Date: 20090723
Docket: IMM-4443-08
Citation: 2009 FC 750
Montréal,
Quebec, July 23,
2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ADAN
DARIO RESENDIZ BELLO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dated September 14, 2008, wherein the Board determined
that the applicant was not a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97 of the Act.
Issues
[2]
The
only issue to be determined in this case is whether the Board committed a
reviewable error in its assessment of the applicant’s credibility.
[3]
For
the reasons that follow, the judicial review application shall be dismissed.
[4]
The
applicant is a 31-year-old citizen of Mexico who claims to have a
well-founded fear of persecution at the hands of commander Rafael Villalobos,
Miguel Angel Cervantes Islas and Hector Javier Cervantes, who are all allegedly
involved in drug trafficking.
[5]
The
applicant practises martial arts and he was teaching young offenders in order
to break their drug dependency and their criminal habits.
[6]
The
applicant learned that some of his students were involved with drug trafficking
gangs under the orders of commander Rafael Villalobos with Miguel Angel and
Javier Cervantes. The applicant also noticed that some of his students were
skipping his classes and some showed signs of physical violence.
[7]
Some
of the students who were rehabilitated did not want to work for Villalobos any
longer, and the applicant was told that the area’s residents had alerted
authorities about the situation in the past, but to no avail. The applicant
informed his superior of what his students were doing and his supervisor
recommended that he get rid of the undesirable elements.
[8]
The
applicant filed a complaint against Rafael Villalobos and Hector Javier
Cervantes on May 27, 2006. As a consequence, on July 4, 2006, the applicant
was kidnapped, beaten and threatened with death. The applicant then filed a
complaint and fearing for his life, on July 6, 2006, he left Querétaro to hide
500 kilometres away in Poza Rica, state of Veracruz, where he
remained in hiding for 11 weeks. The applicant alleged that the federal
district police officers were probably able to gather information about him
because he had once lived with his grandmother in Poza Rica.
[9]
The
applicant left Mexico for Canada on October 16, 2006 and
he claimed refugee status on October 23, 2006. The applicant’s case was heard
on January 15, 2008 and May 6, 2008.
Impugned Decision
[10]
The
Board concluded that the applicant was not credible and that there was no
credible basis for his claim.
[11]
The
applicant stated that one of his students worked for someone known as commander
Villalobos. When the Board asked the applicant to explain what Villalobos did, he
stated that one of his students told him that Villalobos is a commander. The applicant
did not know any details himself and the Board noted that he was unable to
provide any evidence that he actually exists.
[12]
The
applicant filed a newspaper article from the Diario de Querétaro dated
November 7, 2006, which was before the applicant signed his Personal
Information Form (PIF) on December 27, 2006. The article reports the arrest of
Miguel Angel Cervantes Islas and Hector Javier Cervantes, the latter being a
member of the Attorney General’s Federal District Judicial Police.
[13]
Through
an information request made to the Specific Information Research Unit in Ottawa, the Board
learned that the article was indeed published by the newspaper on November 7,
2006. The Board expressed some doubt that the applicant may have used the
incident reported in the article in his story but the applicant rejected this
theory and swore that a friend of his father’s sent him the article via the
Internet in September 2007.
[14]
The
applicant’s complaint filed on July 4, 2006, in the City of Querétaro, relates the
incidents that he experienced and provides the names of the two people who are
mentioned in the article and in his PIF. Since the complaint was filed before
the article was published and since the applicant’s PIF contains this
information but dating it to December 2006, even though he stated that he did
not receive the article until September 2007, this sequence of events should lead
the Board to believe the applicant’s story.
[15]
When
requesting information about the newspaper article, the Board made a second
request for information to verify the complaint made against the police. The
Attorney General of the state of Querétaro was contacted to verify that
information, namely the name of the public prosecutor, the crime committed and
the name of the plaintiff indicated in the complaint. However, the information
submitted by the applicant to the Board did not correspond to those in the
system at the Attorney General’s office.
[16]
When
the applicant was called to appear again on May 6, 2008, he was
shown the request for information. The applicant stated that he had signed the
complaint and had asked his mother to go to the Procudaria General to
obtain a copy to be sent to him and that the copy before the Board was
the copy he had received. The Board told the applicant that his mother had sent
him a false document and since the complaint to the police is consistent with
portions of the newspaper article as well as the applicant’s story, on the
basis of this false document, the Board attributed no credibility to the applicant
and concluded that the applicant’s story was not credible. The Board therefore
found that subsection 107(2) of the Act applies and the applicant’s claim for
refugee protection was dismissed.
Relevant Legislation
[17]
Immigration
and Refugee Protection Act, S.C. 2001, c. 27:
|
107.
(2) If the Refugee
Protection Division is of the opinion, in rejecting a claim, that there was
no credible or trustworthy evidence on which it could have made a favourable
decision, it shall state in its reasons for the decision that there is no
credible basis for the claim.
|
107.
(2) Si elle
estime, en cas de rejet, qu’il n’a été présenté aucun élément de preuve
crédible ou digne de foi sur lequel elle aurait pu fonder une décision
favorable, la section doit faire état dans sa décision de l’absence de
minimum de fondement de la demande.
|
Analysis
Standard of Review
[18]
Before
the decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, the appropriate standard of review in similar circumstances was
patent unreasonableness. It is now reasonableness.
Analysis
[19]
The
issue in the case at bar is not whether the Court would have come to a
different conclusion. The Court must determine whether the Board’s decision is
based on the evidence before it. The Court cannot intervene unless a reviewable
error has been demonstrated.
[20]
The
applicant's argument that he was not prepared to be confronted with exhibit A-3
(Memorandum following the Acquisition of Information Form, page 32, Tribunal Record)
cannot be accepted because this document was sent to his consultant. The latter
confirmed that he received the document. The applicant was confronted with the
document at a subsequent hearing without asking for an adjournment through his
representative.
[21]
Also,
the alleged clerical errors in exhibit A-3 are not determinative. The Court's
intervention is not warranted.
[22]
The
applicant was unable to provide information to the Board regarding his
persecutors or his situation beyond the extent of the newspaper article he
submitted and the information obtained from his students. The applicant lacks
knowledge of the basic information on which his claim is based and he was also
unable to provide documents supporting his claim. It was thus not
unreasonable for the Board to doubt the applicant’s credibility.
[23]
In
this case, the Court is of the view that the Board’s decision contains all the
elements of a reasonable decision.
[24]
The
parties did not submit any question for certification and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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