Date:
20120427
Docket:
IMM-6627-11
Citation:
2012 FC 492
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa,
Ontario, April 27, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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BRIGIDA DEL ANGEL
CEDILLO
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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
I. Introduction
[1]
This
is an application for judicial review submitted in accordance with subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), of
the decision by the Immigration and Refugee Board (IRB), dated September 2,
2011, that Brigida Del Angel Cedillo (the applicant) is not a Convention
refugee or a person in need of protection under sections 96 and 97 of the
IRPA.
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
The
Applicant is a citizen of Mexico.
[4]
On
June 23, 1999, the applicant worked for the Municipality of Tampico in the
State of Tamaulipas as an administrative assistant. She verified documents submitted
to obtain passports.
[5]
However,
her overzealousness at work greatly displeased certain members of the Coyotes
(smugglers).
[6]
December 17,
2007, the applicant claimed that she advised her superiors that some smugglers
were issuing passports using false documents. They allegedly told her not to
worry about this situation, because they would take care of it.
[7]
The
applicant was transferred to another department, still with the Municipality,
where she was given a cold reception by her new colleagues because of her
disclosures.
[8]
On
January 7, 2008, the applicant reported the Coyotes’ unlawful activities to
the Deputy Minister of Foreign Affairs.
[9]
One
month later, on February 8, 2008, the applicant was mistreated by two
individuals. She also started to receive death threats by telephone.
[10]
On
March 3, 2008, she left her job and took refuge in the home of a friend in
San Luis Potosi.
[11]
On
March 23, 2008, the applicant was kidnapped by five men and held captive
in a house in the area of San Luis Potosi. Two of the five men responsible for
watching her assaulted her sexually. They untied the applicant and forced her
to get undressed. However, the two men fell asleep because they took excessive
amounts of drugs and alcohol. Thus, the applicant fled and reached a highway
where she received help from a family.
[12]
She
returned to take refuge at her friend’s home in San Luis Potosi before leaving
Mexico for Canada on June 9, 2008. She filed a claim for refugee protection.
[13]
She
alleged that her brother was murdered in February 2011 in connection with
events underlying her request.
[14]
The
IRB determined that the applicant was not credible since she failed to show, on
a balance of probabilities, that she would be subjected to a risk of torture or
to a risk to her life or to a risk of cruel and unusual treatment or punishment
were she to return to Mexico. The IRB found that the applicant is not a
Convention refugee or a person in need of protection under the IRPA.
III. Legislation
[15]
Sections
96 and 97 of the IRPA specify the following:
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Convention
refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person in need of protection
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Personne à protéger
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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
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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 :
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(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
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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;
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(b) to a risk to
their life or to a risk of cruel and unusual treatment or punishment if
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b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
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(i) the person is unable
or, because of that risk, unwilling to avail themself of the protection of
that country,
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(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not
inherent or incidental to lawful sanctions, unless imposed in disregard of
accepted international standards, and
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(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,
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(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.
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(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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(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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(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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IV. Issue
and standard of review
A. Issue
[16]
This
application for judicial review raises only one issue:
·
Did
the IRB err in finding that the applicant lacked credibility?
B. Standard
of review
[17]
A
credibility finding is a question of fact, which is reviewable on the standard
of reasonableness (see Lawal v Canada (Minister of Citizenship and
Immigration), 2010 FC 558, [2010] FCJ No 673, at para 11).
[18]
It
has been clearly established that questions of fact and assessment of evidence
are within the Board’s expertise and are reviewable on a standard of
reasonableness (see Theophile v Canada (Minister of Citizenship and
Immigration), 2011 FC 961, [2011] FCJ No 1177, at paras 16 and 17;
Dunsmuir v New Brunswick, 2008 SCC 9, at paras 51 and 53 (Dunsmuir)).
The reviewing Court must determine whether the decision “falls within the range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (see Dunsmuir, cited above, at para 47).
V. Positions
of the parties
A. Applicant’s
position
[19]
The
applicant submitted that the IRB’s credibility finding was unfounded. She also
argued that the IRB disregarded some of the evidence in support of her
application.
[20]
She
also criticized the IRB of having overlooked a part of her story (see Djama
v Canada (Minister of Employment and Immigration), [1992] FCJ No
531).
[21]
According
to the applicant, the IRB erred in finding, without any valid reason, that she
lacked credibility.
B. The
respondent’s position
[22]
The
respondent alleged that the IRB takes into account all of the relevant evidence
in support of the applicant’s refugee claim.
[23]
The
IRB recognized that part of the applicant’s account is credible. However, the
Board found that the elements central to the refugee claim are “incredible” and
“implausible”. The respondent noted that it is settled that “[t]he Board is the
trier of facts and is entitled to make reasonable findings regarding the
credibility of a claimant’s story based on implausibilities, common sense and
rationality”, relying on Khaira v Canada (Minister of Citizenship and
Immigration), 2004 FC 62, at para 14. It also argued that it is not
sufficient to mention that the IRB could have reached a different decision (Lin
v Canada (Minister of Citizenship and Immigration), 2010 FC 183, at
para 19).
[24]
The
respondent also noted the principle that the Court does not have to re-examine
all the evidence and findings of the Board unless there is a clear error (Castaneda
v Canada (Minister of Citizenship and Immigration), 2010 FC 393, at
para 14).
VI. Analysis
·
Did
the IRB err in finding that the applicant lacked credibility?
[25]
The
IRB made the following findings in support of its decision:
[31] The panel finds this
part of the story hard to believe and implausible. How did a young woman, who
was sought and found by a gang of criminals who entrusted five men to
kidnap her and forcibly confine her in a remote house, and who was guarded by two
men who tried to sexually assault her, manage to escape because her captors
both fell asleep?
(See the IRB decision at para 31.)
[37] The claimant did not demonstrate that Enrique
Angel del Cedillo was her brother. She also failed to demonstrate that his
murder had any connection to her story. (See the IRB decision at para 37.)
[26]
The
IRB found it implausible that the applicant escaped such a situation.
[Translation]
BY THE PRESIDING MEMBER (to the claimant)
- One other thing—one other thing that
seems implausible to me, there are two bandits—(inaudible) you say that there
were three that left—you stayed with two. They drank, they took drugs, okay?
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You
(inaudible) here: “one of them started to kiss me”. And they just let you go.
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They
were men or not men?
BY THE CLAIMANT (to the presiding member)
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Yes,
there were two men.
BY THE PRESIDING MEMBER (to the claimant)
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So,
you don’t find that implausible?
BY THE CLAIMANT (to the presiding member)
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No,
that’s what happened.
BY THE PRESIDING MEMBER (to the claimant)
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Yes,
but you don’t find it strange that two bandits held you captive, started
kissing you and then just left you?
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I would
have understood if one fell asleep that (inaudible) maybe (inaudible).
BY THE CLAIMANT (to the presiding member)
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The
two of them, they fell asleep, they started taking drugs. They did not assault
me (inaudible).
BY THE PRESIDING MEMBER (to the claimant)
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They
did not assault you after they started to kiss you? What was it that made them
start to kiss you, they stopped suddenly?
BY THE CLAIMANT (to the presiding member)
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It’s
what they did. Started to touch me, then…
BY THE PRESIDING MEMBER (to the claimant)
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And
suddenly, just like that, both stopped…
BY THE CLAIMANT (to the presiding member)
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That’s
right, Madam.
[27]
The
Court wishes to point out that the IRB is “entitled to make reasonable findings
based on implausibility, common sense and rationality, and may reject evidence
if it is not consistent with the probabilities affecting the case as a whole”
(Aguebor v Canada (Minister of Employment and Immigration),
[1993] FCJ No 732 (Aguebor)). This is what it did in this case.
[28]
The
IRB, following an assessment of the circumstances of the case, made a
reasonable finding that the applicant’s story is partly implausible. The Court
does not see an error in the Board’s findings with respect to the events
surrounding the applicant’s kidnapping. This finding is within the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (see Dunsmuir, above, at para 47).
[29]
The
IRB also found that the death of Enrique Del Angel Cedillo is not related to
the applicant’s refugee claim. The Board noted that the applicant provided no
evidence to establish that Enrique Del Angel Cedillo was her brother.
[30]
The
IRB considered the newspaper articles covering the death of Mr. Cedillo. However,
these articles do not show that Mr. Cedillo is the applicant’s brother
and, more importantly, that the facts surrounding his death are related in any
way to the applicant’s story. The case law of this Court is clear—refugee
protection claimants must provide all the evidence required to establish the
truth of the facts underlying their claim.
[31]
It
is also well settled that it is up to the IRB to assess the evidence and the
testimony and to attach probative value to them (see Aguebor, above; and
Romhaine v Canada (Minister of Citizenship and Immigration), 2011
FC 534, [2011] FCJ No 693, at para 31). In this case, the IRB’s finding on
the assessment of the applicant’s evidence is reasonable. There are no grounds
for the intervention of this Court.
VII. Conclusion
[32]
The
IRB’s findings that the story surrounding the applicant’s kidnapping is
implausible and that the evidence does not establish that the late Mr. Cedillo
is her brother or that his death is related to the applicant’s claims are
reasonable. Therefore, the applicant is not a Convention refugee or a person in
need of protection under sections 96 and 97 of the IRPA.
JUDGMENT
THE
COURT DISMISSES the application for judicial review and FINDS that
there is no question of general interest to certify.
“André
F.J. Scott”
Certified true
translation
Catherine Jones,
Translator
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