Date: 20120525
Docket: IMM-8148-11
Citation: 2012 FC 640
Toronto, Ontario, May 25, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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LAURA GUADALUPE
ENRIQUEZ MARTINEZ
MARIA DEL ROSARIO
ENRIQUEZ MARTINEZ
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Applicants
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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]
The
Applicants dispute the Refugee Protection Division of the Immigration Refugee
Board’s [Board] finding with regard to their lack of credibility and lack of
evidence in support of their testimony. This Court, in Chen v Canada
(Minister of Citizenship and Immigration), 2012 FC 95, serves as a specific
response thereto:
[39] Having found credibility
issues, the Board then looked for documentary evidence. The jurisprudence
holds that where a claimant’s story is found to be flawed because of
credibility findings, the lack of corroboration is a valid consideration
for the purposes of further assessing credibility (see Matsko and Bin
cited above). The Board concluded there was insufficient corroborating
documentary evidence. Firstly, the Applicant did not provide the Board with
documentary evidence showing that she wrote the entrance examination. The Board
refused her explanation that she did not know that such evidence would be
required for the hearing. The Board reasonably made a negative inference since
this document could have supported her allegation as to why she became
depressed and turned to Falun Gong practice. [Emphasis added].
II. Judicial Procedure
[2]
This
is an application for judicial review of a decision of the Board, dated October
27, 2011, wherein, the Applicants were found to be neither “Convention
refugees” nor “persons in need of protection” pursuant to sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
III. Background
[3]
The
principal Applicant, Ms. Laura Guadalupe Enriquez Martinez, and her
sister, Ms.
Maria del
Rosario
Enriquez Martinez, are citizens of Mexico.
[4]
The
principal Applicant obtained a diploma in Law in August, 2008. She alleges that
she was persecuted by Mr. Ricardo Salazar Contreras, a lawyer,
with whom she was in a romantic relationship from September to November 2006.
The principal Applicant worked at the office of Subprocuraduria General de la
Republica.
[5]
The
principal Applicant alleges that her persecutor became abusive when she refused
to provide him with sensitive information from the Subprocuraduria General de la
Republica.
After the end of their romantic relationship, Mr. Contreras
harassed the principal Applicant and her sister. A friend of the principal
Applicant was also found murdered in his bar in January 2009, the day after the
principal Applicant threatened to tell the media about Mr. Contreras’ activities.
[6]
The
Applicants tried to obtain protection by filing a complaint at the Public
Ministry; however, the agent, who worked for Mr. Contreras,
threatened them and advised them to desist.
[7]
The
principal Applicant also tried to hide but Mr. Contreras found her
and she was taken and beaten. Mr. Contreras wanted the principal Applicant
to work with him and threatened to kill her sister if she would not. The
principal Applicant then decided to work for him gratuitously from November
2008 to January 2009. She was also beaten.
[8]
In
January 2009, the principal Applicant alleges that she was taken to a house,
beaten and left in a locked room. Her sister was kidnapped at the university
and taken to the house and the principal Applicant could hear her sister
scream. Mr.
Contreras then ordered
that the sister be killed but, at the last minute, dropped her on the road
instead.
[9]
The
sisters attempted to report the kidnapping to the police but the police told
them that, as no ransom was claimed, they were not victims of a kidnapping.
[10]
The
principal Applicant’s sister returned to her university. On February 27, 2009,
she was threatened by a man on behalf of Mr. Contreras.
The same day, when she was at home, Mr. Contreras beat her as
he wanted to locate her sister.
[11]
The
principal Applicant fled to another city and stayed with friends. She arrived
in Canada on May 26, 2009 and her sister arrived on March 31, 2009.
IV. Decision under Review
[12]
The
Board found that the Applicants were not credible and that some parts of their
testimony lacked details. It also noted inconsistencies in the principal
Applicant’s testimony, namely, that she worked as a volunteer to complete her
diploma and would therefore not have had access to (sensitive) information at
the Ministry.
[13]
The
Board also questioned the principal Applicant’s claim that she was in a
romantic relationship with Mr. Contreras because of the lack of
corroborative evidence, such as photographs.
[14]
The
Board drew a negative inference from the fact that the Applicants did not
provide the report of their visit to the Veracruz Institute for Women in Mexico
[Women’s Institute]. The Board was not satisfied with the letter submitted from
the Women’s Institute which states that the report’s request was made
subsequent to a lengthy period and refers to its confidential policy in respect
to such matters.
[15]
The
Board rejected two psychological reports submitted by the Applicants because it
found them to be based on their Personal Information Form [PIF]. The Board then
concluded that the Applicants had not provided any medical evidence to support
their allegation.
[16]
The
Board also found the decision of the principal Applicant’s sister to return to
university after almost having been killed to be inconsistent.
[17]
The
Board noted the lack of evidence of the Applicants’ travel as they were trying
to hide.
[18]
The
Board found that the Applicants had not provided any evidence that state
protection is unavailable.
V. Issue
[19]
Is
the Board’s decision reasonable?
VI. Relevant Legislative Provisions
[20]
The
following legislative provisions of the IRPA are relevant:
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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. Analysis
[21]
The
Board’s findings were not only reasonable but formulated in detail. The
Applicants did have the burden of proof to demonstrate a well-founded fear of
persecution which their testimony and evidence did not provide. Consequently,
the Applicants had to provide some measure of corroborative evidence of worth
which they also did not.
[22]
The Applicants
failed to rebut the presumption of state protection.
[23]
Questions
of fact or of mixed fact and law are reviewed under the standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[24]
Furthermore,
as stated in Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708:
[15] In
assessing whether the decision is reasonable in light of the outcome and the
reasons, courts must show “respect for the decision-making process of
adjudicative bodies with regard to both the facts and the law” (Dunsmuir,
at para. 48). This means that courts should not substitute their own reasons,
but they may, if they find it necessary, look to the record for the purpose of
assessing the reasonableness of the outcome.
[25]
It
is trite law that the Board, as the trier of fact, is in a better position to
assess credibility. As stated in Aguebor v (Canada) Minister of Employment
and Immigration, [1993] FCJ No 732, (QL/Lexis) (FCA):
4 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 … [Emphasis added].
[26]
The
Applicants dispute the Board’s finding with regard to their lack of credibility
and lack of evidence in support of their testimony. This Court, in Chen, above,
serves as a specific response thereto:
[39] Having found credibility
issues, the Board then looked for documentary evidence. The jurisprudence
holds that where a claimant’s story is found to be flawed because of
credibility findings, the lack of corroboration is a valid consideration
for the purposes of further assessing credibility (see Matsko and Bin
cited above). The Board concluded there was insufficient corroborating documentary
evidence. Firstly, the Applicant did not provide the Board with documentary
evidence showing that she wrote the entrance examination. The Board refused her
explanation that she did not know that such evidence would be required for the
hearing. The Board reasonably made a negative inference since this document
could have supported her allegation as to why she became depressed and turned
to Falun Gong practice. [Emphasis added].
[27]
Having
noted the
lack of corroborative evidence, the Board questioned the veracity of the
Applicants’ testimony. The Board used the term “confusing” to describe the
testimony of the principal Applicant with respect to her description of her
employment and her access to files (Board’s Decision at para 23). This finding
is supported by the testimonial evidence as is evident from the following
exchange with the principal Applicant’s counsel (wherein, even with her own
counsel, she is suddenly at a loss of words in regard to her oral narrative):
COUNSEL: So what… I mean from my perspective
what I see is that he was able to get the file without you. He told you he
always gets what he wants.
PRINCIPAL
CLAIMANT: Yes.
COUNSEL: And you stated yourself in your
personal information form narrative that he was able to go to other people that
he was connected to within your workplace. Yes?
PRINCIPAL
CLAIMANT: Yes.[ph]
COUNSEL: So my question then is, … if he was
able to do these things without your assistance why did he keep coming back at
you? Do you understand my question? He keeps asking you for your assistance
even though, at least he seems to be showing you he does not really need it. Do
you have any idea why he would do that?
(Tribunal Record [TR] at pp 898-899).
[28]
In
addition, a discrepancy of credibility exists between the PIF and the testimony
in respect of what the principal Applicant was asked to do. In one, she states
she was asked to destroy the files and, in the other, to give the files to Mr. Contreras.
That demonstrates the fact that several key factors in the narrative are not in
harmony when both the testimony in the transcript and the PIF is analyzed.
[29]
The
Board also drew a negative inference with respect to the lack of corroborative
evidence to illustrate the relationship in which the principal Applicant was
involved; although the Board did not, in its reasons, mention the fact that
counsel for the Applicants had explained that the Applicants had given him a
photo showing the principal Applicant with Mr. Contreras which he forgot to
submit (TR at p 891). A picture would not, in and of itself, prove the
testimony from the perspective of the principal Applicant as to the character
of the relationship she had with Mr. Contreras.
[30]
The
Court respects the deference due to the trier of fact. It was for the
Applicants to provide, at the very least, adequate substantial answers, if not,
corroborative evidence, to have their narrative determined to be credible.
[31]
With
respect to the letter from the Women’s Institute that was rejected by the
Board, a review of the evidence reveals that the report cannot be provided
because of its confidentiality policy. It is not the role of this Court to
re-assess the evidence. The Board did consider the facts in its conclusion to
the effect that the Applicants requested the report; however, at a very late date,
long subsequent to the initial written information which the Applicants
submitted to the Board.
[32]
Moreover,
the Board highlighted the lack of corroborating evidence to demonstrate the
Applicants’ travel and their medical treatment in Mexico in addition to their
behaviour subsequent to the alleged persecution.
[33]
Finally,
the criticism of the Applicants that the Board did not proceed to an analysis
of the country conditions is unwarranted due to its lack of credibility
finding. This Court also simply comments that an internal flight alternative
was not truly considered by the Board due, again, to the lack of credibility
finding which disposed of that need.
VIII. Conclusion
[34]
For
all of the above reasons, the Applicants’ application for judicial review dismissed.
JUDGMENT
THIS COURT
ORDERS that the Applicants’ application for
judicial review be dismissed. No question of general importance for certification.
“Michel M.J. Shore”
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