Date: 20070625
Docket: IMM-3381-06
Citation: 2007 FC 676
Ottawa,
Ontario, the 25th day of June 2007
PRESENT:
THE HONOURABLE MR. JUSTICE DE MONTIGNY
BETWEEN:
VARGAS BARRIENTOS ALFREDO
FUENTES LOEZA PATRICIA
VARGAS FUENTES LUIS ENRIQUE
VARGAS FUENTES IVAN ALFONSO
VARGAS FUENTES CESAR ALFREDO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board, dated May 31, 2006, ruling
that the principal applicant (the applicant), Mr. Alfredo Vargas
Barrientos, his wife and his children were neither “Convention refugees” nor
“persons in need of protection” under subsection 97(1) of the Immigration
and Refugee Protection Act.
FACTS
[2]
Mr. Vargas
set up a thriving ceramics factory that, at the time that he left, employed
approximately 40 people. The business had two branches in Mexico, and its
products were exported abroad.
[3]
The
applicant claims that he began receiving anonymous telephone calls starting in
mid‑September 2005, demanding that he pay certain amounts of money in
exchange for protection. Following his refusal, on October 6 of the same year,
as he was leaving work, he was allegedly kidnapped and detained by five police
officers. He was then allegedly detained for two weeks, until his family paid
the requested ransom.
[4]
Despite
payment of this amount, the threats allegedly continued and his assailants
again demanded money from him. It was then that he decided to go into hiding
with his family at his sister‑in‑law’s home in another city in
Mexico. Three days later, his new residence was allegedly discovered, and his
assailants allegedly demanded again that he pay them a large amount of money.
Mr. Vargas immediately fled once more and found refuge at another family
member’s home in another part of Mexico. All to no avail. He was found once
more, and the extortion demands intensified. His report to police having had no
effect, he decided to seek refuge in Canada.
IMPUGNED DECISION
[5]
First, the
panel found that there is no nexus between the extortion of which
Mr. Vargas claimed to be a victim and any of the five grounds in the
Convention. This finding is not being challenged in the present case.
[6]
In
addition, the panel noted a certain number of contradictions, inconsistencies
and omissions in the applicant’s story:
·
During his
initial statement upon his arrival in Canada, the applicant claimed to fear
organized violence in his country. He made no mention of the police allegedly
being involved in his kidnapping. In later statements, he explained that he was
detained by corrupt, off‑duty police officers. However, he was unable to
identify the police force to which these officers belonged, initially saying
that he had seen the letters “P.J.”, then “P.E.J.”, and finally saying that he
did not make a distinction between the federal police and the state police and
that he was not able to read the letters on the uniforms because he had been
locked in a room the whole time.
·
The panel
also found that the applicant and his family did not provide the Mexican
authorities with credible information that would have enabled them to offer the
applicant protection, since he was unable to name his assailants and had not
sought help from the special kidnapping investigation unit.
·
During the
hearing, the applicant claimed that he had twice complained to the authorities.
However, his Personal Information Form (PIF) mentioned only one of these
instances of reporting to the authorities. When questioned about this lapse,
the applicant stated that this was a mistake, that he had not been feeling well
and that he had forgotten to mention it.
·
The
applicant also contradicted himself regarding when his problems started. He
first told the immigration officer that his problems started in August 2005,
and then later wrote on his PIF that they actually started on September 11,
2005.
[7]
Accordingly,
the panel found that it did not believe any part of the applicant’s story of persecution.
For that reason, and because absence of state protection was not proven, the
panel rejected the principal applicant’s claim for refugee protection and, by
extension, the claims of his wife and children.
ISSUES
[8]
The
applicants have raised the following two issues:
·
Did the
RPD err in considering the issue of state protection?
·
Did the
RPD err in finding that the applicant was not credible?
ANALYSIS
[9]
There is
no question that the appropriate standard of review for a decision dealing with
the assessment of an applicant’s credibility is patent unreasonableness. It is
a question of fact, one that the RPD is clearly in a better position to assess
than this Court. The panel’s decision in this regard must therefore be given a
great deal of deference, and may not be called into question unless it was
made in a perverse or capricious manner or without regard for the material
before the panel: Aguebor v. Minister of Employment and Immigration
(1993), 160 N.R. 315 (F.C.A.). The applicants are not challenging the
application of this standard of review in this case.
[10]
After
reviewing the file and the parties’ written and oral arguments, I have come to
the conclusion that it was reasonable for the panel to find that the
applicant’s inconsistencies, contradictions and omissions seriously undermined
his credibility. Even though some of the reasons put forward by the panel for
questioning the credibility of the applicant’s story may seem less convincing
than others, it does not change the fact that the evidence must be considered
as a whole: Sylla v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 793 (F.C.A.) (QL); Wen v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 907 (F.C.A.)
(QL); Singh v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1272, [2002] F.C.J. No. 1724 (QL). Considered
from this perspective, the panel’s decision is entirely justifiable and is
certainly not patently unreasonable.
[11]
It strikes
me as especially improbable that the applicant, detained in a room for two
weeks, could not identify his assailants. The different versions he has given
of this story can only increase doubt as to the truth of it. First of all, it
is difficult to imagine that police officers who become involved in these kinds
of illegal activities would have been able to keep their service vehicle and
their uniforms to perpetrate the wrongdoing. However, supposing that they did
not have the presence of mind to better conceal their identities, it is
difficult to understand why the applicant was unable to recognize their
uniforms and the police force to which the individuals belonged.
[12]
The
different dates provided by the applicant as to when the problems started, as
well as the confusion surrounding the number of reports that he allegedly made
to Mexican authorities, seem to me to be equally suspect. These are all
important elements of his claim, and he was unable to give a clear and
convincing version of them; worse still, he changed his story according to the
questions he was asked. He even tried to attribute the fact that the second
report to authorities was not mentioned in the PIF to a translation error, even
though it was clearly a lapse on his part.
[13]
In
summary, the panel’s decision was not patently unreasonable in the circumstances,
even though it could certainly have been more thorough and better reasoned. The
reasons stated for rejecting the applicant’s claim are not all of equal weight,
and among them are some that, considered separately, might seem overly petty
and insignificant. But considered as a whole, they support the panel’s decision
not to believe the applicants’ story.
[14]
Under the
circumstances, it is not necessary to consider the issue of state protection.
ORDER
THE COURT ORDERS that:
- The application for judicial review be
dismissed;
- There is no question to be certified.
Judge
Certified
true translation
Gwendolyn
May, LLB
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