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Federal Court
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Cour fédérale
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Date: 20090520
Docket:
IMM-4644-08
Citation: 2009 FC 519
Ottawa, Ontario, May
20, 2009
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
JAIME
ULISES SAHAGUN LOPEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is a Mexican citizen. He is challenging the lawfulness of the
decision by the Refugee Protection Division of the
Immigration and Refugee Board (Board)
dated September 30, 2008, that he is not a Convention refugee or a
person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act).
[2]
The
applicant maintains that he was confined for several hours when he arrived home
on March 23, 2007. Subsequently, on April 8, 2007, the applicant was allegedly
threatened by his kidnappers in a telephone call received at the home where he
lived with his parents. He maintains that, ever since, he has been threatened on
the telephone by these same criminals who remain unknown.
[3]
The Board’s
entire analysis addressed the applicant’s status as a “person in need of
protection”, his refugee claim not being justified on any grounds of
persecution stated in section 96 of the Act. This case involves determining
whether the conditions of section 97 were met. Although the allegation of a
spontaneous kidnapping was not questioned, the Board did not believe the
account of subsequent threats. When the applicant was initially questioned
about this during his testimony before the Board, he failed to refer to the threats
made against him on April 8, 2007. However, it should be noted that the
applicant testified about these threats when questioned by his counsel. Alternatively,
the Board found that the risk posed by the criminals making the threats against
the applicant no longer exists today. If it did, it would have already
materialized since the said criminals are in possession of sufficient
information to find the applicant.
[4]
Today, the
applicant maintains that the Board failed to consider the documentary evidence
in the record, namely, an information written by the applicant on April 17,
2007, and filed with the public prosecutor’s office of the Federal District. This information corroborates
the applicant’s account with regard to the threats he was allegedly victim to. Consequently,
it is submitted that the Board’s failure to consider this evidence that
confirms the truthfulness of the applicant’s allegations warrants the
intervention of this Court on this basis alone. The Board therefore allegedly erred
in judging the applicant not credible.
[5]
The issue of
the applicant’s credibility and the assessment of evidence attracts a high level
of deference towards the Board’s decision, in which case, it is not for this Court,
in an application for judicial review, to reassess the evidence and to substitute
its opinion for that of the Board (Aguebor v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL), 160 N.R. 315. In
short, this Court will intervene only if the Board’s decision was based on an erroneous finding of fact, made in a perverse or capricious
manner or without regard for the material before the Board (paragraph 18.1(4)(d) of
the Federal Courts Act, R.C.S. 1985, c. F-7; Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir); Navarro v. Canada (Minister of Citizenship and Immigration),
2008 FC 358,
[2008] F.C.J. No. 463 (QL) at paragraph 14; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (Khosa)
at paragraph 46).
[6]
In Dunsmuir,
the Supreme Court’s judgment specifies that reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process, as well as whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and the law (Dunsmuir at paragraph 47; Khosa at paragraph 59).
[7]
The Court
does not have any valid reason to intervene here, the Board’s decision being in
all respects reasonable under the circumstances.
[8]
In this
case, despite the evidence submitted, the Board found that the applicant was not
credible. The Board’s analysis clearly addressed the reasons why it did not
believe the applicant’s account of threats. In support of this finding of a lack
of credibility concerning an essential element of the claim, the Board set out
the reasons why it could not give credence to the applicant’s testimony, namely,
the omission and lack of spontaneity of the applicant’s answers with respect to
the threats of which he was purportedly victim. Consequently, it was open to the Board to
gauge the credibility of the applicant’s testimony and to draw the necessary
inferences even when there was documentary evidence supporting the allegations
found not credible (Hamid v. Canada (Minister of Employment and Immigration),
[1995] F.C.J. No. 1293 at paragraph 20, 58 A.C.W.S. (3d) 469 (F.C.T.D.); Songue
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1020
at paragraphs 10-13, 66 A.C.W.S. (3d) 113 (F.C.T.D.). Finally, it is established
that the Board does not have to refer expressly to each piece of evidence
analyzed and the probative value attached thereto (Ali v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 558, 112
F.T.R. 9 (F.C.T.D.).
[9]
Additionally,
the impugned decision also sets out the Board’s analysis with respect to the
existence of elements by which the objectivity of the alleged risk can be
established for the purposes of section 97 of the Act. In short, it was up to
the applicant to demonstrate, on a balance of probabilities, the personalized
risk of which he claimed to be a victim as well as to establish how this risk still
remains probable in light of the conditions and the scope of state protection available
to the applicant in his country of origin and according to the characteristics of
the persons who embody the alleged risk in this case.
[10]
Consequently,
I am of the opinion that the applicant failed to meet the burden of
demonstrating that the Board’s findings are unreasonable. This application for
judicial review must therefore be dismissed. Counsel for both parties agree
that there is no question of general importance raised in this case.
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