Date: 20060629
Docket: IMM-6802-05
Citation: 2006 FC 833
Montréal, Quebec, June 29,
2006
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
GABRIELA TREVINO MORENO
JUAN PABLO MONCADA TREVINO
MONICA TREVINO MORENO
MARCELA TREVINO MORENO
ELENA TREVINO MORENO
OMAR LARA ENRIQUEZ
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated October 13,
2005, by which the Refugee Protection Division of the Immigration and Refugee
Protection Board (Board) determined that Monica Trevino Moreno (the principal
applicant), Gabriela Trevino Moreno, Juan Pablo Moncada Trevino, Marcela
Trevino Moreno, Elena Trevino Moreno and Lara Enriquez (the applicants) were
not Convention refugees or persons in need of protection within the meaning of
sections 96 and 97 of the Act.
RELEVANT
FACTS
[2]
The
applicants are all citizens of Mexico. The principal applicant has a son named Juan Pablo Moncada Trevino. The
principal applicant’s sister, Marcela Trevino Moreno, has a daughter named
Elana Trevino Moreno. The applicants alleged having a well-founded fear of
persecution because of their membership in a particular social group, namely the
principal applicant’s family, which was allegedly threatened because she had admitted
having knowledge of her supervisor’s corrupt practices.
[3]
Since
February 2002, the principal applicant had been employed at the office of the
Minister of Public Education as assistant coordinator of human resources. The principal
applicant claims to have been a witness to and victim of illegal practices in
connection with the hiring of public servants. This practice was described as
follows: a senior official in a government department would state having a
certain number of vacant positions in his or her department in order to obtain
salaries for these positions, but in reality the positions would never be
filled, and the corrupt public servants would pocket the money. In some cases,
employees without a position would be paid less, and the difference in salary would
also be pocketed by the same corrupt persons.
[4]
The
applicants’ claim for refugee protection is essentially based on the
persecution suffered by the principal applicant. She claims to have been
persecuted by Fermin Villasenor Borvolla, her former supervisor at the Mexican Department
of Education following a verbal complaint she made against him for his practice
of stating that vacant positions had been staffed and pocketing the salaries.
[5]
The
applicant submits that her house was ransacked and that a threat was written in
red on the floor. She moved to her sister’s place with her husband and son. On June 3, 2004, some
persons illegally entered the home of the principal applicant’s sister to make
threats. The police arrived shortly thereafter, but the persons had fled.
[6]
Following
this event, because the applicants feared for their safety, they decided to
leave the country. They arrived in Canada on June 17, 2004, from Mexico. On June 30, 2004, the home of
the principal applicant’s sister was vandalized. The applicants made a claim
for refugee protection on July 7, 2004, 20 days following their arrival in Canada.
ISSUES
[7]
1.
Did the panel err in finding the applicants not to be credible?
2. Did the Board err in
concluding that the applicants did not prove the inability of the Mexican state
to afford protection?
ANALYSIS
1. Did the Board err in
finding the applicants not to be credible?
[8]
In Anthonimuthu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 141, [2005]
F.C.J. No. 162, at paragraph 45, my colleague Mr. Justice Yves de Montigny repeated
that the assessment of credibility is a question of fact and that the
intervention of this Court is not warranted unless this assessment is perverse,
capricious or based on erroneous findings of facts:
Turning first to the
credibility issue, it is trite to say that decisions of the Board which are
based on credibility findings are to be accorded a high level of deference
given that the Board has the benefit of hearing the testimony of witnesses. As
indicated in a number of decisions, credibility determinations lie within “the
heartland of the discretion of triers of fact” and cannot be overturned unless
they are perverse, capricious or based on erroneous findings of facts (Aguebor
v. Minister of Employment & Immigration, [1993] F.C.J. No. 732
(F.C.A.); Siad v. Canada (Secretary of State), [1997] 1 F.C. 608
(F.C.A.); Oyebade v. Canada (Minister of Citizenship & Immigration),
[2001] F.C.J. No. 1113; Sivanathan v. Canada (Minister of Citizenship &
Immigration), [2003] F.C.J. No. 662 (F.C.).
[9]
There are
several ways of reaching conclusions as far as credibility is concerned. For
example, to assess the reliability of an applicant’s testimony the Board may
take into consideration a lack of details, hesitations, inconsistencies,
contradictions and conduct (Ezi-Ashi v. Canada Secretary of State) [1994]
F.C.J. No. 401). In
El Balazi v. Canada (Minister of Citizenship and
Immigration) 2006 FC 38,
[2006] F.C.J. No. 80, Mr. Justice Yvon Pinard affirmed that even in some
circumstances the applicant’s behaviour may be sufficient to dismiss a claim
for refugee protection:
The respondent correctly says that the
IRB may take into account a claimant’s conduct when assessing his or her
statements and actions, and that in certain circumstances a claimant’s conduct
may be sufficient, in itself, to dismiss a refugee claim (Huerta v. Minister
of Employment and Immigration (March 17, 1993), A-448-91, Ilie v.
Minister of Citizenship and Immigration (November 22, 1994), IMM‑462-94
and Riadinskaia v. Minister of Citizenship and Immigration (January 12,
2001), IMM-4881-99).
(Decision of the Board, October 13, 2005, at page 5.)
[10]
The
applicants allege that the Board erred in assessing credibility with regard to
the reason invoked to explain why the applicant’s husband did not come to Canada. The Board had concluded as
follows:
Questioned as to why her husband did not
come along with her to Canada, she then reiterated that she came with the
intention to stay for a short period of time but when her sister’s house was
again vandalized, she was afraid to return. She further added that her husband
does not want to come to Canada. The panel cannot but
seriously question why her husband would stay behind if she and her family were
targeted as the claimant alleges and does not find these actions consistent
with the claimant’s allegations for fear for their lives.
[11]
The principal
applicant alleges that her husband lives in a small village and, being
self-employed, is not registered with the authorities, so he cannot be found
for all intents and purposes. The principal applicant alleges that the Board
erred in not taking into consideration this reasonable explanation. I do not
agree with the applicants’ argument. It is quite reasonable for the Board to
draw a negative inference concerning the applicants’ credibility because of the
way in which the principal applicant tried to explain why her husband did not
come to Canada.
[12]
On several
occasions in its decision, the Board characterized the applicants’ testimonies,
especially that of the principal applicant, as not being credible because of
the contradictions, implausibilities, inconsistencies, hesitations and lack of
details. For example, the Board drew negative inferences concerning credibility
in the following situations:
- The
reason given to explain why the principal applicant’s husband did not come
to Canada;
- The
reason for which the applicants did not make a claim for refugee
protection when they arrived in Canada
on June 17, 2004;
- The
reason why the principal applicant did not complain to the police in Mexico after her house was
ransacked;
- The
explanation for why Mr. Borvolla would be interested in the principal
applicant and her family, considering that she did not make an official
complaint against him nor follow up on the issue, that she had no
intention of bringing accusations against him if she returned to Mexico
and that she had never been called on to testify against him.
[13]
In this
case, the Board specified in clear and unequivocal terms why it did not believe
the applicants. The unfavourable conclusions it drew were based on an analysis
of a certain number of implausibilities and inconsistencies arising from the
applicants’ Personal Information Forms (PIF) and on their testimonies
concerning certain essential elements of the application.
[14]
It is up
to the Board to decide if the applicants are credible. The applicants did not
succeed in showing that the decision was rendered on the basis of an erroneous
conclusion of fact or one that is perverse or capricious. The decision was made
after a complete analysis of the evidence, and I am of the opinion that the
Board did not err in finding the applicants not to be credible.
2. Did the Board err in
concluding that the applicants did not prove the inability of the Mexican state
to afford protection?
[15]
The Board
concluded that the applicants did not meet the burden of proof on them so as to
show in a clear and convincing way that the Mexican state could not provide
adequate protection. The standard of review applicable to matters concerning
state protection is that of reasonableness simpliciter (Chaves v. Canada (Minister of Citizenship and
Immigration)
2005 FC 193, at paragraphs 9-11).
[16]
In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, The Supreme Court of Canada stated, at
paragraph 50:
[C]lear and convincing confirmation of a
state’s inability to protect must be provided . . . . Absent some evidence, the
claim should fail, as nations should be presumed capable of protecting their
citizens. Security of nationals is, after all, the essence of
sovereignty. Absent a situation of complete breakdown of state apparatus,
such as that recognized in Lebanon in Zalzali, it should
be assumed that the state is capable of protecting a claimant.
[17]
The
Supreme Court confirms that, in the absence of a complete breakdown of state
apparatus, it should be assumed that the state is capable of protecting its
citizens. Moreover, it is up to the applicants to rebut the presumption with
clear and convincing evidence to the effect that the state was unable to
protect them.
[18]
The
applicants allege having proven by documentary evidence that the police in Mexico are corrupt and that they
would have difficulty in obtaining justice against persons so highly placed in
the state administration.
[19]
There is a
presumption that presumption that the panel considered all the evidence
that was before it (Taher
v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 1433). In this case, the Board expressly acknowledged
that corruption was endemic in Mexico. There was documentary
evidence to the effect that corruption was still a problem in Mexico and that the Mexican
government is trying to reduce it. It its decision, the Board specified:
In the documentary
evidence we also read that there are many investigations that have been
undertaken by the present Government to look into corruption cases within the
Attorney General’s Office of the Federal District, and recourses are
available to people who expose corruption in the Attorney General’s Office. It
also refers to a unit being formed to investigate issues of corruption and this
is the Central Office of the Public Prosecutor which has undertaken numerous
such investigations. Therefore the panel retains that there are no recourses
that are available in Mexico, and although the situation may not be perfect, there have
been many steps taken to initiate investigations and bring to justice those who
are guilty of corrupt or criminal practices.
(Decision of the
Board, October 13, 2005, at page 11.)
[20]
The Board
concluded that, even if there was corruption, the Mexican authorities were able
to ensure the safety of the applicants. The applicants did not adduce clear and
convincing evidence to the contrary. For these reasons, I am of the opinion the
Board did not err in concluding that the applicant did not rebut the
presumption of state protection. Accordingly, the application for judicial
review is dismissed.
[21]
The
parties did not submit any question for certification.
JUDGMENT
- The application for judicial review
is dismissed.
- No question will be certified.
“Pierre Blais”
Certified
true translation
Michael
Palles
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