Docket: IMM-485-11
Citation:
2011 FC 1132
Montréal, Quebec, October 4, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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VERONICA GOMEZ GONZALEZ
JOSE LUIS MANDUJANO GOMEZ
ALEX DANIEL MANDUJANO GOMEZ
JOSE LUIS MANDUJANO CHAVEZ
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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
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division (“RPD”) dated December 30, 2010, in which the member rejected the
Applicants’ claim for protection, finding that the four Applicants 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”].
[2]
Counsel
for the Applicants could not show up for the hearing, and asked that this
matter be decided on the basis of the written submissions of the parties.
Counsel for the Respondent agreed with this request.
[3]
For
the reasons that follow, I have concluded that this application for judicial
review ought to be dismissed. The Board’s decision was predicated upon the
conclusion that the Applicants were not credible, and alternatively, that they
did not rebut the presumption of state protection. Counsel for the Applicants
did not make any arguments with respect to the credibility finding and focused
her submissions exclusively on the Board’s alternative finding that the Applicants
failed to establish with clear and convincing evidence that adequate and
effective state protection was unavailable. Accordingly, the decision of the RPD
must be left undisturbed.
Facts
[4]
The
Applicants, citizens of Mexico, claim to be persons in need of protection
and to have a well-founded fear of persecution on the grounds that they fear an
acquaintance with whom they entered into a business transaction. It is alleged
that in July 2006, the principal Applicant’s spouse, Jose Luis, entered into a
verbal contract with a Julio César Gonzalez (“Julio”) for the purchase of a
bus. Jose Luis was to give 20,000 pesos as a down payment, and a monthly fixed
payment of 3,000 pesos. It was agreed that the bus would be completely paid
for by July 2007.
[5]
The
principal Applicant and her spouse proceeded with the payments as agreed. On
June 2, 2007, the principal Applicant and her spouse left home for the market.
Upon their return, the bus that was parked in front of their home was no longer
there. They immediately suspected Julio because the bus had a complex system
which was only known to Jose Luis and Julio.
[6]
On
June 3, 2007, the Applicants filed a complaint regarding the theft of the bus
to the police. The same day, they received a phone call from Julio protesting
against the police complaint and admitting to selling the bus because he needed
the money, despite the fact that the bus was almost totally paid for.
[7]
On
July 18, 2007, the police found the bus and returned it to the Applicants; the
bus, however, was completely stripped for parts.
[8]
From
then on, Julio began to harass and threaten the Applicants. Julio allegedly
physically assaulted the principal claimant’s son Jose Luis on a couple of
occasions. On June 9, 2008, the Applicants received another threat from Julio
in which he instructed them to withdraw the police complaint or he would kill
the family. Shortly thereafter, the principal Applicant claimed that Julio almost
drove his bus into her car as she was driving to work.
[9]
At
that point, the principal Applicant and her sons decided to leave for Canada. They left Mexico on September
7, 2008, and filed for refugee protection on September 10, 2008. The principal
Applicant’s spouse remained in hiding on a ranch and travelled to Canada on February
26, 2009, after having obtained his passport on February 9, 2009.
The impugned decision
[10]
After
having considered and weighed the Applicants’ testimony, as well as all of the
evidence adduced, the RPD member determined that they did not provide credible
or trustworthy evidence in support of their allegations of fear and risk.
Alternatively, the tribunal also found that Mexico provides
adequate state protection.
[11]
Regarding
the issue of credibility, the member found a number of contradictions,
inconsistencies, omissions and additions of information in the Applicants’
testimony.
[12]
First
of all, the Applicants could not provide anything to prove the existence of
Julio. By the Applicants’ own testimony, Julio received more than 90% of the
sums due for the purchase of the bus. The bus was destroyed, allegedly because
Julio took it back and stripped it down for parts. Julio was never
reprimanded, never arrested and apparently continues to work as a bus driver.
The Applicants failed to provide any explanation as to why Julio would be in
pursuit of any of them.
[13]
Second,
the Applicants did not take civil legal action to pursue Julio to recoup their
funds. Other than reporting to the police that Julio took the bus and
identifying a few other minor incidents, the Applicants did little and
continued to work and/or attend school, continued to live in the same location,
and behaved in much the same way as before entering into the sales transaction.
[14]
Third,
the principal Applicant maintained that Julio threatened her twice over the
phone (on August 10 and 11, 2008) and once in person (on June 19, 2008).
However, she does not provide any explanation as to why Julio would utter
threats ten months after the initial police complaint in Mexico. In
addition, no response was provided as to why Julio would start harassing the
family in 2008, or why Julio would continue to pursue them in 2010. Furthermore,
the principal Applicant admitted that she did not report the June 2008 incident
to the police and did not change her phone number following the phone threats,
because her family regularly used that number to call her. The RPD member
found that this inconvenience would not outweigh the risk of receiving
additional threats.
[15]
Fourth,
the Applicants did not identify Julio by his full name when the initial
complaint to the police was filed, in spite of the fact that the principal
Applicant’s spouse has known Julio for approximately fifteen years.
[16]
Fifth,
the principal Applicant’s son Jose Luis was allegedly threatened by Julio
twice. On the first occasion, on June 9, 2008, Julio threatened to kill the
family if the police complaint was not withdrawn. On the second occasion, on
July 13, 2008, Jose Luis claimed to have been punched and kicked by Julio and
an accomplice. The member noted that neither incident was reported to the
police, and that the Applicants did not provide any satisfactory explanation on
the matter. The member found that the failure to report this incident to the
police impacted negatively on the Applicants’ credibility, as such a report
would have supported and bolstered the initial allegation made against Julio,
with respect to the theft of the bus. Moreover, the tribunal did not believe
that two years after the alleged theft of the bus and within a span of a week,
the Applicants’ son would have been assaulted by Julio and an accomplice, while
no action was taken against him following the initial police report.
[17]
Sixth,
the principal Applicant submitted an attestation letter from her sister-in-law
in which she claimed that a violent man came to her house asking questions and
requesting the Applicants’ telephone number. This alleged incident occurred
more than fifteen months after the Applicants left Mexico. The
Applicants even admitted that there is no evidence to suggest that this man
was, in fact, Julio. The member found that the Applicants did not explain in a
credible fashion how this document came to be.
[18]
In
the end, the RPD concluded that each of the credibility matters may not have
been detrimental to the Applicants’ claim when considered individually, but
were fatal when looked at cumulatively.
[19]
As
for state protection, the RPD found that the exhibits purporting to be reports
tied to the theft of the bus and the alleged threats received were confusing. They
did not include all pertinent information and the dates did not correspond to
the dates identified in the Applicants’ Personal Information Forms (“PIF”).
Moreover, the Applicants testified that Julio was never arrested because he bribed
the authorities, and they claimed that Julio’s brother was a police
officer. Yet, the Applicants could not provide any documentation in support of
those allegations, they could not confirm the existence of Julio’s brother, nor
could they prove that he was gainfully employed as a police officer anywhere in
Mexico. None of
this information appeared in the port of entry materials or in their PIFs.
Since the Applicants had no explanation for these omissions, the Board did not
believe that Julio had a brother or that he was a police officer.
[20]
Moreover,
the RPD member determined from the documentation provided that the police were
investigating the claim and followed up on it. The Applicants admitted that
they left the country without providing the police with their new addresses,
and did not make any calls to update their information or inquire about their
case, nor did they report incidents that would have bolstered their complaint.
Accordingly, the member found that the Applicants did not provide clear and
convincing evidence that the state could not provide adequate protection, and
was not satisfied on a balance of probabilities that state protection was
inadequate.
Issues
[21]
Did
the Tribunal err in finding that the Applicants are not credible?
Analysis
[22]
In
their written representations, the Applicants only challenge the Board’s
alternative finding on state protection. The only reference made to the
Board’s credibility finding is the following paragraph:
With regards to credibility, the
Applicants submit that the negative credibility findings are not substantial and
do not go to the heart of their claim. Thus, the negative credibility finding
constitutes an error.
Applicants’ Record, p 81, para
3.
[23]
I
agree with the Respondent that this is insufficient to invalidate the Board’s
reasons. Simply stating that the Board’s credibility findings are wrong
without offering any details or legal argument as to why this is so, falls
short of what is required on judicial review to justify this Court’s
intervention. In Chowdhury v Canada (MCI), [1995] FCJ
no 1591 (FC), 59 ACWS (3d) 949, Nadon J., as he then was, emphasized the need
to be specific in order to succeed in an application for leave:
[8] It is obviously not sufficient, in
order to obtain leave and to succeed on the merits, to simply assert that, for
example, the Board erred in fact and in law. It is necessary for an applicant
to demonstrate in what way the Board erred. In order to do so, an applicant
must deal with the evidence presented before the Board and attempt to persuade
the Court that the Board committed an error in rendering its decision.
[24]
As
a result, the Board’s credibility findings must be deemed to be admitted and
true, since they have not been meaningfully challenged by the Applicants. This
is fatal to this application for judicial review. Even if the Applicants were
successful in challenging the Board’s finding with respect to state protection,
it would be immaterial given that the unchallenged findings are, in and of
themselves, dispositive of the Applicants’ claim for asylum.
[25]
In
other words, there is no basis for the Court’s intervention since the
availability of state protection is predicated on a favourable finding of
credibility. The jurisprudence of this Court provides that when it is clear
that no different result could be reached on a rehearing, the appropriate
course of action is to refuse an order requiring that such be done (Zambo v
Canada (MCI), 2002 FCT 414, [2002] FCJ no 539; Popov v Canada (MCI),
75 FTR 90 (FC), [1994] FCJ no 489).
[26]
In
any event, I would also agree with the Respondent that the RPD’s determination
on the existence of state protection meets the standard of reasonableness. The
Applicants only made a vague complaint about the theft of the bus, and did not
make a report regarding the physical assaults and threats that they would have
experienced. Such reports could have demonstrated to the police that the
Applicants were the victims of a criminal, and bolstered the seriousness of
their allegations with respect to the theft. Moreover, it is not reasonable to
expect the police to seek out and capture the Applicants’ alleged aggressor
when they were not able to provide his identity or any leads that could have
helped the police to arrest him. As stated by this Court on a number of
occasions, it is difficult to criticize the state authorities for their failure
to act when the Applicants do not give them a reasonable opportunity to protect
them (Del Real v Canada (MCI), 2008 FC 140 at para 44, [2008] FCJ no 170;
Villasenor v Canada (MCI), 2006 FC 1080 at para 19, [2006] FCJ no 1359).
[27]
For
all of the foregoing reasons, this application for judicial review is dismissed.
The parties did not propose any question for the purpose of certification, and
none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
No question is certified.
“Yves de Montigny”
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