Docket: IMM-2222-11
Citation: 2011 FC 1297
Ottawa, Ontario, November 10,
2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
|
|
JOSE ALMEJO SANTILLAN
MARIA DEL ROSARIO GARCIA IBARRA
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Jose
Almejo Santillan and his wife Maria Del Rosario Garcia Ibarra apply for
judicial review of the decision of a member of the Refugee Protection Division
(RPD) of the Immigration and Refugee Board, dated March 18, 2011 refusing the
Applicants’ claims for refugee protection pursuant to section 96 and subsection
97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The
Applicants are Mexican citizens. Mr. Almejo Santillan (the Applicant) claims he
was subject to threats and beatings by individuals associated with local
businesses said to be involved with illegal trafficking of drugs. His wife’s
claim is based on that of Mr. Almejo Santillan.
[3]
The
RPD found the Applicant was not credible and dismissed the claim for refugee
status.
[4]
I
find the RPD finding on credibility to be reasonable on the evidence before it
and dismiss the application for judicial review for the reasons that follow.
Background
[5]
The
Applicant testified that he had been the Vice-President of the Committee of
Civic Action of Holy Cross of Miramar municipality, of San Blas, Nayarit, Mexico. The
committee was responsible for public works projects for the benefit of the
community. Its revenue was derived from a levy on liquor sales by restaurants
and other businesses. The Applicant was responsible for collecting the levy.
Two restaurant businesses refused to pay the Applicant the levy. The Applicant
became aware that certain people associated with the two businesses were also
involved in the criminal trafficking of illegal drugs.
[6]
The
Applicant informed the police and he believes his report to the police came to
the attention of these criminals. The Applicant was threatened on October 16,
2008 and then beaten on October 28, 2009 by individuals because he had made a
report to the police. He says he had seven separate encounters with these criminals
from October 16, 2008 until March 19, 2009. He sought protection of the police
on a number of occasions from the beatings, death threats and attempts made on
his life and his wife’s life. He identified the criminal gang as Mara
Salvatrucha13.
[7]
The
Applicant says he received little or no assistance from the police.
Notwithstanding that he and the entire committee resigned from their government
positions, the Applicant continued to be threatened and harassed by the
criminal gang. Fearing that they would eventually be killed by these criminals,
the Applicant and his wife came to Canada on March 24, 2009.
[8]
The
Applicants both applied for the protection of the Canadian government as
refugees on April 14, 2009. Their claims were joined pursuant to Rule 49(1) of
the IRPA because the RPD was of the opinion that the Applicant and his
wife were required to rely on each other’s testimony to support their
respective claims.
Decision under Review
[9]
On
March 18, 2011, the RPD found the Applicants were neither convention refugees
nor were they persons in need of protection and rejected the Applicants’ claim
for refugee status. The RPD found that the determinative issue was the
credibility of the Applicant’s account.
[10]
The
RPD noted a claimant’s testimony is presumed to be true unless there are valid
reasons to doubt its truthfulness, but then went on to state that the existence
of contradictions, discrepancies, and implausibilities in the evidence of a
claimant are a well-accepted basis for a finding of a lack of credibility. The
RPD noted that this also applies to omissions in a claimant’s previous
statements, whether made to Canadian immigration officials at the time of
arrival in Canada, in previous
examinations under oath, at the hearing of the claim, or in the claimant’s
Personal Information Form (PIF).
[11]
The
RPD essentially made three adverse credibility findings in his decision. The
first is with regard to the criminal denunciation the Applicant says he filed
with the police on October 28, 2008.
[12]
The
RPD noted the Applicant was given the opportunity to explain why there was no
mention in his initial PIF that he filed a denunciation with the police on
October 28, 2008. The RPD did not accept the Applicant’s explanation that the
individual who assisted them complete the PIF left out this information. Since
the PIF instructions were quite clear that “all the significant events and
reasons” leading to the refugee claim was to be included, the RPD found it not
reasonable the individual assisting the Applicant would not mention the
denunciation. The RPD found the Applicant was in possession of the denunciation
at the time the PIF was prepared. The RPD noted that the omission of a
significant fact from a claimant’s PIF can be the basis for an adverse
credibility finding, and for all these reasons, the RPD drew a negative finding
as to the credibility of the Applicant.
[13]
The
RPD also decided the Applicant filed a fraudulent denunciation in support of
the claim because the material aspects of the denunciation were not credible.
The first was that the denunciation was dated October 22, 2008 while the
Applicant said he was attacked on October 28, 2008. The second was that the
denunciation reports that the attack took place at 6:00 pm instead of 3:00 pm as
claimed in the Applicant’s amended PIF. The third was that the denunciation was
missing markings common in denunciations issued by Mexican police.
[14]
The
RPD noted that the Applicant was given the opportunity to explain why the
police document was dated October 22, 2008 when he made the report on October
22, 2008. The Applicant said the date was in error, but when he tried to have
it corrected the police supervisor told him it was a crime to change the date.
The RPD was not persuaded there was no judicial procedure in place to correct
such an obvious discrepancy. The RPD also found the Applicant did not explain
the discrepancy between his PIF report of being attacked at 3:00 pm and the
denunciation reporting the attack at 6:00 pm. Finally, the RPD decided the
denunciation had no handwritten markings or line running through it that the
RPD had observed in other police documents in previous immigration hearings
pertaining to Mexico.
[15]
The
RPD also found the Applicant lacked credibility because of the absence of
independent documentary corroboration, inconsistent testimony and omissions in
the PIF narrative about seeking police protection.
[16]
The
RPD found the Applicant failed to mention in his initial PIF that he had gone
to the police on October 16, 2008, October 28, 2008, November 2008, January 2,
2009, February 23, 2009 and March 29, 2009. The RPD rejected the Applicant’s
explanation that the individual assisting him dismissed this information as
“garbage” that should not be submitted. The RPD did not find it reasonable the
person preparing the PIF would not mention these dates especially since that
individual, according to the Applicant, had the information conveniently
available on a memory stick the Applicant provided.
[17]
The
RPD gave little weight to the Female Applicant’s medical report because it only
refers to her problems with her pregnancy and makes no reference to mention of a
cause for these problems. The RPD noted inconsistencies with the Applicant’s
medical report and the Applicant’s testimony relating to the location where he
received treatment and the absence of a date which made the document suspect.
The RPD again drew a negative credibility finding concerning the Applicant.
[18]
The
RPD also referred to the Applicant’s failure to provide documentary evidence regarding
his complaint about the businesses the Committee was having problems with. The
RPD decided the Applicant, as the witness and former Vice-President of the Committee,
should have been able to obtain copies of the complaint documents from the
prosecutor’s office. Finally, the RPD briefly referred to the support letters
the Applicant provided. The RPD noted that none mentioned specific events that
the Applicant said had happened nor did they identify the Mara Salvatrucha 13
as the criminal gang persecuting the Applicants. The RPD accordingly assigned
little weight to these letters.
[19]
The
RPD found that since the Applicant had been found not to be credible, the RPD
did not need to conduct an analysis on state protection or whether an internal flight
alternative was available with respect to the Applicants’ claim.
Relevant
Legislation
[20]
The
IRPA provides:
|
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.
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.
|
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.
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.
|
[21]
The
Federal Courts Act, RSC 1985, c F-7 provides:
|
18.1 (4)
The Federal Court may grant relief under
subsection
(3) if it is satisfied that the federal
board,
commission or other tribunal
…
(d)
based its decision or order on an erroneous
finding
of fact that it made in a perverse
or
capricious manner or without regard
for
the material before it;
|
18.1 (4)
Les mesures prévues au paragraphe (3)
sont
prises si la Cour fédérale est convaincue
que
l’office fédéral, selon le cas :
…
d)
a rendu une décision ou une ordonnance
fondée
sur une conclusion de fait erronée, tirée
de
façon abusive ou arbitraire ou sans tenir
compte
des éléments dont il dispose;
|
Issues
[22]
The
issue in this case is whether the RPD’s decision is unreasonable?
Standard of Review
[23]
The
Supreme Court of Canada has held in Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190, that there are only two standards of review: correctness
for questions of law and reasonableness involving questions of mixed fact and
law and fact. The Supreme Court has also held that where the standard of review
has been previously determined, a standard of review analysis need not be
repeated.
[24]
This
Court has held that implausibility and credibility determinations are factual
in nature. The appropriate standard of review applicable to credibility and
plausibility assessments is that of reasonableness with a high level of
deference: Wu v Canada (Minister of
Citizenship and Immigration), 2009 FC 929 at para 17.
[25]
With
regards to procedural fairness, it is well established that the applicable
standard of review is that of correctness: Groulx v Cormier, 2007 FC 293,
325 FTR 69 at para 14.
Analysis
[26]
Credibility
is always an issue in RPD decisions. Implausibility and credibility findings
are factual in nature and deserve a high degree of deference: Kumara v Canada (Minister of
Citizenship and Immigration), 2010 FC 1172. This Court should only
interfere if the RPD based his decision on an erroneous finding of fact made in
a perverse or capricious manner or without regard for the material before him: Federal
Courts Act, s 18.1(4)(d).
[27]
The
RPD found that the Applicant was not credible. The RPD relied on several
inconsistencies and omissions to come to this determination. In all but one
circumstance (which is discussed below) the Applicant was provided with the
opportunity to explain the inconsistencies and omissions identified by the RPD.
The Applicant was unable to adequately do so.
PIF Omissions
[28]
The
RPD found that the Applicant made a number of significant omissions in his PIF
narrative about seeking assistance from the police. These omissions led the RPD
to conclude that the Applicant generally lacked credibility. In my view, this
is the most important of the RPD’s findings.
[29]
It
is well established that when relevant and important incidents are not included
in the PIF and are then revealed at a later stage in the refugee proceeding,
the RPD may view this negatively against one’s credibility if a reasonable
explanation is not provided: Adewoyin v Canada (Minister of Citizenship
& Immigration), 2004 FC 905.
[30]
In
this case, the RPD noted the Applicant made no mention in his PIF that he had
gone to the police after the alleged incidents on October 16, 2008, October 28,
2008, November 2008, January 2, 2009, February 23, 2009 and March 29, 2009. The
Applicant was asked to explain these important omissions from his PIF
narrative. The Applicant proceeded to testify that the individual who assisted in
preparing the PIF had dismissed this information as “garbage” that should not
be submitted. The Applicant claimed that the individual had told him that he
should only include the information for which the Applicant had documentation
to back it up.
[31]
The
RPD did not accept the Applicant’s explanation. The RPD pointed out that
question #31 of the PIF states: “On the following two pages, set out in
chronological order all the significant events and reasons that have led
you to claim refugee protection in Canada. … Provide details of
any steps you took to obtain protection from any authorities in your country
and the result.” [Emphasis in original]. The RPD found that it was unreasonable
to believe that the individual helping the Applicant complete his PIF would not
mention the times the Applicant sought the help of the police and, in
particular, that the Applicant filed a police denunciation after the incident
on October 28, 2008.
[32]
The
Applicant was threatened and assaulted on a number of occasions. The Applicant’s
claim that the police did not help or protect him and his wife is a crucial
component to the refugee claim by the Applicants. They fled because of the lack
of police protection. The Applicant blames the person helping to prepare the
PIF for omitting this information but admits making no compliant about being
given incompetent advice.
[33]
In
my view, it is reasonably open for the RPD to find that these omissions
supported a finding against the Applicant’s credibility generally.
Police Denunciation
[34]
The
RPD cited two significant discrepancies in the denunciation the Applicant says
he made on October 28, 2008.
[35]
First,
the RPD noted that the denunciation was dated October 22 while the Applicant
says he was attacked on October 28. Elsewhere in the document, the attack is
reported as October 28. The Applicant acknowledges the erroneous date but says
when he tried to have it corrected he was told “that it was a crime to try to
change the date of a piece of evidence that has already been written.” The RPD
did not accept that explanation finding that there would be a judicial process
for correcting an obvious error. This is supported by the conflicting dates
recorded in the document itself. The contradiction in dates is self evident on
the denunciation itself.
[36]
The
RPD notes the denunciation reported the incident as taking place at 6:00 pm.
This contradicted the evidence put forward by the Applicant that the incident
took place at 3:00 pm. The Applicant did amend his PIF to state it took place
at 6:00 pm, but in testimony then said the attack happened at 5:00 pm.
[37]
The
third issue the RPD had with the denunciation was that it had “no handwritten
markings to attest to the veracity of the Denunciations that the Panel
previously reviewed in other police documents during previous immigration
hearings pertaining to Mexico.”
[38]
This
finding was vigorously challenged by the Applicants. The Applicants submit the
RPD relied on extrinsic evidence that was not provided to the Applicants to
address and this constituted a breach of procedural fairness. The Applicants
submit that it was unreasonable for the RPD to then rely on the extrinsic
evidence as a basis for his finding that the denunciation was fraudulent.
[39]
However,
it has to be noted that it was the Applicant who provided the denunciation.
That document is not extrinsic evidence. As well, the RPD clearly raised the
issue of the lack of handwritten markings on the denunciation. This is
evidenced in the Certified Tribunal Record Transcript where the following
exchange takes place:
Q: But your denunciation
dates don’t correspond with the day of the complaint. I’ve seen denunciations
from Mexico before and they usually have
a line running through them and the borders are initialled.
I know we’ve had this discussion before,
counsel. This is what I’ve seen from denunciations from Mexico, yours doesn’t have any of
that, a line through it or the borders initialled and your date is wrong in
this document.
A: We realized about that
and we attempted as a result of that to get in contact with the chief of the
police station and then he ended up telling us that it was a crime to try to
change the date of a piece of evidence that has already been written. And he
explained what was it that ended up happening.
[40]
It
is clear the Applicant was provided with an opportunity to address the RPD’s
concerns regarding the lack of handwritten markings. The RPD stated in the
hearing that he had previously seen denunciations from Mexico and that the
Applicant’s was not consistent. The RPD was entitled to rely on his experience
and expertise to put his concerns to the Applicant who said nothing regarding
the lack of handwritten marks. The Applicant’s counsel later provided written
submissions and again said nothing about the RPD’s questioning the absence of handwritten
markings.
[41]
In
my view the issue was before the Applicants at the hearing and both the
Applicant and his counsel had an opportunity to respond to the absence of any
handwritten notations and to the RPD referencing his own experience. They did not.
The Applicants’ argument that the RPD did not provide the Applicants an
opportunity to address this information is incorrect.
[42]
The
RPD factual assessment of the denunciation falls within the range of reasonable
possible outcomes.
[43]
Given
the deference owed to a decision maker in a finding of fact, I would conclude
the RPD was thus entitled to determine that these discrepancies, which were not
resolved to the RPD’s satisfaction, resulted in a negative finding regarding
the authenticity of the denunciation.
Medical Report
[44]
The
Applicants have identified one instance where the RPD made an error in
assessing the evidence before him.
[45]
The
RPD gave little weight to either of the two medical reports that were made as
part of the Applicants’ post-hearing submissions. The Applicants only take
issue with the RPD’s reasons pertaining to the Applicant’s medical report.
[46]
To
begin, it is helpful to set forth the portion of the RPD’s decision the
Applicants take issue with:
The second medial report mentions the principal
claimant being attended to at IMSS (Mexican institute of Social Security). The Panel assumes
this medical report was forwarded to support the principal claimant’s oral
testimony during the initial sitting of this matter on November 29, 2010. The
Panel determines that this report is inconsistent with the principal claimant’s
testimony since the principal claimant stated he had gone to a small clinic on
October 28, 2008, and that he had gone to the IMSS medical facility after the
alleged December 26, 2008, incident. The Panel also notes that there is no date
on this document attesting as to when it was issued, which makes the document
suspect. The Panel also determines that his medical letter does not corroborate
the claimant’s own testimony with regard to the specific medical facility that
he allegedly attended on October 28, 2008, and, therefore, it gives this
supporting document little weight. The Panel finds that the principal
claimant’s own attempts to corroborate his oral testimony with regard to the
October 28, 2008, alleged assault incident has simply resulted in the principal
claimant’s earlier testimony being inconsistent. The Panel draws a negative
credibility finding with regard to the principal claimant’s post-hearing
documents not being consistent with regard to the medical facility that he
allegedly attended on October 28, 2008. For these reasons, the Panel draws a
negative credibility finding with regard to the claimant as a reliable and
trustworthy witness for his inconsistent testimony.
[47]
The
Applicants submit the RPD erred by:
a)
misconstruing
the information found in the medical report to find that an inconsistency
exists, and
b)
failing to
inform the Applicants’ of this inconsistency and providing them an opportunity
to address it.
[48]
Upon
review of the translated medical report, it appears that the RPD did
misconstrue the evidence found within the medical report. The relevant portion
of the translated medical report states:
This certificate is issued at the request
of the interested party and for whatever purposes it may serve her, on the 12th
day of the month of December of the year two thousand and ten, in the Rural
Medical Unit of the Mexican Institute of Social Security-Opportunidades No. 19,
Santa Cuz de Miramar, Municipality of San Blas, entity of Nayarit, Mexico
[Emphasis added].
[49]
First,
contrary to the RPD’s finding, it appears that this letter did have an issuing
date, December 12, 2010. Secondly, and more importantly, it appears that the
medical report was issued by the Rural Medial Unit. This runs counter to the
RPD’s determination that the medical report was inconsistent with the
Applicant’s testimony that he attended a small clinic on October 28, 2008. The
report confirms that the Applicant attended a rural medical facility on October
28, 2008, the date claimed by the Applicant.
[50]
The
Applicants submit that this erroneous finding led the RPD to find that the
Applicant was not credible and, therefore, the RPD’s determination on
credibility in this case was unreliable and unreasonable. The Applicants argue
that this error constitutes a reviewable error.
[51]
However,
the jurisprudence on this issue is clear that when the RPD’s overall
credibility finding is sufficiently supported by reasons which withstand
judicial review on a reasonableness standard, that finding is not overridden by
others that do not meet that standard: Agbon v Canada (Minister of
Citizenship and Immigration), 2005 FC 1573 at para 10.
[52]
The
RPD’s finding that the medical report raised inconsistencies was not the only
reason the RPD found the Applicant to not be credible. The RPD relied on the
omissions of relevant and important events (reporting threats and attacks to
the police) in the Applicant’s PIF and also relied on the fraudulent police
denunciation. Taking the RPD’s decision as a whole, the RPD’s determination
that the Applicant was not credible remains reasonable, notwithstanding that
the RPD erred with regards to the medical report.
[53]
Finally,
with regards to the Applicants’ submission that the RPD breached procedural
fairness by not informing the Applicants and providing them with an opportunity
to address the perceived inconsistency created by the medical report, I find
that no error was made.
[54]
The
Applicants were afforded the opportunity to submit documentation after the
conclusion of their hearings and that documentation was taken into account by
the RPD. It is clear from the jurisprudence that immigration officials are not
required to provide a claimant with a “running score” of their weaknesses in
their claims: Rukmangathan v Canada (Minister of Citizenship and
Immigration), 2004 FC 284, 247 FTR 147.
[55]
The
RPD had no obligation to then return to the Applicants with concerns arising
from the post-hearing submissions. To do so would be onerous on the RPD. It
must be kept in mind that it was up to the Applicants to submit credible and
corroborative evidence to support their claim.
[56]
The
RPD’s concerns arising from the post-hearing documentation were not put to the
Applicants. However, as noted above, they were not required to be. In any
event, I have concluded that the RPD erred with regards to the Applicant’s
medical document, but that this error did not make the RPD’s decision as a
whole unreasonable.
Conclusion
[57]
For
the reasons above, I would dismiss the application for judicial review. No
question is certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
Email this Content