Date: 20090224
Docket: IMM-3489-08
Citation: 2009 FC 193
Montréal, Quebec, February 24, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
RENÉ DE LA CRUZ OLGUIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review by the applicant pursuant to section 72
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
of a decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated July 17, 2008, wherein it was determined that the applicant,
a citizen of Mexico, did not provide trustworthy and credible evidence to
support a well-founded fear pursuant to section 96, nor did he establish a risk
under subsection 97(1) of the IRPA and, consequently, he was not considered a Convention
refugee nor a person in need of protection.
II. The facts
[2]
The
applicant’s fear of persecution, which brought the applicant to leave his
country of origin for Canada to claim protection, is based on threats to his
life that the applicant would have received as a result of his alleged
knowledge of illegal business transactions between his boss and the police with
regard to the illegal sale of gasoline from an underground tank.
III. Issues
[3]
Was the
negative decision of the RPD unreasonable?
IV. Analysis
Standard of
review
[4]
The
question is whether the RPD member erred in her factual assessment of the applicant’s claim. Therefore,
the standard of review is reasonableness (Dunsmuir v. New
Brunswick,
2008 SCC 9). As stated at paragraph 161 in Dunsmuir, “decisions on
questions of fact always attract deference”, especially when the credibility of
the applicant is affected, and “when the issue is limited to questions of fact,
there is no need to enquire into any other factor in order to determine that
deference is owed to an administrative decision maker”.
[5]
In
reviewing the Board's decision, the Court is mostly concerned with "the
existence or lack of justification, transparency and intelligibility within the
decision-making process [and also] [...] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
(Dunsmuir, above, at para. 47).
[6]
Unless
the credibility findings were made capriciously or without supporting evidence,
and had the RPD not provided sufficient reasons in clear and unmistakable terms
to conclude as it did, this Court would owe these findings the highest degree
of deference. The burden rests on the applicant to show that the negative
credibility inferences drawn by the RPD could not reasonably have been drawn (Aguebor
v. Canada (Minister of Employment and Immigration)(F.C.A.), [1993] F.C.J.
No. 732 at paragraph 4).
Credibility
findings
[7]
The
applicant contends that the RPD wrongfully dismissed his claim by alleging
credibility issues. He accuses the RPD member of having been biased and not
having a minimum knowledge of the situation in Mexico, in particular the criminality and
corruption that invades his country. In fact the applicant insults the board member’s
knowledge and training when he claims that the negative decision resulted from
the RPD member’s inexperience.
[8]
The
applicant forgets
however that the RPD member found his claim to be implausible and containing
several discrepancies that were not supported by the evidence. In his recourse
against the RPD decision, the applicant has not discharged his burden to show
that the RPD erred in its negative credibility inferences. The applicant also
forgets that it was up to the RPD member and not to this Court to decide if his
claim was plausible or not.
[9]
A careful
reading of the transcript of the hearing does not lead the Court to believe
that the decision was made
in a capricious manner or without regard to the material before it. On the
contrary, the RPD exposed sufficient reason to find the applicant not credible
and to justify why it reached its negative conclusion. The RPD found many
contradictions and also found implausible the communication between the
applicant and his boss about reference letters and the inspection of the
underground tank, while fearing for his life from his boss.
[10]
The applicant
is in fact simply asking more or less this Court to analyse. appreciate and
weigh the evidence in the expectation that the Court will substitute its opinion
and conclude differently than what the RPD did. However, such is not the role
of this Court. The RPD had the net advantage over this Court because of its
expertise and of having heard the applicant. The RPD was therefore in a much
better position than this Court is now to weigh the evidence, its weaknesses
and strengths, and to decide on its acceptability, and whether it contained or
not trustworthy
and credible evidence to support a well-founded fear of persecution.
[11]
At this
stage of the process, the Court’s role is limited to verifying whether the
RPD’s inferences and conclusions about the lack of credible evidence to support
the applicant’s claim are reasonable or not. The reasons given here by
the RPD are not to be read hypercritically by the Court nor is this
administrative tribunal required to refer to every piece of evidence received (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 ).
[12]
The
present matter turns on the applicant’s failure to establish with credible and
trustworthy evidence the purpose of his claim that is, the fact that his
fear of persecution is related to his true knowledge of the alleged illegal
business activities of his former employer and the threats that he would have
incurred as a consequence.
[13]
Overall,
the applicant has failed to show that the impugned decision is unreasonable or falls as a
whole outside the range of acceptable outcomes which are defensible in respect
of the facts and the law.
Therefore his application for judicial review will be dismissed.
[14]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING
REASONS, THIS COURT dismisses the application.
“Maurice E.Lagacé”
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