Date: 20101022
Docket: IMM-761-10
Citation: 2010 FC 1031
Ottawa, Ontario, October 22, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ARACELLI ARELLANO LEMOINE
SANDRA ALMAGUER ARELLANO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Ms.
Araceli Arellano Lemoine fled to Canada from Mexico with her
daughter in 2008. She sought refugee protection on the basis that she had been
repeatedly assaulted and threatened by her husband after she reported his
involvement in drug trafficking to the police.
[2]
A
panel of the Immigration and Refugee Board denied Ms. Arellano Lemoine’s claim
because it disbelieved her account of events and because she had failed to
avail herself of state protection in Mexico. Ms. Arellano Lemoine
argues that the Board applied the wrong standard of proof to her evidence and
erred in its analysis of state protection. She asks me to order a new hearing
before a different panel.
[3]
I
have found no error in the Board’s articulation of the applicable standard of
proof. Its adverse credibility findings must stand. It is unnecessary,
therefore, for me to address Ms. Arellano Lemoine’s alternative argument about
state protection.
[4]
The
sole issue, therefore, is whether the Board erred in respect of the standard of
proof to be applied to the evidence before it.
II. The Board’s
Decision
[5]
Citing
well known cases, the Board noted that testimony should be presumed to be true,
unless there is reason to doubt its truthfulness. It went on to state that a
witness’s version of events should be measured by the preponderance of
probabilities, which a practical and informed person would recognize as
reasonable. To be satisfied that evidence is credible or trustworthy, the Board
said, it must be satisfied that it is probably so, not just possibly so.
[6]
In
the next paragraph, the Board made the statement whose correctness Ms. Arellano
Lemoine contests. The Board stated that it had found “contradictions,
inconsistencies, omissions and implausibilities in the claimants’ testimony” in
areas central to the claim. And then it said that those problems “were not
cleared up to my satisfaction.” It is this latter phrase that is in issue.
III. Did the Board
Apply the Wrong Standard of Proof?
[7]
Ms.
Arellano Lemoine argues that it is impossible to know what amount of proof
would have cleared up the Board’s concerns to its “satisfaction”. Given that
uncertainty, she suggests that the soundness of the credibility findings the
Board went on to make is in doubt.
[8]
For
two reasons, I can find no error in the Board’s statement of the burden of
proof. First, in the face of contradictions and inconsistencies, the Board must
consider whether a witness offered a satisfactory explanation for them. If the
Board is not satisfied with the explanation, then it is entitled to draw an
adverse inference about the witness’s credibility. In general, the word
“satisfied” connotes a standard of a balance of probabilities. Therefore, if
the Board is not satisfied that a witness’s explanation for having given contradictory
evidence is reasonable, for example, it cannot be satisfied that the testimony
is truthful. When the Board stated that the problems in the evidence had not
been “cleared up to my satisfaction”, it was merely stating an overarching
basis for its ensuing adverse credibility findings.
[9]
Second,
it is clear that the Board understood the proper standard of proof to be
applied to a witness’s testimony. It set out well accepted expressions of that
standard before it uttered the passage contested by Ms. Arellano Lemoine. Even
if that passage had contained an error, I could not conclude, reading the
reasons as a whole, that the Board misapplied or misstated the appropriate
standard of proof.
IV. Conclusion and
Disposition
[10]
Having
concluded that the Board did not state or apply the wrong standard of proof,
its findings of fact, which led it to the conclusion that Ms. Arellano
Lemoine’s claim had not been made out, must stand. I must, therefore, dismiss
this application for judicial review. Neither party proposed a question of
general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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