Date: 20100601
Docket: IMM-4986-09
Citation: 2010 FC 568
Ottawa, Ontario, June 1, 2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Israel Ulises
ISLAS CEREZO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for judicial review of a decision of
a member of the Refugee Protection Division of the Immigration and
Refugee Board (the panel) under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. (2001), c. 27 (the Act), by Israel Ulises
Islas Cerezo (the applicant). The panel found that he was neither a refugee nor
a person in need of protection and therefore rejected his claim for refugee
protection.
* * * * * * * *
[2]
The
applicant is a citizen of Mexico.
[3]
He
alleges being persecuted by his former spouse and her mother. He claims to have
overheard a telephone conversation between the two women on December 11, 2006, in
which their involvement in the trafficking of children was allegedly revealed.
After having listened to this conversation, he was allegedly kidnapped and
beaten by federal police officers, who he claims were in the pay of his spouse.
[4]
He
purportedly filed a first complaint with the public prosecutor; then, on January
30, 2007, he registered a second complaint with the public prosecutor and the
Public Safety Office.
[5]
On
January 31, 2007, the applicant apparently retained the services of a lawyer. Having
unsuccessfully tried to obtain a copy of the complaints he had filed with the
public prosecutor, he purportedly asked his lawyer to do so. However, it would
appear that he was subsequently unable to contact his lawyer until June 2008,
and that she too was unable to obtain a copy of his complaints.
[6]
On
the advice of a friend, he decided to flee Mexico and arrived
in Canada on June 11,
2007. He claimed refugee protection one week later.
* * * * * * *
*
[7]
The
panel found the applicant not to be credible. Alternatively, it found that the
applicant had failed to prove that state protection was unavailable to him in Mexico and it found
that he had an internal flight alternative.
[8]
The
panel explained its finding that the applicant lacked credibility by his
failure to submit corroborative evidence in support of his narrative, and,
specifically, a copy of the complaints he claims to have filed with the public
prosecutor. It noted that at the beginning of the hearing, the applicant had
adduced as evidence a newspaper article about his former spouse, and that he
indicated having devoted much effort towards obtaining it. In the panel’s
opinion, the applicant ought to have shown that much diligence in attempting to
obtain a copy of the complaints he allegedly filed. It appears that he did not
do so.
[9]
The
panel did not believe that it had been impossible for the applicant to contact
his lawyer for a year and a half. Furthermore, it is possible to obtain, in
fairly short order, a copy of any complaint filed with the Mexican police
through that country’s embassy. The panel further noted that the applicant had
not contacted the organization where his former spouse is employed to obtain
confirmation of his having filed a complaint.
[10] Moreover, the
panel noted that the applicant had contradicted himself when he was asked about
the date on which he had filed his second complaint with the public prosecutor.
He also neglected to mention having contacted his lawyer in June 2008 in his
Personal Information Form (PIF).
* * * * * * *
[11] The only
issue here is whether the panel made its decision without regard for the facts
in the case, both those raised by the applicant and those arising from the
documentary evidence on Mexico.
[12] As Justice
Binnie explained, on behalf of the majority of the Supreme Court, in Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 46, ‘‘Parliament intended administrative fact finding to command
a high degree of deference’’. The Court will intervene only if such a finding
is unreasonable, in that it was ‘‘made in a perverse or capricious manner or
without regard for the material before it’’ (par. 18.1(4)(d) of the Federal
Courts Act, R.S.C. (1985), c. F‑7).
[13] In my view,
the panel did not make its finding without regard for the material before it.
Even if it did make a few mistakes (with regard to the spelling of some names),
these errors are of no great consequence and do not warrant the intervention of
this Court.
[14] It was open
to the panel to find the applicant not to be credible by reason of the lack of
evidence corroborating his narrative and because the narrative itself was
tainted by contradictions and omissions. In particular, the panel drew
attention to the applicant’s failure to mention that he had been unable to
contact his lawyer, either in his PIF or at the beginning of the hearing when
he was asked by his counsel whether the information in his PIF was complete and
up to date. The applicant submits that the panel, in doing so, misinterpreted
the purpose of the PIF. I do not share this view. First, the applicant
testified that he had tried, without success, to contact his lawyer before he
left Mexico, but he
makes no mention of these efforts in his PIF. Second, at the beginning of the
hearing, the applicant failed to offer clear details about what steps he took
after he arrived in Canada, while at the same time adducing additional
documentation as evidence in support of his narrative. As the panel pointed out,
police reports are important documents and the PIF expressly asks that refugee
claimants file them with their claims. It was open to the panel to consider the
applicant’s failure to explain his actions. Moreover, it was not unreasonable
for the panel to doubt whether the applicant was truly unable to contact his
lawyer for a year and a half (including the year after he arrived in Canada). The panel
also noted the applicant’s contradictory testimony with regard to the date of
his second complaint to the police.
[15] Under these
circumstances, the panel was entitled to raise the absence of any documentary evidence
in support of the applicant’s allegations (see, among others, Mejia v. The
Minister of Citizenship and Immigration, 2009 FC 1091, and Azali v. The
Minister of Citizenship and Immigration, 2008 FC 517, at paragraphs 15 and
16), as well as the insufficient efforts he made to obtain such evidence. In
fact, section 7 of the Refugee Protection Division Rules, SOR/2002-228, provides
that ‘‘[t]he claimant must provide acceptable documents establishing
identity and other elements of the claim. A claimant who does not provide
acceptable documents must explain why they were not provided and what steps
were taken to obtain them.’’
[16] Moreover, I
do not consider the panel’s findings with regard to the applicant’s attempts to
obtain a copy of his complaints to be unreasonable. The panel did not [translation] ‘‘disregard’’ the
applicant’s attempts to contact his lawyer: it simply did not believe that it
would have taken him a year and a half to contact his lawyer if he had truly
made an effort to do so. Considering that the applicant was in Canada for a good
part of this period, where he had every means of communication available to him,
and that his lawyer obviously continued to practice her profession, since he
did finally get in touch with her, I do not believe this finding is unreasonable.
As for the possibility of obtaining a copy of a complaint filed with the police
through one of Mexico’s consular offices in Canada, it was not [translation] ‘‘illogical’’ or [translation] ‘‘ridiculous’’ to expect
the applicant to avail himself of this option. Even supposing that the
applicant was indeed being pursued by some corrupt policemen, he is not
claiming that Mexican diplomats in Canada are complicit in his
persecution. There is no reason to believe they would refuse to help him.
[17] As such, the
panel could therefore reasonably find that the applicant lacked credibility.
Therefore, the intervention of this Court would not be warranted. Under the
circumstances, it is not necessary to consider the panel’s findings regarding
the internal flight alternative or the ability of Mexico to offer
state protection to the applicant.
* * * * * * *
*
[18] For all of
these reasons, the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review of the decision of a member of the Refugee
Protection Division of the Immigration and Refugee Board, dated October 5, 2009,
is dismissed.
‘‘Yvon
Pinard’’
Certified
true translation
Sebastian
Desbarats, Translator
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