Date: 20110321
Docket: IMM-3451-10
Citation: 2011 FC 343
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, March 21, 2011
PRESENT: The Honourable
Mr. Justice Boivin
BETWEEN:
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VIRGINIA REZA GOROSTIETA
JOSE JUAN VELAZQUEZ REZA
JONATHAN VELAZQUEZ REZA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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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 (the Act),
of a decision of the Immigration and Refugee Board’s Refugee Protection
Division (hereinafter the panel), dated May 26, 2010, which found that the
applicants were neither Convention refugees nor persons in need of
protection.
Factual background
[2]
The principal applicant, Virginia Reza
Gorostieta, a citizen of Mexico,
is seeking protection as a Convention refugee because she fears being
persecuted by reason of her membership in a particular social group, namely, [translation] “women victims of domestic violence.”
[3]
The applicant’s minor children, Jose Juan
Velazquez Reza and Jonathan Velazquez Reza, base their refugee protection
claims on that of their mother and on their membership in the social group of [translation] “family members.”
[4]
The applicant lived with Ramon Velasquez
Rosales, her common-law spouse, for twelve years from 1992 to 2004.
[5]
Mr. Rosales worked as a janitor and gardener.
However, the applicant alleges that he also worked as a drug dealer. She claims
Mr. Rosales was violent and that he would often harass and beat her.
[6]
In 2004 the applicant left Mr. Rosales.
[7]
Since 2004, the applicant has allegedly been
threatened by him on several occasions. He is also alleged to have raped her
and threatened her with a firearm.
[8]
The applicant arrived alone in Canada
on May 5, 2008. She claimed refugee protection on the same day. Her sons
arrived in Canada on October
4, 2008.
Impugned decision
[9]
The
panel began by stating that it had taken into account the Guidelines on
Women Refugee Claimants Fearing Gender-Related Persecution, given that the
applicant claimed to be a woman who is a victim of domestic violence and who cannot
rely on state protection.
[10]
The
panel determined, however, that the applicant was not credible and that her
behaviour was not that of a person who has a genuine fear of persecution. The
panel noted the inconsistency between her narrative and her testimony, and her
delay in seeking refugee protection in Canada, in spite of
the alleged threats dating back to February 2004. The panel also noted that the
applicant’s narrative contained few details or dates.
[11]
When
she was asked why she was alleging that Mr. Rosales is a powerful drug dealer, the
applicant replied that people had suspicions and told her that someone who
worked as a janitor and gardener could not possibly make that much money. The
panel therefore found that this answer negatively affected the credibility of
the alleged facts.
[12]
Among
the inconsistencies that were noted are the reasons given by the applicant as
to why she did not move and why she kept working at the same job. The applicant
testified that she did not want to lose her job. The panel found that the
applicant’s behaviour was inconsistent with the alleged fear of persecution,
given that she continued to go about her business in spite of the threats to
her life and the lives of her children.
[13]
To
support this line of reasoning, the panel cited Munoz v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1273, [2006] F.C.J. No. 1591, at para. 21, in which Justice
Shore found that
the RPD may, in assessing the well-foundedness of an applicant’s fear, take
into consideration their behaviour and the fact that they did not take serious
measures to protect themselves.
[14]
Moreover,
when it inquired as to how the children were able to fly to Canada without
being accompanied by an adult, the panel learned that the applicant’s
brother-in-law had managed to obtain a signed authorization from Mr. Rosales in
2008. The panel therefore found that this behaviour was inconsistent with the
applicant’s description of him as: “a dangerous criminal, who threatened and harassed her for four years” (panel’s
decision, at para. 20).
[15]
The
panel also noted that this alleged story was not credible because, rather than
give his permission for the children to join their mother, Mr. Rosales could
just as easily have prevented them from leaving and used them in order to
blackmail her into returning.
[16]
Thus,
the panel rejected the applicant’s claim for refugee protection on the ground
that she had failed to discharge her burden of establishing that there was a
serious possibility that they would be persecuted on one of the Convention
grounds. According to the panel, she had also failed to demonstrate that they
would be personally subjected to a danger of torture or to a risk to their
lives or to a risk of cruel and unusual treatment or punishment if they were to
return to Mexico.
Relevant statutory
provisions
[17]
The following provisions of the Immigration and Refugee
Protection Act are relevant in this case:
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Convention
refugee
96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of nationality,
is outside the country of their former habitual residence and is unable or,
by reason of that fear, unwilling to return to that country.
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Définition
de « réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée
du fait de sa race, de sa religion, de sa nationalité, de son appartenance à
un groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person
in need of protection
97.
(1) A
person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Personne
à protéger
97.
(1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la
Convention
contre la torture;
b) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant
:
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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Issue
[18]
In
the present application for judicial review, the issue is the following:
Did the panel make findings as to credibility
and a lack of subjective fear that were unreasonable and not in accordance with
the evidence before it?
Standard of review
[19]
According
to the Supreme Court of Canada, at paragraph 53 of Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, when a tribunal is reviewing legal and
factual issues that cannot be readily separated, the reviewing court will show
deference to the tribunal.
[20]
In
the case at bar, the panel’s decision is based on the lack of credibility of
the applicant’s narrative. It is well established that the assessment of the
credibility of the testimony of a witness is a matter within the jurisdiction
of the panel and that the panel has the necessary expertise to analyze and
assess questions of fact, enabling it to assess the credibility as well as the subjective
fear of persecution of a refugee claimant (Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35, at para. 14).
[21]
The
case law is consistent that issues of credibility are reviewable on a standard
of reasonableness (see Malveda v. Canada (Minister of Citizenship and Immigration),
2008 FC 447, [2008] F.C.J. No. 527; Aguirre v. Canada
(Minister of Citizenship and Immigration), 2008 FC 571, [2008]
F.C.J. No. 732; Khokhar v. Canada (Minister of Citizenship and Immigration),
2008 FC 449, [2008] F.C.J. No. 571; and Tovar v. Canada
(Minister of Citizenship and Immigration), 2009 FC 600, [2009]
F.C.J. No. 785).
Analysis
[22]
In
the case at bar, the applicant submits that the panel erred in its analysis
when it claimed that the contradictions, omissions and implausibilities in her
testimony involved elements that went to the very heart of her claim. According
to the applicant, the elements in question that were identified by the panel
were neither essential nor important to her claim for refugee protection:
[translation]
i.
That the
narrative includes few details or dates (para 10);
ii.
That the
claimant did not mention in her PIF the 12-year period during which she lived
as a common-law partner with Ramon (para. 10);
iii.
That she
had no document establishing that she lived with Ramon as a common-law partner
for 12 years (paras. 10-11);
iv.
Their
first child’s date of birth (para. 11);
v.
That her
testimony was unreliable (para. 11);
vi.
The
explanation provided by the claimant with regard to the question about Ramon’s
drug-dealing and that people said that Ramon was a drug dealer because he could
not make that much money as a janitor and gardener (para. 12);
vii.
The claimant’s
explanation with regard to Ramon’s brother persuading Ramon to agree to let the
children leave, which was not credible (paras. 19-20).
[23]
While
it is recognized that panel members should not display excessive zeal in
attempting to find contradictions in a claimant’s testimony (see Attakora v.
Canada (Minister of Employment and Immigration) (F.C.A.), [1989] F.C.J. No.
444, 99 N.R. 168), the Court is of the view that the reasons relied upon by the
panel were reasonable and that the member did not make an improper and overly
zealous effort to find instances of contradiction in the
applicant’s testimony.
[24]
It
was in fact reasonable for, and open to, the member to question the applicant about
the length of time she claimed to have lived with her former spouse since her
relationship with him is at the heart of her claim. As the respondent’s counsel
rightly noted, a lack of evidence corroborating important aspects of a claim
may undermine an applicant’s credibility (see Singh v. Canada
(Minister of Citizenship and Immigration), 2008
FC 453, [2008] F.C.J. No. 574, at para. 15).
[25]
It
is clear from the evidence that the member’s assessment of the applicant’s credibility
was reasonable. In fact, the applicant’s testimony was confusing and it was
reasonable for the member to have found it unreliable.
[26]
In
this case, when she was asked about her children, the applicant indicated that
she and Mr. Rosales had had only one child together, Jose Juan. Then, the
member asked the applicant how long they had been living together when Jose was
born. The applicant indicated that it had been one year. Given the discrepancy
between the dates, the member then asked the applicant to clarify the dates.
She asked the applicant what year Jose was born. The applicant replied that she
did not know his date of birth.
[27]
It
would appear that she mixed up the dates of birth of her two sons. The first
seems to have been born in the first year they had lived together, and the
second five years later. However, this does not explain why she indicated that
she had had only one child with Mr. Rosales. While this confusion might have
been attributable to the applicant’s nervousness at the hearing, the Court is
of the view that the negative finding with respect to the applicant’s
credibility was made in light of all of the evidence. The Court finds it
difficult to see how the member, in her decision, allegedly misapplied the Guidelines
on Women Refugee Claimants Fearing Gender-Related Persecution. As the
respondent submitted, even if the applicant was in a fragile state, this does
not explain the discrepancies in her testimony with regard to important dates
in her life.
[28]
As
for the explanation given by the applicant regarding the allegation that Mr.
Rosales was a drug dealer, it was reasonable for the member to find that this
was based solely on speculation by other people. Moreover, this finding is but
one among others that render the applicant’s testimony non-credible.
[29]
Finally,
the applicant alleges that the member erred by not assigning more credibility
to the explanation provided with regard to the authorization allegedly signed
by Mr. Rosales allowing the children to leave that had been obtained by her
brother-in-law. Contrary to what the applicant alleges, the negative inference
regarding credibility on this point is not based on the fact that the applicant
was incapable of explaining why, other than by conjecture or hearsay, Mr.
Rosales gave his permission, but because it was implausible that Mr. Rosales would
allow his children to leave Mexico, given the allegations about his dangerous
and violent behaviour. Here again, the Court is of the view that the member did
not err in reaching this finding.
[30]
With
respect to the member’s findings regarding the applicant’s behaviour, the Court
is of the view that the member committed no error. In analyzing the fact that
the applicant never moved and/or changed jobs, the member revealed that the
applicant’s behaviour was inconsistent with the alleged fear of persecution. In
light of the evidence, it was up to the panel to determine whether the
applicant had a genuine and reasonable fear of being persecuted. As the
respondent rightly noted, the case law of this Court has established that there
are many ways to make determinations in matters of credibility. In this regard,
a claimant’s blatantly inconsistent conduct may, in itself, be enough to deny a
refugee claim (see Biachi v. Canada
(Minister of Citizenship and Immigration), 2006 FC
589, [2006] F.C.J. No. 777, at para. 8).
[31]
In this case, the applicant submits that the
member committed an error by citing Munoz, above, because the facts in
that case are completely different. Even if the Court understands that the
facts in that case are different, the principle set out in the decision
nevertheless applies. In fact, the applicant’s behaviour was taken into
consideration, as in Munoz, because she did not take serious measures to
protect herself from Mr. Rosales.
[32]
Lastly,
the applicant complains that the member did not conduct a separate analysis
under section 97 of the Act. As this Court recently held in Mejia
v. Canada (Minister of
Citizenship and Immigration), 2010 FC
410, [2010] F.C.J. No. 479, at para. 20, “[a] negative credibility finding in
relation to section 96 will often obviate the need to consider section 97
…”. In this case, given that the member had validly determined that
the applicant was not credible, this settles the issue of whether, under the
circumstances, she and her children are persons in need of protection within
the meaning of subsection 97(1) of the Act.
[33]
In
conclusion, the Court is of the view that the panel conducted a complete
analysis of the evidence. The panel’s decision is reasonable and the Court’s intervention
is not warranted. The application for judicial review is therefore dismissed.
[34]
No question was proposed for certification and this matter does
not contain any.
JUDGMENT
THE COURT
ADJUDGES that this application for judicial
review is dismissed. No question is certified.
“Richard
Boivin”
Certified
true translation
Sebastian
Desbarats, Translator
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