Docket: IMM-29-11
Citation: 2011 FC 1015
Ottawa, Ontario, August 22,
2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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EVARISTO DIEGO BALLESTER
PEREZ
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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. OVERVIEW
[1] In this
application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001 c 27 [IRPA], the Applicant is
asking the Court to review a decision of the Refugee Protection Division of
the Immigration and Refugee Board (the Board), dated December 3, 2010, which
rejected his refugee claim.
[2] For the
reasons that follow the application is rejected.
II. FACTS
[3] The Applicant
is a citizen of Mexico.
[4] The Applicant
claims that members of a drug cartel want to kill him because he refused to
cooperate with them by poisoning the food of the Governor of the state of Chihuahua, José Reyes
Baeza Terrazas.
[5] An
experienced hotel chef, the Applicant has been hired for three years running to
oversee the Governor’s Christmas and New Years banquets. On December 28, 2008,
Senator Moreno, sent by the drug cartel, asked him to poison the Governor’s
meal. The Applicant refused.
[6] In the
following days, the Applicant was repeatedly called on his cell phone by both
the drug cartel and others requesting that he changes his mind. He stopped
answering these phone calls.
[7] To avoid
attracting further attention, he decided not to warn the Governor or his
security service about the conspirators. He prepared and served the banquet on
December 31.
[8] Two days
later, four suspicious individuals followed him (by car) but the Applicant
succeeded in shaking them off. He then hid in the home of a friend in the same
city, while awaiting issuance of a passport, and subsequently, in Cuernavaca.
[9] Fearing for
his life because the members of the drug cartel as well as other individuals
were after him, he left Mexico on January 21, 2009. He arrived in Canada that day and
demanded asylum on March 15, 2009.
III. IMPUGNED
DECISION
[10] The Board
rejected the Applicant’s claim on the basis of a negative credibility finding.
It found the Applicant failed to establish some essential elements of his
claim. He did not convince the Board that he was indeed the Governor’s head
banquet chef on December 31, 2008. According to the decision, his story is
highly implausible in light of the documentary evidence.
[11] The Board did
not believe the Applicant had acted like a person in danger: he showed up to
serve the banquet despite having allegedly received death threats. He took 23
days to leave Mexico despite
being a threatened and endangered witness to a conspiracy to kill the governor.
He did not claim asylum until he had been in Canada for two
months.
[12] The Board
states that the Applicant’s story has no s 96 nexus, and therefore conducts a s
97 analysis to conclude that he is not a person to protect.
[13] First, the
Applicant fails to establish that he is indeed the chef of the governor’s
banquet. He does prove that he has worked as a chef in various hotels and that
he has met the Governor (he submitted a photo of the two of them speaking at a
food fair). However, he does not establish that he, himself, has been hired to
prepare this New Year’s Eve banquet. He has no documents to prove this alleged
employment: no menus, orders, or bills. He explains this lack of supporting
documentary evidence by stating that he has been hired over the phone.
Furthermore, he left Mexico with the intention to return. He initially
came to Canada for a visit.
The Board was not swayed by these explanations.
[14] Second, his behaviour
is not consistent with that of an endangered witness: he testifies that despite
the threats, he served the banquet and, when he received threatening phone
calls, he took no further action than ceasing to answer his cell phone. After
refusing the request of a high-ranking drug cartel member and corrupt officers
to participate in their assassination plot, he would have been in great danger.
The conspirators would have had a legitimate reason to fear that he would
denounce them. The documentary evidence shows that such individuals are not
afraid to use violence to protect themselves. If he had been truly afraid, he
would not have presented himself at the banquet and would have taken other
measures to escape than simply ceasing to answer the threatening phone calls.
[15] Moreover, the
Applicant did not alert the Governor’s security service, allegedly because he
did not want to attract attention. He claims to like and trust the Governor. He
says that he would have endangered himself, if he had alerted him. Now he
claims that he is also in danger, by virtue of having refused to participate in
the plot: the Board finds that his testimony is not logical.
[16] He also took
23 days to leave Mexico – during this time; he was not harmed by the
conspirators, even though his only precaution was to hide.
[17] Furthermore,
he claimed asylum after two months in Canada, allegedly because he
wanted to evaluate the situation; the Board finds that this delay betrays the
falsity of his allegations.
[18] Finally, the
Board references letters from his former employers, which he brought with him
to Canada. These were
written in autumn 2008. The fact that he obtained these letters before the
alleged events took place suggests that he had been planning to look for work
in Canada all along.
[19] For these
reasons, the Board found that the Applicant had failed to establish, on a
balance of probabilities, that he qualified for protection under s 97.
IV. ISSUES,
ARGUMENTS AND ANALYSIS
1. Did the Board
err in failing to properly analyze whether there was a nexus to the definition
of a Convention Refugee?
Standard of Review
[20] The
Respondent reminds the Court that the existence between a persecutory conduct
and a Convention ground is a question of fact within the Board’s
expertise: Mia v Canada (Minister of Citizenship
and Immigration), [2000] FCJ No 120, which entails the application of
reasonableness as the appropriate standard.
[21] The Applicant
frames the issue as a question of law. The Court does not agree. The standard
is reasonableness. It would be in any case where a question of law that concerns the tribunal’s home statute is raised. In this
application, it pertains to the interpretation of sections 96 and 97 of IRPA.
Thus, reasonableness applies, as was found by Justice Heneghan in Canada (Citizenship and Immigration) v Gondara, 2011 FC 352:
[24] Where
the appropriate standard of review has already been determined, an exhaustive
review is not required in subsequent cases. For findings of fact and issues of
mixed fact and law, the standard of reasonableness applies. That standard
applies to both the decision-making process and the outcome of the decision.
Errors of procedural fairness are reviewed on the standard of correctness.
Errors of law are generally reviewed on a correctness standard, unless the
decision-maker is interpreting a statute within its area of expertise, as was
emphasized by the Supreme Court of Canada in Smith
v. Alliance Pipeline Ltd., 2011 SCC 7.
Applicant’s argument
[22] In paragraph
9 of his reasons, the Board declares, in a single sentence, that the facts
alleged show no nexus with the Convention refugee definition. It offers no
further discussion on this point. The Applicant contends that in doing so, the
Board failed to conduct a thorough s 96 analysis. Credibility was not an issue
at that point in the decision-making process, since the Board had referred to
the alleged facts (the “récit allégué”): thus, the facts should have been taken
as established when considering the presence of a nexus. The Applicant argues
that by failing to conduct a real analysis of the Convention definition, as it
applies to the Applicant, the Board erred in law, since there were political
elements to his claim.
[23] The
Applicant’s troubles concern the ramifications of his refusal to murder a political
leader (the Governor) that came from another politician. He therefore claims
that this is a political issue, just as that faced by Mr. Ward in Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 [Ward], who refused to
kill a prisoner of the Irish National Liberation Army. In both cases, the
refusal to kill was a political issue, at least in the eyes of the
conspirators. As such, the Applicant claims it was not obvious that
there was no nexus and the Board thus erred in law by not exploring whether a s
96 claim could be validly entertained. Indeed, according to the Applicant, the
Board failed to even mention that it was a State Senator who had approached the
Applicant, which indicates the extent to which the Board was blind to the
political elements of his situation.
Respondent’s argument
[24] The
Respondent disagrees with the Applicant’s claim that he was involved in a
political conflict and that the Board erred in failing to discern this via a
thorough s 96 analysis. The Applicant says that because the alleged poisoning
conspiracy involved various political actors, the conflict was political in
nature and political belief is therefore a nexus for him.
[25] Victims of
criminal activity do not meet the definition of Convention refugees, and a
person’s fear of criminals cannot be the basis of a valid refugee claim: Ward,
above. Here, according to the Respondent, the Board reasonably held that the
Applicant was persecuted by criminals seeking to further their criminal
enterprise as a drug cartel, and not because of his political opinion. The fact
that corrupt members of the police or government may have been complicit does
not create a Convention nexus: Bencic v Canada (Minister of
Citizenship and Immigration), 2002 FCT 476 at para 18; Rivera v
Canada (Minister of
Citizenship and Immigration), 2003 FC 1292 at para 23.
[26] The
Respondent further advances that In Ward, the Supreme Court noted
that political opinion, as a basis for a fear of persecution, is “any opinion
on any matter in which the machinery of state, government, and policy may be
engaged….not just any dissent to any organization will unlock the gates to
Canadian asylum; the disagreement has to be rooted in a political conviction”.
The Applicant has not shown that he had any political motives in refusing to
poison the Governor: the simple refusal to take a human life and to engage in
criminal activity does not constitute evidence of political conviction.
[27] There is no
evidence that in refusing to engage in the assassination plot, the Applicant
engaged the machinery of the state: Klinko v Canada (Minister of Citizenship
and Immigration), [2000] 3 FC 327 (CA); Stefanov v Canada (Minister of
Citizenship and Immigration), 2002 FCT 704; Zhu v Canada (Minister of
Citizenship and Immigration), 2001 FCT 1026.
Analysis
[28] To this Court
there is no reviewable error.
[29] Beyond
stating that politicians were involved in the alleged events, the Applicant has
not established that there was a political element to his own refusal to
participate in the plot.
[30] The Applicant
argues that there is a political nexus with the Convention definition because
another politician asked him to kill the Governor. Even if this were so, the
Respondent points out that the politician was allegedly operating in concert
with the drug cartel. According to the Applicant’s Personal Information Form
[PIF], the motivation to assassinate the Governor resulted from his attempts to
restrict their drug trade. The Respondent argues that the conspirators had a
criminal, rather than a political goal and that therefore, there is no nexus.
In the context of Mexico, where powerful drug cartels are engaged in an
ongoing volatile opposition with the government, the line between criminal and
political issues may become blurred.
[31] The Court
does not find that this distinction is relevant. Even if there is a political
element to the conflict between the conspirators and the Governor; the
Applicant admits being a third party to this conflict. He has not shown that he
himself refused to participate in the conspiracy on the basis of a political
opinion.
[32] It appears to
the Court that the lack of a Convention nexus was obvious to the Board and this
explains why it did not elaborate further.
[33] Furthermore,
the Court fails to see how this alleged error could have affected the ultimate
outcome of the case, given the negative credibility finding. Although the Board
could have taken the facts as established in deciding the possible existence of
a nexus, surely any s 96 analysis after this initial step would have involved a
consideration of whether the Board believed that the alleged events actually
happened. If the Board did not believe or accept that the Applicant had worked
for the Governor or been pressured into poisoning him, a political element to
his story would not have helped him, since the Board would still have
questioned the very existence of that story.
[34] Therefore,
the Court sees no reason to intervene on this issue.
2. Was the
Board’s adverse credibility finding reasonable?
Standard of Review
[35] The
credibility finding is a question of fact that deserves deference and ought to
be reviewed under the reasonableness standard: Dunsmuir v New Brunswick,
2008 SCC 9 at para 53; Aguebor v Canada (Minister of Employment and
Immigration), (1993), 42 ACWS (3d) 886; [1993] FCJ No 732 (FCA) at para 4; Gatore
v Canada (Minister of Citizenship and Immigration), 2009 FC 702 at para
27-28.
Applicant’s argument
[36] The Applicant
notes that the Board based its negative credibility finding not on the
Applicant’s demeanor during testimony or on any inconsistencies in his narrative,
but rather because of the perceived implausibility of his story.
[37] The Applicant
then quotes jurisprudence on implausibility findings. These cases stress that
that refugee claimants must be presumed truthful absent evidence to the
contrary, and that negative credibility determinations are to be made on the
basis of implausibility alone, only in the clearest cases, with very strong
reasons supporting such a finding. Where a Board makes a credibility finding
based on implausibility alone, the decision must identify which facts it sees
as implausible and provide very clear reasons. Boards making credibility
findings based solely on implausibility must proceed with caution and offer
solid reasoning. The Applicant cites a great number of cases establishing such
rules: Isakova v Canada (Minister of Citizenship and Immigration), 2008
FC 149 at para 10-12; Ortiz v Canada (Minister of Citizenship and Immigration),
2004 FC 690 at para 4-8; Boteanu v Canada (Minister of Citizenship and Immigration),
2003 FCT 299 at para 8; Divsalar v Canada (Minister of Citizenship and Immigration),
2002 FCT 653 at para 22-24; Anwar v Canada (MCI), 2002 FCT 1077 at para
51; Holmik v Canada (Minister of Citizenship and Immigration), 2004 FC
1745 at para 19; Roozbahani v Canada (Minister of Citizenship and Immigration),
2005 FC 1524 at para 18, 26-27; Contreras v Canada (Minister of Citizenship
and Immigration), 2005 FC 708 at para 30-31; Sadeora v Canada (Minister
of Citizenship and Immigration), 2007 FC 430 at para 14-15; Xu v Canada
(Minister of Citizenship and Immigration), 2007 FC 274 at para 17-18; Gjelaj
v Canada (Minister of Citizenship and Immigration), 2010 FC 37 at para 4; Hassan
v Canada (Minister of Citizenship and Immigration), 2010 FC 1136 at para
16-17.
[38] The
Applicant’s counsel describes and criticizes the Board’s reasons. The
description is straightforward. In terms of critique, counsel notes that the
Board, at paragraph 13 of its reasons, speculated about the likely behaviour of
the drug cartels, without any documentary evidence to support this speculation.
He describes the Board as unfairly assuming that fleeing the country
immediately after being asked to participate in the poisoning plot was the only
reasonable action the Applicant could have taken. The Board, according to the
Applicant, was inappropriately sarcastic, at paragraph 18, in referring to the
“incredible danger” faced by the Applicant. He reproaches the Board for
refusing to accept the Applicant’s explanation for his delay in claiming
protection and omitting to mention the very relevant attack on the Governor’s
convoy on February 22, 2009.
[39] The Applicant
submits that there is nothing inherently implausible about his actions during
his last month in Mexico. All of the Board’s findings are substantive
judgment calls regarding what the Applicant would or should have done in the
circumstances and speculation as to what corrupt police and criminals would do
to him. This does not conform to the rules governing credibility findings set
out by the case law quoted above.
[40] Moreover, the
Applicant claims that the Board erred by omitting several very relevant facts:
·
The
Applicant was initially requested to kill the Governor not by the drug cartels,
but by a leading State politician, the Senator Fernando Rodriguez Moreno (who
was himself being pressured by the drug cartels to eliminate the Governor).
·
The
Applicant actually hid in the homes of several different friends in three
separate cities, not a single friend in the same city, as stated in the
decision.
·
The
Applicant hesitated before filing a claim for protection only because he had
hoped to return to Mexico where he was a successful chef; he decided to stay in
Canada only when he
learnt that the Governor had been attacked on February 22, 2009, and that one
of his body guards had been killed.
[41] The Applicant
submits that the Board’s decision should be quashed for these reasons.
Respondent’s argument
[42] The
Respondent contends that the Board’s decision is reasonable and well founded.
The Applicant fails to identify a reviewable error. It is within the range of
reasonable options open to the Board to conclude that the Applicant is not
credible. Significantly, the Applicant does not establish the central factual
elements of his claim upon which his story hinges. He does not prove that he
has been employed to coordinate the Governor’s banquet. Moreover, his delay in
leaving for Canada and the fact
that he had prepared reference letters months before leaving Mexico indicates
that he came to Canada to work and not to save his life.
[43] The
Respondent also defends the Board’s credibility finding as reasonable in light
of the Applicant’s implausible story, arguing that the Board’s conclusion is
well-explained. The Respondent reminds the Court that the Board is entitled to
assess a claimant’s allegations in light of his or her own understanding of
human behaviour: (Li v Canada (Minister of Citizenship and Immigration),
[2002] FCJ No 470) as well as rationality and common sense (Shahamati v
Canada (Minister of Employment and Immigration), [1994] FCJ No 415).
The Board provides clear reasons and clearly identifies the implausibilities
that it finds troubling. According to the Respondent, the Board’s findings fall
in the range of reasonable outcomes.
[44] The
Respondent basically cites several cases to support different aspects of the
rule that a Board is entitled to make well-reasoned credibility findings based
on its impression of the testimony. It does not apply in this case law to the
specific decision at hand, but it is nevertheless persuasive that the law
clearly entitles the Board to make credibility findings such as the one in this
decision.
[45] The Respondent
then reiterates the implausible elements of the claim: the Applicant’s behaviour
at the banquet, which is inconsistent with that of a frightened person; his
delay in leaving the country and in claiming asylum, and his having prepared
reference letters before coming to Canada. All of these factors,
which were identified by the Board, speak to the reasonable nature of its
decision.
Analysis
[46] The Applicant
fails to show any valid reason for the Court to intervene with this credibility
finding. The jurisprudence cited by the Respondent is clear, the Board has
jurisdiction to make credibility findings based on its observations of the
testimony. In the reasons, the Board provides a clear explanation of how it
came to its conclusion. After reviewing the transcript of the hearing, the
Court concludes that the Board faithfully related the testimony of the
Applicant, albeit in less detail.
[47] While it is
true that, as the Applicant argues, the Board does not mention every single
relevant factor that could have been mentioned, but the “omitted” facts
identified by the Applicant are not, in our opinion, so significant that they
would have changed the outcome of the case, had the Board considered them. In
fact, the transcript of the hearing shows that the Board did consider these
factors but simply did not accept them as proving the Applicant’s story.
[48] As the Court
considers the so-called omitted facts and their potential impact on the
case:
·
The
Applicant was initially requested to kill the Governor not by the drug cartels,
but by a leading State politician, the Senator Fernando Rodriguez Moreno (who
was himself being pressured by the drug cartels to eliminate the Governor).
Even if this
is true, it does not prove the Applicant’s story or show that there was a
Convention nexus of political belief.
·
The
Applicant actually hid in the homes of several different friends in three
separate cities, not a single friend in the same city, as stated by the Member.
The PIF and
the oral testimony are somewhat confusing as to the exact details of the
Applicant’s hiding. Even if the Board did not describe the hiding timeline
perfectly, the Court does not find that the details of the hiding narrative are
the primary basis upon which the negative credibility finding rests. Because
the Board identified so many other implausible elements to the story, little
turns on the hiding alone.
·
The
Applicant hesitated before filing a claim for protection only because he had
hoped to return to Mexico where he was a successful chef; he decided to
stay in Canada only when he
learnt that the Governor had been attacked on February 22, 2009 and that one of
his body guards had been killed.
The Board was
aware of this allegation because it questioned the Applicant on this issue during
the hearing (Application Record p 233-234). That the reasons are silent on this
point simply suggests that the Board did not accept this explanation, as is
clear from the remarks at the hearing.
[49] These omitted
facts are not determinative and thus, the Board’s omission does not justify the
Court’s intervention.
V. CONCLUSION
[50] In light of
the evidence, the Board’s general finding of lack of credibility of the
Applicant is reasonably based on the implausibilities in the Applicant’s story
and his lack of corroborating evidence. Consequently, the little weight awarded
to the documentary evidence is also reasonable and nothing justifies the
intervention of this Court.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There is
no question of general importance raised by this application.
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