Date: 20110517
Docket: IMM-6305-10
Citation: 2011 FC 566
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, May 17, 2011
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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OSWALDO OROZCO BLANQUEZ
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Applicant
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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
I. Preliminary
[1]
It
is up to the Immigration and Refugee Board (Board) to
gauge the credibility of an applicant. To this end, this Court has held, on numerous
occasions, that the omissions, inconsistencies and contradictions identified
between port of entry statements, Personal Information Forms (PIF), testimony
before the Board and other personal documents submitted into evidence may lead the
Board to find that the credibility of all or part of an applicant’s testimony is
affected.
II. Judicial procedure
[2]
This
is an application for judicial review in accordance with subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), of a
decision by the Board’s Refugee Protection Division (RPD), dated October 18,
2010, that the applicant is not a Convention refugee under section 96 of the
IRPA or a person in need of protection under section 97 of the IRPA on the basis
of his lack of credibility.
III. Facts
[3]
The
applicant, Oswaldo Orozco Blanquez, was born on June 30, 1970, and is a citizen
of Mexico. He alleges that he was personally targeted by members of the Mexican
mafia,
la Maña.
[4]
The
facts alleged by the applicant are as follows: Mr. Blanquez was working in the
quality control department of Eaton Controls in the city of Reynosa (in the State
of Tamaulipas in Mexico) when he first received a threatening telephone call on
September 3, 2008. On September 16, 2008, after numerous other threatening telephone
calls, the
same individual purportedly demanded $15,000. Mr. Blanquez then apparently spoke to a
colleague, Luis Nieto Cid, about his situation and this colleague allegedly told
him that he was having the same problem. The applicant purportedly quit his job
on September 19, 2008, because of the constant telephone threats.
[5]
On
October 2, 2008, Mr. Blanquez and Mr. Cid were apparently kidnapped by a group
of armed men driving four pickup trucks. The individuals purportedly took the
two colleagues to an isolated location where they were allegedly beaten,
threatened and then abandoned after being given instructions on when and where
to leave the money being demanded. The next day, the two men apparently collected
$5,000, left it at the location that was specified the previous day and then
fled Reynosa for Rio Bravo. On October 13, 2008, they allegedly returned to Reynosa
to file a complaint with the Office of the Public Prosecutor before going back
into hiding in Rio Bravo.
[6]
The
applicant left Mexico on November 12, 2008, for Canada and claimed protection
that same day.
IV. Impugned decision
[7]
After
observing and hearing the applicant’s testimony and carrying out a detailed
analysis of the evidence as a whole, the RPD found that the applicant was not
credible on key points of his refugee claim. Several contradictions and
omissions were apparent in the evidence submitted by the applicant and he was
unable to sufficiently justify them before the RPD. More specifically, the RPD
noted the following:
a.
The complaint made to police that was submitted into evidence (Police
Complaint dated October 13, 2008, RPD Record at pages 48-49) includes a number
of details, but fails to mention the $5,000 that Mr. Blanquez and Mr. Cid allegedly
delivered after their kidnapping;
b.
The complaint also makes no mention of the fact that, after the supposed
kidnapping, they were apparently thrown from the vehicle into an isolated area
and then beaten and threatened by armed assailants;
c.
The notes taken by the immigration officer at the port of entry (Schedule
1, Background Information IMM 5474, RPD Record at pages 68 to 76) do not
mention the kidnapping he was apparently the victim of or the ransom he
purportedly paid. The applicant nevertheless provided some information on the
extortion calls he allegedly received and the immigration officer wrote more
than 13 lines on the back of the questionnaire to record this information (RPD
Record at page 71);
d.
It was implausible that, between September 16, 2008, and October 2, 2008,
the assailants purportedly never provided details on when and where to leave
the money, while the applicant alleges that he received several threatening
telephone calls demanding that he pay the money;
e.
Moreover, the RPD found that the applicant adjusted his testimony when
asked why his passport was not stolen by his assailants along with his other
identity documents, as he was often required to have it on him for work.
[8]
For
all of these reasons, the RPD did not find the applicant to be credible and
rejected his claim.
V. Issue
[9]
Does
the RPD’s decision contain an error in fact or law warranting the Court’s
intervention?
VI. Relevant statutory provisions
[10]
The following provisions of the IRPA apply to this proceeding:
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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.
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.
(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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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.
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 lieux
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.
(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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VII. Parties’ claims
[11]
The
applicant claims that the RPD unjustly undermined his credibility and erred by
failing to rule on the reason advanced to support his fear of persecution. He
adds that the RPD unjustly undermined his credibility by rejecting his
explanations on the contradictions and omissions raised, namely his claim that
they were due to his nervousness.
[12]
The
respondent submits that it is settled law that it is open to the RPD to draw a
negative inference with respect to the credibility of a refugee claimant on the
grounds of omissions, inconsistencies and contradictions between port of entry
statements, PIFs, testimony before the RPD and personal documents submitted
into evidence, even more so when they pertain to the key elements of the claim,
as is the case here. The respondent submits that the applicant’s nervousness
cannot explain all of the deficiencies identified by the RPD in the evidence submitted,
namely with respect to the missing elements in the complaint he allegedly filed
and the fact that only certain identity documents were purportedly stolen.
VIII. Standard of review
[13]
The
case law of the Federal Court consistently states that assessing the
applicant’s credibility is a question of fact reviewable on a standard of
reasonableness (Aguebor v. Canada (Minister of Employment and Immigration),
(1993), 16 NR 315, 42 ACWS (3d) 886 (FCA) at paragraph 4). According to Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Court may act only if
the RPD’s decision is found to be unreasonable because a high level of
deference is owed to findings of fact made by a specialized tribunal.
IX. Analysis
[14]
On
numerous occasions, this Court has reiterated that it is up to the RPD, as a
specialized tribunal, to assess the credibility of a refugee claimant and the
evidence submitted in support of his or her claim. Unless the applicant can
show that the RPD’s inferences could not have been drawn reasonably, its
findings are not are open to judicial review (Aguebor, above; Chen v.
Canada (Minister of Citizenship and Immigration), 2005 FC 767, 148 ACWS
(3d) 118 at paragraph 18).
[15]
After
identifying the omissions and contradictions in the record, the RPD examined
the applicant’s explanations and found the following, among other things:
a. It is
implausible that the omission of elements in the complaint was due to the
arrogance of police officers in Reynosa. The police officers would in no way benefit from
failing to include all of the information that was purportedly provided to them
in the complaint;
b. If the elements with
respect to the kidnapping had actually been mentioned to the information
officer, he would likely have written them down. Furthermore, an interpreter
would have had no interest in failing to interpret a key point of the statement;
c. It was implausible that
the assailants told the applicant where and when to leave the money only on one
occasion, at the time of the kidnapping, despite the fact that several other
threatening telephone calls were apparently made between September 16 and
October 2, 2008;
d.
The
applicant tried to adjust his testimony before the RPD with respect to the fact
that the assailants stole all of his documents, except his passport;
e. If the kidnapping did
occur, it did not occur under the circumstances described by the applicant;
f.
It
was implausible that all of the deficiencies in the documents and the testimony
were due to the applicant’s nervousness.
[16]
In
this case, it is up to the RPD, as a specialized tribunal, to assess the
explanations provided by the applicant with respect to the implausibilities and
contradictions in the evidence. It is up to the RPD to measure the applicant’s
credibility and to draw negative inferences with respect to the omissions and
contradictions contained in the port of entry statement and the viva voce
testimony when they pertain to key elements of the claim and for which no
satisfactory, plausible or credible explanation has been provided. Furthermore,
the key elements of a claim must appear in a PIF; this is also the case for the
port of entry statement. This
Court has, on numerous occasions, confirmed that a failure to mention key
elements may affect the credibility of all or part of a testimony:
[23] According to case law,
inconsistencies between an applicant's statements at the port of entry and
testimony about crucial elements of a claim are sufficient to taint his
credibility: Nsombo v. Canada (M.C.I.), IMM-5147-03; Shahota v.
Canada (M.C.I.), [2004] F.C.J. No. 1540, online: QL; Neame v. Canada
(M.C.I.), [2000] F.C.J. No. 378, online: QL .
(Chen, above)
[17]
It
was reasonable for the RPD to find that the applicant was not credible and that
it could therefore not allow the refugee claim.
X. Conclusion
[18]
Given
the facts of this case, the Court’s intervention is unwarranted and for these
reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for
judicial review be dismissed. No question for certification arises.
“Michel M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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