact, a key element, and its omission
undermines the claimant’s credibility.
[16]
Furthermore, he pointed out that the IRB recognized his
difficulties because it wrote in paragraph 7 of its decision:
[7] The claimant’s testimony was
arduous. The panel understands that the claimant has a relatively low level of
education, as he stated in his response to question 6 on his Personal
Information Form (PIF). He attended school for only four years.
[17]
The applicant reiterated that his subjective fear is a result of
the conduct of the members of his family, specifically his brothers-in-law. The panel was looking for precise answers and concrete
evidence. The applicant alleged in his
memorandum that the panel’s questions led him to confuse certain events.
The IRB addressed this topic in paragraph 24 of
its decision:
[24] The panel decided to ask this
question once again, because the claimant’s confusing answers did not give the
panel an understanding of the reasons he had given for not wanting to return to
his country.
[18]
The applicant claimed that the IRB failed to consider his level of
education and, thus, his ability to provide consistent testimony.
[19]
He pointed out several errors of law in the decision. The panel allegedly based its decision on an erroneous
finding of fact that was made in a perverse or capricious manner, or according
to him, that disregards evidence that was before it. These errors require the intervention of the Court.
B. Position
of the respondent
[20]
The respondent pointed out first that the IRB noted that the
applicant’s testimony was arduous. His answers were
confusing. In addition, he omitted essential elements of his story for
the purpose of justifying his refugee claim. Therefore, the panel came to the
only possible conclusion that the applicant was not credible.
[21]
The respondent stated that the applicant did not directly dispute
the numerous findings by the IRB on credibility, but rather argued that it did
not consider his level of education in assessing his credibility. The applicant pointed out paragraphs 7, 11 and 12 of
the IRB decision in response to this claim by the applicant.
[7] The claimant’s testimony was
arduous. The panel understands that the claimant has a relatively low level of
education, as he stated in his response to question 6 on his Personal
Information Form (PIF). He attended school for only four years.
[11] This aspect is not included in
his narrative in response to question 31. This is therefore an omission that
pertains to a determinative point. The claimant stated that he had not written
it down, but that he had evidence, and that if he had not written it down, it
was because he had not gone to school and does not understand all the aspects
of his claim..
[12] This explanation is not
credible. As the claimant himself demonstrated at the hearing by pointing to
the part of his body where he had been shot, this has nothing to do with having
gone to school or not. This is, in fact, a key element, and its omission
undermines the claimant’s credibility.
[22]
Therefore, the respondent stated that this criticism has no merit.
[23]
The respondent pointed out in its memorandum that the assessment
of an applicant’s credibility is especially within the panel’s expertise (see Hassan
v Canada (Minister of Citizenship and Immigration), 2007 FC 1324). A finding on an applicant’s credibility must be reviewed
with deference and the intervention of this Court is limited to cases where
palpable errors are found (see Bergeron v Canada (Minister
of Citizenship and Immigration), 2008 FC 456, at para 12) :
[12] Since the Court has not
heard the evidence, it does not have the panel’s advantage of assessing the
credibility of the applicant and Mr. Mansouri. That is
why, based on the Supreme Court of Canada decision in Dunsmuir, supra,
the Court owes great deference to a decision of an administrative tribunal
protected by a privative clause and dealing with a question of pure fact, as in
this case. This is especially true when the tribunal is acting in “a discrete
and special administrative regime in which [as] the decision maker [it] has
special expertise” (Dunsmuir, at paragraph 55).
[24]
The applicant was attempting to show that his illiteracy prevents
him from providing testimony without contradictions. In response, the respondent submitted that the applicant’s illiteracy
does not explain the problems noted by the panel and does not preclude a
finding of lack of credibility. In Rivera v Canada (Minister of
Citizenship and Immigration), 2007 FC 862, at para 13, the Court
explains:
[13] ... While the Board must
be alive and sensitive to the reasons why victims of persecution may have
problems in testifying, that responsibility does not oblige the Board to
abandon reasonable incredulity at the door ...
[25]
In
light of the foregoing, the respondent asks that this application for judicial
review be dismissed.
VI. Analysis
·
Did
the IRB err in finding that the applicant was not credible?
[26]
The Court notes that the IRB did not err in finding that the
applicant was not credible.
[27]
The Court wishes to point out that “… credibility is central to
most, if not all, of the findings that the Board makes when assessing asylum
claims” (see Umubyeyi v Canada (Minister of Citizenship and
Immigration), 2011 FC 69, [2011] FCJ No 76 at para 11). The IRB
may make a negative finding concerning the applicant’s credibility if it
identifies contradictions between the applicant’s testimony and supporting
evidence submitted with its application (see Aguebor v Canada (Minister
of Citizenship and Immigration), [1993] FCJ No 732 (Aguebor)).
[28]
Moreover, the case law of this Court has clearly established that “The
Court should not interfere with the findings of fact and the conclusions drawn
by the Board unless the Court is satisfied that the Board based its conclusion
on irrelevant considerations or that it ignored evidence” (see Kengkarasa v
Canada (Minister of Citizenship and Immigration, 2007 FC 714, [2007]
FCJ No 970 at para 7; see also Miranda v Canada (Minister
of Employment and Immigration), [1993] FCJ No 437). Our case law also
requires that it is up to the IRB to assess the evidence and the testimony and
to attach probative value to them (see Aguebor; and Romhaine v Canada
(Minister of Citizenship and Immigration), 2011 FC 534, [2011] FCJ
No 693 at para 21).
[29]
In this case, the Court first notes that the IRB takes into
account the applicant’s personal circumstances, namely his illiteracy. Furthermore, the IRB writes, at paragraph 8 of its
decision, that the applicant’s testimony “…was also confusing at many points and
contained numerous omissions in relation to key elements of his claim for
refugee protection.”
[30]
Moreover, the Court would like to point out that counsel for the
applicant is in the best position to bring problems of vulnerability to the
attention of the panel during the hearing (see Gilles v Canada (Minister
of Citizenship and Immigration), 2011 FC 7, at para 17). As the respondent states, counsel for the applicant did not
intervene in this matter at the hearing.
[31]
Following a close reading of the transcript, we acknowledge that
the IRB was particularly sensitive to the applicant’s deficiencies. It tried its best to gather as much information as
possible. The questions it asked the applicant
were justified.
[32]
The IRB’s observation that there is a major contradiction in the
applicant’s testimony has merit, since he alleged that the Zetas attack the
wealthiest but added that he is a person without financial means.
[33]
The IRB’s finding on the applicant’s lack of credibility is
completely reasonable. A lack of credibility
can affect the other elements of a refugee claim and allow the IRB to find that
there was no subjective fear of persecution (see Acevedo v Canada (Minister
of Citizenship and Immigration), 2006 FC 480, at para 75. As to his fear of the Zetas, the IRB panel pointed out: “the
claimant stated that … they had never done anything to him, but he explained
that as soon as a person has money, they are targeted by these people” (see the
IRB decision at para 25).
VI. Conclusion
[34]
The
Court dismisses the applicant’s application for judicial review because the IRB’s
decision that the applicant is not credible and that he does not have a
subjective fear of persecution in Mexico is reasonable. Accordingly, this
application for judicial review must be dismissed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that
1. The application for judicial review is
dismissed.
2. There is no question of general interest
to certify.
“André
F.J. Scott”
Certified true
translation
Catherine Jones,
Translator
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