Date: 20110524
Docket: IMM-5024-10
Citation: 2011 FC 578
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, May
24, 2011
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
DIEGO
ENRIQUE CASILLAS GOMEZ
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 by
a member of the Refugee Protection Division of the Immigration and Refugee Board (panel)
submitted in accordance with subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act) by Diego Enrique Casillas Gomez (applicant). The
panel found that the applicant was not a refugee or a
person in need of protection and therefore rejected his refugee claim.
[2]
The
applicant is a citizen of Mexico who was born on March 6, 1985. He was living
in the State of Queretaro.
[3]
In October
2008, he was working as a parking valet. On October 25, 2008, during a wedding
at his workplace, he allegedly obtained keys for the vehicle of Federico Ruiz
Lomeli, a well-known and influential person, the son of one of the heads of the
Coca-Cola company in the State of Queretaro.
[4]
On
October 28, 2008, Mr. Lomeli’s bodyguards apparently paid a visit to the applicant
at his workplace. The bodyguards purportedly accused him of stealing a briefcase
belonging to Mr. Lomeli when he had parked his car. The briefcase
contained important documents and money. The applicant denied it.
[5]
Over
the following days, the bodyguards purportedly came back several times. They
apparently threatened the applicant with reprisals if he did not return the briefcase.
The applicant apparently fled to the home of his sister and to the homes of
some friends. On November 11, he allegedly decided to come to Canada and
purportedly obtained a passport. On November 15, Mr. Lomeli’s bodyguards apparently
assaulted him again. On November 19, he travelled to Toronto.
[6]
The
panel noted that there was no evidence of one of the five grounds listed in section
96 of the Act and it therefore determined that this section did not apply. Moreover,
as there was no evidence that the Mexican state had been the applicant’s agent
of persecution, the panel also determined that paragraph 97(1)(a) did
not apply and that only paragraph 97(1)(b) could be considered. The
panel eventually found that the applicant had not established his credibility
and had therefore not discharged his burden of demonstrating a reasonable fear
of persecution.
[7]
The
panel found that, during his testimony, the applicant had had a great deal of
difficulty recalling the events of the past and important details and dates,
even though the alleged incidents had taken place less than 24 months before
the hearing. The contradictions and omissions identified by the panel are
related to major facts in the refugee claim.
[8]
The
only issue is whether the panel’s decision is reasonable.
[9]
In
fact, the applicable standard of review for credibility findings is
reasonableness. At paragraph 47 of Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, the Supreme Court of Canada noted that “reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[10] After
reviewing the evidence and hearing counsel for the parties, I am of the opinion
that the decision is reasonable with respect to the assessment of the applicant’s
contradictions and omissions, which are clearly apparent from reading the
applicant’s Personal Information Form, the transcripts of his interviews with
the immigration officers and the hearing transcript. I agree with the panel
that these bear on facts that are central to the account provided by the applicant,
who was not even able to provide a coherent order of events just days after the
alleged incidents. I also agree with the respondent that Moscol et al. v. The
Minister of Citizenship and Immigration, 2008 FC 657, is relevant. In his
decision, Justice Luc Martineau wrote the following:
[21] The
case law states that differences between the claimant’s statement at the port
of entry and the claimant’s testimony are enough to justify a negative
credibility finding when these contradictions bear on elements that are central
to the claim: Chen v. Canada (Minister of Citizenship and Immigration),
2005 FC 767, [2005] F.C.J. No. 959 (QL), at paragraph 23
and Neame v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 378 (QL). Further, the RPD is entitled to assess a
claimant’s credibility based on a single inconsistency where the impugned
evidence is a significant aspect of the claim: see Nsombo v. Canada (Minister of Citizenship and
Immigration),
2004 FC 505, [2004] F.C.J. No. 648 (QL).
[11] Moreover, the
applicant criticizes the panel for failing to consider the fact that he was
nervous and stressed during the hearing, alleging violence and stress are clearly
elements that could have affected his emotional stability. He adds that he had clearly
stated that he had encountered Mr. Lomeli’s bodyguards several times and
the fact that he could not remember these meetings in a detailed manner does
not undermine his credibility.
[12] However, according to
the hearing transcript, the applicant mentioned his nervousness only once, and it
was to try to justify why he failed to mention the incident of November 17,
2008, during his interview with the immigration officer.
[13] Furthermore, as noted by
the respondent, the applicant did not submit any medical evidence on his
psychological state during the hearing, which he could very well have done.
[14] Taking into account the
fact that the panel had the opportunity to observe the applicant’s conduct as a
witness and that he never mentioned during the hearing that it was making him
nervous, I do not intend to intervene concerning the assessment made by the
panel regarding the applicant’s lack of credibility.
[15] For all of these
reasons, the application for judicial review is dismissed. I am in agreement
with counsel for the parties that this is not a case for certification.
JUDGMENT
The application
for judicial review of a decision by a member of the Refugee Protection
Division of the Immigration and Refugee Board that
the applicant is not a refugee or a person in need of protection according to
sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, is
dismissed.
“Yvon
Pinard”
Certified true translation
Janine Anderson, Translator
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