Date: 20110106
Docket: IMM-2380-10
Citation: 2011 FC 9
Ottawa, Ontario, this 6th
day of January 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
VICTOR
ADRIAN BECERRA VAZQUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an
application for judicial review of a decision of a member of the Immigration
and Refugee Board (the “Board”), pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001 c. 27, (the “Act”) by Victor Adrian
Becerra Vazquez (the “applicant”). The Board determined that the applicant was
neither a Convention refugee nor a person in need of protection under sections 96
and 97 of the Act.
* * * * * * *
*
[2]
The
applicant is a citizen of Mexico, from the city of Leon, Guanajuato. The basis
of his refugee claim is that he allegedly worked for a newspaper, “A.M.”,
whose owner was engaged in property speculation on land which he owned to the
south of Leon. The Secretary-General
of Guanajuato wanted to develop land to the north of the city instead, and a
dispute between them was ongoing. The applicant, who alleges that he was a copy
editor and not a reporter, was sent undercover to a meeting involving the
Secretary-General in order to surreptitiously record the proceedings. He
alleges that he was discovered and told that he would regret it if he were to
allow the information to be published. The newspaper subsequently published the
story, and the newspaper owner also registered a complaint against the
Secretary-General with the Mexican Human Rights Commission.
[3]
The
applicant alleges that after these incidents, he was the victim of an attempted
murder, in which two shots were fired at his car while he was inside it. He returned
to his place of work, where he did not tell his colleagues about the incident
but chose to phone the police. When the promised police patrol did not
materialize, the applicant allegedly decided not to pursue the issue further
because he had serious doubts about the effectiveness of the police force.
[4]
The
applicant left the country and came to Canada. He alleges that he spoke little English at the
time. Upon his arrival, he was questioned by an immigration officer without the
aid of an interpreter. The officer recorded in the Point of Entry (“POE”) notes
that the applicant was a reporter.
[5]
The
applicant was represented at his hearing by his former counsel. In his
testimony, he explained that he had not only been working full-time at the
newspaper, but had also been completing a university degree in his remaining
time.
* * * * * * * *
[6]
The
Board’s decision was based entirely on a lack of credibility. This conclusion
was in turn based on five main findings.
[7]
The
first credibility issue was the applicant’s testimony regarding his job title
and duties at the newspaper. The Board states that the applicant testified that
his role was “surveiller le contenu des éditoriaux”. The Board questioned him
on this subject and determined that the applicant did not know what an
editorial article was, in that he stated that it was simply the portion of the
newspaper where journalists wrote articles, which did not accord with the
definition of an editorial in Le Petit Robert. The Board found that this
demonstrated a lack of knowledge of a business in which he had supposedly been engaged
for five years.
[8]
The
second credibility issue was the discrepancy between the POE notes and the
applicant’s testimony regarding his job. The Board noted that the POE notes
indicate that the applicant had declared himself to be a reporter who had
published articles against the government. The Board noted that in his
testimony, the applicant indicated that he was not a reporter and had merely
stated that he had difficulties because of an article he had been involved
with. The Board considered the applicant’s explanation that most laymen equate
working for a newspaper with being a reporter, but did not believe the
applicant on this point. The Board found that as the applicant had stated that
he spoke English at the time the POE notes were made, he must have declared
himself to be a reporter. The Board relied partly on this point to conclude
that the applicant was lying about his employment.
[9]
The
third credibility issue was the letter submitted from A.M. stating that
the applicant had worked for them for five years. The Board took issue with the
late submission of this letter, noting that the Personal Information Form (“PIF”)
clearly states that all supporting documentation should be immediately submitted,
and noting that the applicant had thereby chosen not to submit the only
document corroborating the story that he worked for a newspaper. The Board
rejected the applicant’s explanation that an interpreter at his then-lawyer’s
office had told him to submit the letter just before the hearing. The Board
also determined that fraudulent documents are easily obtained in Mexico, and thereby accorded
no probative value to the letter.
[10]
Fourthly,
the Board did not believe the applicant’s statements to the effect that he had
been pursuing a university degree while working full-time at the newspaper. The
Board noted the applicant’s testimony that he worked 40 hours a week for A.M.
while taking five courses per semester over the course of five years. The Board
did not believe that this was likely.
[11]
The
final credibility issue was the applicant’s conduct following the alleged
murder attempt. The Board noted that there was no corroborating evidence for
this story. The Board questioned why the applicant had not immediately informed
his employer of the incident, and why he called the police at all if he
supposedly had no faith in them. The Board did not believe the applicant’s
explanation that he was in shock and could not think of what to do other than
phone the police.
[12]
The
Board thereby concluded that the applicant had invented the entire story.
* * * * * * * *
[13]
The
main issue in this application is whether the Board’s conclusions regarding
credibility are unreasonable.
[14]
The
standard of review applicable to a Board’s finding on credibility is
reasonableness, according to Nijjer v. The Minister of Citizenship and
Immigration, 2009 FC 1259, paragraph 12, and Sukhu v. The Minister of
Citizenship and Immigration, 2008 FC 427, paragraph 15. Therefore, the
Board’s conclusion must fall within the “range of possible, acceptable outcomes
which are defensible in respect of the facts and the law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
at paragraph 47).
[15]
The
applicant also raised an issue with respect to procedural fairness, to which
the standard of correctness applies (Canada (Minister of Citizenship and Immigration)
v. Khosa,
[2009] 1 S.C.R. 339, at paragraph 43).
* * * * * * * *
[16]
Dealing
with the question of credibility:
i) The meaning of
“éditorial”
[17]
The
applicant protests the Board’s reliance on the discussion of the word
“éditorial”, and argues that the Board’s conclusions in this regard were
unreasonable. The applicant contends that the Board’s line of reasoning
demonstrates the Board’s own lack of knowledge, not the applicant’s. The
applicant notes that what he was explaining was the difference between
“advertising copy” and “editorial copy” in a newspaper, the latter being any
copy written by the newspaper’s writers, and argues that at no point did he say
that he wrote opinion-style “editorials” or supervised others doing the same.
The applicant argues that his testimony shows that his role was to supervise
“editorial copy”, that is, the portion of the newspaper written by its
employees. The applicant notes that the transcript shows that he testified
regarding the “contenu éditorial”, being “la partie du journal où on écrit”,
while the Board fixated on “un éditorial”.
[18]
The
respondent disagrees with this characterization of the discussion, reiterating
the Board’s conclusion that the applicant displayed a lack of knowledge of his
own supposed business. However, I agree with the applicant that the Board’s
conclusion in this regard is unreasonable. I find that the transcript, at pages
134 to 140, demonstrates that the applicant was explaining the difference
between “editorial copy” and “advertising copy”, and did demonstrate knowledge
of this difference.
ii) Point of entry notes
labeling the applicant a “reporter”
[19]
The
applicant submits that the Board had no proper justification to doubt the
applicant’s credibility on this issue, and argues that whether the applicant’s
job title was thought by others to be “reporter” or to fill reporter-like
functions is irrelevant to the determination of this claim. The applicant
testified that what he said to the officer was that he had fled “à cause d’un
problème que j’avais eu à cause d’un reportage”, which could have engendered
the confusion. The applicant also argues that he sufficiently explained this
discrepancy, noting that he did not speak much English at the time the POE
notes were taken, that the officer did not speak much Spanish, that no
interpreter was present, and that people often assume newspaper workers are
reporters. The applicant relies on Kaur v. The Minister of Citizenship and
Immigration, 2006 FC 1120, for the proposition that POE notes must be
looked at with caution, especially when the applicant offers a reasonable
explanation for their content, and also relies on Valtchev v. The Minister
of Citizenship and Immigration, 2001 FCT 776, at paragraph 16, for the
proposition that it is unreasonable to doubt the applicant’s credibility simply
because he could not explain the reason for the officer’s decision to label him
a reporter, as he can’t be expected to know the officer’s mind.
[20]
The
respondent contends that Kaur is distinguishable from the present case,
as in that case the applicant had objected to the POE notes in her PIF, and the
notes supported the testimony rather than the Board’s findings, whereas here
the Board’s findings faithfully represented the content of the notes. The
respondent also questions the applicant’s statement regarding his English
abilities, noting that the officer must have relied on past experience to
assess the applicant’s abilities, and would have asked for an interpreter if
one was needed. The respondent notes that the applicant did not object to the
introduction of the POE notes.
[21]
Whether
or not Kaur is distinguishable from the present case, I find that it was
unreasonable of the Board to place so much emphasis on the job title recorded
by the officer in the POE notes. In my opinion the question was not one of the
applicant’s general English skills, but one of a specific job title, which
would involve a more nuanced understanding of English, whether or not the
applicant needed an interpreter for the remainder of the interview. The
applicant testified that most people will equate a newspaper employee with a
reporter, and I find that it was unreasonable of the tribunal to reject the applicant’s
explanation, considering that his problems arose when he was acting as a
reporter in recording the Secretary-General’s meeting. The tribunal did not
consider this explanation at all.
iii) Letter from A.M. regarding the applicant’s
employment
[22]
The
tribunal gave no probative value to the letter which was the only corroborative
evidence of the applicant’s employment, determining that the applicant was not
credible and fraudulent documents are easily obtained in Mexico. The applicant argues
that the tribunal acted on mere suspicion and speculation, and did not make any
effort to confirm the truth of the letter’s contents, which would have been
easy to do considering that the letter-head included all of the contact
information for A.M. The applicant relies on Bao v. The Minister of
Citizenship and Immigration, 2006 FC 301, where the applicant’s claim was
rejected because his PIF was very similar to those of several other would-be
refugees, and Justice Douglas Campbell found that the Board committed a reviewable
error in basing its decision on suspicions rather than providing concrete
reasons for rejecting the PIF.
[23]
The
applicant also argues that the Board should not have accepted the late
submission of the letter and then assigned it no weight because of its
lateness, especially when the applicant and his counsel took responsibility for
the late submission. However, I agree with the respondent that admissibility
and weight are separate issues for the Board to decide.
[24]
The
respondent argues that it was insufficient for the applicant to merely file the
letter, affirm that it was genuine, and expect this to offset the concerns
about his credibility (citing Hamid v. Canada (Minister of Employment and
Immigration), [1995] F.C.J. No. 1293 (T.D.)). The respondent also relies on
Gasparyan v. The Minister of Citizenship and Immigration, 2003 FC 863,
paragraph 7, for the proposition that the Board is entitled to rely on its
knowledge of the ease with which fraudulent documents can be obtained in Mexico
in assigning weight to this letter.
[25]
However,
I am persuaded by the applicant’s argument that this is circular logic on the
Board’s part. The evidence relied upon to discredit the letter was the
applicant’s lack of credibility and therefore the likelihood that he had
obtained the letter fraudulently, and the applicant was also found not to be
credible because he had no corroborative evidence once the letter was
discredited. I find this to be unreasonable logic on the Board’s part,
especially where the information in the letter was easily verifiable.
iv) Applicant’s
university education
[26]
The
applicant submits that the Board’s line of reasoning regarding his ability to
work and study full-time was entirely speculative and without foundation. The
applicant notes that adverse findings on credibility must have concrete
evidentiary foundations, and not be built on mere speculation (Buitrago v. The
Minister of Citizenship and Immigration, 2009 FC 1046, paragraph 16). The
applicant contends that the tribunal has no expertise on the capabilities of
the applicant, and notes that his testimony established that his grades
suffered because of his heavy schedule. The applicant notes that many Canadian
students work while studying full-time, and that there is no reason to believe
that it is impossible for a Mexican student to do the same. The applicant
refutes the Board’s conclusion that the applicant “n’aurait pas eu le temps”,
noting that if the applicant worked 40 hours a week and slept 7 hours a night,
that still left him with over 11 hours a day in which to study.
[27]
The
respondent submits that the Board was entitled to assess the applicant’s
allegations in light of its own understanding of human behaviour (Li v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 470 (T.D.), paragraph 9).
While I question the Board’s conclusion on this point, there is nothing to show
that this finding of implausibility was in itself unreasonable. In combination
with the Board’s other credibility findings, however, the lack of evidence in
support of the Board’s finding (other than the Board’s views on human
behaviour) is troublesome.
v) Conduct of the
applicant after the murder attempt
[28]
The
applicant argues that it was unreasonable of the Board to make an adverse
credibility finding simply because the applicant called the police, in whom he
had little faith, after a stressful moment, namely the attempted murder. The
applicant argues that it is not unreasonable for an individual under shock and
stress to do things which in hindsight seem illogical to a third party.
[29]
The
respondent submits that the Board had the advantage of seeing and hearing the
applicant, and that based on the evidence before it the Board concluded that
the applicant’s alleged conduct following the attack was implausible. The
respondent argues that even if the evidence could conceivably have led to a
different conclusion, this Court cannot interfere unless an overriding error
was made (Oduro v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 560 (T.D.), paragraphs 11 and 12).
[30]
Again,
on this point I agree with the respondent that there is no reviewable error
made by the Board on this particular conclusion. However, the other three
errors that I have identified in the Board’s credibility findings persuade me
that the Board’s overall conclusion regarding the applicant’s credibility was
tainted.
[31]
Given
my above disposition of the issue of credibility, which is determinative of the
application for judicial review, it will not be necessary to deal with the
other issue concerning procedural fairness.
* * * * * * * *
[32]
For
the above-mentioned reasons, the application for judicial review is allowed,
the Board’s decision is set aside and the matter is sent back to the Board for
reconsideration by a differently constituted panel. I agree with the parties
that this is not a matter for certification.
JUDGMENT
The application for judicial
review is allowed. The decision of the Immigration and Refugee Board (the
“Board”) rendered on April 12, 2010 is set aside and the matter is sent back to
a differently constituted Board for reconsideration.
“Yvon
Pinard”
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