Date: 20110207
Docket: IMM-2939-10
Citation:
2011 FC 134
Ottawa, Ontario, February 7, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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JESUS TAPIA CASTILLO
VIRIDIANA MORA CASTILLO
GUADALUPE TAPIA CASTILLO
SAMUEL ALBERTO GONZALEZ CASTILLO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board (IRB) dated April 28, 2010.
The RPD refused the Applicants’ claim for protection, finding that the four
Applicants were not Convention refugees or persons in need of protection.
[2]
For
the reasons that follow, I have concluded that the Court’s intervention is not
warranted. The Applicants’ arguments amount to no more than simple disagreement
with the Board’s findings, and it is not the role of this Court to reassess the
conclusions of implausibility drawn by the RPD. In any event, the RPD could
reasonably conclude that there was adequate state protection and that the
Applicants had not rebutted the presumption of state protection.
I. Facts
[3]
The
Applicants are citizens of Mexico and they are all related. Jesus Tapia
Castillo (Jesus) is the principal Applicant; the applications of his sister
Guadalupe Tapia Castillo and of their cousin Viridiana Mora Castillo both rely
on Jesus’ narrative. Their other cousin, Samuel Alberto Gonzalez Castillo
(Samuel), has prepared his own narrative.
[4]
For
four and a half years leading up to November 2007, Jesus worked as an
administrative assistant at a customs agency in Vera Cruz. Between November 3
and 7, 2007, he was approached and threatened repeatedly by a man named
Valentin Rosas, who worked for the security company “Delfines”. Mr. Rosas
wanted Jesus to cooperate in a theft operation; this man asked Jesus to provide
information on shipments arriving in Vera Cruz in order to facilitate the theft
of merchandise arriving via shipment. Mr. Rosas showed Jesus photographs of
Guadalupe, Samuel and Viridiana, implying that their lives would be threatened
unless Jesus agreed to cooperate in the thievery operation. Guadalupe and
Viridiana were also approached and threatened.
[5]
On
November 8, 2007, Jesus, along with at least Guadalupe and Viridiana and
possibly Samuel, lodged a complaint with the Public Prosecutor. The
Prosecutor’s office told Jesus that Mr. Rosas would be watched over, and
that the office would send a lawyer to follow up on the complaint with Jesus.
[6]
Jesus
continued to receive threats from Mr. Rosas, so he resigned from his job on
January 14, 2008. On January 28, 2008, he and Guadalupe and Viridiana went into
hiding in Paso De Macho, a 2-3 hour drive away from Vera Cruz, where they
remained until travelling to Mexico City on February 16 for a
flight to Canada. In Canada, they
immediately sought refugee status.
[7]
As
for Samuel, he had been employed for over four years preparing custom documents
for an import/export company (where, presumably, he also had information
pertaining to shipments). In early November, he was also confronted by a Jorge
Colan, who worked for the same security company as Mr. Rosas. Mr. Colan
threatened Samuel and his cousins, asking Samuel to cooperate in the thievery
operation planned by Mr. Rosas and Mr. Colan. On November 8, he says he went
with the others to lodge a complaint with the Public Prosecutor. He was
allegedly beaten by the persecutors on January 27th, 2008, though he
had received no further threats before that since early November.
II. The impugned decision
[8]
The
Board member based its negative determination of refugee status on a finding
that the evidence presented does not establish, on a balance of probabilities,
a likelihood of a risk to life or a risk of cruel and unusual treatment or
punishment or a danger of torture if removed to Mexico. The
Tribunal found a lack of credibility and plausibility with respect to
determinative issues, and also that the Applicants had not rebutted the
presumption of state protection.
[9]
The
Board member found the Applicants’ story implausible. Since Jesus allegedly
quit his job on January 14, the member reasoned that the men who were
threatening him should have lost interest at that point, since they had wanted
him to share information that he had through his job. Therefore, the member
found not credible that the claimant felt he needed to go into hiding and to
flee the country after he had quit his job.
[10]
Regarding
state protection, Jesus testified that after filing his complaint, he was told
that the prosecutors would keep a watch out for Mr. Rosas and that he would be
contacted by a lawyer. No lawyer contacted him. In the member’s opinion, Jesus
should have followed up on this or filed additional complaints. The women
claimed that they did not seek protection because Jesus already had. The member
did not find these actions constituted the reasonable steps to seek protection
necessary to rebut the presumption.
[11]
The
member also found it implausible that Jesus would have failed to tell his
employer about the threats. Jesus claimed that he did not want his employer to
blame him if any theft took place, but given that he had been an employee in good
standing for four years, the member felt that the employer would likely not
have blamed Jesus if he had come forward with his concerns. As such, Jesus’
failure to do so was not credible. The member thinks that the fact that the
Applicants resigned from their jobs at the same time and almost immediately
decided to seek protection in Canada meant that they had already made a
decision not to seek state protection in Mexico.
[12]
The
Tribunal noted that it had taken cognizance of the documentary evidence filed
on behalf of the claimant, but that documentary evidence pertaining to human rights
violations and drug cartels was not pertinent to the Applicants.
[13]
Regarding
Viridiana and Guadalupe, the member found that if there had ever been a risk to
their lives, that risk ceased when Jesus quit his job. The member did not find
it credible that on January 25, ten days after both Jesus and Samuel had quit
their jobs, Guadalupe would have been threatened.
[14]
The
member also found that Samuel’s narrative was not credible, for the same
reasons that Jesus’ story was not credible – if the men had quit their jobs in
mid-January, they should have ceased to be of interest to the men threatening
them. Therefore their desire to hide and flee was not believable. Furthermore,
Samuel alleged no threats between November 7 and the time he was beaten on
January 27, so it is not credible that he would have felt the need to quit his
job on January 14. His explanation for his failure to consult his employer
was the same as that of Jesus – fear of being blamed in the event of a theft,
which the member did not find convincing.
[15]
The
Board noted that Samuel’s remarks regarding whether Mr. Colan was vulnerable to
or immune from the police were inconsistent (he had contradictorily alleged
both) in an immigration interview. He blamed these inconsistencies on erroneous
note-taking on the part of the interviewer, which the member did not find
credible.
[16]
As
for Samuel’s alleged physical attack in January and his injuries, which are
substantiated by a medical report, the Board member wonders why the medical
report and Samuel’s own comments are inconsistent regarding the extent of the
injuries, and why such a brutal beating would not have prompted another police
report in January. In fact, the member was not convinced that Samuel even went
to the prosecutor on November 8 (before the beating) with the others as he
claimed to have done.
[17]
Having
found that adequate state protection existed for the claimants, the Board did
not examine the questions of an internal flight alternative.
III. Issues
[18]
This
application for judicial review raises two issues:
a. Did the Board
err in making its credibility finding?
b. Did the Board
err in making its state protection finding?
IV. Analysis
[19]
The
RPD’s determination of credibility findings and the existence of state
protection attract a standard of reasonableness. Accordingly, the decision will
be upheld so long as it falls within a range of possible and acceptable
outcomes: Dunsmuir v New Brunswick, 2008 SCC 9, at paras 47-48 and 51.
A. The Credibility Finding
[20]
It
is worth noting that the Applicants Samuel, Guadalupe and Viridiana do not
provide any affidavit, and that Guadalupe and Viridiana did not submit a
narrative with their personal information form (PIF). Moreover, they do not
appear to challenge the RPD’s findings with respect to their claims, except for
a vague allegation that the RPD was overzealous in the analysis of their claim.
Indeed, most of the arguments made by their counsel focus on the portion of the
Board’s decision dealing with Jesus’ claim.
[21]
The
assessment of credibility of evidence is a question of fact. The Board’s
decisions on credibility are to be accorded a high level of deference unless
they are shown to be clearly unreasonable: Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 (FCA).
[22]
The
Board member offers several examples of implausibilities to support his
conclusion:
i. It was unlikely that Mr.
Rosas and Mr. Colan, who began their persecution because they sought shipping
information for the purposes of robbery, would continue their threats after the
Applicants lost access to such information;
ii. It was implausible that
the Applicants did not tell their long-term employers about these threats and
planned robberies, even though they had been employees in good standing and the
situation had a very direct impact on the employers;
iii. It was implausible that
Samuel would, out of fear of his persecutors, quit his job on January 15 even
though he had not receive any threats since November 7, and then, suddenly and
for no apparent reason, be brutally beaten by the persecutors later in January;
and
iv. It was also strange that
Samuel would not have reported the beating to the prosecutor’s office, as this
would have been an important update to the claim he had alleged already filed.
[23]
The
RPD was entitled to make reasonable findings based on implausibilities, common
sense and rationality, and may reject evidence if it is not consistent with the
probabilities affecting the case as a whole. The Applicants’ mere disagreement
with the implausibilities drawn by the RPD does not warrant this Court’s
intervention.
[24]
As
well, the RPD was under no obligation to alert the Applicants of its concerns
about weaknesses in the evidence that could give rise to implausibilities: Quijano
v Canada (Citizenship
and Immigration), 2009 FC 1232; Farooq v Canada (Minister of
Citizenship and Immigration), 2005 FC 867.
[25]
With
respect to the documentary evidence, the RPD could reasonably conclude that the
documentary evidence on human rights violations from Amnesty International was
not relevant in the context of the Applicants’ claim. In any event, an
allegation of risk cannot be based simply on documentary evidence without any
link between the condition in a country and an applicant’s situation: Prophète
v Canada (Minister of
Citizenship and Immigration), 2008 FC 331, aff’d 2009 FCA 31.
B. The State Protection Finding
[26]
The
test as to whether state protection exists has been conclusively determined by
the Supreme Court of Canada and the Federal Court of Appeal. The courts must
presume that the state is capable of protecting its own citizens. This
presumption can only be displaced upon clear and convincing confirmation of the
state’s inability to protect a claimant: Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689, at p 724; Canada (Minister of Employment
and Immigration) v Villafranca (1992), 150 N.R. 232, at p. 235 (F.C.A.).
[27]
More
recently, the Federal Court of Appeal confirmed that a person claiming that
state protection is inadequate bears the evidentiary burden of adducing
evidence of inadequate state protection, and the legal burden of persuading the
trier of fact that the claim in this respect is well-founded: see Canada
(Minister of Citizenship and Immigration) v Flores Carrillo, 2008 FCA 94,
at paras 17-19, 28 and 30.
[28]
In
the present case, the RPD thoroughly reviewed the documentary evidence and
principles relating to state protection and the Applicants’ incomplete attempts
to avail themselves of state protection. For example, the RPD noted that the
Applicants had not followed up with the authorities after making their
complaints on November 8, 2007. The RPD also noted that the applicants did not
take their complaint to a higher authority before fleeing to Canada.
[29]
The
RPD reasonably relied on this Court jurisprudence to the effect that a
claimant’s decision to flee before the police have had an opportunity to
properly respond to and investigate a transgression did not amount to a lack of
state protection: see, for example, Montemayor Romero v Canada (Minister of
Citizenship and Immigration), 2008 FC 977, at paras 24-25.
[30]
Contrary
to the Applicants’ allegation, the onus was upon them to make diligent efforts
to exhaust all reasonable course of action available in seeking assistance. In Kadenko
v Canada (Solicitor General) (1996), 143 DLR(4th) 532, at p 534,
Décary J.A. elaborated on these principles and highlighted that the more
democratic a country, the more the claimant must have done to seek out the
protection of his or her home state. The principles were reaffirmed more
recently by the Federal Court of Appeal in Hinzman v Canada (MCI), 2007 FCA
171.
[31]
As
for the Applicants’ subjective belief that the authorities would have acted in
collusion with their persecutors (had they been approached for assistance),
such an allegation it is not sufficient to rebut the presumption of state
protection, especially when that conviction is not based on any objective
evidence: see Quijano, supra, at para 42; Judge v Canada (MCI),
2004 FC 1089, at paras 8, 10.
[32]
In
light of the foregoing, I am of the view that this application for judicial
review ought to be dismissed. No question is certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed. No
question is certified.
"Yves
de Montigny"
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