Date: 20091029
Docket: IMM-356-09
Citation: 2009 FC 1091
Ottawa, Ontario, October
29, 2009
PRESENT: The Honourable Mr.
Justice Pinard
BETWEEN:
Selvin
Manrique VILLEDA MEJIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act), of a decision delivered by the Refugee Protection Division (RPD) of the Immigration and Refugee Board on January 5, 2009, dismissing
the applicant’s refugee protection claim.
* * * * * * *
*
[2]
Selvin
Manrique Villeda Mejia (the applicant) is a citizen of Honduras. He is
claiming protection under section 96 and paragraph 97(1)(b) of the Act.
[3]
He
left Honduras on June 5,
2007, and travelled through Guatemala, Mexico and the
United States before he arrived in Canada on September 30, 2007, and
claimed protection in Canada on the same date.
[4]
The
applicant is alleging that his life is in danger in Honduras. He claimed
that when he returned home after a day of work on May 29, 2007, he was brutally
attacked and beaten by three men he said he did not know. The applicant
maintained that these men are connected to the Maras (a gang) and
that they allegedly demanded that he give them money, which he apparently did
not do.
[5]
His
brother-in-law purportedly accompanied him to the police station to file a
complaint. A police officer apparently falsely accused the applicant of
personally being a member of the Maras. The officer allegedly
questioned him at length on his activities and let him leave without doing
anything for him.
[6]
Later,
around 6:30 p.m. the same day, the applicant was at his cousin’s house when
three armed men apparently showed up at his sister’s house looking for him.
These men allegedly stayed outside until after 9 p.m. The applicant’s sister
purportedly told him not to go back home. That same night, he apparently left
for Masica, where his parents live.
[7]
On
June 2, 2007, these same men apparently arrived in Masica looking for him. Because
they did not know where his parents lived, a childhood friend was eventually able
to inform them of this. The applicant then purportedly left the house and hid.
[8]
The
men purportedly found the house and told the applicant’s mother that he was
already a dead man. According to the applicant, filing a complaint against them
was apparently considered treason against the “Organization”, which would not be
forgiven.
* * * * * * *
*
[9]
In
its decision, the RPD noted the following anomalies in the applicant’s version
of the facts:
§
The applicant
testified that he did not know the individuals who attacked him during his May 29,
2007, assault. Furthermore, the applicant could not explain why in his Personal
Information Form (“PIF”) he stated that the date of the assault was rather
March 29.
§
The applicant
mentioned in his PIF that he was brutally beaten, but he testified that he only
had some bruises.
[10] As the panel had
not received any document corroborating the applicant’s allegations, it found
that he had not demonstrated that his account was true on a balance of
probabilities.
[11] Even if the
panel did not specifically state that the applicant was not credible, it
clearly did not believe him; it found that he had not discharged his burden of
demonstrating a well-founded fear of persecution in Honduras or that he would
be subject to the alleged risks and threats.
[12] In addition,
the panel found that this was a case of criminality, that the applicant was not
personally targeted, that there is a generalized risk of criminality in Honduras and that the
applicant had not established that he was exposed to a different risk from the
risk faced by other Hondurans. Therefore, the panel found that this was not a
case of an imputed political opinion.
[13] Finally, the
panel did not make a finding on the state’s ability to protect the applicant
because he had not discharged his burden of demonstrating the grounds for his
fear.
* * * * * * *
*
[14] Where the question is one of fact established in the
exercise of discretion, the standard of review is reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at paragraph 53). Credibility findings
are generally not open to judicial review. According to the Federal
Court of Appeal in Aguebor v. Canada (M.E.I.), 160 N.R. 315, at
paragraph 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. . . .
[15] The
applicant’s counsel stated that the applicant drew the panel’s attention to the
fact that there was a clerical error in his PIF and that it should have read “mai”
(TRANSLATION: May) and not “mas [sic]” 2007. However, the RPD noted the
following at paragraph 11 of its decision:
The claimant testified that he does not
know the individuals who attacked him during his May 29, 2007, assault.
Furthermore, the claimant could not explain why in his PIF he stated
that the date of the assault was rather March 29. . . .
(Emphasis
added.)
[16] For this
reason, the applicant maintains that the panel made a finding without
considering the facts presented at the hearing, The applicant’s statement
cannot be verified as the transcript of the hearing before the panel has not
been filed.
[17] In any case, there
are other reasons to support the finding that the applicant was not credible.
In fact, the panel also noted a contradiction between the applicant’s allegations
in his testimony and in his PIF with respect to the intensity of the assault he
claims to have suffered. Additionally, it noted that no document or other
evidence had been filed to justify the applicant’s allegations.
[18] The presumption
that a claimant’s sworn testimony is true is always rebuttable. The panel
cannot require corroborating documents for a claimant’s submissions, but it can
raise the absence of relevant documentary evidence if it finds contradictions or
inconsistencies in the claimant’s testimony. In this case, the panel was
justified in raising the absence of evidence, be it a medical report confirming
the alleged injuries or a copy of the complaint filed with police.
[19] The applicant
also alleged that the panel did not observe the principles of natural justice
or procedural fairness because its reasons are not sufficient. I do not accept
this submission.
[20] First,
the panel did not accept the argument that the applicant has an imputed
political opinion. The panel wrote: “the panel’s analysis was conducted in
relation to section 97” and “that this is a case of criminality and that the
claimant was not personally targeted.” Furthermore, the panel did not disregard
the applicant’s statement in his affidavit that he had been personally
threatened; the panel simply did not believe the applicant’s account. The
finding of a lack of credibility in a claimant’s testimony may extend to all
submissions emanating from this testimony; in Singh v. The
Minister of Citizenship and Immigration, 2001 FCT 472, at
paragraph 19, Justice Edmond Blanchard accepted the following:
Since credibility is at the root of
testimony before the Refugee Division, this Court has repeatedly taken the
position of MacGuigan J.A. in Sheikh v. Canada (M.E.I.), [1990] 3 F.C.
238 (F.C.A), that a general finding of a lack of credibility on the part of the
applicant may conceivably extend to all relevant evidence emanating from his
testimony.
[21] The
panel thus rejected the applicant’s allegation that he was subject to a different
risk from the risk faced by other Hondurans. The panel also accepted the
alleged event that occurred on May 29, 2007, as a generalized risk of
criminality.
[22] Therefore,
I accept the respondent’s argument that the reasons provided by the panel, although
succinct, are clear and intelligible and make it possible for the applicant to
understand why his refugee claim was rejected.
*
* * * * * * *
[23] For
all of these reasons, the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review of the decision dated January 5, 2009, by the Refugee Protection Division of the Immigration and Refugee Board is dismissed.
“Yvon
Pinard”
Certified
true translation
Janine
Anderson, Translator
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