Date: 20091215
Docket: IMM-2250-09
Citation: 2009 FC 1275
Ottawa, Ontario, December 15, 2009
Present: The Honourable Mr. Justice de
Montigny
BETWEEN:
JUAN MANUEL BECERRA GARCIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR ORDER AND
ORDER
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board. On April 9, 2006, Board member Normand Leduc rejected the
applicant’s claim for refugee protection on the grounds that the applicant was
not credible.
[2]
Although the impugned decision is unsupported
and even ambiguous in some respects, I believe that the applicant has not shown
that the member’s findings were unreasonable. Here are my reasons for this assessment.
I. Facts
[3]
The applicant is a Mexican citizen. He alleges
that, in June 2005, he was hired as a bodyguard by a woman called Aguede Jaimes
Nava, who had dealings with several police officers, including Romero Romero,
Commissioner of the Federal Preventive Police, and Martinez Ayala,
Commander-in-Chief of Investigations of the Judicial Police of the State of Mexico.
[4]
On November 17, 2006, the applicant realized
that his employer was operating an establishment in which young abducted girls
were forced to engage in prostitution. One of them allegedly told the applicant
that a woman named “Tia” (aunt) was behind these activities, with the help of
police officers. The applicant then realized that the people described by the
girl had to be his employer, because “Tia” was her nickname, and officers
Romero and Ayala.
[5]
The applicant states that the next day he
advised his employer that he no longer wanted to work for her because of what
he had discovered. As a result, Ms. Nava threatened him and ordered him to
keep quiet about what he knew, otherwise her police friends would take care of
him.
[6]
On November 21, the applicant was allegedly
mistreated and threatened by a patrol of the Federal Preventive Police, who again
warned him to say nothing about what he had learned. The applicant states that
the next day he tried to complain to the Federal Public Ministry with the help
of a lawyer. He was promised an investigation and was told to come back later
to obtain a copy of his denunciation. He never did obtain a copy of the
denunciation.
[7]
The applicant claims that he sought refuge with a
friend of his aunt in Acambaro. A few days later, on November 24, 2009,
police officers tried to find him at his mother’s place, accusing him of making
false accusations. On January 2, 2007, a Federal Preventive Police patrol found him in Acambaro, were
they pursued him and again threatened him.
[8]
The applicant states that, with the help of
another lawyer, he again tried to file a denunciation with the Public Ministry.
Considering the little interest shown by the officer to whom he gave his account,
the applicant fled to another more distant city in Mexico (Mochis) on January 3, 2007. On March 14, 2007, two individuals allegedly again
tried to shoot him.
[9]
Following this incident, the applicant again
brought a complaint with the Public Ministry. The officer asked him for money
to accelerate the processing of his complaint and once again refused to give
him a copy of his denunciation.
[10]
No longer feeling safe, the applicant left Mexico for Montréal on March 27, 2007, where
he claimed refugee protection on April 3, 2007.
II. Impugned
Decision
[11]
The Board member’s decision, which is three
pages long, essentially deals with the applicant’s lack of credibility. The Board
member first noted that in his testimony, the applicant stated that he had been
told of police officers Romero and Ayala’s involvement in his employer’s
activities by one of the confined victims. This information was not mentioned in
answer to question 31 of the applicant’s Personal Information Form (PIF). The
Board member considered this to be an important omission: not only did the
applicant mention in his PIF that one of the victims had informed him of his employer’s
responsibility, but in addition the involvement of the police officers was
crucial to explain why it was impossible for the applicant to find refuge
elsewhere in the country or obtain protection from the Mexican authorities.
[12]
The Board member also noted the lack of copies
of the complaints filed by the applicant and the contradictions in the
explanations given by the applicant to justify this deficiency. As far as the November 2006
complaint is concerned, the applicant first stated that his Mexican lawyer had
been unable to obtain a copy of the denunciation because he was told that the
investigation was completed. He then alleged that the same lawyer had demanded
too much money to obtain a copy of the complaint for him. Finally, the
applicant claimed that his mother, without having been given power of attorney by
him, had unsuccessfully tried to obtain a copy of the complaint.
[13]
As far as the complaint dated March 14,
2007, is concerned, the applicant again claimed that the officer who received
his complaint had demanded money to obtain a copy for him. Yet the applicant
did not report this demand to anyone and did not undertake any subsequent steps
to obtain a copy of his complaint. In addition, the Board member considered the
applicant’s narrative to be implausible, given the documentary evidence that a
complainant can obtain a copy of his or her complaint and denounce a public
servant who infringes this rule. When confronted with this evidence, the
complainant could only submit that the actual situation in Mexico was quite different from that
described in the documentary evidence.
[14]
Finally, the member criticized the applicant for
not having lodged a complaint with higher authorities, such as the Office of
the Attorney General of the Republic. The applicant explained that he had decided
to file his complaint with the Public Ministry on the recommendation of his
lawyers. He was unable to explain, however, why he had filed at least two
complaints with the Public Ministry even though he allegedly did not trust this
body.
III. Issue
[15]
The only issue in this case is whether the RPD
erred in its assessment of the applicant’s credibility.
IV. Analysis
[16]
It is trite law that credibility findings are
akin to issues of fact and must be treated with considerable deference on
judicial review. Having had the advantage of seeing and hearing the applicant,
the RPD is in a better position than this Court to assess his behaviour and the
validity of his explanations. It is only where the RPD’s findings are capricious,
without merit or made in bad faith that this Court will intervene: Dunsmuir
v. New Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9; Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12,
[2009] S.C.J. No. 12.
[17]
Considering this standard of review, the issue
to be determined by this Court is not whether it would have reached the same
conclusion as the Board member, but rather if the member’s conclusion was
warranted on the basis of the evidence and if it falls within a range of possible,
acceptable outcomes.
[18]
A close reading of the transcript shows that the
Board member was entitled to question the revelations allegedly made to the
applicant by one of the victims about the identity of the persons in charge of
the establishment in which young girls were being used as prostitutes. At the
hearing the applicant stated that the names of the two police officers had been
given to him by his employer’s young victim, even though he wrote in his PIF that
the persons responsible had been identified as being his employer and some
police officers. Although this discrepancy between the two versions may not be determining
as such, the Board member could nevertheless consider it to be a factor which
undermined the applicant’s credibility, especially since this was clearly a central
aspect of his claim.
[19]
The Board member was also entitled to question
the various explanations given by the applicant about the lack of evidence
corroborating the denunciations he allegedly filed with the Public Ministry. A close
reading of the transcript reveals that the applicant had changed his version of
the facts several times. Similarly, the Board member could reasonably doubt the
explanation given by the applicant for why he did not complain to the Attorney
General of the Republic or to the Federal Investigation Agency rather than the Public
Ministry to which the incriminated police officers reported directly. It is
true that the applicant was not obliged to contact organizations devoted to
protecting human rights. However, there was no excuse for him not to complain
to higher Mexican authorities empowered to investigate allegations about federal
police officers. In addition, the applicant did not really answer why he
complained to the Public Ministry even though he allegedly did not trust the people
working there.
[20]
Finally, the applicant submitted that the Board
member erred when he criticized him for not contacting the Mexican consulate or
embassy to obtain a copy of his complaints. However, this is not why the Board
member criticized him. Instead, he questioned why the applicant had not taken
any steps since he arrived in Canada to corroborate his claims and obtain a copy of his denunciations, be
it through a relative or another Mexican lawyer.
[21]
In short, I consider that the RPD’s decision not
to believe the applicant’s account was not capricious and was supported by the
evidence. The transcript of the applicant’s testimony clearly shows that it was
rife with inconsistencies, omissions and contradictions. Moreover, the
applicant did not provide a satisfactory explanation about the complete lack of
evidence that might have lent credibility to his claims. In these circumstances,
and despite the fact that the decision could have been more thorough, an
intervention by this Court would not be warranted. The applicant did not
discharge his burden of demonstrating that the findings made by the Board
member were unreasonable or capricious, made in bad faith or unsupported by the
evidence.
[22]
For the foregoing reasons, the present
application for judicial review is dismissed. The parties did not submit any
question for certification and this case does not raise any.
ORDER
THIS COURT ORDERS that the application
for judicial review be dismissed. No question is certified.
“Yves de Montigny”
Certified true
translation
Johanna Kratz
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