Date: 20090428
Docket: IMM‑3718‑08
Citation: 2009 FC 428
Montréal, Quebec, April 28, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
EUGENIA SANTOS RIVERA
CARLOS JAVIER
SANTOS RIVERA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), the
principal applicant, Eugenia Santos Rivera (the
applicant), and her son, Carlos Javier Santos Rivera, both
citizens of Mexico, are seeking judicial review of a decision dated
July 27, 2008, by the Refugee Protection Division of the Immigration
and Refugee Board (the Board) finding the applicants to be neither Convention
refugees nor persons in need of protection within the meaning of section 96
or 97 of the Act and consequently rejecting their claim for refugee protection
chiefly on the ground that their narrative was not credible.
II. Facts
[2]
The
applicant made a claim for refugee protection in Canada for herself and her son, alleging a fear
of her former spouse, Eduardo Rafael Guerrero, the father of her son.
[3]
The
applicant recounts that she and Mr. Guerrero lived in a conjugal
relationship in Mexico for 13 months starting
in July 1993. From that relationship was born a son, Carlos Javier,
on March 11, 1995.
[4]
In 1995,
when she was living with Mr. Guerrero, the applicant allegedly learned
that he was defrauding the employer for whom the couple was working. After admitting
his wrongdoing to the applicant, Mr. Guerrero allegedly threatened her and
warned her not to tell anyone.
[5]
The
couple’s relationship then allegedly deteriorated to the point that the
applicant had to move and change jobs to escape her former spouse’s stalking
and threats. Even then, he managed to cause other problems for her.
[6]
According
to the narrative in her Personal Information Form (PIF), the applicant decided
to leave her country and come to Canada
on June 6, 2004, after being assaulted by her
ex-spouse, who wanted access to his son.
[7]
In
July 2004, the applicant left her son in Mexico and came alone to Canada for a few
months, and then returned to Mexico without seeking refugee protection.
[8]
On
July 6, 2006,
she allegedly filed a complaint against her ex-spouse for harassment and, less
than two weeks later, left for Canada with her son and sought
refugee protection for both of them.
III. Impugned decision
[9]
After
analyzing all the evidence in this matter, the Board gave no credibility to the
narrative on which the applicant’s claim was based and found that
“[translation] the applicants have not demonstrated that they were Convention
refugees or persons in need of protection.”
[10]
Is the Board’s
decision unreasonable?
IV. Analysis
Appropriate
standard of review
[11]
These
proceedings concern the assessment of the evidence and the lack of credibility
of the applicant, which are purely factual questions reviewable on the standard
of reasonableness defined in Dunsmuir v. New Brunswick,
2008 SCC 9 (Dunsmuir).
[12]
The
Board had the clear advantage of hearing the applicant and being able to make a
fair assessment of her narrative and the explanations she gave when confronted
with discrepancies and the implausibility of her story; the Board’s decision
must be treated with deference.
[13]
That
standard does not open the door to the type of intervention sought by the
applicant, who is simply reiterating much the same facts already assessed by
the Board, which the applicant criticizes for improperly assessing her personal
situation. She is in effect asking this Court to reassess everything and to substitute
its own opinion for that of the Board and arrive at a different conclusion.
[14]
Unfortunately,
that is not the role of this Court in an application for judicial review. On the
contrary, this Court has only to examine whether or not the impugned decision
is warranted having regard to the facts in evidence and the law, while the
applicant must show the Court how the Board’s decision is unreasonable.
[15]
Within
this standard of review, can the Court find that the Board erred in a
capricious manner when it did not believe the applicant’s narrative?
Applicant’s credibility
[16]
The
applicant complains that the Board rejected her narrative because she presented
no documentary evidence to corroborate her testimony, and ignored her sworn
testimony for no valid reason. From its analysis of the case, the Court cannot find that
the complaint has merit.
[17]
The
applicant overlooks the fact that her failure to produce corroborating
documents is insignificant compared with the other factors irremediably
damaging her credibility in the eyes of the Board, namely, important items
missing from the applicant’s PIF, contradictions between her narrative and
her testimony, implausibilities in her narrative, her behaviour during all the
events described and her lateness in filing a complaint and claiming refugee
protection. Indeed, when take as a whole, all those factors provide ample
justification for the Board to doubt the applicant’s story and deliver the decision
that is the subject of this proceeding.
V. Conclusion
[18]
For
these reasons, the Court finds that no substantial grounds have been provided
by the applicants to satisfy it that the impugned decision is based on
erroneous findings of fact made in a perverse or capricious manner, or that the
Board delivered its decision without regard for the evidence before it,
including the applicant’s sworn testimony, of which the Board had to make a
fair assessment (Lin v. Canada (Minister of Citizenship and Immigration),
2008 FC 698).
[19]
On
the contrary, having analyzed the case, the Court is satisfied that the
decision is supported by the facts and the law, as well as by “common sense”;
therefore, the decision is reasonable.
[20]
Since
no serious question of general importance was proposed or ought to be proposed,
there is no question to 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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