Date: 20070105
Docket: IMM-6834-05
Citation: 2007 FC 10
Ottawa,
Ontario, the 5th day
of January 2007
Present:
The Honourable Mr. Justice Martineau
BETWEEN:
ALEJANDRO JULIA NAVA CHAVEZ
ALEJANDRA CORTES ALVAREZ
ALEXA FERNANDA NAVA CORTES
MARIANA NAVA CORTES
URBANO NAVA GAMITO
ROSA MARIA TERRAZAS MURILLO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicants are challenging the legality of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated October 6,
2005, concluding that the applicants are not Convention refugees or persons in
need of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2]
The
applicants—Mr. Chavez, his wife, his two daughters, his father and the father’s
spouse—are citizens of Mexico. They fear being persecuted
because of their political opinion and their membership in a particular social
group, namely, the family.
[3]
In his
Personal Information Form (PIF), the principal applicant based his claim primarily
on the following facts. He is a lawyer. Together with his father, he previously
operated a security company in the city of Toluca, Mexico. Between 1998 and 2002, the company was
awarded contracts by the office of the attorney general of the republic (PGR) for surveillance at the Adolfo Lopez
Mateos international airport. On March 3, 2003, in Mexico City, he was abducted by unknown persons who
forced him to get in their automobile. From [translation]
“the way they
talked to each other”, he concluded that they were officers of the judicial
police. The kidnappers telephoned his father and demanded a ransom of one
million pesos. Having collected half of that amount, his father managed to
convince the kidnappers to free his son. The principal applicant and his father
decided not to file a complaint with the police, as that could endanger the lives
of the principal applicant and his family. The principal applicant shut down
his business and went into practice as a lawyer.
[4]
Nearly two
years later, on January
12, 2005, the
spouse of the principal applicant’s father was in Mexico City. She was followed by two unknown persons
in a white automobile. She managed to escape by hiding in a security guard booth.
On January 14, 2005, the principal applicant received a telephone call. The
person calling said, [translation] “We know where you live” and
hung up. After discussing the matter with colleagues, the principal applicant
decided to leave the country. On January 17, 2005, the principal applicant and
his family applied for their passports. On February 1, while driving to Toluca after having purchased their
airline tickets in Mexico
City, the principal
applicant and his spouse were followed by a white automobile. An unknown person
pulled out a weapon and told them to get out. In shock, the principal applicant
lost control. As a result of this accident, the principal applicant and his
spouse were hospitalized. The principal applicant remained at home for 15 days
to recover. On March 21, 2005, the applicants arrived in Canada and claimed refugee
protection.
[5]
In its
decision, the Board mistakenly stated that the applicants were citizens of Peru. However, aside from this strictly
clerical error, the determinative issue in this case is the credibility of the
applicants.
[6]
First of
all, the Board noted a contradiction between the immigration officer’s
interview sheet (notes made at the port of entry) for the principal applicant
and his testimony. The interview sheet indicates that the March 3, 2003 kidnapping happened when the principal
applicant was leaving the bank. However, at the hearing, the principal applicant
testified that he was leaving the office of the attorney general. When
confronted with this contradiction, the principal applicant confirmed the
latest version of the facts and insisted this was what he had told the
immigration officer. The Board was of the opinion that this was a major
contradiction which affected his credibility. It rejected the principal applicant’s
explanation, noting that it is “too easy to pass the blame on to a third party”.
[7]
Secondly,
the Board drew a negative inference from the fact that, after the principal applicant
was kidnapped in March 2003, the applicants waited two years before leaving Mexico. The Board noted that the principal
applicant was ill at ease when confronted on this point.
[8]
Thirdly,
in the principal applicant’s PIF, there is no mention of an attempted
kidnapping on February 1, 2005, but rather of armed persons in an automobile
who allegedly threatened him and tried to stop his automobile. When confronted
with this omission, which the Board considered as being important, the principal
applicant answered: [translation] “I was not kidnapped,
because I did not allow it, and that is why I had the accident”. The Board did not believe the principal
applicant and was of the opinion that he trimmed his testimony to explain this
omission.
[9]
Fourthly,
the Board did not believe the principal applicant’s explanation to the effect
that he deduced that his kidnappers were judicial police officers because of [translation] “the way they talked to each other”. The Board was of the opinion
this was “pure speculation and improvisation”. In fact, the principal applicant
was unable to give any details whatsoever about the content of the
conversations of his attackers (apart from making a baseless statement at the
hearing that judicial police officers use “codes” when speaking to each other).
The Board also noted that in his Background Information form, in answer to Question
3(d), he stated that he fears unknown people. When confronted with this contradiction,
the applicant simply answered, [translation] “No, he asked
me if I knew judicial police officers, and I said no”. The Board concluded that the principal
applicant trimmed his testimony. The Board did note that the father of the principal
applicant testified to the effect that his son’s abductors were officers of the
judicial police because of the way they spoke, but it did not believe this
explanation for the abovementioned reasons.
[10]
Fifthly, even
though it did not believe the applicants’ narratives were true, the Board dealt
briefly with state protection. It noted that the government of Mexico had taken steps to fight
police corruption and criticized the applicants for not having contacted “other
institutions of the Mexican government” to ask for their country’s protection. The
Board deduced that the applicants did not fear for their lives and that the alleged
incidents simply did not occur.
[11]
Essentially,
the applicants submit today that the Board erred in its assessment of the
facts. They challenge each of the unfavourable conclusions mentioned above,
submitting that those conclusions are arbitrary and unreasonable. The
contradictions noted by the Board are only apparent ones, and the explanations
given by the principal applicant are reasonable in the circumstances. Thus, the
immigration officer simply made a mistake in writing down that the principal applicant
was leaving the bank when he was kidnapped. In addition, the second attempted
kidnapping actually is mentioned in the PIF, although the word “kidnapping” is
not used. Counsel for the applicants also note that the principal applicant is
a lawyer. He and his family had a lot to lose in leaving Mexico. Therefore, their fear of
persecution is real and well founded. In any event, even if there are
inconsistencies in the applicants’ evidence, they are relatively minor.
Finally, the applicants submit that the Board erred in its assessment of state
protection available in Mexico, particularly in cases of
police corruption, and that this is a reviewable error: Quevedo v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1264; Avila v. Canada (Minister of Citizenship and
Immigration),
2006 FC 359.
[12]
Meanwhile,
the respondent submits that the case law holds that the Board may consider the port
of entry notes to assess the credibility of an applicant (Eustache v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1553 and the case law cited in this decision). It is unusual, to say the
least, that the only so-called error mentioned by the applicants concerns the
fact that the immigration officer mistakenly wrote that the principal applicant
was leaving a bank when he was kidnapped by judicial police officers. The
attempted kidnapping in 2005 is not mentioned in the PIF, which recounts
another incident. Therefore, the Board had good reason to draw a negative
inference. Moreover, the Board noted that the applicant appeared ill at ease
when he gave his answers. Such findings are an integral part of the Board’s discretion
and must be afforded considerable deference. The Board could also take into
consideration the long delay in leaving Mexico after the applicant was allegedly
kidnapped. In addition, the Board noted that the Mexican authorities had
established a system to fight police corruption and that state protection was
available to the applicants. This is not a case in which a refugee protection
claimant filed a complaint and then faced official inaction. Therefore, no
intervention is warranted: Villasenor v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1080.
[13]
This
application must be dismissed. It is obvious that the Board’s assessment of the
applicants’ credibility is based on the evidence on record. Because this is a finding
of fact, the applicable standard is patent unreasonableness (Aguebor v.
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
To sum up, the Court will intervene only if the Board based its decision
on an erroneous finding of fact that it made in a perverse or capricious manner
or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7), which is not the case here. In fact, even if an
analysis of the documents and answers of the principal applicant may to a
certain extent support the interpretation suggested by counsel for the
applicants, the opposite is also true. As far as the assessment of facts is
concerned, the Board is usually in a better position to reach conclusions than
the Court.
[14]
I hasten
to add that it is nevertheless dangerous for the Board to base a finding of an
overall lack of credibility on a minor omission or an apparent contradiction between
the port of entry notes and the subsequent testimony of a claimant for refugee
protection. As I wrote in R.K.L v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 116 at paragraphs 11-13, 20:
. . . not every kind of inconsistency or implausibility in the
applicant’s evidence will reasonably support the Board’s negative findings on
overall credibility. It would not be proper for the Board to base its findings
on extensive “microscopic” examination of issues irrelevant or peripheral to
the applicant’s claim: see Attakora v. Canada (Minister of Employment and Immigration), (1989), 99 N.R. 168 at para. 9 (F.C.A.) (“Attakora”); and Owusu-Ansah
v. Canada (Minister
of Employment and Immigration), [1989] F.C.J. No.
442 (QL) (C.A.) (“Owusu-Ansah”)
. . .
Furthermore, the Board should not be quick to apply the North
American logic and reasoning to the claimant’s behaviour: consideration should
be given to the claimant’s age, cultural background and previous social
experiences: see Rahnema v. Canada (Solicitor General), [1993] F.C.J. No.
1431 at para. 20 (QL) (T.D.); and El-Naem v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 185 (QL) (T.D.) . . . .
A person’s first story is
usually the most genuine and, therefore, the one to be most believed. That
being said, although the failure to report a fact can be a cause for concern,
it should not always be so. That, again depends on all the circumstances: see Fajardo
v. Canada (Minister of Employment and
Immigration),
[1993] F.C.J. No. 915 at para. 5 (QL) (C.A.); Owusu-Ansah, supra; and Sheikh
v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 568 (QL) (T.D.). In evaluating the applicant’s first
encounters with Canadian immigration authorities or referring to the
applicant’s Port of Entry Statements, the Board should also be mindful of the
fact that “most refugees have lived experiences in their country of origin
which give them good reason to distrust persons in authority”: see Prof. James
C. Hathaway, The Law of Refugee Status, (Toronto: Butterworth, 1991) at
84-85; Attakora, supra; and Takhar, supra.
. . .
There is no doubt that a
failure to mention the key events on which the refugee claim is based in a
written statement to immigration authorities, or an inconsistency between such
statement and subsequent testimony, are very serious matters that can potentially
sustain a negative credibility finding. However, the omission or inconsistency
must be real: see Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. 1271 (QL) (C.A.). Besides, explanations given by the applicant
which are not obviously implausible must be taken into account: see Owusu-Ansah,
supra.
[15]
In my
opinion, the Board’s finding of an overall lack of credibility is not patently
unreasonable. In the case at bar, the Board took into consideration the
explanations given by the principal applicant and rejected them, giving reasons
which do not seem to me to be perverse or capricious. The contradiction between
the port of entry notes and the principal applicant’s testimony are quite real
and is not the only one noted by the Board in its decision. There is no reason
here to doubt the truth and the accuracy of the statements made by the principal
applicant to the immigration officer. Moreover, I note that the principal applicant
is an educated man and a lawyer. It is therefore reasonable to expect him to be
able to give the immigration officer and the Board a clear explanation of his
reasons for leaving Mexico. Finally, this is not a case
in which the evidence on record shows that real prejudice was caused to the
claimant for refugee protection because of flagrant mistakes in interpretation
made by an interpreter at the hearing or at the initial interview with the
immigration officer.
[16]
In conclusion,
it is not my function to substitute my assessment of the evidence for that of the
Board. Furthermore, there is no need for me to rule on the legality of the
Board’s conclusion about state protection, given that the applicants’
narratives were found to be not credible and that this aspect of the Board’s
decision is not subject to review. No question of general importance was raised
or is raised in the case at bar.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
“Luc Martineau”
Certified
true translation
Michael
Palles
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