Date: 20090220
Docket: IMM-1466-08
Citation: 2009 FC 176
Montréal, Quebec, February 20,
2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
FRANCISCO
JAVIER DIAZ SERRATO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Refugee Protection Division (RPD) of the Immigration and Refugee Board dated February 19, 2008,
wherein the applicant was found not to be a Convention refugee within
the meaning of Section 96 nor a person in need of protection as defined
in subsection 97(1).
II. The Facts
[2]
Married
and the father of a child, the applicant is a citizen of Mexico. All of the remaining
members of his family reside in Mexico.
[3]
The
applicant alleges that he lost his job and was subsequently threatened by
people associated with his former employer following complaints he had filed
with regard to the security conditions of fellow workers acting under his
supervision.
[4]
Having
moved twice with his family as a result of these threats, the applicant left
his country for Canada to claim refugee
protection.
III. The impugned decision
[5]
The
RPD concluded that the applicant was not a Convention refugee since it appeared
from the evidence that he was a victim of a criminal vendetta from his former
employer and that there was “no nexus between the present claim and any of the
Convention grounds”, and further that as the claimant had not provided credible
or trustworthy evidence he was a “person in need of protection”. The RPD also found
that the applicant had not rebutted the presumption of the availability of state
protection.
IV. The issue
[6]
Did
the RPD base its decision on negative findings made capriciously and without
regard to the evidence and in turn render an unjust and unreasonable decision?
V. Analysis
Standard of Review
[7]
The
question is whether the RPD erred in her
factual assessment of the applicant’s claim. Therefore, the standard of review
is reasonableness (Dunsmuir v. New Brunswick, 2008
SCC 9). As stated at paragraph 161 in Dunsmuir, “decisions on
questions of fact always attract deference”, especially when the credibility of
the applicant is affected, and “when the issue is limited to questions of fact,
there is no need to enquire into any other factor in order to determine that
deference is owed to an administrative decision maker.
[8]
In
reviewing the Board's decision, the Court is mostly concerned with "the
existence (or lack) of justification, transparency and intelligibility within
the decision-making process [and also] [...] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
(Dunsmuir, above, at paragraph 47).
[9]
Further,
the Court will keep in mind that the Board is not required to establish the
existence of state protection, since the onus to rebut the presumption of state
protection remains at all times on the refugee claimant (Canada (Attorney
General) v. Ward, [1993] 2. S.C.R. 689). It is now stated law that the
standard of reasonableness applies to decisions concerning the availability of
state protection (Chaves v. Canada (Minister
of Citizenship and Immigration), 2005 FC 193; Navarro v. Canada (Minister
of Citizenship and Immigration), 2008 FC 358).
State
protection
[10]
The
applicant’s main fear, if he were to return to Mexico, would be
attacks, harassment and threats from his former employer or a person acting on
his behalf. But, as the RPD mentioned in its decision, there are various
avenues available to claimant in order to seek redress. Among these avenues, he
had already chosen before coming to Canada to present a petition
before an Arbitration and Conciliation officer; unfortunately, he left his
country without waiting for the outcome of this recourse.
[11]
Absent
a complete breakdown of government apparatus, it is generally presumed that a state
is able to protect its citizens. To counter this presumption, a claimant must
provide clear and convincing evidence of the state’s inability to protect (Ward,
above).
[12]
The
applicant has chosen not to contest the RPD findings that “Mexico is a
functioning democracy with a judiciary” and that “he has not rebutted the
presumption of the unavailability of state protection” (Espinosa v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1393). This conclusion that state protection is
available to the applicant constitutes sufficient grounds, in itself, to reject
his refugee claim (Sarfraz v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1974 (T.D.) (QL); Kharrat v. Canada (Minister of
Citizenship and Immigration), 2005 FC 106).
[13]
In
its reasons, the RPD reiterates that even if corruption remains a problem in Mexico, that
country is a stable democracy with a functioning judiciary. It is also worth
mentioning that the applicant’s employer has previously been subject to legal
sanction and that the applicant was able to submit a petition to the Arbitration
and Conciliation office but unfortunately did not wait for the outcome.
[14]
Consequently,
not only was it not unreasonable for the RPD to conclude that state protection
was available in Mexico to protect the applicant from his employer’s alleged
influence, but the applicant has chosen in the present recourse not to contest
this conclusion with regard to the existence of available state protection for
his problems. This conclusion provides sufficient grounds for the Court to
reject the applicant’s recourse against the impugned decision.
Credibility
issue
[15]
Although
the RPD could have rejected the applicant’s claim on the sole basis of the
availability for him of state protection, it also found that the applicant had not
even provided credible and consistent evidence in support of his claim.
[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). The RPD findings in this case with regard to the
applicant’s lack of credibility are relevant and supported by the evidence. They
are not capricious and are sufficiently serious; therefore, they are not
unreasonable.
Psychological Report
[17]
At
the conclusion of the first sitting, claimant offered and the RPD permitted a
psychological examination of the applicant. The applicant argues that the
inconsistencies noted in his testimony by the RPD indicate that the RPD ignored
the psychological report produced thereafter which clearly explained his
condition and the reasons for his difficulties.
[18]
The applicant
insists that the RPD erroneously rejected the psychological report which
explained the difficulties of his testimony that led to the overall negative
credibility findings used to reject his claim. He alleges that the RPD
disregarded this important element of evidence when it made its decision and,
consequently, this Court’s intervention is warranted.
[19]
Essentially
the applicant takes issue with the weight that the RPD gave to the report in
question, which indicated that he suffered from Post Traumatic Stress Syndrome
that would have caused a certain form of amnesia.
[20]
The
RPD had this to say on the psychological report in question:
At
the second sitting the claimant deposited a report from psychologist Juan
Carlos Andrade. It appears he would have met the claimant after the first
hearing. According to Mr Andrade the claimant would be suffering from Post
Traumatic Stress Syndrome which would cause a form of amnesia. The expert bases
the conclusion of Post Traumatic Stress Syndrome on the evidence as provided by
the claimant. In this context, the panel does not believe the claimant is
credible. It is not a question of forgetting incidents, it is a question of
consistency of his evidence beginning at the Port of Entry through to the
hearing. The panel does not believe this is a credible witness.
[Emphasis
added]
[21]
The
RPD did conduct a thorough analysis of all of the evidence filed in support of
the applicant’s claim and it was entitled to afford little probative value to
the psychologist’s report since it was based on the applicant’s own allegations.
The medical expert tried by his report to excuse the weaknesses of the
applicant’s testimony, but the medical expert was not present at the hearing to
hear the applicant’s testimony and to judge the inconsistencies in his claim;
and in this regard the RPD benefited of the advantage of having heard the
applicant, of having read his written declaration and of deciding if the
alleged Post Traumatic Stress Syndrome could constitute a valid excuse for the
inconsistencies or not.
[22]
Let
us not forget that an expert report is a piece of evidence like any other;
hence it was up to the RPD to decide how much weight it should be given. It is
not for the expert to decide if the inconsistencies in the applicant’s
testimony could be excused by his Post Traumatic Stress Syndrome. Having
analyzed the evidence, the RPD found that there it was not a question of
amnesia or forgetting incidents but of inconsistencies. In other words, the RPD
found that there was no relation between the syndrome found and the
inconsistencies. So much then for the expertise even if the RPD could have
commented on it in greater detail.
[23]
If,
as it is obviously the case here, the RPD did consider the report, but did not
believe that the psychological opinion expressed therein explained the
inconsistencies, then the RPD was entitled to give it little or no weight (Min
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1676 at paragraph
6).
[24]
Had
the RPD dismissed the applicant’s claim solely on the basis of his demeanour or
his inability to recall certain events, the expert report might have been a
more determining factor in the RPD’s evaluation of the evidence. But this is
not the case here since the RPD noted serious contradictions, inconsistencies
and implausibility in the applicant’s testimony that had no relation with the
alleged syndrome he allegedly was suffering even before his problems with his
employer. In these circumstances, the RPD was reasonably entitled to assess the
impact of the report as it did in light of the overall evidence and to give it
little weight.
[25]
Further,
the RPD clearly rejected the applicant’s refugee claim because it found his
story not credible, and the psychological assessment could not affect this
conclusion.
[26]
Moreover,
even if the RPD had misinterpreted the expert report, this would still have
absolutely no bearing on the impugned final decision, if we keep in mind that
the RPD findings on the availability of state protection have not been
seriously impugned and therefore stand. As a consequence, these findings
constitute sufficient grounds, in themselves, to reject the applicant’s claim.
VI. Conclusion
[27]
It
is not the role of this Court to substitute its own opinion for the conclusions
of the RPD as the applicant is asking. The RPD has a definite advantage over
this Court because of its expertise and of having heard the applicant. No one
was in a better position to address the applicant’s credibility and to weigh the evidence including
the expert report and its effect on the applicant’s story.
[28]
In
brief, and for all these reasons, the Court concludes
that the impugned decision falls within a range of possible and acceptable
outcomes which are justified in respect of the facts and the law, and therefore
it deserves deference.
[29]
Finally,
the Court
agrees with the parties that there is no serious question of general importance to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application is dismissed.
“Maurice
E. Lagacé”
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