Date: 20071221
Docket: IMM-932-07
Citation:
2007 FC 1365
Ottawa, Ontario, the 21st day of December 2007
PRESENT:
THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
JOSE JORGE GARDUNO ROJAS
SONIA MILLAN MORALES
JORGE ARMANDO GARDUNO MILLAN
TANYA WENDOLYNE GARDUNO MILLAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
By this
application for judicial review, the Rojas family, a father, a mother and two
children, all citizens of Mexico, are asking this Court to set aside the
decision of a member of the Refugee Protection Division (the panel) dated
February 1, 2007, that the applicants were neither Convention refugees nor
persons in need of protection.
[2]
The panel
found that the principal claimant, Mr. Rojas, was not credible. It did not
believe his story. The other members of the family are basing their application
on the same facts as those alleged in his account.
[3]
Mr. Rojas
says that he fears three individuals: Messrs. Oseguera and Velasquez, with whom
he was associated as a shareholder and director (the associates) in the company
Multiparte Sirius S.A. (Sirius), newly founded in October 2001, as well as
Enrique Penanieto, elected governor of the State of Mexico. Mr. Penanieto
allegedly received funds for his election campaign from Sirius without the
approval of the other two shareholders, namely, Mr. Rojas and Ms. Barron, the
wife of Guillermo Blancas Sanchez, whom the principal claimant had allegedly
known as a customer of the business he managed before Sirius was founded. At
Sirius, he held the position of sales director.
[4]
The
principal claimant’s account may be summarized as follows. As indicated above,
Mr. Rojas’s associates in Sirius allegedly wanted to contribute to the
election campaign of Mr. Penanieto, a friend of Mr. Oseguera, who allegedly
facilitated the founding of the company, but they were met with a refusal by
Mr. Rojas and Ms. Barron. Despite this refusal, in February 2003 the associates
allegedly began diverting funds from Sirius to support Mr. Penanieto’s election
campaign. Mr. Rojas testified that Sirius had an auspicious start:
- 2001: sales of C$2,000,000;
- 2002: sales of C$2,500,000; and
- 2003: higher sales; did not
remember.
[5]
Mr. Rojas
alleges that relations between Sirius shareholders had become intolerable: they
agreed to dissolve Sirius and to divide the remaining profits in proportion to
their shares.
[6]
For this
purpose, an audit was carried out by accountants from outside the company at
the request of Mr. Rojas and Ms. Barron, the result to be submitted on October
25, 2004. Shortly before October 25, 2004, the associates allegedly approached
the applicant to buy his silence and to manipulate the results of the audit in
their favour, but Mr. Rojas said he refused. He allegedly also uncovered other
irregularities. The fraud committed against Sirius was C$1,000,000.
[7]
On October
27 and 28, 2004, Mr. Rojas, Mr. Guillermo and his wife, accompanied by a
recently consulted lawyer, reported the associates to the police. Mr. Penanieto
was not included in this accusation, apparently for lack of evidence.
[8]
On October
29, 2004, the principal claimant said he was intercepted by an acquaintance of
the associates and alleged police officers: he was robbed, assaulted and
threatened.
[9]
The family
left their residence in Mexico City to go and live in hiding in the adjoining
state, but were located by two of the persons who had beaten him. This forced
the family to move to the village of Rustica. For a short period the family
allegedly lived in a hotel near the Mexico City airport. Mr. Rojas said he
tried to obtain help from the Human Rights Commission, which, following an
investigation, notified him that it could do nothing because his complaint with
the police could not be found.
[10]
On
September 6, 2005, the family left Mexico for Canada and claimed refugee
protection the same day.
Panel’s decision
[11]
As
indicated above, the panel concluded that Mr. Rojas lacked credibility for
several reasons, which I set out below.
·
Lack of
important documents:
Only a copy and not the
original of the company charter was entered into evidence; there was no copy of
the company’s annual reports or any copy of his company’s statements of
account; and there was no copy of the major audit delivered on October 24,
2004. Mr. Rojas did not try to obtain copies of this documentation from the
accountant’s office. The panel rejected the explanation given by Mr. Rojas: the
originals of these documents were with Mr. Guillermo, who had them with him for
the complaint of October 27/28, 2004, and allegedly kept them, but
unfortunately Mr. Guillermo had disappeared as of November 12, 2004; so had Ms.
Barron and all her family afterwards. Mr. Rojas explained that there was no use
asking for a copy from the accountant because he had kept no documents, having
given them all to Guillermo on the grounds that the accountant did not want to
have any problems. He said he had no copy of the Sirius annual reports because
at that time he [TRANSLATION] “never thought it would be necessary”.
·
Several
contradictions:
(a) Inconsistencies
between his Personal Information Form (PIF) and port of entry report (PER). Mr.
Rojas stated in his PIF that he feared three persons, but the PER indicated
only the associates, not Mr. Penanieto (panel’s record, p. 143). The panel
rejected his explanation that this discrepancy in the PER was the fault of the
immigration officer or an interpretation problem. The panel considered that
there was no question here of a problem of comprehension, but rather an
omission which directly affected the applicant’s credibility.
(b) Contradiction
between his testimony and the documentary evidence, namely, whether in his
complaint of October 27/28, 2004, he had mentioned the fraudulent sale of the
company by his associates. He testified that he had not, which is completely
inaccurate because Exhibit P-7, a copy of the complaint, indicated that he had
complained to the police that Sirius had been sold by the associates without
the knowledge of the other shareholders. The panel rejected his explanation
that perhaps he had been mistaken, perhaps he had not fully understood the
question or perhaps he thought that the panel had asked questions regarding the
chartered accountant.
·
Problem
concerning the authenticity of the medical certificate filed by Mr. Rojas to corroborate the attack he
suffered on October 29, 2004: one box on top of the other, letters overlapping
one another, some words erased and written over. The applicant’s explanation
was that [TRANSLATION] “that’s a stamp on top of another, by mistake”.
·
Inconsistency
regarding the sale of the company. The applicant alleged that his associates had sold the
company to a third person (Ms. Ofelia) without authorization. As indicated
above, the panel found a contradiction on this point in his testimony. The
panel found it unlikely he did not know when this sale took place. Further, the
panel was surprised that he had not brought a civil action against his former
associates, in view of the company’s value.
·
Exaggerations
in Mr. Rojas’s testimony
regarding the threat. In its decision, the panel listed the following:
(a) In reply to
a question from the panel as to what interest his two associates would have in
sending people to cause him problems, since they had what they wanted, namely,
for Sirius’s money to be used to help Mr. Penanieto win his election, he
answered [TRANSLATION] “it was to eliminate all the clues…evidence that could
cause them problems with the IFE committee”. IFE is the committee responsible
for ensuring that elections are held properly. The panel wrote the following:
The claimant has
never been notified to appear for an IFE hearing. When the panel asked what he
could have proved had he been asked to appear at such a hearing, he answered,
[Translation] “I could have proved that the company’s money was being
misappropriated for votes for Enrique.” When the panel asked why he did not go
to the IFE himself, he said, [Translation] “But Guillermo had all of the
evidence.” When the panel pointed out to him that he could have given oral testimony,
he said, [Translation] “But at that time, I was under a lot of pressure from
those people and I did not want to put my family and my children at risk.”
The panel concluded that the applicant
had done nothing with the IFE that would have caused problems for Mr.
Penanieto.
(b) Mr. Rojas
testified he had always been afraid of Mr. Penanieto and said that he could
kill him and his family. The panel noted that Mr. Penanieto was not included in
his complaint and once again asked what danger he represented. Mr. Rojas
replied, [TRANSLATION] “He believes that I have enough evidence to incriminate
him”. The panel wrote the following: “However, the
claimant told the panel that he could not file a complaint against him at the
police station. He was supposedly told at the police station that he did not
have enough evidence to accuse Enrique and his party.” Since the latter’s name does not appear
anywhere in the copies of the complaints submitted as Exhibits P-7 and P-8, the
panel concluded as follows: “Again, no action was taken
against Mr. Penanieto.”
(c) In
connection with a reply by Mr. Rojas that his persecutors thought he had
[TRANSLATION] “[t]he power to bring to light, to make public, the fact that
they had committed fraud and that their campaign was illegal”, but in fact he
had not made the matter public, Mr. Rojas testified that his purpose was to
collect as much evidence as possible and conclude an alliance with the PRD and
be able to combat the PRI, Mr. Penanieto’s party. Mr. Rojas also testified that
a meeting had been scheduled between himself and Ms. Ofelia with the PRD
people, but she did not attend the meeting as she disappeared the same day. It
would appear she was in possession of a bank receipt establishing a deposit of
money from Sirius in one of the accounts of Mr. Penanieto’s political campaign.
To a question for the panel, Mr. Rojas admitted that he did not subsequently go
to the PRD party: [TRANSLATION] “They would not see me because the meeting was
in Ofelia’s name”. He did not arrange another meeting because he did not have
sufficient evidence and at this time he was under great pressure [TRANSLATION]
“because I was being followed in those days. I did not want to expose myself to
any risk”. The panel concluded the following:
Again, the claimant
took no action against this Mr. Penanieto, even though he had the
opportunity. Nor was any action taken against his two former associates.
Also, the claimant was asked whether his testimony could have had an impact on
Penanieto’s government, since he did not have any written proof against him. He
said, [Translation] “No, our plan was to collect as much evidence as possible
and establish an alliance with the PRD, and then we would fight the other party
(i.e. the PRI).” The claimant himself made that admission at the hearing. At
some point during the hearing, the claimant even told the panel that those
people would possibly come to persecute him in Canada. Seeing the panel’s
surprise, he said, [Translation] “Not the governor himself, but he could send someone.”
(d) Among his
many excuses for not having contacted the lawyer who was with them when his
complaint was filed, Mr. Rojas included his fear that his persecutors would
have contacted him, which would put him at risk if he spoke to him.
·
Inconsistency
between actions taken by applicant with counsel. The panel found Mr. Rojas not
credible due to the fact that when he was in Mexico he had not contacted the
lawyer who went with him to the police station. He testified that it was not he
who had hired the lawyer, it was Ms. Barron who had his contact information,
his address, and his telephone number. In reply to a question by the panel as
to whether he had tried to find him himself, he answered that he had tried to
locate him through the Internet in Canada without success, but had made no
attempts when he was in Mexico, adding the following: [TRANSLATION] “No, after
the kidnapping and threats that I endured, I did not want to stir things up”.
The panel was surprised that the second lawyer he retained for his complaint to
the Human Rights Commission could not locate the first lawyer, noting that
“those two lawyers had supposedly both worked in the State of Mexico”.
[12]
The panel
raised two other points leading to its finding that Mr. Rojas lacked
credibility. He testified that he had feared for his life starting in October
2004, but he did not flee until September 2005. Second, he contacted a second
lawyer despite the fact that he had not tried to contact the first lawyer
because he [TRANSLATION] “did not want to stir things up”.
Analysis
(a) Standard of review
[13]
An RPD
finding of a lack of credibility is a question of fact, for which the standard
of review is set out in paragraph 18.1(4)(d) of the Federal Courts
Act, which provides that this Court may set aside a decision of a federal
board, commission or other tribunal if it has “based its decision or order on
an erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it”, which is the equivalent of a patently
unreasonable decision.
(b) Principles
[14]
On the
plausibility of testimony, Mr. Justice Décary wrote in Aguebor v. Minister of Employment and
Immigration
(1993), 160 N.R. 315 (F.C.A.), at paragraph 4:
[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. 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.]
[15]
This is in
fact the conclusion arrived at by the Supreme Court of Canada in Mugesera v.
Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100,
ruling on a decision by the Appeal Division of the Immigration and Refugee
Board, at paragraph 38:
[38] On questions of fact, the reviewing court can
intervene only if it considers that the IAD “based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it” (Federal Court Act, s.
18.1(4)(d)). The IAD is entitled to base its decision on evidence
adduced in the proceedings which it considers credible and trustworthy in the
circumstances: s. 69.4(3) of the Immigration Act. Its
findings are entitled to great deference by the reviewing court. Indeed,
the FCA itself has held that the standard of review as regards issues of
credibility and relevance of evidence is patent unreasonableness: Aguebor
v. Minister of Employment & Immigration (1993), 160 N.R. 315, at para.
4. [Emphasis added.]
[16]
In
Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1
S.C.R. 793, Madam Justice L’Heureux-Dubé wrote the following at paragraph 85:
[85] We must remember that the standard of review on
the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New
Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest
J., at pp. 849 and 852. Courts must not revisit the facts or weigh the
evidence. Only where the evidence viewed reasonably is incapable of supporting
the tribunal’s findings will a fact finding be patently unreasonable. An
example is the allegation in this case, viz. that there is no evidence at all
for a significant element of the tribunal’s decision: see Toronto Board
of Education, supra, at para. 48, per Cory J.; Lester,
supra, at p. 669, per McLachlin J. Such a determination may well be
made without an in-depth examination of the record: National Corn Growers
Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per
Gonthier J., at p. 1370. [Emphasis
added.]
(c) Findings
[17]
Counsel
for the applicants argues that the panel erred in assessing Mr. Rojas’s credibility
as follows:
(1) It
drew unfavourable inferences based on pure speculation;
(2) Its decision was
turned on implausibility, based on extrinsic criteria;
(3) It
may make adverse findings about the implausibility of testimony, but such
findings should be made only in the clearest of cases, which is not the case
here (see Valtchev v. Minister of Citizenship and Immigration, 2001 FCTD
776; Ye v. Minister of Employment and Immigration, Federal Court of
Appeal, A-711-90);
(4) It
arbitrarily rejected the explanations given by the principal claimant: for
example, according to counsel, the context is important. Mr. Guillermo held 40%
of Sirius, which explained the control he had over the documents;
(5) It
rejected outright Exhibits P-6 to P-11, which corroborated and supported the
applicant’s claims; and
(6) All
the exaggerations noted by the panel were based on conjectures or hypotheses
and were not reasonable in the circumstances and in the context of an election.
[18]
I cannot
subscribe to the applicants’ arguments. I have read the transcripts of the
hearing of August 23, 2006, several times. I feel that the evidence which the
panel carefully considered supports each of the findings made. I do not
consider that the implausibilities or the inferences by the panel are so
unreasonable as to require the Court’s intervention. I cannot conclude that the
panel capriciously rejected the explanations given by Mr. Rojas.
[19]
In short,
in assessing credibility the panel was entitled to rely on criteria such as
reason and common sense (Shahamati v. Minister of Employment and Immigration,
[1994] F.C.J. No. 415 (C.A.)).
[20]
When I
examined and considered each of the arguments of counsel for the applicants, I
felt that she was asking me to reassess the evidence before the panel, which I
am not entitled to do.
[21]
For these
reasons, this application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that this application for
judicial review is dismissed. No question of importance was proposed.
“François
Lemieux”
____________________________
Judge
Certified
true translation
Susan
Deichert, Reviser
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