Date:
20121126
Docket:
IMM-9481-11
Citation:
2012 FC 1358
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
November 26, 2012
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
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SERGIO CERVANTES
GARCIA
ROSA MARIA DIAZ SOTO
SERGIO URIEL
CERVANTES DIAZ
LESLIE ESTEFANI
CERVANTES DIAZ
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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]
In
a decision rendered on October 6, 2011, the Refugee Protection Division
(the panel) denied the refugee claim of the Garcia family, composed of the
father Sergio Cervantes Garcia, his spouse Rosa Maria Diaz Soto and their two
minor children, all citizens of Mexico.
[2]
The
panel finds that the determinative issue was the lack of credibility of
the applicants’ story.
II. The applicants’ story
[3]
According
to the applicants, their agents of persecution are Juan Manuel Andrade and his
allies. He works for the same company as Mr. Garcia, the Herradura de
Plata bus transport company. Mr. Andrade is apparently an important member
of the company’s union of bus drivers and a militant of the Party of the
Democratic Revolution (PRD), with several people working for him, including a
member of the Judicial Police of the State of Guanajuato, a province bordering
the United States.
[4]
They
alleged that they are targeted by Mr. Andrade because of a report that
Mr. Garcia wrote against Mr. Andrade and gave to his senior
supervisor (Mr. Tapia). This report apparently incriminated
Mr. Andrade in the illicit transport of people from Central America to the
United States.
[5]
According
to Mr. Garcia, on November 4, 2007, he was verifying
passengers travelling to the United States in a bus driven by Mr. Andrade.
Mr. Garcia noticed that five passengers did not have their tickets but had
paid the driver (Mr. Andrade) for their passage.
[6]
Noticing
that Mr. Garcia was writing a report, Mr. Andrade offered him money, but was
refused. It was at this point that Mr. Andrade threatened Mr. Garcia
if he filed a report against him.
[7]
Mr. Garcia
testified that he gave his report to Mr. Tapia, a fact that he revealed
during a telephone call with individuals who were threatening him if he did not
give them this report.
[8]
Mr. Garcia
left Mexico for Canada on May 5, 2008, after he recognized the
voices of the two individuals who had threatened him by telephone and who now
watched his house that his family had left out of fear of persecution, and
after he sought help from the Public Ministry to no avail because he did not
know the identity of his aggressors and had no proof of or witnesses to the
facts.
[9]
Furthermore,
his wife Maria wrote, in her Personal Information Form (PIF), that she was
kidnapped and raped on July 5, 2008, by individuals searching for her
husband.
III. Decision of the panel
[10]
The
panel is of the view that “[t]he credibility of the claimants’ allegations is
the determinative issue in this claim”. It determined that the applicants were
not credible, for the following reasons:
a.
The
principal applicant did not take any steps to obtain from his supervisor,
Mr. Tapia, a document that could have corroborated the fact that he had
indeed written a report about Mr. Andrade. The explanation given by
Mr. Garcia to justify his omission was that he did not know whether his
supervisor was part of the same group as Mr. Andrade. The panel found this
answer unreasonable “given that Mr. Tapia cannot be part of the same group
as Mr. Andrade and that he could have corroborated, if only in a simple
letter, that the principal claimant did indeed write a report incriminating
Mr. Andrade in November 2007”.
b.
Mr.
Garcia did not approach the Herradura company to obtain such a document. The
explanation given by him was that he believed that most people working in this
company or business are involved in the same business as Mr. Andrade. The panel
is of the view that this explanation is not reasonable, “given that he could
have contacted people who, according to his own analysis, may not be involved in
the same criminal enterprise as Mr. Tapia and tried to obtain from them, if
only in a simple letter, a document corroborating that he did indeed write a
report incriminating Mr. Andrade in November 2007”.
c.
The
applicant stated that he took steps to obtain documents that could have
corroborated that Mr. Andrade was involved with the PRD party in Mexico and
that he was a member of a union of drivers, which allowed him to travel
throughout Mexico, but claimed to have found nothing. The RPD determined that
the principal applicant’s explanation was not satisfactory “given that, if
Mr. Andrade were indeed a member of a well-known and influential political
party in Mexico and of a driver’s union, allowing him to travel throughout
Mexico, it would presumably be possible to obtain a document from the
groups concerned that can corroborate that Mr. Andrade is one of their
members or sympathizers”.
d.
The
principal applicant displayed a lack of diligence by not providing documents
that could have corroborated his allegations that he wrote a report
incriminating Juan Manuel Andrade, a union member and sympathizer of the PRD
political party. In support of this conclusion, the panel relied on
section 7 of the Refugee Protection Division Rules (SOR/2002-228)
and certain Federal Court decisions (see Mercado v Canada (Minister
of Citizenship and Immigration), 2010 FC 289, at para 32), according
to which the failure to provide supporting documentation that is reasonably
expected may have an impact on an applicant’s credibility. The panel believes
that this is such a case. The credibility of Mr. Garcia is affected.
e.
The
principal applicant was not able to explain why Mr. Andrade would hold
it against him, if the report incriminating him was never revealed to the
Mexican authorities. In the context where the report never left the company,
the RPD found it implausible that Mr. Andrade would have gone after the
principal applicant, given that there were no consequences from the fact that
he wrote this report. The panel based its finding on an answer that Mr.
Garcia had given that his disclosures to the police had not been accepted.
f.
The
RPD also found it implausible that Mr. Andrade and police officers working
for him went after the female applicant given that there were no consequences
from the fact that a report incriminating Mr. Andrade had been written by
her husband and submitted, according to his testimony, to Mr. Tapia.
g.
The
female applicant specified that she was tested in a laboratory to check whether
she had been infected with HIV after being kidnapped and raped, but that she
did not keep the results of the negative test that could have corroborated that
she had been raped. The panel, in light of the wife’s testimony as a whole,
found that she was not credible in this respect.
[11]
The
panel wrote its finding on the applicants’ credibility as follows:
[54] In short, having heard all of the
testimony from the claimants, I find that their overall credibility is
undermined; in other words, they have no credibility and, in fact, their story is
fabricated. Whether they presented that story at the hearing without
contradicting themselves in no way limits the problems of credibility and
implausibility noted in the preceding paragraphs. [Emphasis added]
[55] With regard to the documents filed in
evidence, on one hand, by a lawyer who confirms having taken the statement of
the principal claimant’s wife with regard to the abduction and assaults that
she experienced and, on the other hand, by their family members who indicate
that the attackers are still looking for them today and have even gone after
some of them, I am of the opinion that these are not reliable documents and I
give them no credibility.
[12]
Two
other conclusions were expressed by the panel:
In the alternative, although the claimants’ lawyer
argued in his submissions at the end of the hearing that there is no state
protection in Mexico, [the RPD notes] that his analysis is not supported by the
case law on this matter, since the Federal Court has ruled on several occasions
that, despite the corruption of some members of the Mexican public
authorities, including police officers, state protection is nevertheless
available in Mexico ... again in the alternative, [the RPD added] that,
according to the claimants’ testimony, they evidently did not exhaust all
possible avenues of protection”. [Emphasis added]
IV. Parties’ submissions
(a)
That
of the applicants
[13]
Counsel
for the applicants submitted the following:
a. The
panel erred on pages 13 to 15 of its decision when it did not take into
account all the medical reports that show that Ms. Diaz was a victim of
psychological and sexual violence and the more general documents relating to
the situation of abused women in Mexico. If there is solid and conclusive
evidence of the lack of protection for women in Mexico, it is extremely
important that the decision-maker notes this evidence. It is unreasonable not
to consider medical reports and the psychological report in the analysis of
credibility.
b. All
the very strong evidence gathered by the female applicant to show that her
story is true was rejected without much explanation in the decision. When a
certificate from an NGO showing that this person is receiving medical and
psychological treatment since her arrival in the country is rejected, one fails
to understand the insensitivity of the member in question.
c. Ms. Diaz
was referred to RIVO, the intervention network for victims of
organized violence, for counselling for more than one year. A summary report
on her psychological state was submitted and filed before the administrative
decision-maker who chose to not consider it. The opinions of the Canadian
health professionals were set aside only because the psychologists were not
direct witnesses of the events in Mexico.
d. The
panel erred in law by not applying the guidelines for women fleeing
gender-related persecution in its decision.
e. The
panel erred by not taking into account the documentary evidence on the lack
of protection in Mexico for persons in the applicant’s situation. Counsel
raised the issue of an internal flight alternative in Mexico. The panel did
not really assess this possibility.
f.
The
panel drew capricious and unreasonable conclusions with respect to the female
applicant’s credibility.
(b)
Those
of the respondent
[14]
He
advanced the following arguments:
a. Several
of the applicant’s allegations are not related to the decision rendered by the
panel.
b. After
considering the evidence as a whole, the panel found that the applicants’ general
credibility was affected by several elements including (1) failing to request a
copy of the report incriminating Mr. Andrade; and (2) no explanation of
why their agents of persecution would pay attention to them if this report had
never been revealed to the Mexican authorities; there were no consequences from
the fact that a report had been written by Mr. Garcia. The improbability
resulting from this, according to the panel, also extends to Ms. Diaz. Why
come after her given that there were no consequences as a result of the fact
that such a report had been written by her husband?
c. The
panel also found it implausible that Ms. Diaz had a laboratory test done
to verify whether she had been infected after being raped during the
kidnapping, but did not keep the results of this test that could have corroborated
that she had been raped.
d. The
panel was correct to set aside the applicants’ analysis of the lack of state
protection in Mexico since this analysis was not supported by case law. What is
more, even if the applicants’ testimony had been supported, they clearly did
not exhaust all available avenues.
e. The
applicants did not show that the panel had committed one or more errors in its analysis
of the evidence.
f.
The
panel took into consideration the Gender Guidelines. The panel made specific
reference to it at paragraph 49 of its reasons.
g. The
panel drew no conclusions on the internal flight alternative.
h. The applicants’
arguments on the administrative and institutional bias of the panel are without
basis. These arguments were raised, unsuccessfully, by the applicants’ counsel
in file IMM-1884-11; the application for leave was dismissed on June 10,
2011.
V.
Analysis
and conclusions
(a) Standard
of review
[15]
The
panel’s decision is based on its analysis of the questions of fact in this case
and the inferences or deductions resulting from it. According to the Supreme Court
of Canada in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, the standard of
review of such decision is that of reasonableness. At paragraph 47 of this
decision, the High Court explained what a reasonable decision is:
47 Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, 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. [Emphasis added]
[16]
A
question law or of natural justice is reviewed on the basis of the correctness
standard. That is the case for the applicants’ argument on partiality.
(b) Conclusions
[17]
This
application for judicial review must be dismissed. The panel felt that the
applicants’ story was fabricated. It found that the refugee claims were not
credible. This conclusion was based on the lack of corroboration, on inferences
drawn from the evidence, on the conduct of the female applicant and the
implausibility of their testimony. The following principles are very well
established in this Court’s case law:
a. Assessing
the credibility of a refugee claimant is at the heart of the tribunal’s
expertise and the Court must handle this type of decision with great deference (Zheng
v Canada (Minister of Citizenship and Immigration), 2007 FC 673, at
paragraph 1).
b. “There
is no longer any doubt that the Refugee Division, which is a specialized
tribunal, has complete jurisdiction to determine the plausibility of testimony:
who is in a better position than the Refugee Division to gauge the credibility
of an account and to draw the necessary inferences? As 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. In Giron, the Court merely
observed that in the area of plausibility, the unreasonableness of a decision
may be more palpable, and so more easily identifiable, since the account
appears on the face of the record. In our opinion, Giron in no way
reduces the burden that rests on an appellant, of showing that the inferences
drawn by the Refugee Division could not reasonably have been drawn. In this
case, the appellant has not discharged this burden” (Aguebor v Canada (Minister
of Employment and Immigration), [1993] FCJ No 732, written by Justice
Décary).
c. “Contrary
to what has sometimes been said, the Board (the panel) is entitled, in
assessing credibility, to rely on criteria such as rationality and common
sense” (Shahamati
v Canada (Minister of Employment and Immigration), [1994] FCJ No 415, written
by Justice Pratte).
[18]
I
have considered all the arguments made by the applicants’ counsel. These arguments
relate to Ms. Diaz’s case. He does not dispute the panel’s findings on Mr. Garcia’s
credibility.
[19]
I
feel that, in Ms. Diaz’s case, the panel did not ignore the evidence
before it and did not err with respect to the case law on state protection in
Mexico.
[20]
In
summary, the applicants have not shown me that the panel had committed an error
justifying the Court’s intervention.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed. The applicants proposed two serious questions to be
certified. The respondent objects to this action on the ground that the questions
proposed do not meet the criteria set out in case law. In my view, the respondent
is correct. No question will be certified.
“François Lemieux”
Certified true
translation
Catherine
Jones, Translator
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