Date: 20111006
Docket: IMM-555-11
Citation: 2011 FC 1142
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, October 6, 2011
PRESENT: The Honourable
Mr. Justice de Montigny
BETWEEN:
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ISABEL MARTIN-EYZAGUIRRE
MAURICIO MARTIN MARTIN
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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 appeal by Ms. Martin-Eyzaguirre and her son, Mauricio, from the decision
dated January 13, 2011, by the Refugee Protection Division (RPD or panel) of
the Immigration and Refugee Board, that they are not Convention refugees or
persons in need of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27 (IRPA).
[2]
After
examining the file and considering the written and oral submissions of the
parties, the Court finds that this application must be dismissed. Not only was
it reasonable for the panel to find that the applicants lack credibility, but also,
the evidence does not demonstrate that the female applicant was in fact the
subject of persecution.
Facts
[3]
The
applicants, a mother and her son, are citizens of Peru. They are alleging that
they fear the female applicant’s former spouse and her son’s father, Carlos Alberto
Lamella.
[4]
The
female applicant claims that she met Mr. Lamella in 1986. He apparently started
to abuse her when she became pregnant. Their relationship then purportedly
ended, and it was the female applicant’s father who supported her financially.
[5]
At
the end of 2005, that is, around 18 years later, the female applicant
apparently obtained Mr. Lamella’s address. She allegedly went to his house
and asked him to help pay for their son’s university studies. He purportedly
refused and beat her, after which the female applicant apparently filed a
complaint against him.
[6]
On
July 26, 2006, the female applicant apparently went to Mr. Lamella’s house
again for the same reason. She was purportedly again refused, beaten and even
threatened with death. She allegedly filed a second complaint.
[7]
On
March 26, 2008, the female applicant apparently returned to Mr. Lamella’s house
a third time for the same reason, but this time with her son. Carlos beat her
again. Mauricio stated that he tried to protect his mother, but that Carlos struck
him too. Ms. Martin‑Eyzaguirre filed another complaint with the police. Mauricio
allegedly left school and attended group therapy to overcome his fear.
[8]
On
August 28, 2008, the female applicant apparently met Mr. Lamella by chance and asked
for financial support again. He allegedly refused again and beat her so
severely that she could not move.
[9]
On
October 29, 2008, while she was with her son, Ms. Martin‑Eyzaguirre met Mr.
Lamella again by chance. He purportedly threatened both of them at gun point
and told them that, should she continue to demand money, he would kill them. They
apparently filed a fourth complaint.
[10]
The
applicants arrived in Canada on December 19, 2008, and claimed refugee
protection that same day.
Impugned decision
[11]
The
panel found that the applicants are not credible. The panel did not believe that
Carlos existed, that he was violent towards the applicants or that they filed
four complaints against him.
[12]
First,
the panel was astonished that the female applicant had waited 18 years to find
Carlos when it seemed easy enough to track him down; she had come across his
cousin by chance and it was this cousin who apparently gave her his address.
The panel found it surprising that the applicants had never come across Carlos
before as he apparently lived in the same neighbourhood.
[13]
Second,
the panel was surprised that the female applicant had attempted to see Carlos on
the ground that her financial situation was worsening, as she was employed by a
company at that time and it was her longest work period with the same company.
[14]
The
panel also stated that it was puzzled that the female applicant could not
provide any evidence of Carlos’s existence and that she had wanted to destroy
any trace of her relationship with a man she knew had made her pregnant.
[15]
The
lack of medical evidence corroborating the allegations of physical abuse also
appeared implausible to the panel. The female applicant contended that she had
not gone to the hospital because she was never seriously injured, which also surprised
the panel.
[16]
The
female applicant also had difficulty explaining the process for filing a
complaint with the police even though she stated that she had filed four
complaints against Carlos. First, she claimed that she had not reread the
complaints, and then she stated that she had read them while the officer was
taking his depositions. She also initially replied that she had not signed the
complaints and that she had signed another document, and then she stated that
she believed that she had signed them. All of these contradictions led the
panel to state that she was trying to adjust her testimony, and to disbelieve
that she actually went to file a complaint, especially since the documentary
evidence shows that police officers reread depositions to complainants before
asking them to sign complaints. For these reasons, the panel did not attach any
probative value to the four complaints filed into evidence.
[17]
The
panel also stated that Mauricio would have been prepared to go to a free public
university if he had been able to write an entrance exam quickly, and did not
believe the allegations of threats he received from Carlos because it would be
surprising for him to insist on continuing his studies at a private university
to the point of causing significant physical consequences for his mother. Similarly,
the panel was puzzled that the female applicant had agreed to voluntarily subject
herself on three occasions to physical violence when her son could have simply
opted to go to a public university.
Issue
[18]
The
only issue in this case is whether the panel erred in its assessment of the
applicants’ credibility.
Analysis
[19]
The
panel’s assessment of the applicants’ credibility must be given a high level of
deference. The Court will intervene only if the panel’s decision falls outside
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 47,
[2008] 1 S.C.R. 190).
[20]
The
applicants basically maintain that the panel erred by relying on its own perceptions
rather than on the inconsistencies or contradictions in the testimony or in the
evidence in the record. During the hearing, counsel for the applicants tried to
demonstrate that there was nothing implausible in the applicants’ behaviour, the
female applicant’s actions in particular.
[21]
I
readily acknowledge that some of the [translation]
“implausibilities” raised by the panel can undoubtedly be explained and perhaps
do not fatally undermine the applicants’ credibility when considered in
isolation. For example, it is not impossible that the female applicant never
went to the hospital after the attacks she experienced simply because her condition
was not serious enough to require medical attention. Similarly, it is not
unthinkable that, at the end of their relationship, she might have destroyed
all of the documents that could prove Carlos’s existence out of spite or
because she felt betrayed by the man she loved. Finally, it is undoubtedly true that mothers are
willing to endure many attacks in the name of their unconditional love for a
child.
[22]
The
fact remains that the panel was entitled to draw a negative inference from the
evidence as a whole and from the applicants’ testimony. Even though every
action by Ms. Martin‑Eyzaguirre and her son could be rationalized, the
fact remains that their account, viewed as a whole, could raise doubt in the
panel’s mind. In
that respect, the lack of documentary evidence on the abuse or even on the persecutor’s
existence certainly adds to the unlikelihood of their account. The same can be
said for the difficulties the female applicant had explaining the process
undertaken to file her complaints; a close reading of the transcript indicates
the painstaking nature of her testimony in that respect. That definitely makes
one wonder, especially since the female applicant claims to have filed four
complaints.
[23]
Under
the circumstances, the panel was entitled to make negative findings with
respect to the credibility of the applicants. Furthermore, we can question
whether this was really a matter of persecution. It is apparent in the evidence
and in the female applicant’s testimony that she was threatened and abused by Carlos
only after she asked him to support his son financially. This is not a case
where the persecutor is actively seeking his victim. Instead, it seems that Ms. Martin‑Eyzaguirre
did not have any altercations with Carlos as long as she was not trying to speak
with him or ask him for money. Under these circumstances, it seems doubtful
that this is a question of persecution because the applicants could easily have
escaped the violence by Carlos by foregoing the financial support he could have
provided them with.
[24]
In
light of the foregoing, I am therefore of the opinion that this application for
judicial review must be dismissed. Neither party proposed a question for me to
certify, and none will be certified.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question for certification
arises.
“Yves de Montigny”
Certified
true translation
Janine
Anderson, Translator
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