Date: 20110831
Docket: IMM-350-11
Citation: 2011 FC 1028
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, August 31, 2011
PRESENT: The Honourable
Mr. Justice Shore
BETWEEN:
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DOLORES ESTELA VIERA ALGUETA
MARIA GUADALUPE ROSADO ROMERO
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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
I. Introduction
[1]
An
account loses its truthfulness if, each time it is told, it is not the same and,
in some cases, is not even similar.
II. Judicial
procedure
[2]
This
is an application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board dated December 20, 2010, that
the applicants, who are both Mexican citizens, are not Convention refugees as
defined in section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), or
persons in need of protection according to section 97 of the IRPA, on the
ground that they lack credibility.
III. Facts
[3]
Dolores
Estela Viera Algueta, born on September 8, 1957, and Maria Guadalupe
Rosado Romero, born on August 21, 1987, are both Mexican citizens. Ms.
Rosado Romero bases her refugee claim on that of her aunt, Ms. Viera Algueta, the
principal applicant, with whom she lived in the city of Veracruz, Mexico.
[4]
Ms.
Viera Algueta is alleging that she was a victim of death threats, extortion and
other criminal acts by a man named Luis Noël Dominguez, an entrepreneur from
Veracruz, and members of the “Los Zetas” organization.
[5]
Ms.
Viera Algueta purportedly belonged to an association of female entrepreneurs called
“Compartamos”. This non-government association was apparently formed by Mother
Teresa of Calcutta. It allegedly exists at a national level and its purpose is
to loan money to women to help them start businesses. The principal applicant
purportedly received money from this association on two occasions. The money loaned
to Ms. Viera Algueta was apparently funded by Mr. Dominguez and by anonymous
donors. She testified that she reimbursed the full amount of these two loans,
as set out in the written agreements at the time—she did not, however, keep the
copies.
[6]
Moreover,
in February 2008, when the principal applicant allegedly went with Mr. Dominguez
to where a meeting of “Compartamos” members was to be held, Mr. Dominguez was
apparently attacked and 1,500,000 pesos were stolen from him (the RPD decision
states 1,500 pesos, but this must be the RPD’s error; the applicant clearly
stated 1,500,000 pesos in the Applicants’ Memorandum at paragraph 6).
This money was purportedly part of the amount that he had loaned to
“Compartamos” to give loans to the women in the association.
[7]
The
principal applicant allegedly recognized the thieves as people from the neighbourhood
who are Los Zetas. However, she purportedly refused to testify against them or
to identify them in the legal action that Mr. Dominguez wanted to take against
them. From then on, the applicant apparently received threats, both from Mr.
Dominguez, who purportedly told her that he would sue her for “fraud and for
conspiring with the Los Zetas criminals”, which she was accused of in April 2008,
and from the Los Zetas, who apparently wanted to prevent her from reporting
them to the authorities. The applicant added that members of the Los Zetas
allegedly demanded that she pay 350,000 pesos in exchange for which they would
leave her, her husband and her niece alone.
[8]
On
April 1, 2008, the applicant apparently went to file a complaint with the
public prosecutor in Veracruz. In her testimony at the hearing, the applicant initially
stated that she went to the public prosecutor to report the threats received
from Mr. Dominguez and the Los Zetas. She then changed this testimony to state
that she reported only the threats that she had received from the Los Zetas. The
applicant also told the panel that, when she returned home after filing that
report, some Los Zetas members “were waiting in front of my home, and they
threatened to kill me and my niece”. In her memorandum, the principal applicant
also stated that investigators required an amount of money to proceed with the
investigation, money she did not have in her possession.
[9]
The
principal applicant allegedly received threats after her visit to the public prosecutor
and then decided to leave the country. She allegedly went to hide at her neighbour’s
home before leaving her country. She arrived in Canada with her niece on April 4,
2008, and claimed refugee protection at that time.
[10]
Ms.
Viera Algueta’s husband was purportedly attacked by members of the Los Zetas on
April 20, 2008, after returning to their home in Veracruz. He passed away
on January 6, 2009. The applicant also stated at the hearing that, in
May 2008, her brothers and her sister moved to Tijuana, near the American
border, to hide from the threats they had received from the Los Zetas group
because of her. If they were to return to their country, the applicants fear
revenge by Mr. Dominguez and by Los Zetas members.
[11]
The
principal applicant’s niece confirmed her aunt’s testimony.
IV. Decision
under review
[12]
The
RPD found that the principal applicant was “on the whole, not a credible witness”
and attached “no credibility to any of her allegations”. Consequently, it
rejected the applicants’ refugee claim:
[21] The panel does not believe that
the principal claimant had any problems whatsoever when she was in Mexico.
Therefore, the panel does not believe that she received threats from
Mr. Dominguez or from Los Zetas members, as she claims.
. . .
[92] As
the panel noted above, the claimant gave the immigration officer a different
response from the one that she gave the panel regarding the origin of her fear
of returning to Mexico.
[93] However, it does not stop
there. The claimant’s statements also differ regarding the circumstances of the
threats that she allegedly received. She gave different versions of these
circumstances concerning the chronology and the nature of these threats when
she was talking to the officer and when she was filling out her PIF.
V. Issue
[13]
Are
the applicants raising a serious ground on which the Court can rely to
intervene in accordance with subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7?
VI. Relevant
statutory provisions
[14]
The
following provisions of the IRPA apply to 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.
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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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.
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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VII. Positions
of the parties
[15]
In
support of their application for judicial review, the applicants cited Maldonado
v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (CA),
to the effect that there is a presumption that an applicant’s sworn statement
is true unless there is a valid reason to doubt it. The principal applicant
submits that she properly explained her account and even provided evidence of
what she said, namely, the exhibit that demonstrates that she had actually been
accused of fraud and the report by the public prosecutor’s investigator dated
April 1, 2008 (Tribunal Record at pages 169 to 174). The panel
therefore purportedly erred by failing to consider all of the testimonial
evidence and erred in law by systematically finding that the principal applicant’s
testimony was implausible without referring to evidence to support its
assessment of the facts. The principal applicant also submitted the argument
that she was not given the opportunity to properly express herself and explain
her account at the point of entry in Canada, which would explain the
discrepancies between her Personal Information Form (PIF) and the point of
entry notes.
[16]
The
respondent claims that the panel’s decision is well founded in fact and in law,
that it is reasonable and that it contains no error that would warrant the
intervention of the Court. According to the respondent, the RPD properly
explained the numerous contradictions, omissions, discrepancies,
inconsistencies and implausibilities in the testimonial and documentary
evidence, namely, with respect to the identity of the persecutors and the facts
on which the fear was based.
VIII. Standard
of review
[17]
It
is well established in the case law that the standard of review applicable to
credibility findings made by the panel is reasonableness (Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47; Martin v. Canada
(Minister of Citizenship and Immigration), 2010 FC 664, at paragraph 11).
[18]
This
Court has recognized on many occasions that curial deference should be shown to
the panel’s findings because of the panel’s expertise in such matters (Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315; Olguin
v. Canada (Minister of Citizenship and Immigration), 2009 FC 193, at paragraph 4).
IX. Analysis
[19]
The
RPD found that the principal applicant’s allegations were not credible. To come
to this conclusion, the panel found numerous contradictions, omissions,
discrepancies, inconsistencies and implausibilities in the testimonial and
documentary evidence. The RPD noted, namely, that upon the applicants’ arrival
in Canada, the principal applicant gave the immigration officer statements that
were different from those she gave in her PIF and during her testimony at the
hearing regarding the identity of her persecutors and the facts on which her
refugee claim is based (Decision at paragraph 27):
a. Upon her
arrival in Canada, the principal applicant told the immigration officer that
she fears “the authorities” and “the public ministry” (Decision at paragraphs
25, 42 and 84). However, in her initial PIF, the principal applicant in no
way stated that she fears the Mexican authorities or the public prosecutor, and
indicated instead that she fears “Luis Noel Dominguez” and “‘some people’ / some
‘thieves’ who had allegedly attacked Mr. Dominguez” (Decision at paragraphs 36
and 52);
b. During her testimony at
the hearing, the principal applicant stated, regarding her persecutors, that
they were in fact [translation] “members
of Los Zetas”. She also stated that she fears Mr. Dominguez because she refused
to testify for him. The applicant failed to mention her fear of the Mexican
authorities and/or the public prosecutor (Decision at paragraphs 30 and 44).
c. After a thorough
assessment of the notes taken by the immigration officer at the point of entry,
the panel stated that these notes are lengthy and detailed (Decision at paragraph
96). The panel therefore did not believe that the omissions and
discrepancies arose from a lack of thoroughness on the part of the immigration
officer, as the applicants claim.
[20]
With
respect to the discrepancies that exist between the immigration officer’s notes
at the point of entry, the applicant’s testimony and the information in the
PIF, the Court found that these discrepancies may be determinative in the
credibility assessment:
[23] According to case law,
inconsistencies between an applicant's statements at the port of entry and
testimony about crucial elements of a claim are sufficient to taint his
credibility: Nsombo v. Canada (M.C.I.), IMM-5147-03; Shahota v.
Canada (M.C.I.), [2004] F.C.J. No. 1540, online: QL; Neame v. Canada
(M.C.I.), [2000] F.C.J. No. 378, online: QL.
(Chen v. Canada (Minister of Citizenship and Immigration),
2005 FC 767, 148 A.C.W.S. (3d) 118; Cienfuegos v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1262.)
[21]
The
panel also noted several other discrepancies and implausibilities in the
central points of the principal applicant’s account, including:
a. the principal applicant
failed to tell the immigration officer, or indicate in her PIF, that she
belonged to the “Compartamos” association, while at the hearing she stated that
her problems started because the money was stolen (Decision at paragraph 39).
The panel did not accept the applicant’s explanation that she had failed to
mention that she belonged to this association because it was not an organization
that committed crimes (Decision at paragraph 31);
b. The panel
emphasized that the principal applicant had indicated that she was a victim of
extortion only a few days before her hearing by making an addition to her PIF,
and failed to mention it in her initial PIF or in her amended PIF despite the
fact that she had mentioned it to the immigration officer upon her arrival in
Canada (Decision at paragraphs 88‑89, 100);
c. Moreover, the
principal applicant allegedly stated several times during her testimony that
she has no outstanding loans, which makes the version of the facts given to the
immigration officer, that is, that she was accused of failing to reimburse a
loan, implausible (Decision at paragraphs 44 and 63‑64);
d. With respect to the exhibits
submitted by the applicants, the RPD gave little weight to this evidence,
namely, regarding the fact that there was no follow‑up to the principal
applicant’s failure to reply to the notice to appear (Decision at paragraphs 50
to 52 and 78 to 83).
[22]
It
is settled law that the Court may intervene only if the RPD’s decision is found
to be unreasonable because of the high level of deference owed to findings of
fact made by a specialized tribunal. The assessment of an applicant’s
credibility is a question of fact to which the Court must give deference (Blanquez
v. Canada (Minister of Citizenship and Immigration), 2011 FC 566; Serrato
v. Canada (Minister of Citizenship and Immigration), 2009 FC 176, at paragraphs 15‑16).
In this case, the RPD gave a detailed explanation of why it did not find the
applicants credible. The Court can therefore not allow the application for
judicial review.
X. Conclusion
[23]
Given
the foregoing, the Court finds that the documents submitted by the applicants
do not raise any serious grounds that would permit the Court to allow their
application for judicial review. Consequently, the Court dismisses the
application.
JUDGMENT
THE COURT
DISMISSES the applicants’
application for judicial review. No question for certification arises.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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