Date: 20110615
Docket: IMM-5739-10
Citation: 2011 FC 684
Ottawa, Ontario, June 15, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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MARISA RODRIGUEZ OSORNIO,
CARLOTA AGUILERA RODRIGUEZ, REGINA
AGUILERA RODRIGUEZ, VALENTINA AGUILERA RODRIGUEZ, ROMINA RENEE AGUILERA
RODRIGUEZ, GUSTAVIO JAVIER AGUILERA RODRIGUEZ, MARIA JOSE AGUILERA RODRIGUEZ,
LUCILA IVETTE RODRIGUEZ OSORNIO, GUSTAVIO JAVIER AGUILERA RODRIGUEZ
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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
I. Introduction
[1]
The
Applicants claim a fear of unknown persons who allegedly targeted them for
unknown reasons and obliged them to cooperate for an unknown purpose. The Immigration
and Refugee Board (IRB) determined that the Applicants were not credible. Had
the Applicants been found to be credible, no clear or convincing evidence was
provided by which to demonstrate inadequate and ineffective state protection.
II. Judicial Procedure
[2]
The
Applicants, Mr. Gustavo Javier Aguilera Rodriguez (Mr. Rodriguez), his wife,
Ms. Marisa Rodriguez Osornio (Ms. Orsonio), their six children, Carlota
Aguilera Rodriguez, Regina Aguilera Rodriguez, Valentina Aguilera Rodriguez,
Romina Renee Aguilera Rodriguez, Gustavo Javier Aguilera Rodriguez, Maria Jose
Aguilera Rodriguez and Ms. Lucila Yvette Rodriguez Orsonio, sister to Ms.
Orsonio, all of whom are Mexican citizens, have filed an Application for
judicial review against a decision of the IRB, dated September 1, 2010,
determining that they were not Convention refugees nor persons in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA).
III. Background
[3]
The
Applicants claim that they have been persecuted by unknown persons. In January
2006, Mr. Rodriguez, a
distributor of corn oil, allegedly began to receive anonymous threatening
telephone calls targeting both himself and his family. Their home was then burglarized
and vandalized, their car was stolen, and their 14-month-old daughter, Romina Renee Aguilera Rodriguez, was
abducted and subsequently found by the police hours later.
[4]
Mr. Rodriguez
also alleges that he was attacked in August of 2006. His injuries were treated
by a doctor; however, he did not report the incident to the authorities.
[5]
The
Applicants also allegedly fear an individual, Mr. Roberto Jesus Mandujano, a
lawyer who had previously worked for Mr. Rodriguez, based on a
non-descript call the latter supposedly made.
[6]
The
Applicants state that they have filed several complaints with the Attorney
General’s Office between March 2006 and March 2008 (IRB Decision, Applicant’s Record
(AR) at p 9, para 22).
[7]
Mr. Rodriguez
arrived in Canada on May 25, 2007. His wife, children and sister-in-law arrived
in June 2008.
[8]
All
of which, as described by the IRB, identify very little, if anything, by which
to attribute anything of substance, whatsoever to any allegation.
IV. Decision under Review
[9]
After
having considered and weighed the Applicants’ testimony, as well as the
evidence adduced, the IRB determined that the Applicants did not provide
credible or trustworthy evidence in support of their allegations of risk.
Specifically, the IRB’s decision was predicated on the following conclusions:
a. The
Applicants had no claim under section 96 of the IRPA because their fear
of criminality had no nexus to one of the five grounds for fear of persecution
enumerated in the “Convention Refugee” definition and they did not fear torture
by the State or its agents; thus, their claim could only be based on paragraph
97(1)(b) of the IRPA;
b. The
Applicants were not credible; and,
c. Alternatively,
the Applicants did not rebut the presumption that effective and adequate State
protection was available to them in their country.
V. Position of the Parties
[10]
The
Applicants claim to be persons in need of protection and to have a well-founded
fear of persecution. The Applicants further submit:
i.
The
IRB erred and made unreasonable findings of fact in concluding that the
Applicants were not credible; the IRB erroneously held that the Applicants’
explanations are outside the realm of what could reasonably be expected and
that it unreasonably drew negative inferences from conjecture or speculation;
ii.
The
IRB erred by failing to address the primary issue before it;
iii.
The
IRB’s conclusions regarding the availability of State protection are
unreasonable and drawn without proper regard for the evidence before it.
[11]
The
Respondent submits that the assessment of the Applicants’ claim conducted by
the IRB is reasonable, and that the Applicants have not demonstrated that the IRB’s
conclusions were rendered in a perverse or capricious manner or without regard
to the material before it. According to the Respondent, at this stage, the Applicants
cannot attempt to better their evidence by offering ex post facto
explanations and repeating explanations that were dismissed by the IRB.
VI. Issues
[12]
(1)
Did the IRB err and make unreasonable findings of fact in concluding that the
Applicants were not credible?
(2)
Are the IRB’s conclusions regarding the availability of State protection
unreasonable and drawn without proper regard for the evidence before it?
VII. Relevant Legislative Provisions
[13]
The
following provisions of the IRPA are applicable in these proceedings:
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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.
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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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 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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VIII. Standard of Review
[14]
According to the jurisprudence, it is clear that the applicable
standard of review of credibility and plausibility findings is the standard of
reasonableness (Aguebor v Canada (Minister of Employment and Immigration)
(1993), 160 NR 315, 42 ACWS (3d) 886 (FCA), at para 4). As for State
protection, the standard of review is also reasonableness (Huerta v Canada
(Minister of Citizenship and Immigration), 2008 FC 586, 167 ACWS (3d)
968, at paras 14-15).
IX. Analysis
[15]
In
a 19-page decision, the IRB provided a most comprehensive and extensive set of reasons
in support of its clear findings.
(1) Did the IRB err and
make unreasonable findings of fact in concluding that the Applicants were not
credible?
[16]
The
IRB’s opinion is well-explained, exhaustive, and its conclusion on the subject
of plausibility of the Applicants’ story is reasonable considering the important
inconsistencies of their submissions. The IRB is entitled to make reasonable
findings based on implausibilities, common sense and rationality and may also
reject uncontradicted evidence if it is not consistent with the probabilities
affecting the case as a whole. The Court will not intervene with regard to the IRB’s
implausibility findings unless an overriding error has been made by the IRB,
which is not the case. The IRB is a specialised tribunal; and the common sense,
associated with the reasonableness under the circumstances, is not to be
discouraged as it is a corollary of Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190:
[22] Based
on its knowledge and its expertise, a specialized tribunal may draw inferences
from the evidence without this necessarily meaning that such inferences result
from bias, as the applicant suggested. The persons who preside over tribunals
are not containers to be filled with any sort of story. They have a right to
use their common sense in determining whether a story stands up, is true or is
simply improbable.
(Goulongana v Canada
(Minister of Citizenship and Immigration), 2008 FC 421, 169 ACWS (3d)
1118).
[17]
The
inconsistencies noted by the IRB were central to the Applicants’ claim; the
Applicants, themselves, put into question their own version of events
underlying their alleged fear of persecution:
[75] The panel is of the opinion, in
light of the claimant’s testimony, their respective PIFs and accounts of the
interviews each claimant had with an immigration officer, that the claimants
are not credible with regards to their allegations against the individuals they
identified as the perpetrators of the harm they suffered.
…
[82] In light of the fact that the
claimants mentioned neither who they were afraid of nor why they were afraid of
them, upon their arrival in Canada, and that they all maintained later that
they did not know who they feared, the panel is of the opinion that the reasons
given and persons feared were subsequently added by the claimants to improve their
story. The panel finds that the claimants are not credible on this point.
[83] Moreover, the panel finds it
unlikely that the claimants knew the names of the alleged agents of harm, had
gone to the police on more than one occasion to file complaints, specifically
when the female claimant’s 14-month-old daughter was found by the police, but
still did not reveal the identities of their pursuers. All of this undermines
the claimants’ credibility.
[84] The claimants may have had
problems in Mexico, but the panel is of the opinion that the name Jesus Mandujano Sandoval and Alejandro and the reason given for
the fight over the oil business, were subsequently added in order to embellish
their story.
[18]
The
IRB’s decision was based on a thorough and comprehensive analysis of the facts
and it is not for the Court to substitute its opinion for that of the IRB,
recognizing that the IRB is a first-instance decision-maker and as a result
members of the IRB are finders of fact.
(2) Are the IRB’s
conclusions regarding the availability of State protection unreasonable and
drawn without proper regard for the evidence before it?
[19]
The
IRB reasonably determined that the Applicants have failed to rebut the
presumption of State protection, because they chose never to disclose the
identities of the individuals that they suspected were targeting them or to provide
reasonable leads to the authorities, nor afford officials a real opportunity to
protect them or to avail themselves of any of the recourses available to them
in Mexico. It is not reasonable for the Applicants to expect the police to seek
out and arrest the Applicants’ persecutors when they did not provide their
identities or any leads for the police (Villasenor v Canada (Minister Citizenship
and Immigration), 2006 FC 1080, 157 ACWS (3d) 818, at paras 19-20).
The IRB concluded that the evidence showed that the Applicants failed to
provide any assistance to the police:
[89] And yet, when the male claimant
was beaten in August 2006 and left with contusions observed by a doctor, he
failed to present any evidence to the police, such as document P-4, a
certificate from the treating physician confirming his injuries.
[90] The female claimant, although
able to identify the callers and her daughter’s kidnappers, chose never to disclose
the identities of the perpetrators of the crimes to the police; according to
her, she wished to protect her family.
[91] The same is true of Lucila Yvette Rodriguez Orsonio.
…
[94] The Honourable Justice Heneghan
of the Federal Court states in Peralta that a refugee protection
claimant must demonstrate that he has taken all reasonable steps in the
circumstances to seek protection, given the context of the country of origin,
the steps taken and the interaction with the authorities.
(IRB Decision, AR at pp
20-21).
[20]
The
IRB determined that the Applicants did not take all reasonable steps in
identifying their persecutors. The IRB’s findings of facts are all within the
range of possible options and is better-placed than the Court to assess the
credibility of an applicant as well as the existence of persecution or a risk
referred to in the IRPA. Reviewing courts are not to re-weigh the
evidence before an administrative tribunal in order to come to different
conclusions.
X. Conclusion
[21]
For
all of the above reasons, the Applicants’ application for judicial review is
dismissed.
JUDGMENT
THIS COURT
ORDERS that the
Applicants’ application for judicial review be dismissed. No
question for certification.
Obiter
Although
the matter in question is not one for refugee status of the Applicants, the
objective country condition evidence is not as straightforward as it is made
out to be in a decision of the panel member in respect of state protection, due
to country condition excerpts in that regard that demonstrate a much more
problematic and challenging situation. Nevertheless, that would not have
changed the Court’s decision above, due to the actual evidence of the
Applicants, which evidence simply did not meet the burden of proof necessity by
which this Court could state that the IRB’s decision was unreasonable in the
circumstances. The principal Applicant, the father, an executive of a
well-established company; a mother, who is a medical doctor, and, in addition,
an aunt, who was employed by an international company, together, do not simply
appear to have left their country of origin with six minor children for an
adventure. It would seem, rather that, it is to embark on a better life and a
more protective society for the six children (due to inherent significant
dangers in that society to each one of them).
Therefore,
the three adults, due to their qualifications, may be eligible for another form
of status under a different immigration program, dependent on their present
whereabouts in Canada, whether a H&C or, such as, a Quebec selection
certificate, as per their professions or occupations; and, thus, provide a more
promising life for their children. That is not for this Court to decide but for
the relevant instances and jurisdictions that may recognize the benefit of such
aspirant newcomers to Canada (arising under a different form of status).
“Michel
M.J. Shore”
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