Date:
20120209
Docket:
IMM-5095-11
Citation:
2012 FC 190
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, February 9, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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EDUARDO HERNANDEZ
CARDOZO
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
Preliminary comments
In this case, counsel asked that
the submissions be made in writing, stating that she had consulted with her
client, who had consented to proceeding on the basis of the record.
I Introduction
1.
This
case involves an assessment of credibility tainted by contradictions, omissions
and implausibilities in the testimonial evidence.
2.
A
refugee claimant’s credibility is a crucial aspect of the claim, particularly
in making a proper determination of the claimant’s subjective fear. An
administrative agency’s findings with respect to credibility warrant
considerable deference.
3.
Although
the Refugee Protection Division [RPD] erred in its assessment of the applicant’s
identity, this error is not determinative and does not affect its finding with
respect to the applicant’s credibility.
II Judicial procedure
4.
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision by
the RPD of the Immigration and Refugee Board [IRB] dated June 13, 2011, which
determined that the applicant is neither a Convention refugee as defined in
section 96 of the IRPA nor a person in need of protection under section 97 of
the IRPA.
III Facts
5.
The
applicant, Eduardo Hernandez Cardozo, is 26 years old and is a citizen of
Mexico.
6.
The
applicant alleges that he was the victim of a carjacking while in the company
of his friend Mauricio Lopez.
7.
One
of the alleged perpetrators was Angel Talamentes, who attended the same school
as Mr. Hernandez Cardozo.
8.
Mr. Hernandez
Cardozo alleges that after the event, he never saw his friend Mauricio Lopez again,
and he was threatened by carjacker Angel Talamentes.
9.
Mr. Hernandez
Cardozo arrived in Canada on April 11, 2008, and four days later he applied
for refugee protection.
IV Decision under review
10.
The
RPD did not accept the refugee claimant’s identity. In fact, the RPD notes that
the applicant did not present any documents corroborating his identity except
for a Mexican passport issued on February 22, 2008. The RPD pointed to
contradictions regarding how the passport was obtained. The applicant was in
Mexico City at the time the passport was obtained from the City of San Juan Del
Rio. Moreover, according to the RPD, the documentary evidence states that an
official piece of identification with photograph is required to obtain a
passport, but the applicant claimed that all he had needed was his birth
certificate. The RPD was not satisfied with the applicant’s explanation that he
had it in his possession while he was living in hiding at his grandmother’s
house because he had wanted to seek employment in December 2007.
11.
The
RPD also found the applicant not to be credible because parts of his story were
implausible and he added details to his account during the hearing. First, the
RPD is of the view that the applicant’s conduct after the carjacking is
inconsistent with that of a person who has experienced an assault in the company
of a close friend. The RPD notes that, among other things, the applicant did
not contact his friend’s family after the event. No evidence was submitted
indicating that this friend existed and was killed. Second, the applicant did
not immediately report the carjacking to the police. He allegedly tried to
complain two months later, after becoming aware that Angel Talamentes was asking
questions about him. Third, the applicant failed to mention in his Personal
Information Form (PIF) the threatening telephone calls that his parents had
been receiving since the carjacking and that they had even taken steps to move.
V Issue
12.
In
the circumstances, is the RPD’s decision reasonable?
VI Relevant statutory provisions
13.
The
following provisions of the IRPA apply to this case:
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Convention refugee
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.
Person in need of protection
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.
Person in need of protection
(2) A
person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition de « réfugié »
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.
Personne à protéger
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 mépris 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.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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VII Positions of the parties
14.
First,
the applicant claims that the evidence in the file, in particular, the notes of
the immigration officer with whom the applicant had met, indicates that the
latter had in his possession a driver’s licence and voter’s card indicating his
citizenship. The documentary evidence also allegedly supports the applicant’s
explanation that a birth certificate is sufficient to obtain a passport. The applicant
argues that the RPD erred in failing to take into account the Mexican passport,
which it should have had subjected to expert analysis if it doubted its
authenticity. Furthermore, the applicant submits that the RPD erred in its
assessment of his credibility by focusing on details of the testimony without
taking into account the essential facts of the claim. Moreover, he argues that
the RPD did not consider internal flight alternatives [IFA]. The RPD erred in
law by failing to assess the risks that the applicant would face upon his
return to Mexico.
15.
The
respondent argues that the finding regarding the applicant’s identity was
reasonable and that the application for judicial review should be dismissed
accordingly. It was open to the RPD to doubt the authenticity of the passport
because the applicant was unable to clarify the circumstances of how it was
obtained. In fact, the documentary evidence supports the RPD’s conclusion in
that a birth certificate alone does not suffice to obtain a passport. With
respect to credibility, it argues that it was reasonable for the RPD to hold
against the applicant the omissions and implausibilities going to the heart of
his claim. The implausibilities and omissions relate to the disappearance of
the applicant’s friend, the carjacking, the attempt to complain and the threats
against his parents.
VIII Analysis
16.
A
high degree of deference is called for when reviewing the factual findings of a
trier of facts. The RPD’s decision must therefore be analyzed on a standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
17.
The
administrative agency is presumed to have reviewed all of the evidence in the
file unless it fails to discuss an important element that contradicts its
findings (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 1425, [1998] ACF no 1425 (QL/Lexis)).
18.
The
RPD did not accept the applicant’s identity. It states that the applicant did
not file any evidence other than his Mexican passport (RPD’s decision at paragraph
5). However, an analysis of the file reveals that the applicant also had in his
possession his voter’s card and his driver’s licence. This is mentioned in the
notes dated May
22, 2008,
of the immigration officer with whom the applicant met (Tribunal Record [TR] at
page 119), and a photocopy of these two pieces of identification appears
in the record (TR at page 117).
19.
It
was open to the RPD to find that the way in which the passport was obtained raised
doubts about its authenticity because of the contradictions and omissions in
the applicant’s testimony, particularly in light of documentary evidence
listing the documents required to obtain a passport.
20.
However,
in assessing the applicant’s identity, it was required to take into account all
of the evidence, particularly items of evidence as important as an
identification card and a driver’s licence.
21.
The
RPD therefore erred in its analysis of the applicant’s identity.
22.
Although
the RPD did not accept the applicant’s identity, it nevertheless reviewed the
applicant’s account, and its analysis was so meticulous that the error with
respect to his identity may not be determinative.
23.
Because
the RPD’s analysis did not rely on the issue of identity, it is necessary to
determine whether it erred in its assessment of the applicant’s credibility.
24.
In
Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No
732, [1993] ACF no 732 (QL/Lexis), the Federal Court of Appeal explained as
follows the role of the administrative agency with respect to plausibility:
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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. In Giron, the
Court merely observed that in the area of plausibility, the unreasonableness of
a decision may be more palpable, and so more easily identifiable, since the
account appears on the face of the record. In our opinion, Giron in no way
reduces the burden that rests on an appellant, of showing that the inferences
drawn by the Refugee Division could not reasonably have been drawn. In this
case, the appellant has not discharged this burden. [Emphasis added].
25.
In
this case, the RPD noted implausibilities in key aspects of the applicant’s
account rather than secondary aspects. The RPD considered it unlikely that the
applicant would have waited for two days to try to reach his friend’s family
after the carjacking in which his friend was allegedly killed. The applicant
made no attempt to reach his friend’s family or go to his home to get news. The
applicant’s explanation that his friend was not often at home was not accepted
by the RPD. It also noted the implausibility of the applicant’s conduct after
the carjacking. The applicant allegedly waited two months after the traumatic
event to make a complaint, despite the fact that he knew the identity of one of
the carjackers and had received threats.
26.
The
RPD also validly noted that the applicant had made no effort to submit evidence
corroborating his account (Ramanathan v Canada (Minister of Citizenship and Immigration),
2004 FC 862, at paragraph 10).
27.
Furthermore,
it is well established in the case law that it is open to the RPD to draw a
negative inference regarding the applicant’s credibility based on his failure
to include an important allegation of his claim in his PIF (Singh v Canada
(Minister of Citizenship and Immigration), 2006 FC 357, at paragraph 17).
28.
The
applicant explained at the hearing that his nervousness had made him forget to
mention that his parents had been threatened by his alleged persecutor. The RPD
did not find this convincing as the applicant had filled out the form with the
assistance of counsel and had had plenty of opportunity to make changes.
29.
Because
the applicant failed to establish subjective fear, it was open to the RPD not
to proceed to the IFA analysis. This Court has stated on many occasions that
credibility is an essential component of a claim and that an applicant’s
failure to prove that the RPD’s finding in that regard is unreasonable is
sufficient to defeat the application for judicial review (Cienfuegos v
Canada (Minister of Citizenship and Immigration), 2009 FC 1262, at paragraph
25).
IX Conclusion
30.
For
all these reasons, the RPD’s decision is not unreasonable and the application
for judicial review is dismissed.
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