Date: 20121129
Docket: IMM-3296-12
Citation: 2012 FC 1385
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 29, 2012
PRESENT: The Honourable Mr. Justice
Martineau
BETWEEN:
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JUANA MARTINEZ CHAVEZ
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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
[1]
The
applicant is disputing the legality of a decision by the Refugee Protection
Division of the Immigration and Refugee Board [panel], which found that she is
not a Convention refugee or a person in need of protection within the meaning
of sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 [Act].
[2]
The
determinative issue in this case is the credibility of the applicant’s story. In
fact, the availability of state protection was raised only in the alternative. The
applicable standard of review is that of reasonableness. The Court must
therefore verify “the justification, transparency and intelligibility [of] the
decision-making process” and “ whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 190 at para 47, [2008] 1 SCR
190).
[3]
The
applicant, a young woman, is 34 years old and a citizen of Mexico. According to
the applicant, she became romantically involved with a Mexican police officer named
Ricardo Soto [persecutor] in 2007. Mr. Soto insisted on having sexual
relations with her, but the applicant refused because of her moral principles
and religious beliefs. Since the applicant resisted, the persecutor assaulted
her and even threatened to kill her. The persecutor allegedly slapped the
applicant on two occasions, a friend of the persecutor allegedly threatened the
applicant with a broken bottle, and, together, they followed her by car,
pointing a gun at her. Afterwards, she took refuge at an aunt’s for nine
months. A few months later, the applicant left Mexico without ever filing a
written complaint with the police.
[4]
I
will begin with the question of state protection since the panel chose to make
this an alternative ground for rejecting the application for refugee
protection. In that regard, the applicant forcefully argues that the panel did
not really consider the applicant’s personal situation or the specific facts
alleged. For example, the documents referred to in paragraph 27 of the
panel’s decision deal with the situation in the Federal District of Mexico
City, where the applicant has never lived. Furthermore, the panel’s finding
that the applicant did not make sufficient efforts to obtain state protection
from her country, since she failed to make a written complaint, can be
explained by the fact that the applicant does not trust the police given that
her persecutor is a police officer and the police did not come when she called
them. The panel failed to deal with the applicant’s explanations.
[5]
I
agree with the applicant that the panel must examine the personal situation of
every refugee protection claimant, a suggestion with which the respondent seems
to agree. Indeed, at paragraph 27 of the reasons for judgment in Avila
v Canada (Minister of Citizenship and Immigration), 2006 FC 359, [2006] FCJ
No 439, I myself noted as follows:
In order to determine whether a refugee protection claimant has discharged
his burden of proof, the Board must undertake a proper analysis of the
situation in the country and the particular reasons why the protection claimant
submits that he is “unable or, because of that risk, unwilling to avail
[himself] of the protection” of his country of nationality or habitual
residence (paragraphs 96(a) and (b) and subparagraph 97(1)(b)(i)
of the Act). The Board must consider not only whether the state is actually
capable of providing protection but also whether it is willing to act. In this
regard, the legislation and procedures which the applicant may use to obtain
state protection may reflect the will of the state. However, they do not
suffice in themselves to establish the reality of protection unless they are
given effect in practice: see Molnar v. Canada (Minister of Citizenship and
Immigration), 2002 FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi v.
Canada (Minister of Citizenship and Immigration), 2003 FCTD 429, [2003] 4
F.C. 771 (F.C.T.D.).
[6]
At the risk of repeating myself, the panel must consider the
particular context in which each refugee protection claimant is persecuted,
which clearly excludes any generic analysis of the availability of state
protection.
In fact, many factors must be considered, going well beyond a simple analysis
of the available documentary evidence (Torres v Canada (Minister of
Citizenship and Immigration), 2010 FC 234 at paras 37-42, [2010] FCJ
No 264). However, I hasten to say that it was particularly important that the
panel first ensure that the applicant was credible. In fact, the initial
question as to whether or not the applicant’s persecutor was a police officer
could have affected the ensuing assessment of the availability of state
protection, in this case, that of Mexico, or even of an internal flight
alternative in other cities in Mexico.
[7]
In
the matter at bar, the applicant submits that the panel’s reasoning regarding
her credibility was not well articulated. In addition, the panel arbitrarily
set aside the applicant’s explanations while failing to properly consider the
fact that she had been sexually harassed. The respondent submits on the
contrary that the panel’s decision is reasonable: the omissions in question are
significant and go to the heart of the applicant’s fear of persecution since
the applicant had the opportunity to explain the omissions in her personal
information form [PIF] and the panel could find her explanations to be
unsatisfactory and incomplete.
[8]
This
application for judicial review must fail. The panel in question did not believe the applicant’s
persecution story. Its reasoning, albeit imperfect, is well articulated. The
panel mainly criticized the applicant for failing to mention in her PIF (1) the
fact that the persecutor was a municipal police officer; (2) the fact that she
lived in hiding at an aunt’s in Leon from late March 2008 to
December 2008; and (3) the gun-pointing incident of February 2008,
which led the applicant to complain to the police by telephone.
[9]
As
mentioned in Basseghi v Canada (Minister of Citizenship and Immigration),
[1994] FCJ No 1867 (FCTD) [Basseghi], “[a]ll 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”. I
therefore agree with the respondent that the omission of critical facts from a
PIF can form the basis for an adverse finding on credibility. The fact that the
applicant’s persecutor may be a person in a position of authority—he is apparently
a municipal police officer—is an extremely significant factor. The same is true
of the applicant’s behaviour towards her persecutor, meaning that her fleeing
to her aunt’s a few months after a gun was pointed at her in February 2008
is also very important. Asking why these facts were not in the PIF was
therefore legitimate.
[10]
I
note that the panel confronted the applicant with the various omissions pointed
out in the decision and gave her the opportunity to explain herself. Having
read the transcripts of the hearing closely, I do not believe that the panel’s
refusal to accept the explanations provided by the applicant are unreasonable
in the present case. The hearing took place on January 30, 2012, almost
three months after the applicant found new counsel, that is, in
November 2011. It was only in the course of her testimony—almost at the end in some cases—that the applicant added a number of new
facts. The applicant states that she omitted certain facts in her PIF simply
because she was pregnant. The panel was entitled not to find this credible. In
fact, the applicant gave birth to her child on February 11, 2010, but
signed her PIF on June 10, 2009, nine months before the birth of her
child. As the panel indicated, she would therefore have been in the early
stages of her pregnancy.
[11]
Given
that the general finding of non-credibility is not unreasonable, there is no
reason to intervene in this case, even if the panel’s state protection analysis
may seem somewhat truncated and flawed.
[12]
For
these reasons, the application for judicial review will be dismissed. No
question of general importance is raised by this case, and none will be
certified by the Court.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that the application for judicial review is dismissed and no
question is certified.
“Luc Martineau”
Certified true translation
Johanna Kratz, Translator
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