Date: 20110524
Docket: IMM-5250-10
Citation: 2011 FC 577
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, May 24,
2011
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
URIEL
MORALES MARTINEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION OF CANADA
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
a member of the Refugee Protection Division of the Immigration and Refugee Board (panel) submitted in
accordance with subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, by Uriel Morales Martinez (applicant). The panel found that the applicant was not a refugee or a person
in need of protection and therefore rejected his refugee claim.
* * * * * * * *
[2]
The
applicant is a citizen of Mexico who was born on May 6, 1977. Starting in May
2003, he lived in the Federal District and worked as a taxi driver.
[3]
On
June 13, 2006, a man behaving like a judicial police officer purportedly got
into the applicant’s taxi. He apparently confined, beat and robbed him. The
applicant filed a complaint with the Office of the Public Prosecutor that same
day.
[4]
On
August 12, 2006, the same individual and an accomplice allegedly got into the
applicant’s taxi; they beat him and threatened him with death if he did not
withdraw his complaint. Two days later, the applicant apparently tried to
withdraw his complaint, but the Office of the Public Prosecutor purportedly
told him that this was not possible and that the matter had to follow the due
course of the law.
[5]
On
November 14, 2006, the same individuals apparently intercepted the applicant to
ask him why he had not withdrawn his complaint. One of the criminals was
wearing an Office of the Public Prosecutor badge bearing the name “Edgard Reyes
S.”. The criminals allegedly continued to follow and threaten the applicant. He
apparently stayed with his parents for a few days and then with other
relatives. The criminals purportedly showed up at his parents’ home and his
parents apparently told them that they did not know the whereabouts of their
son.
[6]
On
January 28, 2007, the applicant left Mexico for Canada. He claimed protection
on April 23, 2007.
* * * * * * *
*
[7]
The
panel rejected the refugee claim on the ground of the applicant’s lack of
credibility.
[8]
With
respect to the incident on June 13, 2006, the panel found that it was not
credible that the individual was able to [translation]
“look like a judicial police officer”, as the applicant’s explanation in this
regard was halting and somewhat vague. Furthermore, the
individual had been wearing jewellery, jeans, a shirt, and no police badge.
[9]
The
panel noted several inconsistencies between the applicant’s Personal
Information Form (PIF), the Office of the Public Prosecutor’s report, the
immigration officer’s notes taken during the interview on April 23, 2007, and
the applicant’s testimony at the hearing. The panel noted that the applicant
failed to mention in his testimony that Mr. Reyes had apparently stolen a bag containing
700 pesos, a hydraulic jack and his car keys as indicated in the police report.
The applicant was given the opportunity to address this three times, but offered
no explanation for his omission. He also testified that the individual had not
taken the keys contrary to what was indicated in the report and explained that he
had probably been tense when making that statement.
[10] The panel also found it
implausible that a judicial police officer would have felt threatened by the general
description in the complaint (“38 years old, brown skin, thin body type, short
black hair”). The panel noted that there was no mention in the Office of the
Public Prosecutor’s report of the fact that the applicant had believed that the
individual was a judicial police officer, and it questioned why this individual
had felt so threatened by the complaint.
* * * * * * *
*
[11] The only
issue is whether the panel’s decision is reasonable. The applicable standard
of review for credibility findings is reasonableness. At paragraph 47 of Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, the Supreme Court of Canada noted
that “reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
* * * * * * *
*
[12] The applicant
starts by drawing attention to the presence in the tribunal record of the complaint
and the preliminary investigation report, and argues that it is settled law
that documents issued by foreign governments are presumed to be authentic
unless the evidence demonstrates otherwise or if their authenticity is
questioned. The applicant contends that the panel did not consider these
documents. The respondent replies that, even without questioning the report’s authenticity
(which the panel did not do), the panel could validly cast doubt on the
applicant’s credibility to the point of rejecting his entire account. I agree
with the respondent. The
panel in no way questioned the report’s authenticity and it clearly took the
report into account because it compared the details set out in it to the
applicant’s testimony. The fact that the panel did not find the applicant’s
account to be credible does not mean that it did not believe in the
authenticity of the report, but simply that it questioned the account contained
in it.
[13] Moreover, the
applicant complains that the panel focussed on the secondary aspects of his
account to search for contradictions that were not central to the refugee claim.
[14] After reviewing the
evidence and hearing counsel for the parties, it appears to me that the
numerous gaps, contradictions and inconsistencies indicated by the panel are clearly
based on the evidence, namely, the preliminary investigation report, the
content of the applicant’s PIF and his testimony at the hearing. Under the
circumstances, it is not up to this Court to substitute its own assessment for
the panel’s, since the applicant failed to demonstrate that the panel had based
its decision on an erroneous finding of fact made in a perverse or capricious
manner or without regard for the material before it (see paragraph 18.1(4)(d)
of the Federal Courts Act, R.S.C. 1985, c. F-7).
[15] The applicant’s general
lack of credibility seems to me to be well established, and this is therefore sufficient
to dismiss his application for judicial review without the need to consider the
additional argument contained in his supplementary memorandum.
[16] Consequently, the
application for judicial review is dismissed.
[17] I am in
agreement with counsel for the parties that this is not a case for
certification.
JUDGMENT
The
application for judicial review of a decision by a member of the Refugee Protection Division of the
Immigration and Refugee Board that the applicant was not a refugee or a person
in need of protection according to sections 96 and
97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
Certified
true translation
Janine
Anderson, Translator
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