Docket: IMM-89-11
Citation: 2011 FC 1146
Ottawa, Ontario, October 7,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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PAUL ULLOA ARGUETA
CLAUDIA VERONICA MENESES
VALLADOLID
PAUL MAXIMILIANO ULLOA MENESES
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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
application for judicial review arises from a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board),
dated December 14, 2010, which found the applicants to be neither Convention
refugees nor persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA).
[2]
The
three claimants are citizens of Mexico. Their claim is based
on persecution by a Commander of the Procuadoria General de Justicia (PGJ).
The Board determined that there was no credible basis for the claims pursuant
to subsection 107(2) of the IRPA. The applicants seek an order setting
aside the decision and remitting the matter for reconsideration by a
differently constituted panel. The application is granted.
The Facts
[3]
The
applicants are a Mexican family. Together they lived with Paul Argueta’s
brothers in the state of Puebla in Mexico. In
February 2005, his youngest brother started working as a driver for a Commander
of the PGJ of the state of Puebla. The Commander’s name was Marcos Moreno
Bravo (referred to as Bravo).
[4]
Bravo
would often visit their house and drink alcohol. On December 25, 2005, the
male applicant returned home to find his son locked in his room, and his wife
yelling for help. Bravo had beaten her and tried to sexually assault her. The
male applicant confronted Bravo and there was a fight. In this fight Bravo cut
the male applicant on his arms with a knife and cut the female applicant on her
hands. During the struggle a pot of boiling water fell on the female
applicant’s legs and she suffered severe burns.
[5]
The
female applicant called the police during the struggle. When the police
arrived they removed Bravo from the house.
[6]
The
applicants allege that Bravo began stalking the female applicant shortly
thereafter, following her both at work and at home. In January 2006 the
applicants alleged that Bravo vandalized their home and then phoned them
threatening that he would never leave them alone until he received sexual
favours from the female applicant.
[7]
The
applicants state that they approached the Public Ministry to file a report but
they would not accept it, saying that the person in charge of accepting reports
was not available until the following day. The applicants say that they went
to another office in a different district but were told they could only file a
report in their own district. They went back to their own district office and,
after waiting for four hours, were unable to file a report.
[8]
The
applicants state that they continued receiving threatening phone calls from
Bravo. They moved to a new house in February 2006 but Bravo discovered their
new address and telephone number.
[9]
The
evidence before the Board was that the applicants continued to receive
threatening phone calls and, in consequence, the applicants quit their jobs and
moved to the State of Mexico in July 2006, where they stayed with a
family member. According to the applicants, Bravo tracked them to the State of
Mexico and began
calling them at their family member’s house. At this point, they decided to
flee to Canada.
[10]
They
attempted to make another report to the Public Ministry in August 2006. This
time, they made a report but stated that the officials refused to name Bravo as
the perpetrator despite the applicants specifically naming him.
[11]
The
applicants’ Personal Information Form (PIF) states that they consulted a friend
while living in the State of Mexico and that he advised them to flee to Canada. The
applicants provided a letter from this friend, which states that he is a lawyer
and was first consulted by the applicants in January or February of 2006, and that
he accompanied the applicants when they made the report to the Public Ministry
in August, 2006.
[12]
The
applicants arrived in Canada on August 29, 2006 and claimed refugee
status the following day.
The Decision Under Review
[13]
Credibility
was the determinative issue in the Board’s decision. The Board made a number
of credibility findings. Credibility findings are, of course, within the
Board’s discretion, and this Court pays deference in this regard. While some
of the Board’s findings of credibility are maintained and fall within the range
of acceptable, possible outcomes, others do not. As these findings are material
to the decision and cannot be severed from the finding as a whole, the
application is granted. The Court has no comfort that, but for these errors,
the outcome would be the same.
[14]
The
Board noted that the applicants did not provide any media reports to
corroborate Bravo’s existence. The Board member stated that it was within his
specialized knowledge as a member who has adjudicated other Mexican claims to
know that the media in Mexico are not shy about reporting on crime, and
that given Bravo’s alleged profile, media documents regarding him would
reasonably have been available to corroborate his existence. The Board found
that the applicants’ failure to provide corroborating media documents
undermined their credibility. The female claimant explained that she did not
pay attention to the media but the Board did not find this explanation
satisfactory.
[15]
The
Board found that the applicants gave conflicting and confusing testimony on
their efforts to report Bravo to the authorities. For example, the PIF states
that when the applicants initially attempted to make a police report they were
refused a copy. On the first day of the hearing the female applicant simply
stated that they were told to come back the following day. The female applicant
forgot to mention that they were refused a copy of the report. Later, the female
applicant explained that she was nervous and had confused these events with the
events surrounding their attempts to file a report after their house was robbed
in January 2006. The Board found that these events should not have been
difficult to recall, even if they were several years ago. The Board concluded
that the female applicant realized she was providing conflicting timelines and
made up evidence as she went along in an unsuccessful attempt to reconcile the
timelines.
[16]
The
Board found that the applicants’ account of the 2006 robbery was inconsistent. The
PIF and the female applicant’s testimony indicated that the robbers had already
gone when they arrived home. The denunciation to the police indicated that the
male applicant got out of the car when they returned home and saw the robbers
who fled while threatening him. The Board found that the applicants did not
offer any explanations for these discrepancies which cannot be reconciled.
[17]
The
Board noted that the female applicant did not mention being burned by scalding
water during the Record of Examination interview, nor did she mention having
any scars. The failure to mention this incident undermined her credibility.
[18]
The
applicants’ PIF states that they moved to the State of Mexico in July 2006
and that Bravo began threatening them again after they moved. However, the
Record of Examination states that they moved in February 2006 and that Bravo’s
last call to them was in June 2006. The female applicant stated that the June
date referred to the last call in Puebla. The Board did not
accept this explanation and expected the applicants to remember that Bravo had
threatened them more recently.
[19]
The
Board found that some of the supporting documents were problematic and further
undermined the credibility of the applicants. For example the medical report
detailing the female applicant’s injuries focuses on the burns caused by the
scalding water and did not mention that she was also cut by a knife. When
questioned, she explained that the cuts were not serious and did not require
stitches, which was why the burns were the focus of the report. The Board did
not accept this explanation finding that, if the cuts were bad enough to leave
scars these injuries would have been obvious to the doctor, and would have been
mentioned in the report. The medical report regarding the male claimant only
mentions one injury, but in his PIF and oral testimony, the male claimant
stated that he suffered multiple wounds to both arms which left scars.
[20]
The
Board concluded that these discrepancies undermined the authenticity of the
documents, and the applicants’ credibility.
[21]
In
the PIF and in their oral testimony, the applicants stated that they resigned
from their jobs because of Bravo’s threats and moved away from Puebla in July
2006. However, the female applicant provided a letter from her former employer
which gave her date of resignation as July 2005 – before the problems with
Bravo. The female applicant stated that there must be a mistake in the letter
and that she could provide an updated letter. The Board found that there was
very little information in the letter and it should be expected that the date
of resignation include the correct year.
[22]
In
the PIF, the applicants stated that they had spoken to a friend who told them
to leave the country. In oral testimony the female applicant said that they
had spoken to him initially as a friend, but confirmed that they first told him
what was happening after they moved to the State of Mexico (July 2006). The
female applicant later clarified that this friend was a lawyer and that they formally
retained him as a lawyer after they moved to the State of Mexico.
[23]
The
applicants presented a letter from the lawyer. According to the letter the
applicants called him after their house was robbed in January 2006 and he
advised them to move in February 2006. He also states that he subsequently
advised them to move out of state in July 2006 and that he assisted them with
the denunciation that was filed in August 2006.
[24]
The
Board found that the discrepancies between the letter and the female applicant’s
testimony could not be reconciled. Even if the lawyer was not formally
retained the Board would have expected the lawyer’s involvement to be mentioned
and explained in the PIF. The Board concluded that on a balance of
probabilities the applicants forged this document to bolster their claim.
[25]
Based
on the discrepancies and omissions in the applicants’ claim, the Board
concluded that it simply did “not believe that, on a balance of probabilities,
that any of the significant events that the claimants alleged happened to them,
actually happened”. The Board concluded that pursuant to section 107(2) of the
IRPA, there was no credible or trustworthy evidence on which a
favourable decision could have been made and therefore there was no credible
basis for the claims.
The Issues
[26]
The
central issue in this application is whether the Board’s credibility findings
are reasonable. Subsumed within this issue is the question whether the Board
erred by ignoring or misunderstanding relevant evidence before it in making its
credibility findings.
Analysis
[27]
While
I have highlighted the areas of inconsistency in testimony the female
applicant’s evidence, was, in all major respects, consistent with the PIF
narrative and her previous testimony. The only inconsistency was with respect
to the first police report. The Board cannot make an adverse credibility
finding without having regard to the totality of the evidence and without
considering the applicants’ explanations.
[28]
The
Board’s negative inference based on the lack of media reports to corroborate
the existence of Bravo is unreasonable. There was no evidence that Bravo was a
high profile officer who would be mentioned in the media. There was no
evidence of consistent media coverage of crime in Puebla such that Bravo’s
name would necessarily appear. The Board cannot draw a negative credibility
inference based on no evidence. The existence of media reports is not
reasonably within the Board member’s specialized knowledge: Xu v Canada (Citizenship
and Immigration), 2011 FC 784.
[29]
The
Board member simply asserted that it was within his specialized knowledge that
there would have been media reports about Bravo. Mexico has a
population of 112 million people and a well-recognized serious problem with
crime and corruption. While the Board member might have some knowledge of how
crimes are generally reported in Mexico it seems very unlikely
that he could know whether one specific individual had attracted media
attention.
[30]
In
Wen Yi Xu et al v The Minister of Citizenship and Immigration, March 4,
2011, IMM-4394-10, Justice Paul Crampton set aside a decision predicated on the
finding that there should have been corroborating media reports. The Board member
concluded that if the applicant’s wife had been murdered and her two children
shot and injured, that this would have been reported in the media. I note that
in quashing the decision Justice Crampton held that “in the absence of any
evidence to suggest that such events would ordinarily be reported in the media
in Belize, the Board’s
conclusion was sheer speculation”. That observation applies with equal force
in this case.
[31]
It
was unreasonable for the Board to discount the medical report because it did
not mention cuts to the female applicant’s hands. The applicant testified that
the cuts were small and did not require stitches. This was a reasonable
explanation. It is also unreasonable for the Board to discount the medical
report with respect to the male applicant because it describes an injury from a
sharp cutting object, while the applicant testified he suffered multiple cuts. The
report does not exclude the conclusion that there was more than one cut and there
was no evidence that it was not a genuine document.
[32]
With
respect to the medical reports, the applicants rely on Mahmud v Canada (MCI),
[1999] FCJ No 729, for the proposition that it was unreasonable to conclude
that a document contradicted an applicant’s evidence on the basis of what it
did not say, rather than what it did say. The Court noted that when an
applicant swears the truth of certain allegations this creates a presumption
that the allegations are true and, that on the face, the documents support the
claimant’s allegations in the absence of evidence to contradict the
allegations.
[33]
The
applicants also argue that it was unreasonable for the Board to draw a negative
credibility inference from the fact that the female applicant did not mention
the scalding incident in the Record of Examination. During this interview the
applicants testified that they were unaware of procedure, did not speak English
and were helped only by the secretary of the first lawyer.
[34]
The
applicants emphasize that the Board erred by making negative inferences because
of omissions made in the Record of Examination. I agree that this principle
applies in the circumstances of this application. The refugee intake form is
not intended to provide all the details of the claim. Bayrami v Canada
(MCI), [1999] FCJ No 1167 (TD) and Kanapathipillai v Canada (MCI),
[1998] FCJ No 1110 (TD) stand for the proposition that members must be careful
to distinguish between cases where the claimant contradicts his or her initial
statement, and cases where the claimant simply adds further details. Adverse
inferences should not necessarily be drawn when claimants simply add details
consistent with the original statement.
[35]
Similarly,
in Sawyer v Canada (MCI), 2004 FC 935, Justice Eleanor Dawson held
that it was unreasonable of the Board to reject the applicant’s explanation
that the port of entry officer told him he did not have to explain all the
details. Justice Dawson pointed to the Minister’s operations manual which
instructed officers only to ask about admissibility and eligibility, and not to
ask claimants about the details of their claim.
[36]
The
Board’s finding that the letter from the lawyer was forged to bolster their
claim is unreasonable. The applicants testified that the lawyer was a family
friend who knew about their problems but they did not formally ask him for help
until they moved to Mexico City, in July or August of 2006. Before this, they
spoke to him as a friend only. There was no reason for his involvement to be
mentioned in the PIF. The letter corroborates the events described by the
applicants and the Board had no reason to disbelieve it. There was simply no
basis for the Board’s conclusion that this letter was forged to bolster their
claim.
[37]
The
applicants assert that the female applicant’s evidence was in all respects
consistent except for the initial evidence concerning the first contact with
the police. The police report, the medical reports and the letter from the
Mexican attorney corroborated their testimony. The Board’s finding that there
was no corroborative evidence was thus unsustainable.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The matter is referred back to
the Immigration Refugee Board for reconsideration before a
different member of the Board’s Refugee Protection Division. No question
for certification has been proposed and the Court finds that none arises.
"Donald
J. Rennie"
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