Date: 20090407
Docket: IMM-3979-08
Citation: 2009 FC 352
Montréal, Quebec, April 7, 2009
PRESENT: The
Honourable Maurice E. Lagacé
BETWEEN:
CUNA BALLESTEROS
jOSE LUIS
MIRELES
SALAZAR RUTH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The principal applicant José Luis Cuna Ballesteros
(applicant) and his spouse Ruth Mireles Salazar, both citizens of Mexico, seek
under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act), judicial review
of the decision dated August 15, 2008, by the Refugee Protection
Division of the Immigration and Refugee Board (panel), determining that they
are neither “refugees” nor
“persons
in need of protection” as defined in sections 96 and 97 of the
Act, and consequently denying their refugee claim.
II. Facts
[2]
The applicant submits
that when he was acting as financial auditor for the Agricultural and Peasant
Workers Independent Central (Central independiente de obreros agricolas
y campesinos, or CIOAC), he received death threats after internally
reporting fraudulent management by one of the officers of the CIOAC.
[3]
Nevertheless, the
applicant thought it appropriate in that situation to be interviewed by the
media on the mismanagement of the CIOAC, which resulted in media coverage
informing the public of the matter. From that point on, the applicant began to
fear the senior officers of the CIOAC as well as the peasants represented by
this union because he had reported fraud and because of his role as financial
auditor of the CIOAC at that time.
[4]
Having
thus lost the support of union management and subsequently receiving (both he and his spouse) threats that
the applicant merely reported to police in August 2006 without taking further
measures, he and his spouse then decided, on February 7, 2007, to leave their
country and claim refugee protection in Canada.
III. Decision
of the panel
[5]
After
having considered and commented on the principal evidence and highlighted the discrepancies, inconsistencies
and implausibilities
in the applicant’s account and that of his spouse, the panel found that they
were not credible and that, even if their account were accepted as true, the
applicants had not made any serious efforts to avail themselves of the
protection of their country of origin, and consequently did not rebut the presumption of state protection that applies
in a democratic state such as Mexico.
[6]
For
these reasons, the panel found that the applicants did not qualify as “Convention refugees” or as “persons in need of
protection” and consequently denied their refugee claim.
IV. Issue
[7]
Did the Board make an unreasonable error by making a
negative assessment regarding the credibility of the applicants and refusing to
grant them the status of “refugees” or “persons in need of protection”, and by finding that
they had failed to discharge the burden of showing that they had made
sufficient efforts to avail themselves of their country’s protection before
seeking Canada’s protection?
V. Analysis
Standard of review
[8]
This proceeding
raises questions of mixed fact and law and is therefore subject to the standard
of reasonableness as defined in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir).
The panel’s decision must therefore be treated with deference because the
panel enjoys a certain expertise in proceedings under its jurisdiction such as
this.
[9]
This
standard does not open the door to the intervention desired by the applicants.
The Court needs only to determine if the impugned decision is reasonably
justified in light of the evidence and the relevant law.
[10]
Within
this standard of review, can the Court conclude that the Board erred when it
determined that the applicant’s spouse is neither a “refugee” nor a
“person in need of
protection”
as defined in the Act?
Parties’ claims
[11]
Briefly, the applicants are criticizing the panel
for erring by not believing their account given under oath and by not properly
considering their country’s special situation and the reasons why they did not
seek its protection.
[12]
The
respondent for his part maintains that the applicants failed to exhaust the
alleged avenues available to them in Mexico before claiming refugee status in
Canada, that moreover, as noted by the panel, the credibility of their account
left something to be desired in many respects, and that furthermore the
decision of the panel discloses no unreasonable error that could warrant the
intervention of this Court.
Have
the applicants satisfied their obligation to exhaust the avenues available to
them in Mexico before being able to claim refugee status in Canada?
[13]
The
applicant purportedly made only one complaint to the Mexican authorities before
claiming refugee status in Canada, and even on this point, his testimony was
contradictory and vague.
[14]
However,
even if the applicant did make a complaint to the Mexican police, he should
have done so more than once. The police are not the only organization in Mexico
that can offer protection to its citizens in a case of publicized fraud of
which there were several victims amongst the peasants doing business with the CIOAC.
[15]
Instead,
the applicants should have exhausted every avenue offered to them in Mexico
before coming to claim refugee status in Canada (Valencia v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1136).
[16]
It must also be recalled that there is a presumption of state
protection, particularly in a democratic state such as Mexico (De La Rosa
v. Canada (Minister
of Citizenship and Immigration), 2008 FC 83; Santos
v. Canada (Minister
of Citizenship and Immigration), 2007 FC 793; Lazcano
v. Canada (Minister
of Citizenship and Immigration), [2007] F.C.J. No.
1630; Baldomino v. Canada
(Minister
of Citizenship and Immigration), [2007] F.C.J. No. 1638).
[17]
The applicants’ failure to make any serious or reasonable efforts
to avail
themselves of their country’s protection does not
allow them to rebut this presumption, is fatal to their claim, and justifies
the panel’s findings in its decision.
Credibility
of the applicants
[18]
Even
if this finding by the Court on the above issue is sufficient for this
application to be dismissed, it may perhaps be useful to discuss the
credibility of the applicants insofar as the panel made it the principal ground
for denying the refugee claim and the applicants are challenging this finding.
[19]
Contrary
to the claims of the applicants, the fact that they swore to the truthfulness
of their account under oath did not prevent the panel from doubting it, given
that, in this proceeding, the panel made a point to note within the evidence
several significant discrepancies and implausibilities that weakened
their account to the point of making it not credible.
[20]
The
applicants maintain that before concluding that there was inconsistency and implausibility in their account, the
panel should have taken into account all of the factors and circumstances that
could influence their ability to coherently testify without any discrepancies,
which the applicants criticize it for failing to do.
[21]
However,
the fact that the panel failed to set out in its decision all of
the evidence that the applicants feel support their claims does not mean that
the panel disregarded and failed to consider said evidence.
[22]
Let
us recall that the panel is presumed to have considered all of the evidence
that it is responsible for analyzing and weighing (Florea v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A).
The applicants forget that when a panel finds that a refugee claimant is not credible, as in this proceeding, it is not obligated
to explain all of the material supporting the allegations contrary to those it
accepts. It is sufficient for the panel, as in
this proceeding,
to properly explain the reasons that lead it to question the credibility of the
applicants.
[23]
In
attempting to persuade the Court that the panel erred in drawing negative
inferences from the evidence regarding their credibility, the applicants are in
fact seeking to justify the evidence that the panel disregarded or called into
question because it was found to be unreliable, unsatisfactory, contradictory or implausible. Let us not forget that
the applicants had every opportunity to fully present their account to the
panel and to convince it, but were unfortunately unsuccessful.
[24]
It
is not up to this Court at this stage to repeat the exercise, reassess the
evidence and substitute its opinion for that of the panel which, in addition to
enjoying a certain expertise in the matter, possesses the unique advantage of
having heard the applicants on their account and having been able to assess
their behaviour and their explanations
on the discrepancies that the panel objected
to. The panel clearly remains more qualified than this Court to assess the
credibility of the applicants as it did in this proceeding.
[25]
The Court must verify only whether the Board’s
decision was justified and reasonable in the sense stated in Dunsmuir,
above. Credibility determinations, which lie within "the heartland of the
discretion of triers of fact", are entitled to considerable deference upon
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 paragraph 24; Dunsmuir,
above). This is certainly not the case here.
[26]
Here,
the panel considered the explanations of the applicants throughout their
testimony but did not believe the grounds cited for leaving Mexico and claiming
refugee status in Canada because of the discrepancies, inconsistencies and implausibilities in their account.
Having no obligation to accept all of the explanations given by the applicants,
the panel could reject those it did not deem credible or reject them all (Aguebor
v. Canada (Minister of Employment and Immigration) (F.C.A), [1993] F.C.J.
No. 732, 42 A.C.W.S. (3d) 886; Rathore v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J No. 42 (T.D.) (QL)).
[27]
The
evidence here allowed the panel to find that the applicants’ account lacked
credibility and determine that they had not discharged the burden of
demonstrating that they were “refugees” or “persons in need of protection” as
defined in the Act, and consequently deny their refugee claim.
[28]
Consequently,
the Court finds that the decision presently under review is not unreasonable,
and therefore the application for judicial review of this decision is
dismissed. No serious question of general importance was proposed and none will
be certified.
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