Date: 20090804
Docket: IMM-74-09
Citation: 2009 FC 798
Ottawa, Ontario, August
4, 2009
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
ELIN EDITH MORA MARTINEZ
and EMILIANO SANCHEZ MORA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants are seeking judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee
Board (panel), dated
December 11, 2008, that they are not Convention refugees or persons in need of
protection, according to sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
The
applicants are Mexican citizens. The principal applicant is claiming refugee
status in Canada because she fears persecution
based on her membership in a particular social group, namely, women victims of
physical and psychological violence. The other applicant, the principal
applicant’s minor son, is basing his refugee claim on that of his mother.
[3]
The
principal applicant claims that she was a victim of domestic violence at the
hands of her former common-law spouse, Pedro Israel Sanchez Hernandez, who was
allegedly also violent with their minor son. The applicant and Mr. Hernandez purportedly
lived together for around a year and a half between April 14, 2001, and
December 2005, during which time the applicant was apparently a victim of death
threats, some of which were the subject of a formal complaint to the Mexican
authorities. Mr. Hernandez allegedly became even more violent after losing his
job in 2004 because at that time he was purportedly involved in using and
trafficking drugs. The principal applicant and her son arrived in Canada on June 6, 2006.
[4]
The panel
decided that the principal applicant is not a Convention refugee or a person in
need of protection, first because she did not present any credible or
trustworthy evidence to support her claim; in this regard, the panel noted “several
contradictions, omissions and inconsistencies in the [applicant]’s testimony.”
[5]
With
regard to assessing the objective fear of persecution, the Board also found in
this case that the applicants could have sought and obtained Mexican state protection.
In fact, the panel found that the principal applicant did not provide clear and
convincing evidence to rebut the presumption that the Mexican government is
able to protect its citizens. In fact, the panel was not satisfied that the
applicant had proven that she had done everything reasonable to benefit from
this protection.
[6]
Finally,
the panel found in this case that there was an internal flight alternative in Mexico and the opportunity for the
applicants to receive the necessary psychological treatment there.
[7]
The
question of the applicant’s credibility and the assessment of the evidence calls
for a high degree of deference towards the panel’s decision, and it is not up
to this Court, in the context of an application for judicial review, to
reassess the evidence and to substitute its opinion for that of the panel. In
short, this Court will intervene only if the panel’s decision is based on an
erroneous finding of fact, made in a perverse or capricious manner, or without
regard for the material before the panel (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 (Dunsmuir);
Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12 (Khosa) at paragraph 46). It should be recalled that
reasonableness is mainly concerned with the existence of justification of the
decision, the transparency and intelligibility of the decision‑making
process, as well as whether the decision falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
at paragraph 47; Khosa at paragraph 59).
[8]
The panel
provided detailed reasons that support its finding of non-credibility and that appear
rational and reasonable at first sight. Accordingly, after getting the
principal applicant to confirm the accuracy of the content of her Personal
Information Form (PIF), the panel noted that the form contained only one episode
of the applicant being a victim of death threats. The episode mentioned was the
one that allegedly arose in May 2005. This contradicts the applicant’s
testimony in which she referred to seven other occasions between 2000 and 2006 in
which she was purportedly a victim of such threats. Since the applicant was not
able to provide explanations by which such an important omission can be
justified, the panel found that this weakened her credibility.
[9]
With
respect to the complaint made to police on March 28, 2006, a copy of which is
available in the panel record (Exhibit P-17), the panel noted that the
applicant’s testimony places this event on January 10, 2005, and then on March
28, 2004, whereas in her PIF this event allegedly took place on March 28, 2005.
The applicant attempted to readjust her testimony to the timeline of events
that appears in the documents submitted, but the panel found that this impacted
negatively on the applicant’s credibility, all the more so since the panel did
not attach any probative value to the complaint in question because it does not
contain any mention of Mr. Hernandez’s involvement in drug trafficking. The
panel found the principal applicant’s explanation that she did not want to
compromise the protection sought unsatisfactory.
[10]
Because of
these various observations affecting the credibility of the applicant’s
testimony, the panel did not attach any probative value to the physical
evidence submitted by the applicant to corroborate her account. Accordingly, the
statements from the applicant’s mother, cousin, sister and aunt (Exhibits P-8 to
P-11), the medical certificate dated December 8, 2006 (Exhibit P-12), and the
psychological assessment report dated January 2, 2007, were not sufficient to
remedy the inconsistencies noted by the panel. Therefore, the panel found the
applicant not credible.
[11]
First, the
applicants are challenging the legality of the negative credibility finding,
which, up to a certain point, is also connected to the question of the
existence of state protection. In fact, let us recall that the panel expressed
doubts with respect to the March 28, 2006 complaint. Moreover, the
applicant did not follow up on this complaint. The panel also highlighted the
applicant’s failure to indicate in her PIF the steps taken in Coyoacan with a
women’s organization.
[12]
The
applicants concede that there could have been omissions or contradictions in
the principal applicant’s testimony. However, the applicants maintain in their
written memorandum that the panel erred in law in not taking into account the Guidelines
on Women Refugee Claimants Fearing Gender-Related Persecution (Guidelines) issued
by the Chairperson in assessing the principal applicant’s credibility, which makes
this impugned decision reviewable in this case: Myle v. Canada (Minister of
Citizenship and Immigration), 2006 FC 871 at paragraph 26; Muradova
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 274 at
paragraph 7; Griffith v. Canada (Minister of Citizenship and Immigration)
(1999), 171 F.T.R. 240 at paragraph 25.
[13]
At the
hearing, the learned counsel for the applicants did not reiterate the above argument,
a fact that the Minister’s representative highlighted in her oral argument. In
reply, the applicants’ counsel indicated that he was not abandoning the
argument that the Guidelines had been disregarded by the panel. In any event,
the applicants’ criticism seems unjustified given the express wording in the
impugned decision at paragraph 11 under the heading of “credibility” that “[t]he
panel considered the [Guidelines] . . . under paragraph 159(1)(h) of the
IRPA”. In addition, during the hearing, the panel appeared to have demonstrated
particular sensitivity to the principal applicant by reassuring her, making
sure that she felt all right and ensuring that she was taking breaks.
[14]
Second, the
applicants are criticizing the panel about the little weight given to the
psychological assessment report by psychologist Chantal Gravel, dated January 2,
2007 (Exhibit P‑13). It nevertheless shows the fact that the applicant’s
account [translation] “ . . . is focused on those experiences of violence . . . ”
and notes that the applicant [translation] “ . . . finds it hard to tell
her story in a continuous manner. Her account [being] sequential . . . ” (Exhibit
P-13, page 5). Consequently, the applicants’ counsel maintains that the
omissions, contradictions and inconsistencies stated by the panel in the
impugned decision can be explained by the principal applicant’s psychological
state, which makes the panel’s negative credibility finding reviewable in this
case: Zempoalte v. Canada (Minister of Citizenship and Immigration),
2007 FC 263 at paragraphs 16-19; Fidan v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1190 at paragraph 12.
[15]
The
applicants’ second criticism also seems unjustified. First of all, the panel
stated, at paragraph 23 of the impugned decision, that it considered the
psychological report in question and the fact that “the principal claimant may
have some psychological problems”. Second, the principal applicant’s state of
psychological vulnerability does not explain her failure to declare, in her PIF,
events as important as the numerous death threats she was allegedly subjected
to, particularly in the months immediately preceding their arrival in Canada. Furthermore,
the principal applicant herself admitted at the end of her testimony that she has
a good memory for dates and that if she had made a mistake with respect to
dates it was because she was [translation] “very nervous at that moment”
and wanted to protect her minor son.
[16]
As the
Court has emphasized in a number of past decisions, assessing the
reasonableness of a negative credibility finding is not a question of conducting
a microscopic analysis of each and every ground provided by the panel. It suffices
that, as a whole, the reasons given do not appear capricious or arbitrary. This
is the case here because the reasons provided by the panel (see paragraphs 14 and
22 of the impugned decision in particular) are considered as a whole and in
light of the evidence in the record.
[17]
In short,
even if various explanations were advanced by the principal applicant or her
counsel to justify certain omissions or contradictions resulting from her
testimony, I nevertheless believe that the panel’s negative credibility finding
was one of the possible, acceptable outcomes defensible in respect of the facts
and law. Because the panel did not believe the principal applicant regarding
the substance of her refugee claim and the basis for her fear of persecution, it
was therefore also entitled to disregard the statements made by her family
members or people close to the applicants that could corroborate certain
aspects of her account (see Elezaj v. Canada (Minister of Citizenship and Immigration),
2009 FC 234, paragraph 5).
[18]
Given that
the principal applicant’s negative credibility finding is upheld by the Court
and this is determinative of the applicants’ refugee claim, it is not necessary
to assess the legality of the panel’s other findings with respect to the possibility
for the applicants to avail themselves of Mexican state protection and an
internal flight alternative in Mexico.
[19]
This
application must therefore be dismissed. Counsel did not propose any question
of general importance for certification.
JUDGMENT
THE COURT DISMISSES
the application for judicial review. No question is certified.
“Luc Martineau”
Certified
true translation
Janine
Anderson, Translator
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