Date: 20121129
Docket: IMM-3513-12
Citation: 2012 FC 1386
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 29,
2012
Present: The Honourable
Mr. Justice Martineau
BETWEEN:
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HUGO GOMEZ HERRERA
ANA BERTA RODRIGUEZ CARDONA
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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
[1]
The
applicants are challenging the legality of a decision of the Refugee Protection
Division of the Immigration and Refugee Board [the panel] finding that they
were neither Convention refugees nor persons in need of protection within the
meaning of sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The
applicants are citizens of Mexico. They fear that they will be kidnapped and
killed by members of a criminal organization, Los Zetas. According to the
Personal Information Form [PIF] of the principal applicant, Hugo Gomez Herrera,
it all started in September 2008, when individuals identifying themselves as
members of Los Zetas demanded a payment of 5,000 pesos no later than
October 1, 2008. Fearing for his life, he made the required payment on
October 1, 2008. The criminals allegedly returned on October 25 and
December 29, 2008, demanding further payments. On December 1, 2008, the
principal applicant made a payment but, lacking the necessary resources, he
refused to pay the amount demanded for January 1, 2009, namely,
10,000 pesos. On January 1, 2009, the principal applicant’s pickup
truck was stolen and the criminals telephoned him, offering to return his
vehicle in exchange for a lump-sum payment of 20,000 pesos. Finally, in
February 2009, the principal applicant went to the police to file a
complaint. Unfortunately, he was sent to the Public Ministry, which refused to
take his statement. In March 2009, the principal applicant moved to his wife’s
home in Acambaro, Guanajuato, but the threats continued, which is why the
applicants decided to seek refugee protection in Canada.
[3]
The
panel found that the principal applicant’s testimony was tainted by several [translation] “contradictions and
prevarications”, and so the applicants were unable to demonstrate a
well-founded fear of persecution. Since the sole issue relates to the
applicants’ credibility, the applicable standard of review is reasonableness.
[4]
A
panel may reasonably conclude that a claimant for refugee protection is not
credible because of implausibilities, as long as the inferences it draws are
not unreasonable and its reasons are set out “in clear and unmistakable terms”.
In this case, the impugned decision is well reasoned; the panel noted various
contradictions and implausibilities in the principal applicant’s testimony.
Finally, its overall finding of non-credibility and lack of risk is based on the
evidence in the file. Therefore, this application must be dismissed.
[5]
I agree with the applicants’ learned counsel that the
principal applicant’s PIF can indeed be interpreted as not necessarily
excluding a second payment to Los Zetas on November 1, 2008; however, the
panel’s interpretation is clearly not unreasonable either. There was also much
confusion at the hearing in the principal applicant’s replies regarding the
complaint filed with the police on January 1, 2009,
following the theft of the pickup truck. Unfortunately,
the true version of the facts, if one can call it that, as counsel for the
applicants explains it now, was not recounted to the panel as clearly as today.
In my humble opinion, it was not unreasonable for the panel to draw a negative
inference, even if in retrospect, upon a close reading of the transcripts,
another interpretation of the facts seems equally possible.
[6]
The applicants are also critical of the panel’s reliance
on a secondary element. During the hearing, the principal applicant testified
that he had begun to hawk items in order to raise the monthly payments of
5,000 pesos demanded by Los Zetas. The panel pointed out that this fact
did not appear in his PIF and that the principal applicant had said instead
that he had gone into hiding at his mother’s house for a month. The panel noted
that the explanations provided for this seemed incoherent. One might wonder why
he had to hawk items from his store when it was not yet closed. I am repeating
myself, but the panel’s negative inference is not inherently unreasonable, as
it must be admitted that the principal applicant remains vague on this issue,
which explains the use of the word [translation] “prevarications”
elsewhere in the decision to describe his testimony as a whole.
[7]
Even though the applicants disagree with the outcome, the
panel’s decision must be read as a whole and in light of all the evidence in
the file. While the panel may have erred in its assessment of certain answers
provided by the principal applicant, I find, on the whole, that the principal
applicant’s answers were often confused, which could have raised reasonable
doubts on the panel’s part. By adding up all of the contradictions and
implausibilities, cumulatively, the panel could reasonably conclude that the
applicants’ story was not credible, despite my agreement with the applicants’
counsel that this was not the only possible outcome.
[8]
In conclusion, the panel’s findings of fact are among the
options that could reasonably lead it to find a lack of credibility (Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190), and
this application for judicial review will therefore be dismissed. No question
of general importance has been raised by this case, and no question will be
certified by this Court.
JUDGMENT
THIS COURT’S JUDGMENT IS
that the
application for judicial review is dismissed and no question is certified.
“Luc Martineau”
Certified true translation
Francie Gow, BCL, LLB
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