Date: 20090505
Docket: IMM-4201-08
Citation: 2009 FC 451
Ottawa, Ontario,
May 5, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
MARINA
HAYDEE bAENA ESPEJEL
MARIA JUANA ESPEJEL JUAREZ
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The principal applicant, Marina Haydee Baena
Espejel, is applying under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision made
on August 12, 2008 by the Refugee Protection Division of the Immigration and
Refugee Board (panel) that she and her mother Maria Juana Espejel Juarez are
neither “refugees” nor “persons in need of protection” within the meaning of sections
96 and 97 of the Act and therefore rejecting their claim for refugee protection.
II Facts
[2]
A citizen
of Mexico like her mother, the
principal applicant alleges a fear of persecution by her former common law
spouse, Raul
Tapia Bustos, a federal police officer who was employed
by the Federal Investigation Agency (Agencia Federal de Investigación – AFI).
[3]
Alleging
that she was beaten by him on January 15, 2007, the principal applicant claims
to have filed a complaint against him on January 16, 2007 with a sex crimes officer, before
moving with her mother to another locality. They then moved a second time to
another city in April 2007, after believing that the ex-spouse had followed
them.
[4]
After her
ex-spouse tracked her down to her new refuge and beat her again, the principal
applicant lodged another complaint on July 2, 2007, this time with an official
with the Attorney General’s office in Tlalixcoyan.
[5]
Feeling
that they could not find a safe haven in Mexico, on August 8, 2007 the
applicants left their country to seek refugee protection in Canada.
III. Impugned
decision
IV. Issue
[7]
Did the panel err unreasonably in finding that the narrative underlying
the principal applicant’s claim was not credible?
V. Analysis
Applicable standard of review
[8]
The panel’s
decision is based on the lack of credibility of the principal applicant’s narrative.
It is well settled that assessing the credibility of witnesses is within the jurisdiction
of the panel, which has the expertise to analyze and weigh questions of fact in
order to assess the credibility and subjective fear of persecution of a refugee
claimant (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration, [1998] F.C.J. No. 1425 (QL), at paragraph 14).
[9]
In an
application for judicial review that involves questions of credibility, the applicable
standard of review is reasonableness, as defined in Dunsmuir v. New
Brunswick,
2008 SCC 9. The Court must therefore show great deference because it is up to
the panel to assess an applicant’s testimony and determine his credibility. If
the panel’s findings are reasonable, there is no reason to intervene. However,
the panel’s decision must be based on the evidence; it must not be made arbitrarily
on the basis of erroneous findings of fact or without regard for key evidence
before it (Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 100, at paragraph 38).
VI. Analysis
Parties’
submissions
[10]
The
applicants submit that the panel erred unreasonably by not ascribing any
credibility to them and completely ignored the Guidelines
on Women Refugee Claimants Fearing Gender-Related Persecution (Guidelines) as
well as the documentary evidence corroborating their narrative.
[11]
The
Minister defends the conclusions drawn by the panel from its analysis of the
evidence, based on its expertise, and maintains that it was up to the
applicants to provide evidence of the principal facts underlying their claims.
What are the merits of these arguments?
Credibility
of the principal applicant
a. No document filed in evidence to
show that the principal applicant and her former spouse Mr. Bustos lived
together or to indicate where they lived;
b. No document attesting that
the ex-spouse worked as an officer with the AFI;
c. Authenticity
of the informations of January 16, 2007 and July 2, 2007 questionable owing to
the principal applicant’s failure to provide acceptable explanations for the
absence on the two documents in question of the official letterhead, address
and file number that generally appear on such documents from Mexican authorities.
[13]
The
panel could, for the reasons indicated in its decision, doubt the authenticity
of the documents provided by the principal applicant to corroborate her
testimony on the two complaints of conjugal violence against her ex-spouse
filed with the Mexican authorities. Yet those complaints are the very basis of
the principal applicant’s claims regarding the steps she took to seek the
protection of the Mexican government.
[14]
The
applicants argue that the panel failed to consider all of the evidence they submitted
to it and that consequently its decision is unreasonable. It should be noted
that the panel is free to choose what evidence it deems important or reliable.
It is not up to this Court or the applicants to determine what evidence affects
or does not affect their credibility and what evidence the panel should or
should not have accepted.
[15]
Moreover,
the panel is deemed to have considered all the evidence that was before it (Florea
v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL). When a panel
finds that a refugee claimant is not credible, as is the case here, it is not
required to explain why it did not give probative value to the documents which
purport to substantiate the opposite of those it considers not credible or
reliable (Ahmad v. Canada (Minister of Citizenship and Immigration),
2003 FCT 471, at paragraph 26).
[16]
It
is not enough for the applicant to argue that the panel did not consider all
the evidence. Because here, contrary to the applicants’ allegations, the panel
in its decision does appear to have considered all the evidence before it,
except that it did not give it the same corroborative weight as the applicants
do.
[17]
The
applicants claim that by requiring corroboration of their narrative through tangible
evidence, the panel subjected them to an overly exacting burden of proof.
However, this Court has consistently held that it is up to refugee claimants to
provide evidence in support of their claims when the panel doubts their credibility
(Singh v. Canada (Minister of Citizenship and Immigration), 2007 FC 62, at
paragraph 28). Consequently, it was up to the applicants to bolster their
credibility with objective evidence and sufficient explanations to dispel the
doubts reflected in the panel’s questions.
[18]
The
panel was not required to accept at face value all the documents put before it
by the applicants to corroborate their narrative. It could question the
authenticity of some of these documents and request explanations from the
applicants. Requesting explanations to dispel the panel’s doubts about their
story did not impose an obligation to achieve a result or an excessive burden on
the applicants since it was up to them to convince the panel of the merits of
their claims.
[19]
In
attempting to convince the Court that the panel erred in drawing negative
inferences from the evidence regarding their credibility, the applicants are
seeking to justify the evidence that the panel dismissed as a corroboration of
their narrative because it considered it unreliable or unsatisfactory. It
should be noted that the applicants had every opportunity to convince the panel,
but unfortunately did not succeed in doing so.
[20]
In
the case at bar, the applicants are merely repeating the same allegations that
the panel already assessed, when it is not up to this Court to repeat the panel’s
exercise and reassess the evidence. This is particularly so because the panel
has the expertise and the unique advantage of having heard the applicants on
their claims. The panel remains best qualified to determine how credible the
applicants’ narrative might be.
[21]
The
Court must only determine whether the panel’s decision is warranted and
reasonable, or unreasonable as the applicants claim. Decisions regarding an
applicant’s credibility constitute “the heartland of the discretion of triers
of fact” and must be given considerable deference upon judicial review (Dunsmuir,
above). They cannot be overturned unless they
are perverse, capricious or made without regard to the evidence (Siad v.
Canada (Secretary of State) (C.A.), [1997] 1 F.C. 608, at paragraph 24). To
succeed, the applicants had to show the Court how and why the decision they
were challenging was unreasonable, rather than simply making a general
statement to that effect and repeating the same allegations already made before
the panel.
[22]
The
panel could draw negative inferences about the credibility of the principal
applicant. These inferences were justified by the quality of the evidence
placed before the panel, so the Court does not see how or why these inferences
and the conclusion reached by the panel are unreasonable.
[23]
As for the
medical report by Dr. de Margerie that was adduced to corroborate the fact that
the principal applicant had been the victim of conjugal violence at the hands
of her ex-spouse, it should not be given too much weight. The report limits
itself to noting that the principal applicant currently suffers from
post-traumatic stress which could be attributed to conjugal violence. However,
this report was written for the purposes of the applicant’s claim, and the
medical expert neither heard nor was able to assess the patient’s testimony.
Its conclusion is based on what the applicant chose to report. However, it was
up to the panel to assess the impact of this report on the principal
applicant’s credibility. It is in no way unreasonable for the panel to consider
as non-corroborative a report that was not written at the time of the events
described by the applicant
and that was based, furthermore, on allegations that were not deemed credible.
[24]
The
applicants also accuse the panel of having failed to consider Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution (Guidelines) while assessing the principal
applicant’s testimony.
[25]
The
Court has reviewed the transcript and does not share this view. On the
contrary, the panel appears to have shown a great deal of empathy towards the
applicants, both in its efforts to reassure them and in its questions. In its
decision, the panel does not merely recite the Guidelines. The panel clearly
puts the Guidelines into practice in paragraph 18 of its decision when it
accepts as reasonable the principal applicant’s explanation as to why she did
not reveal to the hospital authorities in her country the real cause of the
injuries for which she was seeking treatment.
[26]
In
the Court’s opinion, based on the evidence, the panel was justified in finding
that the principal applicant and her mother lacked credibility and in deciding
that they had not shown that they qualified as refugees and persons
in need of protection within the meaning of the Act, and in rejecting their
claim for refugee protection.
[27]
Accordingly,
the Court finds that the decision is not unreasonable and therefore dismisses
the application for review. Since no serious question of general importance was
proposed or should be proposed, no question will be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
"Maurice E. Lagacé"
Certified
true translation
Brian
McCordick, Translator
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