Date: 20130514
Docket: IMM-9167-12
Citation: 2013 FC 506
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, May 14, 2013
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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CARLOS ALBERTO PEREZ PEREZ
MARIA OBDULIA SANTES LOPEZ
PAMELA PEREZ SANTES
CARLOS ARNOLDO PEREZ SANTES
MELISSA PEREZ SANTES
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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
I. Introduction
[1]
The
applicants seek judicial review of the August 13, 2013, decision in which the
Refugee Protection Division [RPD] of the Immigration and Refugee Board found
that they were neither Convention refugees nor persons in need of protection
pursuant to section 96 and subsection 97(1), respectively, of the Immigration
and Refugee Protection Act, SC 2001, c. 27.
II. Facts
[2]
The
principal applicant, Carlos Alberto Perez Perez, his wife, Maria Obdulia Santes
Lopez, and their three minor children, Pamela Perez Santes, Carlos Arnoldo
Perez Santes and Melissa Perez Santes, are citizens of the United Mexican
States who arrived in Canada on April 5, 2009, and made a claim for refugee
protection shortly thereafter. Their claim was based on the applicant’s fear of
persecution by his former employer, Jorge Alberto Fernandez Solis, whom, according
to the principal applicant, was involved in [Translation]
“illegal
activities, such as banking transactions related to drug trafficking and
criminal acts” that he conducted in his company’s name.
[3]
The
principal applicant alleges that he co-owned a small telephone equipment store with
his brother-in-law, Domingo Cesar Santes Lopez.
[4]
In
2007, the principal applicant allegedly began doing business with Jorge
Fernandez. On August 17, 2007, they purportedly incorporated a federal public services
company, called Metro Transportes Terrestres SA de CV, in which the principal
applicant held 10% of the shares.
[5]
As
of October 1, 2008, the principal applicant also allegedly worked for a property
management company, called Global Corporativo de Comercio Exterior S.C. The company
was part of the Ferso group, of which Jorge Alberto Fernandez Solis was the
sole owner. The principal applicant was responsible for performing administrative
duties and some of the company’s banking transactions, as well as client management.
[6]
The
principal applicant’s problems allegedly began in early October 2008. One day,
a certain Salvatore Ponce, one of the owners of the properties managed by the
principal applicant’s employer, allegedly told the principal applicant that
while visiting his property, he discovered blood on the walls, as well as licence
plates, voter registration cards and a severed human hand. During that
encounter, specific reference was also allegedly made to the status of the
client’s overdue accounts.
[7]
A
few days later, Jorge Alberto Fernandez Solis allegedly caught wind of that
exchange. Believing that the principal applicant now had information about his
company’s illegal activities, he allegedly began to threaten the principal
applicant indicating to him that by working for his company, he was complicit in
all its illegal activities. From that day on, the principal applicant’s wife
also allegedly received anonymous kidnapping and death threats over the phone.
[8]
The
principal applicant alleges that, for fear of his safety and that of his family,
he continued to work for Jorge Alberto Fernandez Solis. Also, for fear that Jorge
Alberto Fernandez Solis had police contacts, he made no attempt to file a
complaint with the police.
[9]
The
principal applicant alleges that, towards the end of November 2008, a man, whom
the principal applicant later identified as Juan Carlos Carranza, a man close
to Jorge Alberto Fernandez Solis, went to the principal applicant’s house seeking
a protective quota of 10,000 Mexican pesos. The principal applicant alleges
that he gave in to those demands, paying a total of 5,000 pesos in November and
December 2008 and January, February and March 2009.
[10]
Later,
in December 2008, the telephone equipment store that the principal applicant
co-owned with his brother-in-law was robbed by unknown
men with firearms. In addition, Jorge Alberto Fernandez Solis allegedly took
the principal applicant’s truck and allegedly forced him, on the pain of death,
to transfer all his shares in Metro Transportes Terrestres SA de CV to one Carlos
Alfonso Pantoja, a member of Jorge Alberto Fernandez Solis’s family.
[11]
Following
those incidents, the principal applicant decided to leave Mexico for good. In January
2009, the principal applicant obtained passports for his children and the
entire family and went to stay with his brother in Ciudad Isla, prior to
boarding a flight bound for Canada in early April 2009.
[12]
The
applicants’ claim for refugee protection was heard before the RPD on June 13,
2012.
[13]
On
May 19, 2012, the principal applicant’s brother-in-law was killed in the village
of La Vibora, in the north, in the State of Veracruz. According to the death certificate
on file, the cause of death was [Translation]
“a gunshot wound to the chest with puncturing of the organs and hemorrhage.” This
came out at the hearing before the RPD. The principal applicant alleged that prior
to his death, his brother-in-law told him that unknown individuals went to his
store and asked him questions about the applicants.
[14]
Following
the hearing, while the matter was under reserve, the principal applicant submitted
the original death certificate, accompanied by a certification of facts from
the Office of the Attorney General of Justice of the State of Veracruz and an
internal review report from the Forensic Services Directorate of the government
of the State of Veracruz, attesting to his brother-in-law’s murder.
[15]
The
applicants’ claim for refugee protection was dismissed on August 13, 2012.
III. Decision under review
[16]
The
grounds for the refusal are essentially based on the principal applicant’s lack
of credibility, as well as the applicants’ lack of subjective fear of persecution
and their failure to seek protection from their State prior to seeking
international protection.
Credibility, lack of corroborating
evidence and lack of objective fear
[17]
The
RPD mentioned that the principal applicant and his wife contradicted each other
as to their agent of persecution. At the hearing, they both stated that they
feared the Zetas, whom, according to them, were responsible for the threats
uttered against them, whereas in their initial claim the applicants made no
reference to the criminal organization. When asked why the principal applicant
only identified his former employer, Jorge Alberto Fernandez Solis, as being
the person whom he feared, he indicated that when he arrived in Canada, he
still feared the Zetas and believed Jorge Alberto Fernandez Solis had ties to
the Zetas and intended to involve him in the same criminal network, an explanation
the RPD did not accept.
[18]
The RPD
noted that the principal applicant’s story was confusing. The RPD also found it
implausible that the principal applicant did nothing after learning about the
traces of blood and the severed human hand in one of the buildings managed by
his company. The RPD found it implausible that in such a situation, the
principal applicant simply took care of the client’s overdue accounts without doing
anything else and without notifying his boss or police. The RPD also noted that
the applicants were hesitant and unable to explain exactly why the principal
applicant was sought out and threatened by telephone and what exactly he was
asked to do.
[19]
More
fundamentally, the RPD noted that no corroborating documentary evidence was
filed either to establish any business link between the principal applicant and
Jorge Alberto Fernandez Solis or to demonstrate that the principal applicant co-owned
his brother-in-law’s telephone equipment business. At the hearing, the
principal applicant mentioned that, when he left Mexico, he handed the business
over to his brother-in-law but that he had no evidence to demonstrate that they
both co-owned the business as he trusted his brother-in-law completely. The
principal applicant stated that it did not occur to him to obtain the evidence
required by the RPD. The RPD noted that the onus is on refugee claimants to
provide evidence of their allegations using documents they could have
reasonably had access to and which and that this was not done in the
applicants’ case.
[20]
The RPD
concluded that the applicants were unable to credibly demonstrate the
well-foundedness of both an objective and subjective fear of persecution.
Lack of subjective fear
[21]
The RPD
also noted that the principal applicant acted in a manner contrary to that of a
person who really fears for his life and safety by continuing to work in
collaboration with his agent of persecution until January 2009, and by waiting
three months to board a flight to Canada when, according to his testimony
before the RPD, he had decided to leave Mexico in December 2008. The principal
applicant explained that he deliberately acted in that manner because he did
not want to give the impression that he was fleeing his country and preferred
to have people believe he was leaving on vacation with his family. The RPD found that explanation not to be credible and drew a negative
inference with respect
to his subjective fear of persecution.
State protection
[22]
The RPD
noted that the principal applicant cannot base his failure to seek protection
from Mexican authorities on the mere fact that he believes there is impunity
and corruption within state organizations and police forces. Thus, the primary
issue for the RPD was that, because he never sought assistance and protection
from his country’s authorities and did not take any formal steps to report the
persecution he was being subjected to, the principal applicant did not rebut
with “clear and convincing” evidence the presumption that Mexico, like any
other State that is not in a situation of complete breakdown of state apparatus,
is capable of protecting its citizens.
[23]
Accordingly,
the RPD decided that the applicants did not demonstrate that there is a serious
possibility that they will face persecution on a Convention ground, or that, on
a balance of probabilities, they would be subjected personally to a risk to
their life, a risk of
cruel and unusual treatment or punishment, or a danger of torture, should he
return to their country.
IV. Issues
[24]
With
respect to their brief written submissions, the applicants raised two issues against
the RPD’s decision:
(a) Did the RPD err in
failing to consider a fundamental element of the claim for refugee protection, namely,
the murder of the principal applicant’s brother-in-law who was his business partner?
(b) Did the RPD err in
requiring the principal applicant to provide documentary evidence to corroborate
his allegations that (i) he was employed by Global Corporativo de Comercio
Exterior S.C.; and (ii) that he co-owned, with his brother-in-law, the telephone
equipment business?
[25]
The respondent
submits that the applicants’ failure to challenge the reasonableness of a
determinative finding of the RPD, that of the availability of state protection in
Mexico for the applicants, is sufficient to dismiss this application for judicial
review. The respondent adds the following issues:
(c) Was it reasonably open
to the RPD to find that state protection was available to the applicants?
(d) Should the application
for judicial review be dismissed on the basis of the applicants’ failure to
challenge a determinative finding?
Relevant issues regarding the Court
[26]
For
its part, the Court is concerned with two issues to assess, and also the analysis concerning the availability of
state protection for the applicants:
(1) Did the RPD
err in its assessment of the objective basis of the principal applicant’s fear?
(2) Is the RPD’s
finding regarding the presumption of availability of state protection reasonable
and determinative in the circumstances?
V. Standard of review
[27]
It
is settled law that the
standard of review on a state protection, as well as credibility findings, is reasonableness (Carrillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94 at paragraph 36; Aguebor v
Canada (Minister of Employment and Immigration), [1993] FCJ No 732
(QL/Lexis) (FCA) at paragraph 4; Tamas v Canada (Minister of Citizenship and
Immigration), 2012 FC 1361 at paragraphs 20-22).
[28]
On a
standard of reasonableness, the Court will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v Nouveau-Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47). Put another way, the Court should only intervene if the
Decision was unreasonable in the sense that it falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
VI. Analysis
(1) Did the RPD err in its assessment
of the objective basis of the principal applicant’s fear?
[29]
There
is a strong link between the two issues raised by the applicants in this
proceeding, the objective basis of their fear. It is true that the RPD did not
take into account the murder of the principal applicant’s brother-in-law (three
years following their own problem) in the analysis of the well-foundedness of
the applicants’ fear, nor did it care to mention that fact in its grounds. However,
given the three-year gap, the Court is not satisfied that its intervention is
required in this case, namely for two other important reasons.
[30]
First,
it was open to the RPD to require from the applicant documentary evidence
corroborating his ties and his involvement in the company Global Corporativo de
Comercio Exterior S.C. as well as in the telephone equipment business which he
and his brother-in-law allegedly owned.
[31]
Section
11 of the Refugee Protection Division Rules, SOR/2012-256 specifically
provides that “[t]he claimant
must provide acceptable documents establishing their identity and other
elements of the claim. A claimant who does not provide acceptable documents
must explain why they did not provide the documents and what steps they took to
obtain them.” [Emphasis added.]
[32]
Moreover,
it is settled law that the RPD may draw an adverse
inference as to the applicants’ credibility where their account is implausible
and they offer no evidence to corroborate their allegations. Simon Noël J.
reiterated that principle in Encinas v Canada (Minister of Citizenship and Immigration),
2006 FC 61, where he wrote the following:
[21] I would add that it is
clear from reading the transcript of the hearing that the applicants did not
discharge their onus of proof to convince the RPD that their claim was
well-founded. Indeed, the RPD informed them more than once that certain facts
should have been put in evidence (the employment relationship in 2003, for
example). Consequently, the RPD, not having at its disposal the evidence that
it would have liked to receive, found that the version of the facts in the
claim was not credible. That finding was certainly open to the RPD. (See Muthiyansa and Minister of Citizenship and Immigration, 2001 FCT 17, [2001] F.C.J. No. 162, at
para. 13).
[33]
However,
the principal applicant did not produce any evidence corroborating his allegation
that he was a business partner with his brother-in-law, nor evidence of the existence
of the business he claims to have co-owned. In the circumstances, since there
was no evidentiary basis for this element of the refugee claim, the evidence of
the murder of the principal applicant’s brother-in-law was only incidental, and
therefore, the RPD’s failure to address it in its reasons does not render the
totality of its reasoning unreasonable. In other words, it is only if the RPD was
satisfied of the existence of the alleged business relationship between the
principal applicant and his brother-in-law that the evidence of the
brother-in-law’s death would have had an impact on the outcome of the claim.
[34]
Second,
in light of the transcript of the hearing, it turns out that the RPD
extensively questioned the applicants about the incident. Despite the fact that
a number of the RPD’s questions specifically zeroed in on the principal applicant’s
business relationship with his brother-in-law, it was not satisfied with the answers
provided. Accordingly, the Court is not satisfied that the RPD ignored an
essential element of the claim before it, or that the RPD would not have otherwise
erred in its assessment of the objective basis of the applicants’ fear.
[35]
The
applicants did not deem it appropriate to challenge all of the RPD’s non-credibility
and implausibility findings. The Court would like to note that the RPD appeared to
have demonstrated a certain degree of overzealousness at the hearing; that is why
the Court obligates itself to pay attention to the exchanges between the
interpreter and the decision-maker at first instance when the interpreter
required a break upon feeling somewhat uncomfortable. (The Court notes that the
hearing was held, nonetheless, with significant weaknesses with respect to the principal
applicant’s testimony and his supporting evidence or lack thereof, which did
not help his cause. In light of the Court’s remarks in that paragraph, the Court
thoroughly reviewed the transcript in its entirety to ensure that the entire
hearing was not affected by a failure on the part of the RPD which would have
cast doubt on the fairness of the hearing (Mobil Oil Canada Ltd. v Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R. 202).
[36]
It
is entirely open to the RPD to verify and comment on the accuracy of the
statements. Nonetheless, the case law of the Federal Court indicates that the RPD
must, in a manner appropriate for a for a first-instance decision-maker,
ensure that it verifies at the hearing every inconsistency, real or apparent, in the
applicant’s account of
persecution without criticizing, blaming, making disparaging comments or
showing unjustified aggression and impatience toward the applicant which could
inhibit the applicant’s testimony, particularly because this should be the claimant’s opportunity
to be heard within an atmosphere conducive to active listening (Kabongo v
Canada (Minister of Citizenship and Immigration), 2011 FC 1106, 397 FTR 191
at paragraph 38; also, Jaouadi v Canada (Minister of Citizenship and Immigration),
2003 FC 1347, 257 FTR 161; Guermache v Canada (Minister of Citizenship and Immigration),
2004 FC 870, 257 FTR 272; Hernandez v Canada (Minister of Citizenship and Immigration),
2010 FC 179 at paragraphs 44-45).
(2) Is the RPD’s finding on the
availability of state protection reasonable and determinative in the circumstances?
[37]
There
is no dispute that the onus is on the applicants to rebut the presumption of
state protection with “clear and convincing evidence,” and that absent a situation of complete breakdown
of state apparatus, it should be assumed that the state is capable of
protecting its citizens (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689
at paragraph 50). However, in this case, there is nothing to contradict the RPD’s
finding that the principal applicant did not take any steps to seek protection
from Mexican authorities, police or others, and that he therefore failed to rebut
the presumption in this case.
[38]
As
stated earlier, the principal applicant does not challenge this finding before
the Court. In Cienfuegos v Canada (Minister of Citizenship and Immigration),
2009 FC 1262 at paragraphs 25-26, this Court held that a determinative negative
credibility finding that was not challenged must be presumed to be true and alone constitutes a sufficient basis for
justifying the dismissal of the application for judicial review. The same is true in
the present case with respect to the RPD’s finding of fact that the principal
applicant failed to seek protection from his State.
[39]
The
principal applicant testified before the la RPD that it was out of fear that he
did not contact police from October to December 2008, and especially because he
was convinced that the police would not assist him. The case law is clear and
consistent on this issue. To quote Justice Michael Phelan in Martinez v
Canada (Minister of Citizenship and Immigration), 2005 FC 1050:
[7] What is crucial to this case
is that the Applicant made only two attempts to seek assistance, one of which
was to police who had no local jurisdiction to deal with her complaint. She
then formed the opinion that no other assistance would be forthcoming. This
purely subjective view of the adequacy of Costa Rica state protection is not
"direct, relevant and compelling" evidence of the inadequacy of state
protection.
. . .
[9] The determination of
adequacy of state protection cannot rest on the subjective fear of an applicant. Whatever the depth of the Applicant's belief, she must do
more than she did given the evidence of the nature of the political, judicial
and administrative structure of Costa Rica. The RPD's conclusion that the
Applicant had "to do more" is itself more than reasonable. [Emphasis added.]
VII. Conclusion
[40]
For all
the foregoing reasons, the applicants’ application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that the applicants’
application for judicial review be dismissed, with no question of general importance
to certify.
“Michel M.J. Shore”
Certified true
translation
Daniela Guglietta, Translator
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