Date: 20090116
Docket: IMM-337-08
Citation: 2009 FC 39
Montréal, Quebec,
the 16th day of January 2009
Present:
The Honourable Maurice E. Lagacé
BETWEEN:
PAZ
ARAUJO, JUAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The applicant is seeking judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act) of the decision of the Refugee Protection Division of
the Immigration and Refugee Board (RPD) dated March 27, 2008, in which it
determined that he was not a “refugee” or a “person in need of protection”
within the meaning of sections 96 and 97 of the Act and accordingly
rejected his claim for refugee protection.
[2]
Although
the applicant was informed of the date of the hearing, he failed to cooperate
with counsel retained to represent him and chose not to appear in court to
establish that his challenge to the decision of the RPD was valid.
[3]
The
respondent indicated that he was prepared to proceed, and submitted a document
to show that rather than attend, the applicant had decided simply to leave
Canada. In the circumstances, the respondent was emphatic that the Court should
decide on the basis of the record and dismiss the applicant’s application.
[4]
This
decision is therefore made after examining the record and the written
submissions by the parties.
II. Facts
[5]
The
applicant, a citizen of Mexico, claimed refugee protection in Canada on the
basis of his allegation that he feared for his life as a result of threats he
had received from a customer who refused to pay for certain pieces of machinery
purchased from the applicant.
[6]
The
RPD decided that the claimant did not discharge his burden of presenting clear
and convincing evidence to rebut the presumption that the government of Mexico,
a democratic country, is capable of protecting its citizens and providing the
applicant with adequate protection, having regard to his personal situation (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 724 and 725).
III. Issue
[7]
The issue to be determined is whether the RPD committed an
unreasonable error in negatively assessing the credibility to be assigned to
the claimant and in determining that he is not a “refugee” and a “person in
need of protection”.
IV. Analysis
Standard of
Judicial Review
[8]
The courts must show deference to the decisions of specialized
administrative tribunals like the RPD that have expertise in the matters within
their jurisdiction (Dunsmuir v. New Brunswick, 2008 SCC
9).
[9]
The
reasonableness standard applies to this case, and so in order for intervention
by this Court to be warranted, the Court must consider whether the impugned
decision is reasonable, having regard to justification and whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir, supra,
at para. 47).
[10]
The
question to be determined is whether, under that standard of review and based
on the facts in evidence, the Court can conclude that the RPD committed an
unreasonable error in determining that the applicant is not a “refugee” and a
“person in need of protection” and finding that he had failed to rebut the
presumption of state protection.
Absence
of Credibility
[11]
The
RPD had the advantage of hearing the applicant and was therefore better able to
assess his credibility when it weighed the evidence offered by him in support
of his allegations. After considering those contradictions, the RPD did not
find the essence of the claimant’s allegations to be credible.
[12]
As
a specialized tribunal, the RPD, and not this Court, has the task of assessing
the testimony and documentary evidence offered by the applicant and of reaching
conclusions both as to the weight to be assigned to that evidence and as to the
applicant’s credibility.
[13]
It
is not the role of this Court to do the RPD’s work again; we must simply
determine whether its decision is reasonable, having regard to justification
and whether it falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law. Unless the applicant establishes
how and why the RPD committed an unreasonable error, no intervention by this
Court is warranted.
[14]
The
applicant does not dispute the RPD’s findings of contradictions and omissions
and also has not shown how and why its findings of fact regarding his
credibility were arbitrary, unreasonable or made without regard to the evidence
in the record.
[15]
It
was open to the RPD to find that the applicant was not credible on the basis of
implausibilities in his account, common sense and reason (Garcia v. Canada
(Minister of Citizenship and Immigration), 2008 FC 206).
[16]
The
Court must confine itself to determining whether the RPD’s decision is
justified and reasonable within the meaning of Dunsmuir, supra. Decisions
regarding a party’s credibility lie within “the heartland of the discretion of
triers of fact”, and so such decisions are entitled to considerable deference
on judicial review. They cannot be overturned unless they are perverse,
capricious or made without regard to the evidence (Siad v. Canada (Secretary
of State) (C.A.), [1997] 1 F.C. 608, 67 A.C.W.S. (3d) 978, at para. 24;
Dunsmuir, supra), and that is not the case here.
[17]
The
Court must show considerable deference in considering the RPD’s findings
regarding the applicant’s
credibility, and this places a heavy onus on him if he is to persuade this Court to overturn the decision he is
challenging.
[18]
In
short, the applicant has not established that the impugned decision is based on
findings of fact made perversely or capriciously or that the RPD made its
decision without regard to the evidence before it. It was open to the RPD to
reject the applicant’s claim on the sole basis that his conduct was
inconsistent with his allegations, and accordingly to find that he was not
credible. As a result, the RPD’s finding as to the applicant’s credibility is
reasonable and intervention by this Court is not warranted.
State
Protection
[19]
The
RPD concluded, in the alternative, that the applicant had failed to rebut the
presumption that state protection was available to him in Mexico. Given that
the RPD had not found his account credible and had therefore concluded that he
could not be granted status as a refugee or a person in need of protection, it
was then superfluous and unnecessary for it to make any finding as to the
presumption of protection from Mexico, which the applicant had in any event not
rebutted. Even though the RPD made a finding on that point, this does not mean
that it erred.
[20]
Since
there has not been a complete breakdown of the state apparatus of Mexico, it should
be presumed that that state is capable of protecting its citizens, including
the applicant. In addition, that protection need not be perfect, and so the
applicant had to offer clear and convincing proof of his need for protection
and the inability or refusal of Mexico to protect him (see Ward, supra).
Not only did he fail to discharge that burden, but he also failed to satisfy
the RPD as to the need for protection alleged.
[21]
Notwithstanding
the problems reported in respect of the Mexican government, the applicant had a
duty to first seek the assistance and protection available in his country
before seeking the protection of Canada. How can it be concluded, today, that
the protection offered by the applicant’s country is ineffective, when he never
made serious efforts to test it? It is therefore not unreasonable to conclude
that the applicant failed to discharge his burden of proof in that regard.
[22]
The
Court does not see how the conclusion reached by the RPD on the question of the
protection available in Mexico might be unreasonable, particularly because the
RPD did not have to make a finding on that point, in view of its earlier
conclusion regarding the credibility to be assigned to the applicant’s account.
V. Conclusion
[23]
The
Court finds that the decision challenged in this application is justified,
having regard to the facts and the law; in short, it was a reasonable decision
and no intervention by this Court is warranted.
[24]
No
serious question of general importance having been proposed, no question will
be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Certified true
translation
Brian McCordick,
Translator
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