Date: 20021030
Docket: IMM-5307-01
Neutral citation: 2002 FCT 1125
Toronto, Ontario, Wednesday, the 30th day of October, 2002
PRESENT: The Honourable Mr. Justice S. Noël
BETWEEN:
JUAN MANUEL RODRIGUEZ NAJERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of the decision of the Convention and Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated October 22, 2001 wherein the applicant was determined not to be a Convention Refugee.
[2] The applicant, Juan Manuel Rodrigues Najera, is a forty-one year old citizen of Mexico. He arrived in Canada in September 2000. He based his claim on a fear of persecution because of a political opinion imputed to him by a Mr. Naranjo and his drug cartel. He also alleged that he fears members of different security forces in Mexico as he has information which could implicate them in the illegal activities of Mr. Naranjo.
[3] The applicant alleged that while living in the United States, he was coerced into joining the drug dealers lead by Mr. Naranjo. In 1996, he was convicted in the United States of two-drug related offences for which he served almost three years. Mr. Naranjo was arrested around the same time and, according to the applicant, Mr. Naranjo holds him responsible for his own arrest and conviction and wishes to harm him for this reason.
[4] After his release in January 1999, the applicant said that he went back to live in the North of Mexico. He apparently moved three time; the first time he stayed with his brother, in a town in the state of Durango, the second time, after some unknown men went looking for him, he moved to Torreon, to his cousin's place, and after a few months, fearing that he would be found in a small town, he moved a third time to Ciudad Juarez, a city of 2,000,000 people.
[5] In Ciudad Juarez, in September 2000, he allegedly ran into a friend from prison who warned him that Mr. Naranjo continued to look for him and still sought to harm him. The applicant left Mexico twelve days later.
THE CRDD DECISION
[6] The Board first found that the applicant had not established a nexus or a connection between the harm feared and one of the Convention grounds. Rather it concluded that he fears criminal elements because of his involvement in criminal activities and that his situation resembles more of a personal vendetta. It determined that the applicant did not establish that the agents of persecution imputed a political opinion on the applicant.
[7] The Board further concluded that the applicant did not establish that he is or was a witness of state corruption.
[8] In the alternative, the CRDD also considered the issue of credibility and found that the applicant was not credible regarding central aspects to his refugee claim. The Board based its finding on inconsistencies and implausibilities in the applicant's story and found that there was insufficient credible and trustworthy evidence to establish that he had a well-founded fear of persecution for the reasons he alleges should he return to Mexico.
ISSUES
[9] Did the CRDD make findings of fact in a perverse and capricious manner, without regard to the evidence before it?
[10] Did the CRDD err in law by finding that the applicant failed to establish a nexus between the harm feared and a Convention refugee ground?
[11] Did the CRDD err in finding that the applicant was not credible?
SUBMISSIONS AND ANALYSIS:
[12] With respect to the first issue, the applicant alleged four errors in the Board's findings of fact, three of which I will not address because they are clearly irrelevant and immaterial to the decision. I agree with paragraphs 5, 6, 7 and 8 of the respondent's memorandum of argument concerning these alleged three errors.
[13] The fourth alleged error concerns the finding that the applicant was not a witness to any state corruption. The applicant submits that the CRRD ignored his evidence relating to situations where he faced state corruption and made a finding in conflict with the evidence.
[14] I cannot accept this argument. The Board did not ignore the evidence submitted in the applicant's Personal Information Form narrative. It analysed and made specific remarks respecting each of the three incidents which the applicant gave as examples of the knowledge he had of the involvement of state officials with Mr. Naranjo. The CRDD determined that the applicant's information was old, vague and lacked detail which would clearly implicate any person in state corruption. The Board inferred that the state authorities which were allegedly involved on two of the three occasions would not consider themselves at risk because of the low level of information held by the applicant. As for the third situation, concerning the police chief's alleged involvement with Mr. Naranjo, the Board found the applicant's evidence, again, vague and unsubstantiated.
[15] Therefore, this fourth finding that the applicant was not a witness of state corruption was quite reasonable in light of the evidence on record and was well reasoned by the CRDD. Thus, I find the application fails on the first issue. The Board did not commit a reviewable error in its findings of fact.
[16] Regarding the nexus issue, it is clear from the Convention definition that there must be a nexus or link between the harm feared and one of the five grounds of the refugee definition, which are, race, religion, nationality, membership in a social group or political opinion. Without the required nexus, the claim for refugee status will fail. [see: Mia v. Canada (M.C.I.), [2000] F.C.J. No. 120, Rivero v. Canada (M.C.I.), [1996] F.C.J. No. 1517; Xheko v. Canada (M.C.I.) (1998), 153 F.T.R. 283 (F.C.T.D.)].
[17] As stated by Justice Tremblay-Lamer at paragraph 16 of the above cited case of Mia v. Canada (M.C.I.), the issue of nexus is a question of fact:
In addition, as stated in recent case-law such as Leon v. MCI, [1995] F.C.J. No. 1253 and Lara v. MCI, [1999] F.C.J. No. 264, the existence of a nexus between persecutory conduct and a Convention ground is a question of fact, which is clearly within the panel's expertise, and as a result, this Court may only intervene if a decision was made in a perverse or capricious manner or without regard to the material before the panel.
[18] Although the following caselaw was not submitted, I refer to Klinko v. Canada (M.C.I.), [2000] 3 F.C. 327 (C.A.), wherein it was found that if a person is merely a victim of crime, this will not in and of itself be sufficient to sustain a claim. However, if there is evidence that an applicant denounces criminal activity and suffers persecution as a result, then this may be sufficient to create the necessary nexus. The facts we are confronted with squarely demonstrate that the applicant did not denounce criminal activity; he specifically expressed that he did not incriminate Mr. Naranjo or anybody else.
[19] In the case at bar, I believe that based on the evidence before the CRDD, it was reasonable for it to conclude that no nexus had been established between the applicant's fear of harm and one of the Convention grounds, particularly the ground of political opinion. The finding on the nexus issue was not made in a perverse or capricious manner or without regard to the material before the panel.
[20] Finally, on the third and last issue regarding the applicant's credibility, it is submitted that the Board made unreasonable inferences.
[21] It is established law that unless the inferences were "so unreasonable", the Court should not intervene. In this case, most of the issues on credibility were based on implausibility findings for which the CRDD gave clear reasons. A Board may reject a testimony which is uncontradicted if that evidence does not accord with the probabilities affecting the whole case [see: Alizadeh v_. Canada (M.E.I.), [1993] F.C.J. No. 11 (C.A)]. In that respect, the British Columbia Court of Appeal stated in Faryna v. Chorny, [1952] 2 D.L.R. 354, that "the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions".
[22] It was further established by this Court that the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense [Shahamati v. Canada (M.E.I.), [1994] F.C.J. No. 415 (F.C.A.)].
[23] With these principles in mind, I believe that the CRDD's credibility findings are not so unreasonable and its decision was clearly and reasonably open to it based on all the evidence.
[24] As I am unsatisfied that the Board erred on the second and third issues, and having disposed of the first issue negatively as well, I will dismiss this application for judicial review.
[25] Counsel for the applicant and the respondent did not propose a question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review of the decision of the CRDD is dismissed and no question is certified.
"Simon Noël"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5307-01
STYLE OF CAUSE: JUAN MANUEL RODRIGUEZ NAJERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, OCTOBER 29, 2002
REASONS FOR ORDER
AND ORDER BY: S. NOËL J.
DATED: WEDNESDAY, OCTOBER 30, 2002
APPEARANCES: Ms. Cynthia Mancia
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD: Cynthia Mancia
Mancia and Mancia Barristers & Solicitors 335 Bay Street
Toronto, Ontario M5H 2R3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021030
Docket: IMM-5307-01
BETWEEN:
JUAN MANUEL RODRIGUEZ NAJERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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