Date: 20090501
Docket: IMM-4530-08
Citation:
2009 FC 442
Ottawa,
Ontario, May 1, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
MARIA
ELSA REYES RAMIREZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act,
2001, c. 27 (Act),
of a decision by the Refugee Protection Division of the Immigration and Refugee Board (IRB), Refugee
Protection Division
(the panel), dated
September 22, 2008, that the applicant is not a Convention refugee or a person
in need of protection.
Issues:
[2]
Did the
panel err in finding that the applicant was not credible?
Factual background
[3]
The
applicant, Maria Elsa Reyes Ramirez, is a citizen of Mexico. She alleges being a victim of conjugal
violence at the hands of her spouse who is a police officer and that she was
not able to obtain state protection.
[4]
She
arrived in Canada on February 14, 2007, and
claimed protection upon her arrival.
[5]
She claims
that she fears being persecuted because of her membership in a particular
social group, that is, women victims of conjugal violence. Furthermore, she
claims that she is a person in need of protection because she would be subjected
to a risk to her life or to a risk of cruel and unusual treatment or punishment
if she were to return to her country.
Impugned decision
[6]
The panel
wrote this at paragraph 10 of the decision: “. . . it would be very difficult
to conclude that effective protection can be given to a woman who is a victim
of domestic violence in Mexico, among other things”.
[7]
However, it
attributed no credibility to the applicant because her testimony and her
written narrative were not consistent with the statement she made at the point
of entry on
February 14, 2007, concerning the essential elements, that is, her claim for
protection from the state or from an organization or humanitarian assistance.
[8]
Furthermore,
the panel criticized her for not filing evidence of employment or evidence corroborating
that her spouse is a member of the Mexican police force.
Standard of review
[9]
In
questions of credibility and assessment of evidence, it is well established
under paragraph 18.1(4)(d) of the Federal
Courts Act, R.C.S. 1985, c. F-7, that the Court will intervene only if the panel based its decision on an
erroneous finding of fact in a perverse or capricious manner or if it made its
decision without regard to the evidence.
[10]
Moreover, the
panel is a specialized panel and its findings relating to credibility are
questions of fact. The Court should therefore intervene only in the presence of
a patently unreasonable error (Aguebor v. Canada (Minister of Employment and
Immigration) (1993),
160 N.R. 315, 42 A.C.W.S. (3d) 886) (F.C.A.)).
[11]
Assessing credibility and weighing the evidence
fall within the jurisdiction of the administrative tribunal called upon to
assess the allegation of a subjective fear by a claimant (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35,
83 A.C.W.S. (3d) 264 (F.C.T.D.) at paragraph 14). Before Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, the standard of review that was applicable in comparable circumstances was
patent unreasonableness. Since then, it is reasonableness.
[12]
The
standard of review that is applicable for questions of state protection is
reasonableness (Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, 137 A.C.W.S.
(3d) 392 at paragraphs 9 and 11 and Gorria v. Canada (Minister of Citizenship and Immigration),
2007 FC 284, 310 F.T.R. 150 at paragraph 14).
1. Did the panel err in finding
that the applicant was not credible?
[13]
The answer
to this question is no. The applicant did not submit probative evidence
supporting her refugee claim. She fears her spouse because she believes that he
wants to kill her. The applicant’s written narrative discloses that what she
says she knows concerning her spouse is related to the fact that he is
allegedly a corrupt police officer in Mexico (see answer to question 31 on the applicant’s
Personal Information Form (PIF)).
[14]
Even
though the applicant’s spouse’s status of police officer is crucial to her
refugee claim, the panel noted that she did not have any tangible evidence
supporting this element.
[15]
On
numerous occasions, this Court has confirmed that the panel may draw a negative
inference because a claimant has not produced corroborative evidence to support
his or her testimony when the panel has credibility concerns (Sinnathamby v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 473, 105
A.C.W.S. (3d) 725; Muthiyansa v. Canada (Minister of Citizenship and Immigration),
2001 FCT 17, 103 A.C.W.S. (3d) 809; Dhindsa v. Canada (Minister of
Citizenship and Immigration), 102 A.C.W.S. (3d) 165, [2000] F.C.J. No. 2011
(F.C.T.D.) (QL); Quichindo v. Canada (Minister of Citizenship and Immigration),
2002 FCT 350, 115 A.C.W.S. (3d) 680).
[16]
In the
case at bar, in the absence of probative evidence corroborating the applicant’s
written narrative and testimony, the panel reasonably found that the applicant
was not credible.
[17]
The
applicant criticizes the panel for not having mentioned in its decision the Guidelines
of the Chairperson of the IRB concerning women victims of conjugal violence (Khon
v. Canada (Minister of Citizenship and Immigration), 2004 FC 143, 36 Imm. L.R.
(3d) 55). However, this is not fatal as such provided that the decision maker
is sensitive to women when the basis of their claim is related to their
vulnerability (Kaur v. Canada (Minister of Citizenship and Immigration), 2006 FC 1066, [2006] F.C.J.
No. 1345 (QL) at paragraph 12).
[18]
In this
case, the Court considers that the panel took care to consider the particular
situation of the applicant by issuing the obiter mentioned in paragraph
5 of these reasons.
[19]
No question for certification was proposed by
the parties and this application does not give rise to any.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Janine
Anderson, Translator
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