Date: 20100902
Docket: IMM-8-10
Citation: 2010 FC 866
Ottawa, Ontario, September 2, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ORLANDO DE LOERA MARTINEZ
ELIZABETH JUAREZ LOPEZ
IVAN DE LOERA JUAREZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division (the Board), dated November 10, 2009, wherein
Orlando de Loera Martinez (the principal applicant), Elizabeth Juarez Lopez
(the principal applicant’s wife) and Ivan de Loera Juarez (the principal
applicant’s son) were found not to be Convention refugees or persons in
need of protection.
[2]
The
relevant legislation is attached as Appendix A to these reasons.
[3]
The
applicants are citizens of Mexico from the State of Aguascalientes.
[4]
The
principal applicant, his wife, and his nine year old son, fled separately to Canada claiming
fear of persecution after having allegedly been assaulted by military officers
present in their area as a part of the Mexican government’s efforts to deal
with the growing problem of drugs in their country.
[5]
On
April 27, 2007, it is alleged that military officers attempted to rape Mrs.
Juarez Lopez and assaulted the principal applicant when he tried to intervene. Mrs.
Juarez Lopez, who had just recently learned that she was pregnant, was left
feeling shaken psychologically and physically. Subsequent to this
incident, the applicants filed a complaint with the local police.
[6]
On
May 8, 2007, en route to a doctor’s appointment for Mrs. Juarez Lopez’s
pregnancy, the couple was intercepted by some men with pistols who then beat
the principal applicant. The principal applicant was threatened that if his
complaint was not withdrawn, death would follow for him and his family. The
applicants promised that the complaint would be withdrawn and went to their
appointment where they were informed that there was danger of losing the baby. The
applicant did not file a second complaint concerning the second incident.
[7]
The
Board identifies credibility and state protection as determinative issues in
this case.
[8]
They
are questions of facts and mixed facts and law which attract a standard of
reasonableness. The Court has held that the Board’s decisions on both
credibility and state protection should be reviewed on a standard of
reasonableness (Aguirre v. Canada (Minister of Citizenship
and Immigration), 2008 FC 571, [2008] F.C.J. No. 732 (QL), at para. 14; Guzman
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 490, [2008] F.C.J.
No. 624 (QL), at para. 10). Accordingly, the Court will only intervene if the
decision does not fall within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47).
[9]
The
applicants submit that the Board’s determination that the applicant lacked
credibility was based solely upon the absence of evidence of the complaint
made for the initial incident and the explanation for having decided not to
tender the document which, it is alleged by the applicants, did not match the
facts of the incident.
[10]
In
Osman v. Canada (Minister of Citizenship and Immigration), 2008 FC
921, [2008] F.C.J. No. 1134 (QL), at para. 39, Justice Simpson held that a lack
of reasonable explanation for a material omission can be the basis of an
adverse inference and impugn an applicant’s credibility.
[11]
In
the case at bar, while the applicants had a copy of the written complaint, they
chose not to produce it. They submit that the Board should not have drawn a
negative inference regarding the applicants’ credibility solely based on this
fact. However, an applicant needs to provide a reasonable explanation as to why
such evidence is not available. In this case, the complaint is very material
given that all the elements of the applicants’ story build on this event. The applicants’
explanation that the document dealt with a situation that did not relate to the
circumstances that they had related to the police, does not sufficiently
explain why the copy was not submitted. For example, the applicants offered no
explanation as to why the police would give them a document that was meant to
serve as a copy of their complaint, and yet, they did not provide any
information about the content of the written complaint they received. I believe
that the incomplete explanation given here, is one to which Justice Simpson
alluded to in Osman. Therefore, it is the absence of the document,
coupled with incomplete explanations that lead to the negative inference drawn
by the Board.
[12]
The
least the applicants could have done to help their case was to provide a more
complete explanation as to why the written complaint was not translated and
submitted, and which information was not related to the principal applicant’s
complaint. It would have been helpful for the applicants to have the document
translated, and allow the Board to decide for itself whether or not the
document was relevant evidence and accept the applicants’ explanations.
[13]
The
applicants also submit that they filed a medical certificate issued prior to
the departure of the principal applicant’s spouse from Mexico which
corroborates her physical injuries sustained and her danger of suffering a
miscarriage. As stated in Florea v. Canada (Minister of Employment and
Immigration), [1993]
F.C.J. No. 598 (QL) (C.A.), the Board is assumed
to have weighed and considered all evidence before it, unless the contrary is
shown. Thus, it can be assumed that the Board did examine the medical certificate.
In this case, it is difficult to conclude that the medical record would have
changed the Board’s findings on credibility given that the medical
report makes no mention of any of the events that would have caused the
physical injuries. I therefore cannot find that the Board overlooked this piece
of evidence.
[14]
As
to the Board’s analysis of the documentary evidence on state protection, the
Court notes that it is brief. However, the conclusions in the decision based on
the applicants' behaviour that they did not show that Mexico was unable
or unwilling to provide them protection are reasonable. Therefore, the Court's
intervention is not warranted.
[15]
No
question of general importance was submitted and none arise.
JUDGMENT
THIS COURT
ORDERS that
the application for judicial review be dismissed. No
question is certified.
“Michel Beaudry”
APPENDIX A
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27.
|
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépossibilité d’un refuge internes des normes internationales —
et inhérents à celles-ci ou occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
|
Immigration
and Refugee Protection Regulations, SOR/2002-227
|
7. The
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.
|
7. Le
demandeur d’asile transmet à la Section des documents acceptables pour
établir son identité et les autres éléments de sa demande. S’il ne peut le
faire, il en donne la raison et indique quelles mesures il a prises pour s’en
procurer.
|
|
Email this Content