Date: 20090320
Docket: IMM-2329-08
Citation: 2009 FC 288
Ottawa, Ontario, March 20, 2009
PRESENT: The Honourable Mr. Justice Orville Frenette
BETWEEN:
Rodrigo
CASAS PADIERNA,
Roxana CASAS XOCHICALE,
Diego CASAS XOCHICALE
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
the Refugee Protection Division of the Immigration and Refugee Board (hereinafter
the panel) dated April 29, 2008, refusing the applicants’ refugee
claims.
Facts
[2]
The
principal applicant, Rodrigo Casas Padierna, a Mexican citizen,
arrived in Canada with his
wife and their two children on August 6, 2007, and claimed refugee
protection. The applicant alleged that he hired a babysitter named Maria in
2002 to take care of the children. This babysitter worked for them for four
years before she had to leave. Subsequently, the applicant received threats and
was afraid that one Nicolas Castro Juares would kidnap his children.
The applicant then decided to seek asylum in Canada.
Impugned
decision
[3]
On
April 29, 2008, the panel issued its decision refusing the applicants’
refugee claim based primarily on a lack of credibility. The principal applicant
is a young industrial engineer. In his testimony before the panel, [translation] “he does not know whether
Nicolas Castro Juares is really the person he fears”, i.e., the
person he had identified when he began testifying.
[4]
He
did not seek state protection or try to relocate elsewhere in Mexico. He admitted
that he could have moved elsewhere in Mexico. The panel found that
the principal applicant was not credible and had not seriously sought state
protection or an internal flight alternative; he was, therefore, not a refugee
within the meaning of sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act).
Motion for an
extension of time
[5]
The
principal applicant filed an application for leave and judicial review of the
decision issued on April 29, 2008. The applicant had 15 days to serve
the parties (paragraph 72(2)(c) of the Act). It was not until
June 19, 2008, two months and 13 days later, that he served the
application. The principal applicant simply indicated that he did not serve the
application on the respondent because he was distracted, without any other
explanation or justification and without leave of the Court. The respondent
requests that this proceeding be dismissed because of this significant
procedural defect (Traore v. Minister of Citizenship and Immigration,
2002 FCT 909; Grewal v. Minister of Employment and Immigration,
[1985] 2 F.C. 263 (C.A.); Semenduev v. Canada (M.C.I.),
[1997] F.C.J. No. 70 (QL)).
[6]
The
respondent requests that these applications be dismissed because the two
essential conditions have not been met: first, serious reasons justifying the
delay and second, evidence to show an arguable case on the merits (Valyenegro
v. Canada (Secretary of State), [1994] F.C.J. No. 1917 (QL), 88 F.T.R. 196).
[7]
The
principal applicant responds that he has satisfied both conditions. The
credibility decision was erroneous and even if that were not the case, the
panel should have addressed the merits of the fears according to Attakora v.
Canada (M.E.I.) (1989), 99 N.R. 168, where Mr. Justice Hugessen
wrote:
. . . Whether or not the
applicant was a credible witness, and I have already indicated that the Board's
reasons for finding him not credible are based in error, that does not prevent
him from being a refugee if his political opinions and activities are likely to
lead to his arrest and punishment. In those circumstances, the only conclusion
that was open to the Board was to find that the applicant was indeed a
Convention refugee.
[8]
However, in this case, the situation is very different from
that in Attakora; accordingly, the lesson learned from that case does
not apply here. Furthermore, other decisions state that the decision‑maker
has the right to disregard evidence if he or she is convinced that the
applicant is not trustworthy (Allouche v. Canada (M.C.I.), [2000] F.C.J.
No. 339 (QL); Riveros v. Minister of Citizenship and Immigration,
2001 FCT 1009; Sheikh v. Canada (M.C.I.), [1990] 3 F.C. 238;
Bengabo v. Minister of Citizenship and Immigration, 2009 FC 186,
at paragraphs 27 and 28). The application must be dismissed based on the
procedural defect, but I will briefly analyze the merits of the application.
Standard of
judicial review
[9]
In
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the
Supreme Court of Canada decided that the standard of review in administrative
law with respect to questions of fact or mixed questions of fact and law is
reasonableness. On a question of law, the standard is correctness. In Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, the Supreme Court added
that decisions of administrative tribunals are entitled to deference.
[10]
The
case before me concerns a decision based on facts, and therefore the
reasonableness standard applies.
Issues
[11]
The
respondent contends that the panel was correct in concluding that the applicants
had not attempted to obtain state protection. Nor had they rebutted the
presumption of an internal flight alternative. The applicants did not dispute
this conclusion (McLean v. Minister of Citizenship and Immigration, 2005
FC 1007, at paragraph 12; Navarro v. Minister of Citizenship and Immigration, 2008
FC 358, at paragraph 19). These objections are, therefore, well founded.
[12]
I
have already determined that the panel’s finding on the applicant’s lack of
credibility was well founded. This finding is based on the evidence, and accordingly
this Court cannot intervene.
[13]
Counsel
for the applicants raised what he describes as a breach of procedural fairness
during the hearing before the panel on April 14, 2008. The principal applicant
referred to a complaint that he had made to the Mexican police and showed a
copy of it. The panel asked him why he had not submitted it in evidence; he
replied [translation] “that
someone suggested to him that he should not do so because it was illegible”.
The panel obtained the document and had it translated by a competent
translator. In this complaint, the principal applicant stated that he was not sure
who was threatening him, whereas he told the panel that it was Nicolas Castro
Juares. The panel invoked this contradiction (with other indicia) to determine
that the applicant was not credible. In my view, this incident is not a breach
of procedural fairness since it was the applicant himself that showed it to the
panel. This complaint must therefore be dismissed.
[14]
In
light of the foregoing, the application is not well founded in fact and in law.
For these reasons, the Court orders that the applicants’ application for
judicial review be dismissed.
JUDGMENT
The
application for judicial review of the decision by the Refugee Protection
Division of the Immigration and Refugee Board dated April 29, 2008, is
dismissed.
No question will be certified.
“Orville
Frenette”
Certified
true translation
Mary
Jo Egan, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2329-08
STYLE OF CAUSE: Rodrigo CASAS PADIERNA, Roxana
CASAS XOCHICALE, Diego CASAS XOCHICALE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: Montréal,
Quebec
DATE
OF HEARING: March 11, 2009
REASONS
FOR JUDGMENT
AND
JUDGMENT BY: The
Honourable Mr. Justice Orville Frenette, Deputy Judge
DATED: March 20, 2009
APPEARANCES:
Claude
Brodeur FOR THE APPLICANTS
Émilie Tremblay FOR THE
RESPONDENT
SOLICITORS
OF RECORD:
Claude
Brodeur FOR THE
APPLICANTS
Montréal, Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
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