Date: 20080418
Docket: IMM-4099-07
Citation: 2008 FC 507
Toronto, Ontario, April 18, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
LUIS ARMANDO RUELAS AGUILERA, ROSA
LINDA FLORES MOLINA,
FERNANDA DICE RUELAS FLORES, LUIS ARMANDO
RUELAS FLORES
and VALERIA RUELAS FLORES
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Refugee Protection Division of the
Immigration and Refugee Board found that Luis Armando Ruelas Aguilera, his wife
Rosa Linda Flores Molinda and their three children were not Convention refugees
or persons in need of protection pursuant to sections 96 and 97 (1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
[2]
The Board found that there was insufficient, trustworthy
or credible evidence to support their claim. In short, the Board did not
believe the evidence offered by Mr. Aguilera concerning the circumstances prior
to his family leaving Mexico.
I. BACKGROUND
[3]
Mr. Aguilera was a sales person with Nextel, a
telecommunications company in Mexico. He worked in the City of Celaya in the State of Guanajuato, an area that is approximately three
hours from Mexico City by bus.
His mother lived in his sales area, and so he lived with his mother during the
week and with his wife and three children in Mexico
City on the weekends.
[4]
On January 2, 2006, he was following up with a
potential customer, Jose Angel Rodriguez, who had said he owned a banquet
business. Mr. Rodriguez had received a negative credit check and thus Nextel
would not authorize his business. While visiting him to try to sort out the
credit issue, Mr. Aguilera saw American money and plastic bags containing white
powder in Mr. Rodriguez’ briefcase when it accidentally fell to the floor. As
Mr. Aguilera left the house he saw a local politician, Mr. Ortiz, entering Mr.
Rodriguez’ office. Mr. Aguilera had been previously informed by Mr. Rodriguez
that he had an important official coming soon to meet with him on business.
[5]
Although he had been asked to wait, Mr. Aguilera
decided to remove himself from the situation. As he left he bumped into two
members of the local judicial police. Mr. Rodriguez called to these police
officers to stop Mr. Aguilera. Mr. Aguilera claims that the police shot at
him. One bullet grazed his right shin. They forced him to return to the
house.
[6]
Mr. Rodriguez and Mr. Ortiz questioned Mr.
Aguilera and according to the Applicant they said that they would have to make
him disappear because they could not risk letting him go free. The two police
officers then drove Mr. Aguilera to an undisclosed location approximately an
hour and one-half away and beat him unconscious. When he regained
consciousness, he discovered that his cell phone and personal identification,
which contained his home address, had been stolen.
[7]
Mr. Aguilera made his way to the road and
subsequently to his mother's house. He did not report the incident to the
local police as two of its officers had been involved in the attack. He also
refused medical treatment at a hospital for fear of having the incident
reported to the police. Instead, he treated his wounds with herbal medicine
remedies. He did subsequently have a front tooth, which had been knocked out
during the incident, replaced by a dentist in Mexico
City.
[8]
A few days after the attack, Mr. Aguilera
returned to Mexico City. On
January 9, 2006, he filed a denunciation with the police in Mexico City. He never personally followed
up with the police to determine if anything had been done about his complaint.
However, he did subsequently discover on the internet a wanted poster showing
Jose Angel Rodriguez, his potential customer, as being wanted on charges of
murder.
[9]
Shortly after the filing of the denunciation Mr.
Aguilera began to receive death threats from an unknown man on his home
telephone on almost a daily basis.
[10]
Two months later, on March 13, 2006, Mr.
Aguilera fled Mexico for Canada. He came alone, as the threats had
been made solely against him and his family was unable to raise sufficient funds
for all of them to leave Mexico.
He filed for refugee protection. He testified that he believed that someone
had come to his house in the intervening two months between the time the
threats began and his leaving Mexico, but he was unable to testify to that with certainty.
[11]
The threatening phone calls continued after his
departure. His wife moved within Mexico City but the threatening phone calls followed her. When his daughter
was the target of a kidnap attempt by the judicial police, his wife and the
three children fled Mexico for Canada. She and the children arrived in Canada on June 26, 2006.
II. DECISION
[12]
While the Refugee Protection Division accepted
that the Applicants were citizens of Mexico, it did not accept as true Mr. Aguilera’s story of assault, robbery
and intimidation by the judicial police. Adverse credibility findings were
made by the Board because Mr. Aguilera, the primary applicant, was proactive in
documenting his wounds, in making the denunciation and in arranging for passports
for his family and travel for himself, yet did nothing to remove himself from
the family home in Mexico City for the two months prior to his departure. It
was the view of the Board that a person fearing for his safety and receiving
threatening calls at home would flee the home. The Board was of the opinion
that it was unlikely that Mr. Aguilera’s failure to leave Mexico City for two months after the
beginning of the alleged threatening phone calls was because he was
“tremendously stressed” and did not know what to do – the explanation he gave
to the Board.
[13]
The Board also found that it was implausible
that a wanted man, Mr. Rodriguez, would operate a business in public view under
the same name that was on the wanted poster presented in evidence by Mr.
Aguilera.
[14]
The Board held that there was insufficient
credible evidence to support a well-founded fear of persecution for the
claimants.
III. ISSUES
[15]
The Applicants argue that the Board erred in two
respects.
[16]
First, it was argued that the Board ignored
relevant evidence that was placed before it, namely, the negligent
representation by his former and recently disbarred counsel, the psychological
report relating to Ms. Flores, the testimony and evidence of Ms. Flores, and
the post-hearing disclosure letter from Mr. Aguilera’s sister-in-law.
[17]
Second, the Applicants alleged that the Board
erred in that it speculated or drew unreasonable inferences from the evidence
before it.
[18]
For reasons that follow, I am not convinced that
the Board’s decision is reviewable for any of the reasons advanced by the
Applicants.
IV. DID THE BOARD IGNORE RELEVANT EVIDENCE?
[19]
It was suggested that the Board focused at the
hearing on the failure of Mr. Aguilera to mention Mr. Ortiz, the local
official, in his initial story to the Immigration Officer. The explanation given
for this omission was the negligence of his first counsel.
[20]
It was argued that the omission in the Point of
Entry Notes of any reference to Mr. Ortiz was corrected by Mr. Aguilera in his
supplemental narrative filed by new counsel before the Board hearing.
[21]
While it is true, as was pointed out by counsel,
that the Applicants were questioned by the Board about this omission, there is
nothing in the Board’s decision to suggest that it did not fully accept the
Applicants’ explanation that the omission was the fault of his first and
recently disbarred lawyer. In fact, there is nothing at all in the record or
in the decision that suggests that this early omission played any role in the
Board’s ultimate findings with respect to credibility.
[22]
As such, I cannot find that there is any merit
to the argument that the Board ignored the supplemental narrative or gave any
weight to the omission in the POE Notes.
[23]
The Applicants also argued that the Board
ignored the psychological report that was tendered in evidence. The report in
question was a report dated April 6, 2007, and provides a psychological
assessment of Rosa Linda Flores Molina, Mr. Aguilera’s spouse. As with most
such assessments, it is based on facts provided by the person being assessed.
[24]
The assessment concludes that “Ms. Flores
satisfies diagnostic criteria for major depressive episode of moderate severity
(296.22) and chronic posttraumatic stress disorder (309.81) in the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental
Disorders (4th ed., DSM-IV)”. Counsel submits that the
findings of this assessment support Mr. Aguilera’s assertion that he did not
flee from his house in Mexico City as he was “tremendously stressed and did not
know what to do” and that this assessment ought to have been, but was not,
considered by the Board.
[25]
Justice James O’Reilly summarized the relevant
case law with respect to the obligation of a Board to refer to documentary
evidence in paragraphs 5 and 6 of Min v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1676:
The Board is not obliged to refer to every document before it.
However, the more important the document, the greater the duty on the Board to
consider it expressly: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL). With respect to medical and
psychological reports, the Board must consider them if it makes credibility
findings on grounds for which that evidence is relevant: Bernardine v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1187, [2002] F.C.J. No. 1590
(T.D.) (QL).
For example, before the Board draws an adverse inference from a
claimant's demeanour, it must consider an expert's opinion that helps provide
an explanation for that behaviour: Sanghera v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 87 (T.D.) (QL). On
the other hand, if the Board does not believe that a psychological opinion
explains the claimant's testimony, it is entitled to give it little or no
weight: Dekunle v. Canada (Minister of Citizenship and Immigration), 2003 FC 1112, [2003] F.C.J. No. 1403.
[26]
The evidence alleged to have been overlooked
relates only to Ms. Flores and says nothing of the psychological state of Mr.
Aguilera at the relevant time. It was argued that the psychological state of
Ms. Flores, presumably based on the same experiences as Mr. Aguilera, reflects
in some manner the family’s psychological state and further supports the
evidence he gave that these events did cause him tremendous stress.
[27]
I do not find that argument persuasive. The
assessment relates directly and only to Ms. Flores and relates to a period
subsequent to the events in Mexico described by her husband. Had the assessment been of Mr. Aguilera’s
psychological state, I might have been persuaded that it was an “important
document”.
[28]
I do not find that the psychological report
tendered by the Applicants was an important document vis-à-vis the
psychological state of Mr. Aguilera and, as such, it does nothing to support
his evidence that he was tremendously stressed during the two month period
prior to his departure for Canada.
[29]
Accordingly, it was not unreasonable for the
Board to fail to mention the assessment report in its reasons and I can find no
error as alleged in this respect.
[30]
It was also argued that the Board ignored the
evidence and testimony of Ms. Flores. It is trite law that reasons need not
summarize all the evidence before a tribunal: Hassan v. Canada (Minister of Employment and
Immigration), [1992] F.C.J. No. 946 (F.C.A.). In
this case, counsel did not point out anything in her testimony or evidence of
note that might have suggested a different result. In fact, the best that can
be said of her evidence is that it was consistent with her husband’s evidence.
[31]
In my view, in such circumstances, it cannot be
assumed that the Board ignored her evidence.
[32]
Lastly, it was argued that the Board ignored a
post-hearing disclosure - a letter dated April 27, 2007, from Mr. Aguilera’s
sister-in-law in Mexico. In
that letter she says that she had recently received a phone call from an
unnamed person who, on being told that Mr. Aguilera was no longer in Mexico,
stated that were he there, they would “put an end to the problem on [sic] their
own way”. She tried to report this to the local police but was told it was not
a problem and she should change her phone number. She also inquired as to what
had happened to the previous denunciation Mr. Aguilera had filed and was told
that this would only be provided if a bribe was paid.
[33]
The Board, in its reasons for decision, states:
Post-hearing evidence in the form of a letter from the principal
claimant’s sister-in-law was received and taken into consideration in the
panel’s deliberations.
[34]
It was suggested that it was ambiguous whether
by this the Board meant that it had considered the content of this document
when deliberating on the conclusion it would reach based on the evidence presented,
including the letter, or whether the Board had merely considered whether to
accept this post-hearing evidence in accordance with the Board’s Rules, without
turning its mind to the content of the letter. It was argued in this case that
when the post-hearing evidence was submitted the Board owed a duty to the
Applicants to advise them whether it was accepting the evidence as tendered and
further, it owed a duty to hear their submissions on the new evidence.
[35]
This document was tendered to the Board with a
cover letter from the Applicants’ counsel that stated, in relevant part:
The letter goes to the heart of the issue of credibility and, in our
respectful submission, acts a [sic] further remaining credible evidence which
supports our client’s claim.
We trust you find this information helpful. Should you have any
questions or require additional information please do not hesitate to contact
our office.
[36]
Accordingly, it appears that counsel had
already made his submissions with respect to this new evidence when it was
tendered to the Board. I cannot accept that in those circumstances the Board
is under any duty to provide counsel who submitted the post-hearing evidence
with a further opportunity to make submissions on that evidence.
[37]
While it would have been preferable had the
Board stated what, if any weight it gave to this new evidence, there is no
reason not to accept the Board at its word when it wrote that it was taken into
consideration in its deliberations, i.e. when deliberating on the
outcome of the hearing.
V. DID THE BOARD SPECULATE OR DRAW
UNREASONABLE INFERENCES?
[38]
The Applicants argue, in part, that the Board,
in the following passage, rejected the Applicants’ uncontradicted evidence
regarding Mr. Rodriguez and substituted its own “perverse speculation”.
The panel determines that it is implausible that a fugitive wanted
for murder would attempt to open a very public business such as a banquet
business and at the same time operate an alleged drug business in the shadows.
[39]
The Board need not accept testimony merely
because it is uncontradicted. It may rely on reason, common sense and
rationality: Aguebor v. (Canada) Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.).
[40]
Mr. Justice Luc Martineau provided an overview
of the law respecting findings of credibility in R.K.L. v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 116, [2003] F.C.J. No. 162 (QL)
at paragraphs 9 – 11:
Normally, the
Board is entitled to conclude that an applicant is not credible because of
implausibilities in his or her evidence as long as its inferences are not
unreasonable and its reasons are set out in "clear and unmistakable
terms"….
Furthermore, the
Board is entitled to make reasonable findings based on implausibilities, common
sense and rationality…. The Board may reject uncontradicted evidence if it is
not consistent with the probabilities affecting the case as a whole, or where
inconsistencies are found in the evidence….
However, not
every kind of inconsistency or implausibility in the applicant's evidence will
reasonably support the Board's negative findings on overall credibility. It
would not be proper for the Board to base its findings on extensive
"microscopic" examination of issues irrelevant or peripheral to the
applicant's claim….
(citations
removed)
[41]
In my view, the inference drawn by the Board
with respect to the implausibility of the alleged circumstances regarding Mr.
Rodriguez was one reasonably open to it on the evidence before it.
[42]
The parties agree that the test to be applied in
this application is whether the decision of the Board was reasonable, as
recently held by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9.
[43]
The Supreme Court of Canada held that where the
standard is reasonableness a spectrum of possible answers is available, and the
reviewing Court should show deference to the decision-maker’s role as the
delegate of Parliament. The decision should be vacated only where it does not
fall within the range of possible reasonable decisions on the evidence.
[44]
In this case I cannot conclude that the decision
of the Board was beyond the range of reasonable decisions based on the
evidence, nor can I find that it ignored relevant evidence or drew unreasonable
conclusions from it.
VII. CERTIFIED
QUESTION
[45]
Counsel for the Applicants asked that this Court
certify the following question: “Have the rules of procedural fairness been
breached by a failure of the RPD to specifically advise the Applicants that it
has accepted tendered post-hearing evidence.”
[46]
The threshold for certifying a question is
whether there is a serious question of general importance which would be
dispositive of an appeal. In my view, the proposed question would not be
dispositive of an appeal in this case as I find that there is no evidence that
the Board failed to consider the newly tendered evidence. In fact, I find that
the Board did consider that evidence.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This application for judicial review is
dismissed; and
2.
No serious question of general importance is
certified.
"Russel
W. Zinn"
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