Date: 20090604
Docket: IMM-4645-08
Citation: 2009 FC 583
Ottawa, Ontario, June 4, 2009
PRESENT:
The Honourable Max M. Teitelbaum
BETWEEN:
JOSUE
ALEJANDRO HERNANDEZ CORTES
Applicant
and
THE 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, S.C. 2001, c. 27 (IRPA), of a
decision made on September 18, 2008 by the Refugee Protection
Division of the Immigration and Refugee Board (the panel or the Board) finding
that the applicant is not a Convention refugee or a person in need of
protection within the meaning of sections 96 and 97 of the IRPA.
Factual background
[2]
The
applicant, Josuè Alejandro Hernàndez Cortès, is a Mexican
citizen from the state of Hidalgo. He alleges that he was verbally and
physically threatened by members of two political parties in Mexico, the
Institutional Revolutionary Party (PRI) and the National Action Party (PAN),
because of his career as a journalist on Mexican television and radio and the
political opinions imputed to him as a result. He claims to fear persecution in
his country of origin because his fellow journalists are not safe there and are
being killed.
[3]
According
to the applicant’s personal information form (PIF), he held several positions
in Mexican broadcasting, including news reader, entertainment program host and,
more recently, host of a phone‑in program dealing mainly with political
issues. In the last of these positions, he took calls from the public and
interviewed politicians, and he had to do his own research to ensure that his
opinions were informed and neutral.
[4]
Three
events allegedly led him to flee the country. In 2004, he criticized the
quality of a Nissan car during one of his shows, and this led to a Nissan
representative—who also happened to be a politician—threatening to destroy his
career as a television journalist. He says that in 2005, he was attacked by
someone driving a Nissan car. In 2006, the applicant was summoned to a
restaurant, where he was told that he would be killed if he continued to talk
about politicians the way he did and he was given two months to leave the
city. According to the applicant, the complaints he filed with the Mexican
authorities led nowhere.
[5]
The
applicant decided to leave Mexico in December 2006 to seek refuge in
Canada. He ruled out any internal flight alternative in Mexico because the
political parties were present throughout the country. The Board heard his
claim for refugee protection on May 14, 2008 and made a negative
decision on September 18, 2008.
Impugned decision
[6]
The panel
accepted the applicant’s identity but found that his narrative was
contradictory and implausible. After analysing all the evidence, the panel
concluded that his claim for refugee protection was not credible.
[7]
The panel
drew adverse inferences concerning several aspects of the applicant’s
testimony:
a. He could not spontaneously
name the governor of the state of Hidalgo but remembered the name of the
governor’s wife, despite the fact that he claimed to be an investigative
journalist who was up to date on political abuses;
b. When asked who had won the
last presidential election in the state of Hidalgo and with how many seats, he
answered that the PRI had won, but he did not know with how many seats. He
later testified that the PAN had been victorious;
c. When asked whether the PRI and
the PAN routinely killed journalists in Mexico, he stated that this was the
case and added that that they even killed each other. The panel noted that he
had previously testified that these two political parties were so similar
that they were interchangeable;
d. The applicant had no
information about the publicized murder of Lus Amaldo Portosio in
2000, which had been ordered by President Zedillo’s brother;
e. The applicant did not know
the names of his fellow journalists killed by drug traffickers and was unable
to provide documentary evidence about this;
f.
The
applicant testified that he had stopped working without informing his bosses.
The panel pointed out that, even if he was unable to obtain a cessation of
employment letter, he could have tried to obtain a letter describing his run‑ins
with the police, which allegedly resulted in him leaving his job because of the
risk he believed he was facing;
g. The complaint filed by the
applicant with the preliminary investigation branch following the 2004 incident
did not name a Nissan representative, and the applicant was unable to establish
what kind of protection he was allegedly denied;
h. The applicant failed to
mention in his PIF that his brother had called the police at the time of the
2005 incident and that the police had quickly begun pursuing the Nissan
car but had been unable to take down the licence plate number. The panel noted
that this “omission” was evidence that the state had taken some measures to
deal with this hit‑and‑run offence;
i.
According
to the applicant’s testimony at the hearing, he complained four times, but
his PIF refers to only two complaints.
[8]
The only
proof of employment filed by the applicant was a card stating that he was a
radio host at the 89.3 FM radio station in the Hidalgo broadcasting system
and a DVD concerning his work. Since the DVD had not been translated, the panel
decided that it could not attach any probative value to it.
[9]
The panel
did not believe the applicant’s statement that he had tried to obtain
protection from the authorities in Mexico. The applicant alleged that, when he
went to complain, he was told that there was no point in filing a complaint
because he was not injured. The panel drew on its specialized knowledge of
Mexican cases to point out to the claimant that this was the first time it had
heard such an argument and that refugee protection claimants do file complaints
with the Mexican authorities without necessarily being injured or on their
deathbed. The panel also referred to a document available on the Internet
entitled Procedures followed to file a complaint with the Federal
Prosecutor’s Office, which described three ways to file a complaint
with the internal comptroller concerning irregularities committed by the
Federal Prosecutor’s personnel. The applicant stated that he was aware of this
possibility of complaining but argued that, in reality, it did not work unless
one could back up one’s statement.
Issues
[10]
This
application for judicial review raises two issues, which can be summarized
as follows:
1.
Did the
panel err in assessing the evidence?
2.
Did the
panel err in drawing on its specialized knowledge?
Positions of the parties
Assessment of the
evidence
[11]
The
applicant filed documents to support his fear of persecution in Mexico,
including a press card and a DVD concerning his professional activities.
According to the applicant, the DVD was evidence that was material to his claim
because it showed the work he did as a journalist, which was the basis for his
fear of persecution.
[12]
In its
reasons, the panel referred to those two documents but stated that it
could not attach any probative value to the DVD because it had not been
translated. The applicant argues that the panel erred in refusing to analyse
that documentary evidence, which confirmed that he was in fact a journalist in
Mexico. He submits that the Refugee Protection Division is an administrative
tribunal that is not bound by the strict rules of evidence and has a power to
investigate. He further submits that the panel had the resources needed to
examine the DVD, especially since a Spanish‑French interpreter was
present at the hearing.
[13]
The
respondent argues that the panel was well‑founded in law not to consider
the DVD, which had not been translated into one of the official languages as
required by Rule 28 of the Refugee Protection Division Rules, SOR/2002‑228
(Rules), which reads as follows:
28.(1)
All documents used at a proceeding must be in English or French or, if in
another language, be provided with an English or French translation and a
translator’s declaration.
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28.(1)
Tout document utilisé dans une procédure doit être rédigé en français ou en
anglais ou, s’il est rédigé dans une autre langue, être accompagné d’une
traduction française ou anglaise et de la déclaration du traducteur.
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[14]
The respondent maintains that, even if the panel had accepted the
fact that the applicant was a journalist in Mexico, the negative decision was
based on the cumulative implausibilities and discrepancies in his narrative and
his testimony. The respondent submits that no documentary evidence could
influence the negative findings of fact already made by the panel with regard to
the applicant’s credibility.
Specialized
knowledge
[15]
The second
ground for the application for judicial review is that the panel relied on its
“specialized knowledge” to point out to the applicant that this was the first
time it had heard such an argument and that refugee protection claimants do
file complaints with the Mexican authorities without necessarily being injured
or on their deathbed.
[16]
The
applicant argues that the panel’s “specialized knowledge” had to be based on
independent documentary evidence and that he had to be given that evidence so
he could respond to it. The applicant alleges that the panel erred in its
analysis of state protection because it relied in large part on evidence that
had not been filed.
[17]
The
respondent submits that the panel’s decision was based on the applicant’s lack
of credibility and not on the question of state protection. In any event, the
respondent argues that the panel was entitled to rely on its specialized
knowledge of the availability of state protection in Mexico to question the
applicant’s allegations.
Analysis
Standard of
judicial review
[18]
The
applicant does not seem to be challenging the panel’s findings of fact with
regard to his credibility. In his written representations, he makes the
following two arguments. First, the panel erred in refusing to analyse
evidence that was material to his claim. Second, the panel erred in drawing on
its specialized knowledge without any corroboration or documentary evidence to
back it up.
[19]
The
applicant submits that reasonableness is the only test that must be used on
judicial review. According to the respondent, the issues in this case relate to
the interpretation of evidence and the questions of fact identified by the
panel. In his view, these questions must be assessed in the context of the
standard set out in paragraph 18.1(4)(d) of the Federal Courts
Act, SOR/98‑106.
[20]
In
my opinion, these proceedings raise questions of mixed law and fact, which
means that the standard of reasonableness as defined by the Supreme Court in Dunsmuir
v. New Brunswick, 2008 SCC 9, applies. The decision of the panel,
which has some expertise in cases like this one, is therefore entitled to
deference. My task is to ascertain whether the impugned decision is reasonably
justified in light of the evidence and the state of the relevant law: Luis c.
Canada (Ministre de la Citoyenneté et de l’Immigration), 2009 CF 352, at
paragraph 9.
Assessment of the
evidence
[21]
It is well
established that the burden of proof is on the applicant. In Hafeez v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1489, Mr. Justice Beaudry
referred to this principle at paragraph 10:
. . . In order to succeed, the applicant
needs to prove, on a balance of probabilities, that he has a reasonable
subjective fear of persecution and that this subjective fear is objectively
well‑founded (Canada (Attorney General) v. Ward, [1993]
2 S.C.R. 689). A subjective fear of persecution is solely based on the
assessment of the applicant’s credibility while the objective fear is usually established
by documentary evidence regarding the country conditions.
[22]
In this
case, the panel concluded that the applicant lacked credibility and therefore
rejected his claim for refugee protection. The applicant criticizes the panel
for not considering, in its analysis, corroborating evidence that supported his
testimony, including the DVD concerning his employment.
[23]
In its
written reasons, the panel stated the following about the proof of employment:
The only proof of employment filed by the
claimant is a card stating that the claimant is a radio host at the
89.3 FM radio station in the Hidalgo broadcasting system and a compact
disc that appears to be a collection of the claimant’s television pursuits.
Since this document has not been translated, the panel cannot attach any
probative value to it.
[24]
Contrary
to what the applicant argues, the language used in the panel’s written reasons
indicates that the decision maker took due account of the DVD in its analysis.
In fact, the panel considered the DVD by noting in its written reasons that it
appeared to be a collection of the applicant’s television pursuits. However,
the panel did not give the DVD any weight, and for good reason, since it had
not been translated.
[25]
The
applicant argues, and correctly so, that administrative tribunals are generally
not bound by the strict rules of evidence. Moreover, paragraph 170(g)
of the IRPA provides that the Refugee Protection Division is not bound by any
legal or technical rules of evidence. In N.O. v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1552, Mr. Justice Harrington
noted that the rules of evidence are made flexible specifically to allow
refugee status claimants to present evidence that would ordinarily not be
admissible (at paragraph 15).
[26]
The applicant
was entitled to file documentary evidence to support his subjective fear.
However, as the respondent notes, Rule 28 provides that “[a]ll documents
used at a proceeding must be in English or French or, if in another language,
be provided with an English or French translation and a translator’s
declaration”. Moreover, the Commentaries to the Refugee Protection Division
Rules provide that “document” includes “any correspondence, memorandum,
book, plan, map, drawing, diagram, picture or graphic work, photograph, film,
microform, sound recording, videotape, machine‑readable record, and any
other documentary material, regardless of physical form or characteristics, and
any copy of those documents”. Here, the DVD is a “document” that was not
translated as required by the Rules. The panel was therefore entitled to attach
no probative value to it.
[27]
The
applicant is forgetting that the finding about the DVD counts for very little
among the other things that undermined his credibility with the panel. In
particular, the panel found omissions, contradictions between his PIF and his
testimony at the hearing and implausibilities in his narrative. It was entitled
to draw adverse inferences about his credibility based on all of these factors:
Tejeda v. Canada (Minister of Citizenship and Immigration), 2009 FC
421, at paragraph 15.
[28]
It is
already well established that the Board’s decisions on questions of credibility
and assessment of evidence are entitled to great deference by the Court: Zavala v.
Canada (Minister of Citizenship and Immigration), 2009 FC 370, at
paragraph 5; Mugesera v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, at paragraph 38. The panel is in the best
position to assess the explanations submitted by claimants for any perceived
inconsistencies and implausibilities. The role of this Court is not to
substitute its judgment for the panel’s findings of fact relating to the
credibility of claimants: Martinez v. Canada (Minister of Citizenship
and Immigration), 2009 FC 441, at paragraph 11. The Court will
intervene only if the panel’s decision does not fall within a range of
acceptable and rational solutions (Dunsmuir, at paragraph 47).
[29]
In my
opinion, the panel’s finding on the applicant’s credibility is not unreasonable
in light of the many discrepancies and implausibilities in his testimony.
[30]
In his
memorandum of argument, the respondent quotes paragraph 4 of Obeng v.
Canada (Minister of Citizenship and Immigration), 2004 FC 636, an extract
that I find interesting for our purposes:
. . . In Sheikh v. Canada
(M.E.I.), [1990] 3 F.C. 238, the Federal Court of Appeal held that a
tribunal’s perception that the applicant is not credible on an important aspect
of the claim can amount to a finding that there is no credible evidence on
which the claim can be based. . . .
[31]
Where a
panel concludes that a claimant is not credible, it is not obliged to explain
everything that supports the allegations that are contrary to the allegations
it accepts. It is enough for the panel, as here, to clearly explain why it
questions the claimant’s credibility: Luis c. Canada (Ministre de la
Citoyenneté et de l’Immigration), 2009 CF 352, at paragraph 22.
Specialized
knowledge
[32]
The second
issue concerns the panel’s “specialized knowledge”. A review of the record
shows that the panel drew on its specialized knowledge to explain to the
applicant that there are refugee protection claimants who have filed complaints
with the Mexican authorities without necessarily being injured or on their
deathbed.
[33]
The
applicant argues that the panel’s “specialized knowledge” had to be based on
documentary evidence and that he had to be given that evidence at the time of
the hearing so he could respond to it.
[34]
In
general, the panel must notify the claimant when it intends to use “its
specialized knowledge”, as provided for in Rule 18:
18. Before using any information or opinion that is
within its specialized knowledge, the Division must notify the claimant or
protected person, and the Minister if the Minister is present at the hearing,
and give them a chance to
(a) make representations on the reliability and use of
the information or opinion; and
(b) give evidence in
support of their representations.
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18. Avant d'utiliser
un renseignement ou une opinion qui est du ressort de sa spécialisation, la
Section en avise le demandeur d'asile ou la personne protégée et le ministre
-- si celui-ci est présent à l'audience -- et leur donne la possibilité de:
a) faire des
observations sur la fiabilité et l'utilisation du renseignement ou de
l'opinion;
b) fournir des éléments de preuve à l'appui de
leurs observations.
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[35]
In Isakova v. Canada (Minister of
Citizenship and Immigration), Mr. Justice Campbell explained the
objective of Rule 18 at paragraph 16 of his reasons:
The
purpose of Rule 18 is to enable a claimant to have notice of the
specialized knowledge and to give him or her the opportunity to challenge its
content and use in reaching a decision. Therefore, in order for Rule 18 to
be effective, the RPD member who declares specialized knowledge must place on
the record sufficient detail of the knowledge so as to allow it to be tested.
That is, the knowledge must be quantifiable and verifiable. As stated by
Justice Teitelbaum in Mama v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 1515, unverifiable personal knowledge
does not qualify as specialized knowledge:
The
applicant submits (and I agree), that the personal and/or professional
experiences of the Board members, the full extent of which was unclear, hardly
justified their claim to “specialized knowledge”. The Board did not purport to
take judicial notice of any facts with respect to European border controls and
there was no evidence whatsoever before it as to the efficacy of these.
Once the
RPD has disclosed its knowledge, Rule 18 then mandates that the RPD allow
a claimant to make submissions and present contradictory evidence.
[36]
In my
opinion, the “specialized knowledge” relied on in this case was
mischaracterized. Here, the decision maker drew on the specialized and general
knowledge it had acquired over the years to point out to the applicant that
this was the first time it had heard such an argument and that its professional
knowledge and experience in cases from Mexico demonstrated the contrary. The
“knowledge” relied on in this case was neither quantifiable nor verifiable,
which meant that Rule 18 did not apply.
[37]
In any
event, the “specialized knowledge” relied on by the panel in this case must be
considered in relation to its finding that the applicant lacked credibility,
not in relation to state protection. Since the subjective element of the
applicant’s claim had not been established, the panel did not have to rule on
his objective fear. Likewise, the Court does not consider it necessary to
discuss state protection any further.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the application for judicial review be dismissed. There is
no question of general importance to be certified.
“Max M. Teitelbaum”
Certified
true translation
Brian
McCordick, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4645-08
STYLE OF CAUSE: Josue
Alejandro Hernandez Cortes v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 27, 2009
REASONS FOR JUDGMENT: TEITELBAUM
D.J.
DATED: June 4, 2009
APPEARANCES:
Stéphanie Valois
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FOR THE APPLICANT
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Thi My Dung Tran
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
Stéphanie Valois
407 Saint Laurent, Suite 300
Montréal, Quebec
H2Y 2Y5
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FOR THE APPLICANT
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John H. Sims, Q.C.
Deputy Attorney General of Canada
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FOR THE RESPONDENT
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