Date: 20061101
Docket: P IMM-1206-06
Citation: 2006 FC 1325
Ottawa, Ontario, November 1,
2006
Present: The Honourable Mr. Justice
Blanchard
BETWEEN:
VICTOR DANIEL DIAZ SAMANO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER
1. Introduction
[1]
This
is an application for judicial review of a decision by the Immigration and
Refugee Board, Refugee Protection Division (the Board), dated February 23,
2006, determining that the applicant, Victor Daniel Diaz Samano, was not a
refugee as defined under section 96 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (hereinafter IRPA) or a
person in need of protection under section 97 of the IRPA.
[2]
The
applicant is asking this Court to set aside the Board’s decision and to refer
the matter for rehearing before a differently constituted panel.
2. Background
[3]
The
applicant is a citizen of Mexico. He arrived in Canada on June 13, 2005, and filed a refugee claim on
June 21, 2005. His claim is based on a fear of being subjected to a danger to
his life or to cruel and unusual treatment or
punishment if he were to return to
his native country. The hearing of the claim took place on December 22, 2005,
before the Board.
[4]
The
applicant, who worked as a truck driver with the company Autotransportes
El Bisonte said that when he was returning from a delivery in October
2004, he saw people in the company parking lot handling suspicious parcels.
Before leaving there, his boss, Luis Zuniga, allegedly told him not to tell
anyone or that he could have an accident. Mr. Zuniga then asked him on two
occasions to transport drugs. Met with the first refusal, Mr. Zuniga warned him
that something could happen to him. On the second refusal, he threatened to
kill him unless he changed his mind. After these events, Mr. Zuniga allegedly
gave the applicant’s truck to another driver and the applicant worked as an
alternate driver for several weeks before resigning in November 2004.
[5]
The
applicant says that since November 2004 he has been intercepted several times
by members of the judicial police for inspection while he was driving his
truck. During these inspections, the police officers allegedly asked him to
leave town and told him that because he had refused to participate in the drug
trafficking he would have to die. These threats continued for over eight
months and ended when the applicant left Mexico. He allegedly decided to leave his
country after a police officer approached him in May 2005 when he was picking
up his son at school and told him that something could very well happen to his
child.
[6]
The
threats to the applicant’s life and physical integrity continued, so the
applicant says, after he left Mexico. His ex-wife received a call in November 2005 from a person
who wanted to know where the applicant could be found. That same person told
her to tell the applicant that it would be better if he were never to return to
the country. On December 18, 2005, individuals also forced their way into the
applicant’s ex-wife’s home and asked her where they could find him. On that
occasion, they threatened her and his son. The applicant’s ex-wife reported
this incident to the authorities.
3. Impugned decision
[7]
On
February 23, 2006, the Board decided that the applicant was not a refugee under
section 96 of the IRPA or a person in need of protection under section 97 of
the IRPA.
[8]
The
evidence before the Board in essence consists of the applicant’s testimony, the
Personal Information Form (PIF), personal documents and documents on conditions
in Mexico as regards corruption and
drug trafficking, inter alia.
[9]
The
Board decided that the applicant was not credible with regard to central
elements of his claim and that he had not established through clear and
convincing evidence that his country was unable to protect him.
[10]
In its
decision, the Board justified its determination to the effect that the claim
was not credible by the existence of certain inconsistencies in the applicant’s
testimony, in the Personal Information Form (PIF) and in the background information.
The Board identified the following inconsistencies:
-
The
applicant testified that he had worked as an assistant plumber and electrician
with his brother from December 2004 to May 2005. Yet, this employment was not
mentioned in his PIF. The applicant’s explanation to the effect that this
omission was due to the fact that it was casual employment was deemed to be
unsatisfactory;
-
The
applicant stated in the background Personal Information Form that he had worked
for the transport company “El Bisonte” from August 1998 to May 2005; while in
his Personal Information Form (PIF) and in his testimony, he alleged rather
that he worked from July 2004 to November 2004. It dismissed the applicant’s
explanation to the effect that these discrepancies were due to translation
errors;
-
The
applicant failed to mention in his testimony that he had received death threats
from the judicial police.
[11]
The
Board also identified a certain number of implausibilities in the applicant’s
story. Hence, it found the following elements of the applicant’s story lacked
credibility:
-
The
applicant did not report the police officers because he feared for his life and
for the life of his son, but his son is still in Mexico and a long time had
elapsed between the applicant’s departure and the beginning of the threats;
-
In
explaining why the persecuting officers threatened him in May 2005 after he
left his job in November 2004, the applicant stated on the one hand that his
persecuting officers were working with the State of Mexico but on the other hand that the
officers were afraid that the applicant would report them to the authorities;
-
The
applicant’s wife reported the death threats against her son to the authorities.
[12]
Finally,
the Board considered that the applicant had not established clear and
convincing evidence that the State of Mexico was unable to protect him.
4. Issues
[13]
The
issues the Federal Court must decide in this matter can be summarized as
follows:
A. Did
the Board make one or more reviewable errors in assessing the applicant’s
credibility?
B. Did
the Board make a reviewable error in determining that the applicant had not
provided clear and convincing evidence that Mexico was unable to protect him?
5. The standard of review
[14]
The
first of these issues is one of credibility. The case law has consistently held
that the appropriate standard for such determinations is that of patent
unreasonableness. See: Aguebor v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. 732, R.K.L. v. Canada (Minister of Citizenship
and Immigration), [2003] F.C.J. 162, and Khaira v. Canada (Minister of Citizenship
and Immigration), 2004 FC 62. A decision is patently unreasonable when,
under the circumstances, it is clearly abusive, patently unfair, contrary to
common sense or unfounded in fact or in law.
[15]
The
second issue to be decided by this Court is whether the State was able to
protect the applicant. In Chaves v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. 232, Madam Justice Danièle Tremblay-Lamer
of this Court, following a pragmatic and functional analysis to determine the
appropriate standard of review, determined that this issue was a question of
mixed fact and law, subject to the reasonableness simpliciter standard.
I adopt the analysis and the standard applied by my colleague in Chaves
for the purposes of this review on the second issue. A decision will be deemed
unreasonable when it has no basis in law or in fact that can stand up to a
somewhat probing examination (Director of Investigation and Research v. Southam
Inc., [1997] 1 S.C.R. 748).
6. Analysis
A. Did the Board make one or more reviewable errors in
assessing the applicant’s credibility?
[16]
The
applicant submitted that the Board erred in its assessment of the applicant’s
credibility. He also argued that the Board assigned undue importance to certain
omissions and inconsistencies that appeared in the PIF, in the background
information and in the applicant’s testimony. He contended that the fact that
the applicant was not able to precisely indicate to the immigration officer the
dates of his previous jobs is not incredible given the stress that the
applicants suffer in these kinds of interviews. He reiterated his explanation
to the effect that he had not declared the job he worked with his brother when
he arrived because it was informal employment. With regard to the omission
about his statement before the Board that members of the judicial police
threatened to kill him, he claimed that it was simply an oversight typical when
giving oral testimony. With regard to the Court’s negative finding regarding
the fact that he had not reported his persecutors to the authorities, he
submitted that he had not mentioned all of the reasons why he had not sought
protection from his country. He added that the panel should not have found that
his explanations for the continuing threats after he resigned negatively
affected his credibility, since the only persons in a position to respond to
this question were his persecutors. Finally, he submitted that the Board should
not have implied that he was responsible for the acts of his ex-wife, i.e.
reporting to the authorities.
[17]
The
respondent argued rather that the applicant does not explain in what way the
panel’s findings are unreasonable in light of the evidence. He added that the
panel had enough evidence before it to determine that the applicant was not
credible and that he did not have a subjective fear of persecution.
[18]
There
is a well-established principle in the case law to the effect that an
administrative tribunal is in an advantageous position for assessing the
credibility of witnesses, which implies that the Court must show deference when
reviewing findings of this kind. This principle is also expressed in R.K.L.
v. Canada (Minister of Citizenship
and Immigration), [2003] F.C.J. No. 162, at paragraphs 7 to 9:
The determination of an
applicant’s credibility is the heartland of the Board’s jurisdiction. This
Court has found that the Board has well-established expertise in the
determination of questions of fact, particularly in the evaluation of the
credibility and the subjective fear of persecution of an applicant . . .
Moreover, it has been
recognized and confirmed that, with respect to credibility and assessment of
evidence, this Court may not substitute its decision for that of the Board when
the applicant has failed to prove that the Board’s decision was based on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it . . .
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” . . .
[Footnotes
omitted.]
[19]
Despite
all of the deference that this Court must show, it has the power to intervene
on issues of credibility when it has patently unreasonable errors before it. It
has already been decided, as Mr. Justice Luc Martineau pointed out in R.K.L.,
that when the Board focuses on minute details of the testimony so as to neglect
the essence of the testimony or affect the applicant’s credibility based on
minor inconsistencies between the background information, the PIF and the
testimony, it amounts to a patently unreasonable error.
[20]
It is
clear from the Board’s decision that the finding on the applicant’s credibility
rests in part on the inconsistencies of his testimony, the background
information and the PIF. Yet, some of the identified inconsistencies (jobs with
his brother, date employment ended at El Bisonte) involve minor details and
factors in the applicant’s story and ought not to strip him of all
credibility.
[21]
These
errors, had they been the sole basis for the Board’s determination, could have
opened the door to the review of the decision. The decision, however, was based
on other findings. First, according to the transcript of hearing, the applicant
did not volunteer that he had received death threats when he testified. Rather,
he stated that the police simply asked him to leave town. The panel had to ask
him twice what the police officers had said to him at the time of the
inspections before he stated that they had also threatened to kill him. The
Board’s determination to the effect that this inconsistency affects the applicant’s
credibility does not seem to be patently unreasonable given the importance of
this element in his refugee claim. Second, the Board had identified some
aspects of the applicant’s story implausible, such as the reason for which the
applicant had been threatened by the judicial police and the fact that the
applicant’s ex-wife had reported to the authorities the threats that she and
her son had received. The Court must dismiss the applicant’s argument to the
effect that the Board’s determinations on this part of his story are unfounded
since they make him responsible for the acts of third parties. In fact, it is
not unreasonable to find that the acts of third parties influence the
plausibility of a story. Further, the panel found that the applicant’s conduct
was not consistent with his allegations of fear. The applicant, alleging that
he had been threatened since the beginning of 2005, would not have waited until
June of the same year to leave, with his son still living in Mexico. This finding is not unreasonable.
Finally the applicant failed to mention in his PIF that work colleagues who
filed reports were killed by drug traffickers and that this was the reason, inter
alia, that he did not report his boss, Mr. Zuniga. Under the circumstances,
this is an important omission enabling the Board to make a negative finding on
the applicant’s credibility.
[22]
Therefore,
there is nothing that suggests that the Board’s findings on the applicant’s
credibility are unreasonable to the point that this Court would be justified to
intervene considering the appropriate standard of review in this case. On that
point, Mr. Justice William Ian Binnie pointed out moreover in Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour),
[2003] 1 S.C.R. 539, at paragraph 164, that while the standard of
correctness implies that there is only one proper answer, the standard of
patent unreasonableness could have many appropriate answers, but not the one
reached by the decision maker.
[23]
In my
opinion, Board did not err in assessing the applicant’s credibility. Because of
this determination, the Board was entitled to dismiss the applicant’s refugee
claim.
B. Did the Board make a
reviewable error in determining that the applicant had not provided clear and
convincing evidence that Mexico was unable to protect him?
[24]
Considering
the findings on the applicant’s credibility and the dismissal of his refugee
claim, the Board did not have to examine the issue of State protection, which
explains why its remarks were brief. To the extent that there is no basis for
reviewing the Board’s decision on that point, this Court, like the Board, need
not decide the second issue.
7. Conclusion
[25]
For
these reasons, the application for judicial review will therefore be dismissed.
[26]
The
parties did not propose a serious question of general importance as
contemplated under paragraph 74(d) of the IRPA. No question will
therefore be certified.
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