Date: 20080917
Docket: IMM-405-08
Citation: 2008 FC 1044
Montréal, Quebec, September 17, 2008
PRESENT:
The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
Monica Desire RODRIGUEZ REYNA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), the applicant
seeks judicial review of a decision dated December 24, 2007, by the Refugee
Protection Division of the Immigration and Refugee Board (the Board),
determining that she and her son, Juan Carlos, are neither “refugees” nor
“persons in need of protection” as defined in sections 96 and 97 of the Act. Consequently, their refugee claim was
denied.
[2]
Given that the son, Juan Carlos, is not a party
to his mother’s application for judicial review, she cannot obtain the relief
she seeks for him, since the son is not disputing the Board’s decision.
II. Facts
[3]
A
citizen of Mexico, the
applicant, Monica Desire Rodriguez Reyna, alleges that she fears her
ex-husband, who repeatedly assaulted her during their marriage until she left
him in 1995 and took their children to live in another city.
[4]
Eleven
years after her separation, on July 6, 2006, the applicant obtained her
passport.
[5]
Two
days later, on July 8, 2006, as the applicant left a supermarket, she met her
ex-husband who assaulted her again and threatened her. The day after this new
incident, the applicant filed a complaint with the police against her
ex-husband.
[6]
On
July 10, 2006, without waiting for the outcome of her complaint, the applicant left
her country with her daughter Asgar Manitu (21 years of age) and her son
Francisco (16 years of age); her oldest daughter, Karla (24 years of age) chose
to stay in Mexico.
[7]
Upon
arriving in Canada on July 10, 2006, the applicant and her two children claimed
refugee protection, but on May 28, 2007, Asgar abandoned her refugee claim
because she wanted to return to Mexico.
III. Decision
of the Board
[8]
After
considering and commenting on the key pieces of evidence and highlighting the
contradictions and inconsistencies in the applicant’s testimony and that of her
son as well as the implausibility of the sequence of events that occurred
between July 6 and July 10, 2006, the Board determined that their story was not
credible. It did not accept the allegations that her ex-husband made death
threats on July 8, 2006, and did not believe that their “refoulement” to their
country of origin would endanger their safety or their lives. The Board decided
that the applicants were neither “refugees” nor “persons in need of protection”
as defined in the Act and therefore refused their refugee claim.
IV. Issues
[9]
Did the Board make an unreasonable error in its negative
assessment of the applicant’s credibility by determining that she was not a
refugee or a person in need of protection and by finding that she would not
face cruel or unusual treatment if she had to return to Mexico?
V. Submissions of the parties
[10]
The
applicant’s key argument is that the Board erred by not assigning any
credibility to her story and by completely disregarding the Guidelines on Women Refugee Claimants Fearing
Gender-Related Persecution (the Guidelines)
and the evidence corroborating her testimony.
[11]
The
Minister defends the Board’s findings on the evidence; the Board is responsible
for analyzing and assessing the evidence based on its expertise, and therefore
there is no valid reason justifying this Court’s intervention.
VI. Standard of review
[12]
Decisions
of administrative tribunals are now reviewable against two standards: correctness
and reasonableness. Courts must show deference to the decisions of
specialized administrative tribunals, which have a certain expertise in matters
within their jurisdiction (see Dunsmuir v.
New Brunswick, 2008 SCC 9 (Dunsmuir).
[13]
The
reasonableness standard applies to this case and does not open the door to a
broader intervention. We must determine whether the impugned decision is
reasonable, considering the justification for the decision and whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law (Dunsmuir, above, paragraph 47).
[14]
Within
this standard of review, can the Court determine that the Board erred when it
decided that the applicant was not a refugee or a person in need of
protection as defined in the Act?
VII. Analysis
[15]
Based
on the fact that the Board did not comment in its reasons on certain parts of
the evidence that the applicant considered more important in supporting her arguments
than the parts that the Board accepted in concluding as it did, the applicant claims
that the Board did not consider all the evidence that it was obligated to
consider, and, therefore, describes its decision as unreasonable.
[16]
However,
this argument ignores the presumption that the Board considered all the
evidence before it (Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL)). This
argument also disregards the fact that when the Board determines that a refugee
claimant is not credible, as is the case here, it has no obligation to explain
why it did not give probative value to documents that support allegations found
not to be credible or trustworthy (Ahmad v. Canada (Minister of Citizenship
and Immigration), 2003 FCT 471, at paragraph 26).
[17]
In
attempting to persuade the Court that the Board erred in drawing negative
inferences from the evidence about her credibility, the applicant is in fact
seeking to justify the pieces of evidence that the Board disregarded because it
found them unsatisfactory or not trustworthy. Let us not forget that the
applicant had the opportunity to fully present her case and to convince the
Board, but unfortunately she did not succeed.
[18]
It
is not for the Court at this stage to start over, to reassess the evidence and
to substitute its opinion for the Board’s. The Board benefits from its
expertise and especially from the unique advantage of having heard the
applicant and her son testify about their claim and story. The Board is
certainly more qualified than this Court to assess the credibility of the
applicant and her son.
[19]
The
Court must verify only whether the Board’s decision was justified and
reasonable in the sense stated in Dunsmuir, above. Credibility
determinations, which lie within "the heartland of the discretion of
triers of fact", are entitled to considerable deference upon judicial
review. They cannot be overturned unless they are perverse, capricious or made
without regard to the evidence (Siad v. Canada (Secretary of State) (C.A.),
[1997] 1
F.C.
608, 67 A.C.W.S. (3d) 978, at paragraph 24; Dunsmuir, above).
[20]
The
applicant argues that the fact that the Board’s analysis of the applicant’s
credibility did not refer specifically to the Guidelines is an error justifying
the intervention of this Court.
[21]
However,
it is not sufficient to state that the Board failed to specifically refer to these
Guidelines in its reasons. The applicant must also demonstrate how the Board
did not follow them. The Board’s silence in this regard does not support a
finding that the Board did not follow or consider these Guidelines at the
hearing and in its analysis of the file. What matters is that the reasons for
decision demonstrate that the Board was sensitive towards the applicant and that the evidence was sufficient to support
its conclusion
(Kaur v. Canada (Minister of Citizenship and Immigration), 2006 FC 1066, at paragraphs 12 and 15,
163
A.C.W.S.
(3d) 444).
[22]
In
this case, the applicant did not demonstrate how the Board failed to show the
necessary sensitivity, while the evidence was sufficient to support its
conclusion; it is therefore difficult to justify the intervention of this
Court.
[23]
At
the end of this case, the Board addressed the explanations that the applicant and
her son provided during their testimony and did not believe the reasons they
gave for leaving Mexico and coming to Canada to claim refugee status; the Board
found them to be not credible because of inconsistencies, contradictions and
implausibilities in their story, without taking into account the sequence of
the later events that occurred in Mexico. Since the Board had no obligation to
accept all the applicant’s explanations, it could reject those that it
determined were not credible or not sufficient (Aguebor v. Canada (Minister
of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 732,
42 A.C.W.S. (3d) 886; Rathore v. Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. No. 42 (T.D.) (QL)).
[24]
The
Court is of the view that, based on the evidence, the Board was justified in
finding that the applicant and her son were not credible, in deciding that they
had failed to demonstrate that they were refugees and/or persons in
need of protection as defined by the Act, and in dismissing their refugee
claim.
[25]
Consequently,
the Court finds that the decision is not unreasonable, and therefore the
application for judicial review is dismissed. No question of general importance
was proposed and none is certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Certified
true translation
Mary
Jo Egan, LLB
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