Date: 20091210
Docket: IMM-2267-09
Citation:
2009 FC 1262
Ottawa, Ontario, December 10, 2009
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
FERNANDO QUINTERO CIENFUEGOS
Ivonne becerril
canul
Axel quintero
becerril
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
This
Court has repeatedly confirmed that the accumulation of contradictions between a
claimant’s testimony, port of entry statements and Personal Information Form
(PIF) or that of another claimant, as well as the omission of elements in the
PIF that are crucial to his or her claim may legitimately serve as a basis for
a negative credibility finding (Eustace v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1553, 144 A.C.W.S. (3d) 132 at para. 6, 10-11; Tejeda
v. Canada (Minister of Citizenship and Immigration), 2009 FC 421, [2009] F.C.J.
No. 542 (QL) at para. 15; Olmos v. Canada (Minister of Citizenship and
Immigration), 2008 FC 809, 169 A.C.W.S. (3d) 622 at para. 32; Alonso v.
Canada (Minister of Citizenship and Immigration), 2008 FC 683, 170 A.C.W.S.
(3d) 162 at para. 9; Koval’ok v. Canada (Minister of Citizenship and
Immigration) 2008 FC 145, 164 A.C.W.S. (3d) 676 at para. 24-26).
[2]
Indeed,
evaluating the evidence, and, in particular, an applicant’s credibility, is
within the expertise of the Board. Consequently, the Court must show significant
deference to this type of finding:
[16] The RPD has a
well-established expertise in determining questions of facts, particularly,
as is the case here, in the evaluation of the applicant’s credibility and
subjective fear of persecution. The Court will not intervene in findings of
fact reached by the RPD unless they are found to be unreasonable,
capricious or unsupported by the evidence (Aguebor v. Canada (Minister of
Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 732; Navarro,
above at paragraph 18) . . . (Emphasis added).
(Serrato v. Canada (Minister of
Citizenship and Immigration), 2009 FC 176, [2009] F.C.J. No. 220 (QL); also,
Hassan v. Canada (Minister of Citizenship and Immigration), 2007 FC
1324, 166 A.C.W.S. (3d) 319 at para. 12; Mugambi v. Canada (Minister of
Citizenship and Immigration, 2005 FC 1155, 142 A.C.W.S. (3d) 314 at para.
15; Bergeron v. Canada (Minister of Citizenship and Immigration), 2008 FC
456, [2008] F.C.J. 586 (QL) at para. 12).
II. Introduction
[3]
This
is an application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (Board) dated April 1, 2009,
determining that the applicants are not “Convention refugees” or “persons in
need of protection” under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA).
[4]
That
decision was based on the applicants’ lack of credibility and the availability
of state protection.
III. Facts
[5]
The
applicants, a man, his wife and their son are Mexican citizens. The refugee
claim turns on the narrative of Mr. Fernando Quintero Cienfuegos, the principal
applicant.
[6]
The
applicants’ difficulties purportedly began when Mr. Quintero Cienfuegos’
father, who had worked for the Institutional Revolution Party (IRP), left that
party for the Party of the Democratic Revolution (PDR).
[7]
Mr.
Quintero Cienfuegos’ parents left Mexico for Canada where they
sought refugee protection following alleged threats by IRP members against Mr. Quintero
Cienfuegos’ father.
[8]
The
applicants claim that they fear for their life because certain members of the
IRP who were looking for Mr. Quintero Cienfuegos’ father made death threats against
them.
IV. Issue
[9]
Is
the Board’s decision reasonable?
V. Analysis
[10]
The
Court concurs with the respondent.
[11]
The
Board’s decision is based on the evidence adduced, can be reasonably inferred
from it and complies with the applicable legal principles.
A. Credibility
a. The
applicants are not credible
[12]
After
considering all the evidence, the Board found that the applicants were not
credible because of numerous failings concerning essential elements of their
refugee claims that tarnished their evidence.
[13]
The
Board identified a number of inconsistencies in the applicants’ evidence.
[14]
First,
the Board observed that Mr. Quintero Cienfuegos’ testimony contradicted his port
of entry statements as to whether he knew the identity of his persecutors. Mr. Quintero Cienfuegos
indicated at the port of entry that he did not know who his persecutors were;
however, he stated at the hearing that his persecutor, one Toribio, was an IRP employee
responsible for transportation. Mr. Quintero Cienfuegos was unable to justify
this inconsistency to the Board’s satisfaction (Decision at pp. 3-4 at para.
11-12).
[15]
Second,
Mr. Quintero Cienfuegos gave evidence contradicting his father’s PIF about the
date his father left the IRP in November 2005, while his father stated in his PIF
that he left in February 2006 (Decision at p. 4 at para. 13).
[16]
In
addition, the Board emphasized the fact that when it confronted Mr. Quintero
Cienfuegos about this, he did not provide an explanation but attempted to “get around the question
by giving an answer that had nothing to do with the question put to him” (Decision at
p. 4, para. 13).
[17]
Next, the Board noted
a significant omission in the applicants’ PIF that pertains to the core issue
of their refugee claims.
[18]
They
did not state that Toribio was looking for Mr. Quintero Cienfuegos because he
knew that Mr. Quintero Cienfuegos was aware of the fraud he had committed when
he was responsible for transportation at the IRP.
[19]
Mr.
Quintero Cienfuegos was unable to justify this omission because he himself had
testified that he was aware of this information before he left Mexico. In fact, it
was because of this information that his father recommended he come to Canada to seek
refugee protection.
b. The
merits of the Board’s decision
[20]
In
light of the foregoing, it was open to the Board to determine that these inconsistencies
and omissions undermined the applicants’ credibility.
[21]
This
Court also held in Moscol v. Canada (Minister of Citizenship and Immigration),
2008 FC 657, 170 A.C.W.S. (3d) 604, that the Board can make a negative
credibility finding against a refugee claimant based on a single false
statement made to an immigration officer at the port of entry:
[21] The case law states that
differences between the claimant’s statement at the port of entry and the
claimant’s testimony are enough to justify a negative credibility finding when
these contradictions bear on elements that are central to the claim: Chen v.
Canada (Minister of Citizenship and Immigration), 2005 FC 767, [2005]
F.C.J. No. 959 (QL), at paragraph 23 and Neame v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 378
(QL). Further, the RPD is entitled to assess a claimant’s credibility based
on a single inconsistency where the impugned evidence is a significant
aspect of the claim: see Nsombo v. Canada (Minister of Citizenship and Immigration), 2004 FC 505, [2004]
F.C.J. No. 648 (QL).
(Emphasis added)
[22]
A
claimant’s demeanour while testifying is another recognized ground for making a
negative credibility finding (Singh v. Canada (Minister of
Citizenship and Immigration), 2007 FC 62, 159 A.C.W.S. (3d) 568 at para.
13-14).
[23]
Additionally,
with respect, the applicants’ Memorandum does not advance any argument that
could invalidate the Board’s decision in its entirety.
[24]
In
fact, the applicants disputed only one of the Board’s negative credibility
findings (Applicants’ Record (AR) at pp. 19-20, para. 6-12).
[25]
The
negative credibility finding is determinative per se, and the failure to
prove that it is unreasonable is sufficient to defeat this application (Salim
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1592, 144
A.C.W.S. (3d) 326 at para. 31; Chan v. Canada (Minister of Citizenship and
Immigration) [1995] 3 S.C.R. 593, 58 A.C.W.S. (3d) 287 at para. 147).
[26]
The
findings that were not challenged must be presumed to be true and constitute a
sufficient basis for justifying the dismissal of this application for judicial
review.
[27]
In
addition, with respect to the applicants’ submissions in their Memorandum that the
Board did not take into consideration Mr. Quintero Cienfuegos’s testimony and
explanations about his fear of persecution (AR at p. 20), based on the facts in
the record and the evidence, the Board determined that the applicants were not
credible. As this Court stated recently:
[13] The Applicants challenge the
Board’s credibility findings with broad assertions that the Board essentially
got it wrong. They say that their explanations for the matters of concern
to the Board were reasonable and that the testimonial failings identified by
the Board were not important. While acknowledging that there were
“problems” with Ms. Mantilla Cortes’ evidence, the Applicants contend that the
Board’s reasons for rejecting that testimony involve minutia and failed to
address the central aspects of their allegations of persecution.
[14] The fundamental problem with
this argument is that the weaknesses in Ms. Mantilla Cortes’ testimony
went far beyond matters of insignificant detail. As counsel for the
Respondent accurately pointed out, Ms. Mantilla Cortes was frequently
inconsistent about the identity of the agents of persecution and, in that
regard, gave evidence that was contradictory to the statements provided by other
members of her family. The Board also noted Ms. Mantilla Cortes’
vagueness about the details of the ransom allegedly paid on behalf of her
brother and it identified several important omissions and inconsistencies among
the various narratives provided by Ms. Mantilla Cortes and by other
members of the family concerning material aspects of the alleged
persecution. Finally, the Board was not impressed by Ms. Mantilla Cortes’
demeanour and it specifically noted a lack of spontaneity in her responses to
key questions.
[15] It is not the role of the Court
on judicial review to re-weigh the evidence or to draw its own inferences from
that evidence. The Board is, after all, in the best position to assess
the credibility of the witnesses who appear before it. Here the Board’s
credibility findings were reasonably supported by the evidence and I am,
therefore, not satisfied that the Board erred in this aspect of its
analysis.
(Cortes v. Canada (Minister of
Citizenship and Immigration), 2008 FC 254, 165 A.C.W.S. (3d) 509).
[28]
The
Board correctly assessed the merits of the applicants’ fear.
[29]
It
is the Board’s role to assess the evidence adduced and to draw the necessary
inferences from it (Javaid v. Canada (Minister of Citizenship and Immigration),
2004 FC 205, 129 A.C.W.S. (3d) 169 at para. 24; Velinova v. Canada (Minister
of Citizenship and Immigration), 2008 FC 268, 324 F.T.R. 180 at para. 21; Saleem
v. Canada (Minister of Citizenship and Immigration), 2008 FC 389,
166 A.C.W.S. (3d) 321 at para. 37; Naar v. Canada (Minister of Citizenship
and Immigration), 2007 FC 1298, 163 A.C.W.S. (3d) 116 at para. 268).
[30]
Essentially,
the applicants are asking this Court to reassess the evidence and to substitute
its opinion for the Board’s. The principle is clear: judicial review does not
permit the Court to reweigh the evidence. In Zrig v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 178, the Court of Appeal confirmed
this principle in unequivocal terms:
[42] . . . What the appellant is actually asking
this Court to do is what we cannot do on an application for judicial review,
that is, to reassess the evidence that was before the Refugee Division.
(Also, Kar v. Canada (Minister of
Citizenship and Immigration), 2009 FC 143, [2009] F.C.J. No. 171 (QL); Gutierrez
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 487, [2009] F.C.J. No. 617 (QL) at
para. 14).
[31]
In
light of the foregoing, the Board’s decision is reasonable, and the
intervention of this Court is not warranted.
B. Availability
of state protection
[32]
Even
if the Board had found the applicants credible, it concluded, after analyzing all
the evidence, that the applicants had not rebutted the presumption of state
protection through clear and convincing evidence (Decision at p. 5, para. 17; Canada
(Minister of Citizenship and Immigration) v. Carillo, 2008 FCA 94,
[2008] 4 F.C.R. 636 at para. 26, 30, 38; Sosa v. Canada (Minister of
Citizenship and Immigration), 2009 FC 275, [2009] F.C.J. No. 343 (QL) at
para. 23; Pacasum v. Canada (Minister of Citizenship and Immigration),
2008 FC 822, [2009] F.C.J. No. 1024 (QL) at para. 22).
[33]
In
fact, the applicants simply did not give the Mexican authorities any
opportunity to protect them. They did not file a complaint with the police or
the public prosecutor’s office (Decision at p. 5, para. 18). Moreover, the
applicants admitted this in their Memorandum (AR at p. 21, para. 15). Instead,
the applicants chose to come to Canada even though a refugee protection claim
in a state that is a signatory to the Convention must be a solution of last
resort (Lopez v. Canada (Minister of Citizenship and Immigration), 2007 FC
198, 165 A.C.W.S. (3d) 514 at para. 22).
[34]
Thus,
it was completely legitimate for the Board to determine that the applicants did
not rebut the presumption of state protection. The following comments from the
decision in Ramirez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1214, [2008] F.C.J. No. 1533 (QL),
are relevant:
[27] The applicant did not follow
up on the report she filed belatedly against her ex-spouse nor did she seek
assistance from organizations that protect battered women; she simply sought
refuge with family and told her in-laws what her ex-spouse had done. How can
she now conclude that her country’s protection was ineffective when she did not
really test it seriously?
[28] The onus was on the applicant
to first seek protection from the Mexican state before asking another country
for protection. She says she did not do so because she did not believe that the
protection provided in Mexico for women in her situation was effective. Doubting the
effectiveness of state protection when she did not really test it does not
rebut the presumption of state protection in her country of origin. (Emphasis added).
[35]
As
for the applicants’ submissions that they did not file a complaint because the
one filed by Mr. Fernando Quintero Cienfuegos’ father had not been followed up,
the Board was correct in finding that this was not sufficient to rebut the
presumption of state protection. This Court has repeatedly stated that evidence
that one or more police officers refused to act on a refugee claimant’s
complaint or that an investigation led nowhere is not sufficient. That cannot
be the basis for automatically finding that state protection is not available (Navarro
v. Canada (Minister of Citizenship and Immigration), 2008 FC 358,
169 A.C.W.S. (3d) 626 at para. 15-17; Villasenor v. Canada (Minister
of Citizenship and Immigration), 2006 FC 1080, 157 A.C.W.S. (3d) 818 at
para. 15; Chagoya v. Canada (Minister of Citizenship and Immigration),
2008 FC 721, [2008] F.C.J. No. 908 (QL) at para. 4; Kadenko v. Canada (Minister
of Citizenship and Immigration) (1996), 206 N.R. 272, 68 A.C.W.S. (3d) 334;
Santos v. Canada (Minister of Citizenship and Immigration), 2007 FC
793, 159 A.C.W.S. (3d) 267 at para. 15).
[36]
Moreover,
with respect to their argument that even if they had filed a complaint, nothing
would have happened because of the generalized corruption that prevails in
Mexico, it is clear from the reasons for decision that, after weighing the credible
objective documentary evidence, the Board acknowledged that the situation in Mexico is not
perfect. That being said, the Board noted that Mexico’s protection is available
in this case and that the Mexican authorities are making serious efforts to
protect the population and that “there are institutions and organizations in that
country that function normally”. (Decision at p. 6 at para. 20-21).
[37]
On
more than one occasion, this Court has upheld decisions determining that the presumption
of state protection has not been rebutted in a Mexican context (Sosa v.
Canada (Minister of Citizenship and Immigration), 2009 FC 275 at para.
22; Gutierrez, above, at para. 17; Luna v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1132, [2008] F.C.J. No. 1501 (QL) at
para. 14; Sanchez v. Canada (Minister of Citizenship and Immigration),
2008 FC 134, 165 A.C.W.S. (3d) 336 at para. 12; Navarro, above, at para.
17; De la Rosa v. Canada (Minister of Citizenship and Immigration),
2008 FC 83, 164 A.C.W.S. (3d) 497 at para. 11).
[38]
Thus,
the Board was justified in determining that, in the circumstances of this case,
the applicants had not done what was required to take advantage of their
country’s protection.
[39]
The
finding concerning the availability of state protection is sufficient per se
to dismiss the applicants’ application (Gutierrez, above, at para. 11; Munoz
v. Canada (Minister of Citizenship and Immigration), 2008 FC 648,
167 A.C.W.S. (3d) 960, at para. 18; Richardson v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1009, 160 A.C.W.S. (3d) 855 at para.
14-17).
VI. Conclusion
[40]
The
applicants did not put forward any serious argument regarding the Board’s determination
that state protection was available, that could support a finding by this Court
that the Board’s reasons are perverse, capricious or completely unfounded.
[41]
Based
on the foregoing, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1. the applicant’s application for
judicial review is dismissed;
2. no
question of serious question of general importance is certified.
“Michel M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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