Date: 20081113
Docket: IMM-1540-08
Citation: 2008 FC 1260
Montréal, Quebec, November
13, 2008
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
SERGIO LUIS VALDES PEREZ
DIANA NAVARRO VILLARREAL
MAX VALDES NAVARRO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The principal applicant, Sergio Luis Valdes
Perez, his wife Diana Navarro Villarreal and
their son Max Valdes Navarro, all three Mexican citizens, are seeking pursuant
to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001,
c. 27 (Act), a review of the decision of the Refugee Protection Division
of the Immigration and Refugee Board (panel) dated March 4, 2008, failing
to recognize them as “refugees” or “persons in need of
protection” within the meaning of sections 96 and 97
of the Act and accordingly refusing their refugee claim.
II. Facts
[2]
In
support of their request for protection, the applicants allege that they fear
returning to their country on the basis that they would be targeted by the
principal applicant’s employers and by corrupt officials given the principal
applicant’s decision to report the fraud perpetrated by these individuals at
the expense of Mexican taxpayers.
III. Impugned decision
[3]
Based
on the implausibilities and inconsistencies identified in the story of the
principal applicant and that of his wife, the panel determined as follows: “Given
the amount of evidence that was not credible, the panel is of the opinion that
the claimants did not discharge their burden of proof.” Accordingly, it refused
their refugee claim.
IV. Issue
[4]
Did
the panel make an unreasonable error in making a negative credibility finding
in regard to the principal applicants based on the fact that they had not discharged
their burden of proof?
V. Analysis
Standard of
review
[5]
The
courts must treat with deference the decisions of specialized administrative
tribunals where, as in this case, they have expertise in matters within their
jurisdiction (Dunsmuir v. New Brunswick, 2008 SCC 9).
[6]
The
standard of reasonableness applies to this case, so that to justify the
Court’s intervention, the Court must ask whether the impugned decision
is reasonable, taking into account its justification, and whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law (Dunsmuir, supra,
paragraph 47).
[7]
Within
this standard of review and the facts in evidence, can the Court find that the
panel erred in deciding that the applicants did not discharge their burden of
proof and that accordingly they do not qualify for the status claimed as refugees
or as persons in need of protection?
Parties'
submissions
[8]
The
applicants contend that the sole finding justifying the panel’s refusal of
their refugee claim could be based only on perverse inferences regarding their
lack of credibility and fails to take into account all of the evidence.
[9]
The
respondent in turn submits that the omissions, inconsistencies and shortcomings
in the evidence support the panel’s finding as it did in its decision.
Lack of
credibility
[10]
In
attempting to persuade the Court that the panel erred in the negative findings
that it made from the evidence in regard to the credibility of the applicants’
story, the applicants are in fact trying to justify the parts of the evidence
that the panel rejected because it found it unreliable, unsatisfactory,
implausible or uncorroborated. Yet bear in mind that the applicants had every
opportunity to fully present their story to the panel to persuade it, but
unfortunately failed to adequately discharge their burden of proof.
[11]
This
Court has stated several times that “a tribunal can conclude that there is lack
of credibility by basing itself on improbabilities in the refugee status
claimant’s account, on common sense and on reason” (Garcia v. Canada (Minister of
Citizenship and Immigration), 2008 FC 206, at paragraph 9). Further,
the lack of documents corroborating the allegations of an applicant can
negatively impact his credibility (Singh v. Canada (Minister of
Citizenship and Immigration) 2007 FC 62, 159 A.C.W.S. (3d) 568).
[12]
Yet,
based on the fact that the panel does not in its decision accept or remark on
certain evidence that the applicants consider more important than the evidence
accepted by the panel in making its finding, the applicants allege that it did
not consider all of the evidence submitted and, on that basis, qualify its
decision as unreasonable.
[13]
This
argument of the applicants fails to consider that it must be presumed that the
panel considered all of the evidence submitted to it (Florea v. Canada (Minister
of Employment and Immigration) (F.C.A.), [1993] F.C.J. no
598 (QL), and that once it finds and explains why it is not credible, the panel
does not have an obligation as such to delve into each piece of evidence
supporting the allegations to the contrary that it has not accepted because it
finds that they are lacking in credibility, unreliable, uncorroborated or
unnecessary to its findings (Ahmad v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 471, at paragraph 26).
[14]
It
is not the Court’s place at this stage to repeat the exercise and reassess the
evidence or substitute its opinion to that of the panel, all the more because
the panel has the advantage of expertise, and above all the advantage of having
heard the applicants’ stories and claims. The panel is certainly more qualified
than this Court to assess the credibility to assign to the applicants’ stories.
[15]
The
Court must limit itself to verifying whether the panel’s decision is justified
and reasonable in the manner stated in Dunsmuir, supra. Decisions
affecting the credibility of a party are “the heartland of the
discretion of triers of fact,” such that these decisions must be afforded
great deference on judicial review. They will not be set aside unless they are
capricious, perverse, or fail to take into account 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, supra).
[16]
After
hearing the applicants’ stories, the panel found that their story lacked
credibility to the extent that they did not discharge the burden of proof that
they had to satisfy to persuade it to the contrary, and the panel adequately explains
how it arrived at this finding.
[17]
In
their memorandum, the applicants only provided late explanations to justify the
shortcomings noted by the panel and proposed a factual interpretation
alternative to that made by the panel. The applicants had ample opportunity to
explain themselves in a timely fashion before the panel; unfortunately for
them, their answers did not satisfy the panel. The applicants cannot submit
before this Court late explanations attempting to complete or improve their
evidence, or ask the Court to substitute its assessment of the facts to that of
the panel.
[18]
The
Court must afford great deference to the panel’s findings regarding the
applicants’ credibility, leaving the applicants with an onerous burden to persuade
the Court to set aside these findings.
[19]
In
short, the applicants have failed to establish that the impugned decision is
based on erroneous findings of fact made in a capricious or perverse manner or
that the panel made its decision without taking into account the evidence
before it (Lin v. Canada (Minister of Citizenship and Immigration), 2008
FC 698).
[20]
After
hearing the arguments, analyzing the evidence as well as the decision
contemplated by this proceeding, the Court can only find that the decision was
justified and falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and the law, and does not justify the
intervention of this Court.
[21]
No
serious question of general importance was proposed, therefore no question will
be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Certified
true translation
Kelley
Harvey, BA, BCL, LLB
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