Date: 20081202
Docket: IMM-1482-08
Citation: 2008 FC 1326
Toronto,
Ontario, December 2, 2008
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
RONNIE ROMERO ORTIZ
YAZMIN GONZALES REYES
RONNIE ROMERO GONZALES
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The principal applicant, Ronnie Romero Ortiz,
his wife and his son, all three of whom are Mexican citizens, seek judicial
review, under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), of a decision
dated February 20, 2008, by the Refugee Protection Division of
the Immigration and Refugee Board, which determined that they were neither “refugees”
nor “persons in need of protection” within the meaning of sections 96 and
97 of the Act, and which rejected their refugee claim accordingly.
II. Facts
[2]
Before
coming to Canada, the principal applicant worked as a security systems installer
for Construcciones Arellano y Asociados, and installed surveillance cameras for
one Juan Hoyos.
[3]
The
applicant heard say that Hoyos was actually the head of the drug cartel that
operates in the Gulf of Mexico region. He claims to have seen certain
individuals come to Hoyos’s office to pay for or purchase drugs that were
subsequently resold in various places within the city or province of Veracruz.
[4]
Despite
his knowledge of such trade, the applicant continued to install security
systems for Hoyos and to accept drugs from him, which he claims to have
disposed of later.
[5]
On
December 5, 2006, an officer from the Agencia Federal de Investigación (AFI)
approached the principal applicant and questioned him regarding Hoyos’s illegal
activities. However, doubting that the individual was genuinely an AFI
officer, the applicant refrained from talking to him about this subject. This
interview caused him to fear for his life and that of his family, so he decided,
that evening, to leave Mexico with his family.
[6]
Consequently,
the principal applicant left Mexico with his family on December 24, 2006,
and arrived in Canada, where they made a refugee claim the same day.
III. Impugned
decision
[7]
In
its decision, the Board rejected the applicants’ claim on the basis that their
account was not credible. The Board made the alternative finding that, even if
their account were credible, they never sought the protection of their country’s
authorities and did not show that the Mexican authorities were unable to
protect them.
IV. Issue
[8]
Did the Board make an unreasonable error in its negative
assessment of the principal applicant’s and his wife’s credibility, its refusal
to grant them refugee and protected person status, and its alternative finding
that they “did not rebut the presumption of state protection”?
V. Analysis
Standard
of judicial review
[9]
Courts must show deference to the decisions of specialized
administrative tribunals, which have expertise in matters within their
jurisdiction (Dunsmuir v. New Brunswick, 2008 SCC 9).
[10]
The
reasonableness standard applies to this case; accordingly, in order to
justify its intervention, the Court must inquire whether the impugned decision
is reasonable, having regard to the justification for the decision and
whether it falls within a range of possible, acceptable outcomes that are
defensible in respect of the facts and law (Dunsmuir, supra,
at paragraph 47).
[11]
Within
this standard of review and based on the evidence , can the Court find that the
Board made an unreasonable error by deciding that the applicants were neither “refugees”
nor “persons in need of protection” and by finding that they “did not rebut the
presumption of state protection”?
Lack of credibility
[12]
The
principal applicant and his wife were found not to be credible, by reason of
the significant inconsistencies between their testimony and their Personal
Information Forms (PIFs). The Board also found that the principal
applicant’s testimony was confused and that it lacked spontaneity.
[13]
Although his fear purportedly stems from his employment by Hoyos
and the fact that Hoyos was engaged in illegal activities, he did not
mention these things at the point of entry; the first reference to them is
in his PIF. The Board was not satisfied with the answers that he gave to
explain this omission at the point of entry. Moreover, although the principal
claimant asserted that Hoyos was the head of the drug cartel in the Gulf of
Mexico, the documentary evidence conflicts with this and confirms that the cartel’s
head is one Osiel Cardenas.
[14]
Even more troubling is Ms. Reyes’s admission, before the Board,
that upon arriving in Canada, she did not know that her life was in danger, nor
did she know what had prompted her husband to move his family.
[15]
In addition, the principal applicant claims that he began fearing
for his life on November 31, 2006, but even though he knew that his
home was under surveillance, he continued to live there, and to work for Hoyos,
until he left for Canada. Moreover, even though he feared Hoyos, he did not even
give information on him to the AFI officer who came to question him regarding Hoyos’s
illegal activities.
[16]
The
applicants do not dispute the contradictions and omissions that the Board
attributes to them, nor do they show how and why its findings of fact regarding
their credibility are arbitrary, unreasonable, or without regard to the
evidence in the record.
[17]
The
Board was entitled to conclude that the applicants lacked credibility based on
the improbabilities contained in their accounts and on common sense and reason (Garcia
v. Canada (Minister of Citizenship and Immigration), 2008 FC 206).
[18]
It
is not the Court’s role at this stage to assess the evidence anew or substitute
its opinion for that of the Board, especially since the Board has the advantage
of its expertise, and, above all, of having heard the applicants’ account and
their claims. The Board is certainly more qualified than this Court to assess
their credibility.
[19]
The
Court must verify only whether the Board’s decision was justified and
reasonable in the sense stated in Dunsmuir, supra. Credibility
determinations, which lie within “the heartland of the discretion of triers of
fact”, are entitled to considerable deference upon judicial review. They cannot
be overturned unless they are perverse, capricious or made without regard to
the evidence (Siad v. Canada (Secretary of State), [1997] 1
F.C. 608, 67 A.C.W.S. (3d) 978 (C.A.), at paragraph 24; Dunsmuir,
supra).
[20]
The
Court must accord a great deal of deference to the Board’s findings concerning
the applicants’ credibility, and this leaves a heavy burden on them to persuade
this Court to set aside those findings.
[21]
In
short, the applicants have not succeeded in showing that the impugned decision
is based on findings of fact made in a perverse or capricious manner, or that
the Board made its decision without regard to the evidence before it. The Board
was entitled to reject the applicants’ claim solely because their conduct was
inconsistent with their claims, and to find that, based on that fact, they were
not credible. Consequently, the Board’s decision concerning the applicants’
credibility was reasonable and does not warrant this Court’s intervention.
State protection
[22]
The
Board made the alternative finding that the applicants did not rebut the
presumption of Mexican state protection. Since it did not believe the
applicants’ account, and therefore found that they were neither refugees nor persons
in need for protection, it was superfluous and unnecessary for the Board to address
the presumption of protection by their government, which they had not rebutted.
However, the Board did not err simply by ruling on this point.
[23]
For
barring a complete collapse of the apparatus of the Mexican government, it must
be presumed that Mexico can protect its citizens. Moreover, the protection that
is offered need not be perfect. Consequently, the applicants had to provide
clear and convincing evidence of their need for protection and of the inability
or refusal of the Mexican government to protect them (Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689). Instead, they did not even satisfy
the Court that they needed protection as they claimed.
[24]
Despite
the reported problems concerning the Mexican government, the onus was on the
applicants to seek the assistance and protection available in their country
first, before seeking Canada’s protection. How can a determination be made
today that the protection provided by the applicants’ country was ineffective,
when they never attempted to test that protection? In light of this, it was not
unreasonable to find that
the applicants did not discharge their burden of proof.
[25]
For
all these reasons, the Court does not see how the Board’s finding with respect
to the issue of available protection could be unreasonable, especially since the
Board did not need to decide that issue.
VI.
Conclusion
[26]
For
all these reasons, the Court finds that the decision under review is justified
having regard to the facts and the law — in short, that it was a reasonable
decision which does not warrant this Court’s intervention.
[27]
Since
no serious question of general importance was proposed, no question will be
certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Certified true
translation
Brian McCordick,
Translator
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