Date: 20051109
Docket: IMM-2442-05
Citation: 2005 FC 1520
Montréal, Quebec, November 9, 2005
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
TORRES
CARRANZA MARIO ARTURO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BEAUDRY J.
[1]
This
application for judicial review was filed under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), with regard to a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board or the panel), dated March 22, 2005.
ISSUE
[2]
Did the
panel commit a patently unreasonable error in its assessment of the applicant’s
credibility?
[3]
For the
reasons set out below, I will answer this question in the negative and dismiss
the application for judicial review.
FACTS
[4]
The
applicant is a citizen of Mexico. He alleges that he is a
refugee owing to harassment and police persecution to which he was subjected.
[5]
Between
May and July 2003, the applicant and some of his friends had dealings with the
police, who took money from them.
[6]
Between
July 2003 and January 2004, the applicant spent time in Canada as a visitor.
[7]
When he
returned to Mexico, his friends told him that the police harassment was
continuing. The police asked the applicant for money on three more occasions:
April 1, 4 and 7, 2004. They committed violent acts against the applicant and
his friends.
[8]
On the
morning of April
8, 2004, the
applicant tried to file a complaint against the police with the Prosecutor’s
Office, but to no avail. He did not return home afterwards. His mother received
threatening phone calls during the afternoon, and her home was placed under
police surveillance. This is when the applicant decided to leave the country.
After he left, his mother told him that the police had come to the house on
several occasions to look for him.
[9]
The
applicant arrived in Canada on April 19, 2004 and claimed refugee status on May 10, 2004.
IMPUGNED DECISION
[10]
The panel
concluded that the applicant’s statement was not credible for the following
reasons:
§
The
applicant claims to have consulted a lawyer on April 8, the same day he tried
to file a complaint with the Prosecutor’s Office. The lawyer gave him a letter
confirming his visit, on that very day. The same lawyer then mailed him an
identical letter a few days later. However, the two letters are dated October
8, 2004. The applicant claims that this is a simple error, and that the initial
letter was indeed drafted on April 8, 2004.
§
This visit
is not mentioned in his Personal Information Form (PIF), and the panel believed
that the applicant did not adequately explain how he spent his time on
April 8, 2004. In particular, he contradicted himself as to the time he
left his home to hide at his aunt’s house, first saying that his mother had
received threatening phone calls in the afternoon, and then saying that she had
received them in the evening. The applicant contends that the panel did not
take his explanations into account, as the calls in question took place around
5 p.m. – the time when late afternoon becomes early evening.
§
Other
contradictions were raised by the decision-maker as regards the applicant’s
statement to the Immigration Officer concerning the time the applicant began to
have problems with the police.
§
The panel
also took into account the time that elapsed between the applicant’s arrival in
Canada and his claiming refugee status.
ANALYSIS
[11]
The
standard applicable in similar cases is that of patent unreasonableness. As Mr.
Justice Pelletier wrote in Conkova v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 300 (F.C.T.D.) (QL):
The standard of review of decisions of the CRDD is
generally patent unreasonableness except for questions involving the
interpretation of a statute when the standard becomes correctness. Sivasamboo
v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v.
Canada [1998] 1 S.C.R. 982 . . . .
[12]
In Aguebor
v. Canada (Minister of Employment and Immigration), [1993] F.C.J.
No. 732 (F.C.A.) (QL), the Federal Court of Appeal advocated judicial deference
when reviewing decisions based on the issue of credibility:
There is no longer any doubt that the
Refugee Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony: who is in a better position than the
Refugee Division to gauge the credibility of an account and to draw the
necessary inferences? As long as the inferences drawn by the tribunal are not
so unreasonable as to warrant our intervention, its findings are not open to
judicial review.
[13]
In the
case under review, it does not seem to me to be patently unreasonable that the
panel drew negative inferences regarding the date of the lawyer’s letter to the
applicant.
[14]
Regarding
the way the claimant spent his time on April 8, 2004, the panel wrote:
When asked at what point
in the day this first death threat by telephone had been made, he answered
[Translation] “in the afternoon.” However, his account mentioned receiving
threatening telephone calls in the evening: [Translation] “From the evening of
the day we took steps with the Office of the Prosecutor, we started receiving
threatening phone calls, and my home was under police surveillance,”
(translated as reproduced from the account in the Personal Information Form
(PIF)). Confronted on this point, the claimant became confused: [Translation]
“no, on the same day, the same evening, it was written in those words, the same
night.” All of this taints the claimant’s credibility and the panel does not
believe the events alleged to have occurred on April 8,
2004
. . . .
[15]
A review
of the case shows that the panel considered the applicant’s explanations
regarding the inconsistencies and contradictions in his story, but did not find
them credible.
[16]
The
panel believed that the three weeks that elapsed between the applicant’s
arrival in Canada and his claiming refugee status contributed to the
applicant’s lack of credibility. This gap was noted by the panel as one factor
among others. In Heer
v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 330 (F.C.A.) (QL),
the Federal Court of Appeal specified that the delay preceding the filing of an
application was a relevant factor which the panel could consider.
While being of the view
that the Immigration Appeal Board may have placed undue emphasis on the
importance of the delay in making the claim for refugee status herein, we agree
with the Board, nevertheless, that such a circumstance is an important factor
which the Board is entitled to consider in weighing a claim for refugee status.
On the record, we are unable to say that the Board committed any reviewable
error that would entitle the Court to interfere with its decision . . . .
[17]
The Court
is of the opinion that there is no cause for intervention in this case.
[18]
The
parties decided not to submit questions for certification. There are no
questions to be certified.
ORDER
THE COURT ORDERS that the application for
judicial review be dismissed. There is no question to be certified.
“Michel
Beaudry”
Certified true translation
Magda Hentel
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