Date: 20110323
Docket: IMM-3056-10
Citation: 2011 FC 359
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, March 23, 2011
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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MIGUEL ALVARO LEYVA FLORES
MARIA CONCEPCION CORONA GARCIA
MIGUEL DIVINE LEYVA CORONA
JORDY ALAN LEYVA CORONA
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Applicants
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and
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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 under
subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act),
of a decision of the Immigration and Refugee Board’s Refugee Protection
Division (hereinafter the panel), dated May 6, 2010, which found that Miguel
Alvaro Leyva Flores, Maria Concepcion Corona Garcia, Miguel Divine Leyva Corona
and Jordy Alan Leyva Corono were neither Convention refugees nor persons in
need of protection.
Factual background
[2]
The
principal applicant, Miguel Alvaro Leyva Flores, his spouse, Maria Concepcion Corona
Garcia and their two minor children, Miguel Divine Leyva Corona and Jordy Alan
Leyva Corona are all citizens of Mexico.
[3]
Since
1990, Mr. Flores worked for the Aves Libres de Patogenos Especificos S.A. (ALPES)
company. This company raised specific pathogen-free birds used for manufacturing
vaccines.
[4]
In
October 2007, Mr. Flores was purportedly transferred from the barn/farm. At his
new place of work, Mr. Flores allegedly noticed that there was poor financial and
health management and theft of materials and food.
[5]
In
November 2007, Mr. Flores took some photographs of the stolen material and food.
He then allegedly showed them to his supervisor, and then to the barn
production load manager, Monica Vergara.
[6]
At
the end of November 2007, Mr. Flores was transferred back to his old place of
work. He was allegedly demoted to a cleaning position. His working conditions
deteriorated and, in December 2007, he claims that he was falsely accused of
feeding bad food to some newborn chickens. Following this, there were attempts
to fire him, but without success.
[7]
After
this incident, Alphonso Valenzuela Perez, the agricultural director of the barn
where he worked, purportedly forced him to sign a letter stating that the next
time he made a mistake he would be dismissed. The letter also stated that his
salary would be decreased.
[8]
A
few days later, Mr. Flores claimed that he was assaulted and threatened with
death in front of his home by three individuals. One week later, the same individuals
allegedly confronted him at a bus stop and demanded that he hand over the
negatives of the photographs he claimed to have taken at the barn. Mr. Flores
told them that he did not have them. He was purportedly beaten and threatened
that it would “finish badly” if
he did not give them the photographs.
[9]
Mr.
Flores subsequently left his job and took refuge at his brothers’ homes from
January to April 2008. In the first week of April 2008, his house was allegedly
the target of gunfire. His spouse, Ms. Garcia, then purportedly moved to Mexico
City, in the Federal
District.
[10]
Mr.
Flores left Mexico for Canada on April 13, 2008, and claimed refugee
protection upon arrival. His spouse and children joined him two months later,
on June 17, 2008.
[11]
In
his refugee claim, Mr. Flores stated that he feared reprisals from Alphonso
Valenzuela Perez, the agricultural director of the barn where he worked.
Impugned Decision
[12]
The
panel dismissed the applicants’ claim for refugee protection on the ground that
the allegations made by Mr. Flores were not credible. The panel stated that it
did not believe that Mr. Flores had been assaulted and threatened with
death because of the photographs he had allegedly taken at his job. The panel
also stated that it did not believe that Mr. Flores had had trouble with anyone.
[13]
To
illustrate its findings with respect to lack of credibility, the panel cited
several examples. First, the panel questioned Mr. Flores about the content of
the photographs he had allegedly taken and how they could have jeopardized the
company’s management. Mr. Flores reported that he had taken photographs of the
material, the eggs, tables, tools and doors because he had to file a report. He
alleged that some material was not being delivered and wanted to show that he
was not participating in this. The panel took note of these statements but
found that there was little connection between the photographs and Mr. Flores’
allegations.
[14]
The
panel noted that Mr. Flores was unable to explain why he had not indicated in
his Personal Information Form (PIF) that the negatives of the photographs he
claimed to have taken no longer existed because they had been thrown out by his
spouse.
[15]
Next,
the panel noted that Mr. Flores had changed part of his testimony later during
the hearing when he added that some of the photographs showed people stealing,
loading up some trucks with materials and food.
[16]
The
panel noted that there were discrepancies between Mr. Flores’ testimony and his
PIF. The panel took note of the fact that, in his PIF, Mr. Flores never
mentioned that he had taken photographs of people committing theft. Instead, he
had written that he had taken photographs “of the food that was sold in the
stables, forgery material, doors, tables, water reservoirs, purchases, raffia
bags, eggs, birds, poor management of the birds and graphics, filters that were
not changed, fuel, diesel”.
[17]
Dissatisfied
with Mr. Flores’ answers, the panel concluded that he was not a credible
witness. The panel found it implausible that Mr. Flores would not take care of
the photographs, given that he claimed that they were very compromising for the
business where he worked. Since these photographs are the basis of his
allegations, the panel found that it was also implausible that his spouse would
throw them away while she was doing the cleaning and that he would wait until
the hearing to reveal why he was no longer in possession of these photographs
or the negatives of these photographs.
[18]
The
panel noted that Mr. Flores had numerous opportunities to explain how the photographs
he had allegedly taken compromised the managers of the barn where he worked,
and that he was unable to provide an explanation on this point.
[19]
The
panel also noted certain discrepancies between the dates on which Mr. Flores is
alleged to have left the family home. He told the immigration officer that
after gunshots were fired at the family home, the landlord allegedly asked them
(including the applicant) to leave the premises. However, at the hearing and in
his PIF, Mr. Flores reported that he had left his home to seek refuge with some
family members from January 1, 2008, until his departure in April 2008. The
panel questioned him about this, and he replied that he did not know why the immigration
officer had not written that he was not there when the gunshots were fired.
[20]
Furthermore,
the panel noted that the female applicant, Ms. Garcia, was unable to explain
why she had stated at the hearing that she left the family home on April 14 when
she told the immigration officer that she left on April 20 and went to Mexico City in March
2008.
[21]
The
panel found that all of this contradictory information demonstrated that the
applicants’ house was never the target of gunshots and that Mr. Flores never
had problems with anyone, in his work or because of the photographs that he
supposedly took at his work. The panel submitted that this conclusion was
confirmed by the fact that the applicant never tried to obtain state protection.
[22]
The
panel noted that the documentary evidence showed that there were various ways
of seeking state protection available to them. Moreover, the panel noted that
the applicant could have gone to the police when he was attacked and assaulted
on two occasions. To challenge his working conditions, the panel revealed that
the applicant would have had recourse in the labour courts. The panel did not
accept the applicant’s excuses that he did not think of taking these steps,
that lawyers have a bad reputation and that it requires money to pay bribes.
[23]
Lastly,
the panel found that the applicants had failed to rebut the presumption that
state protection was available to them, and that they had failed to credibly
explain why they did not seek the protection of the Mexican authorities.
Relevant statutory provisions
[24]
The following provisions of the Immigration and Refugee
Protection Act are relevant to this case:
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Convention
refugee
96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of nationality,
is outside the country of their former habitual residence and is unable or,
by reason of that fear, unwilling to return to that country.
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Définition
de « réfugié »
96. A qualité de réfugié au
sens de la
Convention —
le réfugié — la personne qui, craignant avec raison d’être persécutée du fait
de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person
in need of protection
97.
(1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Personne
à protéger
97.
(1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant
:
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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Issue
[25]
The
only issue in this application for judicial review is whether the panel erred
in its assessment of the applicant’s credibility.
Standard of review
[26]
The
parties did not make any submissions with regard to the applicable standard of
review. In the case at bar, the panel based its finding on the applicants’ lack
of credibility. In Malveda v. Canada
(Minister of Citizenship and Immigration), 2008
FC 447, [2008] F.C.J. No. 527, at para. 19, Justice
Russell reiterated that “[t]he
issue of whether or not the Board ignored relevant evidence is also a factual
inquiry
…”.
[27]
In Dunsmuir v. New
Brunswick 2008
SCC 9, [2008] 1 S.C.R. 190, at para. 53, the Supreme Court of Canada held that when a tribunal examines questions
of fact, the reviewing court will accord deference to the tribunal. Accordingly,
since credibility (or lack thereof) is a question of fact, the applicable
standard of review in this case is reasonableness.
Analysis
[28]
The
applicant argues that the panel erred in its assessment of his credibility by
not accepting certain parts of his testimony. For example, the applicant
submits that at the hearing, he had clearly explained that everything that was
taken out of the barn had to be recorded in the barn’s log book, in which the
use of equipment and materials was accounted for, but that the employees who
were taking this material were not recording it in the log book. Furthermore,
he adds that the company’s driver had admitted to him that the material was being
delivered to the home of the barn manager and not to another barn or elsewhere
within the company. Finally, the applicant argues that the photographs he had
allegedly taken proved that the barn manager was negligent, which put him in a
compromising position because, as manager, he was responsible for maintaining
the quality of the services provided by the company. The applicant submits that
the panel’s failure to understand these parts of his testimony, which he claims
are essential, taints the decision because they were what had given rise to his
fear. In addition, counsel for the applicant argued at the hearing before this
Court that, on the one hand, the questions were not clear, and on the other
hand, they had not been asked in a reasonable manner.
[29]
The
respondent, for his part, submits that the applicant’s allegations are clearly
insufficient to show that the panel had erred. The respondent maintains that
the applicants’ memorandum only provides ex post facto explanations to
justify the deficiencies raised by the panel. He correctly notes that in order
to obtain leave and succeed on the merits, it is not sufficient to simply
assert that the RPD erred in fact and in law, or to claim that there were no
contradictions. Relying on Chowdhury v. Canada (Minister of
Citizenship and Immigration), [1995]
F.C.J. No. 1591, 32 Imm. L.R. (2d) 250, at para. 8,
the respondent argues that it is necessary for the applicant to demonstrate in
what way the RPD erred in fact and in law.
[30]
On
reviewing the record and the panel’s reasoned decision, there is nothing that
would allow this Court to conclude that the panel committed an error in its
assessment of the applicants’ credibility. In fact, the applicants do not agree
with the determination made by the panel based on the evidence and would have
preferred an interpretation in their favour. The Court is not convinced that
the panel made an unreasonable, perverse or capricious decision without regard
to the material before it by gauging the testimonial and documentary evidence
and by drawing the necessary inferences.
[31]
In
the case at bar, given the discrepancies between Mr. Flores’ testimony and his PIF,
the contradictions and the omissions, it is clear that the panel articulated
its reasons concisely and that it considered all of the evidence and the
applicants’ explanations in its analysis.
[32]
In
conclusion, the Court is of the view that the panel was quite right to point
out the many inconsistencies and omissions in the applicants’ evidence and to
doubt the veracity of their story. Based on the foregoing, the panel’s decision
was reasonable and the Court’s intervention is not warranted. The application
for judicial review will therefore be dismissed.
[33]
No questions were submitted for certification and this matter does
not contain any.
JUDGMENT
THE COURT ADJUDGES
that
this application for judicial review be dismissed.
No question
is certified.
“Richard Boivin”
Certified true
translation
Sebastian Desbarats,
Translator
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