Date:
20121126
Docket:
IMM-3249-12
Citation:
2012 FC 1365
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario,
November 26, 2012
PRESENT: The
Honourable Justice Simon Noël
BETWEEN:
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OMAR OSCAR MARTINEZ
BAUTISTA
MARIA LUISA
VALDIVIESO PORTILLA
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Applicants
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division [RPD] of the Immigration and Refugee Protection Board dated March 13,
2012, finding that Omar Oscar Martinez Bautista and Maria Luisa Valdivieso
Portilla are not refugees within the meaning of section 96 of the Immigration
and Refugee Protection Act, RS 2001, c 27 [the IRPA], and do not
have the status of "person in need of protection" under section 97 of
the IRPA.
I. Facts
[2]
The
applicants are a Mexican couple. They arrived from Mexico on October 24, 2008,
to seek refugee status in Canada, which they did the day they arrived.
[3]
The
couple owned an Internet café in Mexico City. Around mid-February 2007, members
of the Zetas, a well-known criminal organization, went to their business asking
for 2,000 pesos per month and to sell discs labelled "Z", with a
contribution to their group
[4]
In
March 2007, someone named El Piojo went to the Internet café to collect the
2,000 pesos, but decided to increase the amount to 3,000 pesos per month. The
applicants noted that many people had closed their businesses in the
neighbourhood.
[5]
On
May 10, 2008, 14 months after the events, the applicants went to the police to
give a statement. There was no follow up to their complaint and they claim they
were laughed at. Members of the Zetas warned the applicants that they risked
death if they complained again.
[6]
On
May 20, 2008, a group of eight people under the influence of drugs entered
their business and stole from clients. They asked the applicant for money and
hit him. A few days later, individuals came to their business to collect the
amount requested but when the applicant refused they hit him.
[7]
On
May 29, 2008, 20 individuals entered the business and destroyed everything.
They took the applicant by force after hitting him. The female applicant was
sexually assaulted. On June 1, 2008, the captors phoned the female applicant
asking for a 100,000 pesos ransom. On June 7, 2008, she sent 85,000 pesos to
the captors and her spouse was released two days later. He had clearly been
mistreated by the captors.
[8]
The
couple then moved to Veracruz to open another Internet café at the end of June
2008. On August 13, 2008, three armed individuals entered their business,
destroyed everything and demanded 8,000 pesos. They threatened the applicants
with death and said they could never escape.
[9]
On
September 15, 2008, they moved in with the female applicant's mother in Comalcalco.
The applicants claim an aunt told them the Zetas criminal group was still
looking for them. The decision was then made to leave the country for Canada.
II. Revised
decision
[10]
The
RPD found that the applicants were neither refugees nor persons in need of
protection because their testimony is not credible and their claims are full of
contradictions. Moreover, the RPD feels that during the hearing, they added
certain details about the events at the basis of their refugee claim.
[11]
For
the RPD, the fact the applicants did not complain until one year after the extortion
began shows that they did not truly fear for their safety. Moreover, when
additional assaults took place and their business was destroyed, they did not
complain to the police. The RPD dismissed their explanation that they feared
future reprimands from the group if they complained, and they only thought it
was appropriate to react when they noticed that business was dropping at their
establishment.
[12]
Overall,
the RPD came to an unfavourable finding for the applicants because they lacked
credibility in their description of the events of May 29, 2008. The RPD found
that the two testimonials about the sexual assault of the female applicant and
the kidnapping of the male applicant were not reliable.
[13]
As
for the applicants' moving to Veracruz, the RPD feels it was unreasonable for
them to not complain to the authorities of this city, despite the fact the
applicants expressed fear about the possible consequences of doing so.
III. Applicant's
submissions
[14]
The
applicant claims that the RPD decision that the applicants are not credible is
unreasonable since the applicants did not present contradictory testimony.
[15]
According
to the applicant, under the circumstances, it was not unreasonable for them to not
complain because after the report of May 2008, the police did not take any
action. The evidence also shows that the Zetas have a presence in the State of Veracruz.
[16]
Regarding
the events of May 29, 2008, the applicant claims that it was unreasonable for
the RPD to find that the applicants did not provide reliable and non contradictory
testimony. The RPD also erred by not considering Guideline 4: Women Refugee
Claimants Fearing Gender-Related Persecution [the Guideline] when it dealt
with the female applicant's credibility about her sexual assault.
[17]
Lastly,
according to the applicant, it was unreasonable to find that the applicants had
a flight alternative since they moved twice and both times the Zetas found them.
IV. Respondent's
submissions
[18]
The
respondent claims that the RPD finding that the applicants were not credible
was fair because there were contradictions in their testimony and it is the
RPD's responsibility to address the credibility of witnesses and assess the
value of the explanations provided to justify such contradictions.
[19]
According
to the respondent, the additions at the hearing before the RPD argue in favour
of the finding that the respondents attempted to increase the intensity of the
events they experienced. Their testimony about their decision to not report the
events to the authorities is not coherent and it is therefore not unreasonable
for the RPD to come to a finding against the applicants.
[20]
Lastly,
the respondent feels that the RPD's findings on the female applicant's
testimony about her sexual assault are fair; although the Guideline was not
mentioned, this does not mean the RPD did not consider it in its decision or
approach regarding the refugee claim.
V. Issues
[21]
Did
the RPD render an unreasonable decision by finding the applicants were not
credible?
VI. Standard
of review
[22]
The
standard of review for the issue of assessing the credibility of testimony is
reasonableness since it is a question of fact (Aguebor v Canada (Minister of Employment and Immigration), 160 NR 315 at
para 4, 1993 CarswellNat 303 (FCA)).
[23]
The
RPD decision raises some concerns. The RPD's negative finding about the
vocabulary the applicants used in their PIF noting that the applicant was [translation] "taken" whereas
in their testimony they say he was [translation]
"kidnapped" is inappropriate. The events as described in the PIF show
that the applicant was taken by force, against his will. The facts certainly
describe a kidnapping. The RPD criticizes the applicants for not using the word
"kidnapping". This is an unreasonable finding and should not have
been used against the applicants.
[24]
Criticism
was directed towards the female applicant, noting that [translation] "the board finds it curious, to say the
least, that she had an AIDS test because to her knowledge, the virus only
develops a few months later, after an organism is infected." The applicant
testified that following her sexual assault, she went to have an AIDS test at a
friend's suggestion. She was told to come back three months later because the
virus takes time to develop. The evidence shows that it was not "to her
knowledge" but rather something she was told. It was therefore
inappropriate to criticize her for this.
[25]
Are
these observations enough to qualify the overall decision as unreasonable?
[26]
The
RPD decision noted that the applicants' credibility was compromised by the
following observations:
[translation]
1. The
applicants only filed a complaint with the police 14 months after the March
2007 assaults.
2. Although
they experienced other violent and aggressive events, they did not go to the
police.
3. They noticeably
exaggerated the events of May 2009 during their testimony in comparison to
their PIF and in response to question 31.
4. After
the sexual assault, the female applicant consulted her doctor but did not
confide in him fearing she would then have to file a complaint. The RPD finds
this situation a paradox and feels that the priority was to be reassured about
her health rather than worry about potential legal consequences.
5. The
female applicant, while concerned about her health after the events, did not
request a gynecological exam or other tests. The RPD was surprised by this
behaviour.
6. The
RPD did not find the events in Veracruz to be credible; this city is five hours
from Mexico and the RPD found the explanations that members of the Zetas
continued to persecute them unlikely.
[27]
The
RPD also considered an internal flight alternative [IFA] elsewhere in Mexico.
It took into consideration the Zetas group and its importance and noted it was
localized and there were other places in Mexico to which the applicants could
have relocated.
[28]
The
jurisprudence of this Court recognizes that a decision may be incorrect in
certain aspects but overall, it has well-articulated findings that lead to a
reasonable result, no intervention is warranted (see Law Society of New Brunswick v
Ryan, 2003 SCC 20 at para 56, [2003] 1 S.C.R. 247; Stelco Inc. v British
Steel Canada Inc.,
2000 CanLII 17097 at para 22, [2000] 3 FC 282 (FCA)).
[29]
Having
studied the case, the RPD decision and the findings including those that raise
concerns, I find that overall, the decision is reasonable and no intervention
is warranted.
[30]
The
parties were invited to submit a question for certification, but none was
submitted.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial review
be dismissed and no question shall be certified.
"Simon Noël"
____________________________
Judge
Certified
true translation
Elizabeth
Tan, Translator
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