Date: 20130402
Docket: IMM-5765-12
Citation: 2013 FC 325
Ottawa, Ontario, April 2, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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JORGE ROJAS
MARQUEZ
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Applicant
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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
I. Background
[1]
The Applicant, Mr. Jorge Rojas Marquez, is a citizen of Mexico who initially claimed protection in Canada due to risks that he faces from a criminal
organization. In addition, the Applicant also asserted, for the first time at
his hearing, that he is at greater risk because of his indigenous identity. In
a decision dated May 1, 2012, a panel of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) determined that the Applicant was
neither a Convention refugee, pursuant to s. 96 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA), nor a person in
need of protection, pursuant to s. 97 of IRPA.
[2]
Quite simply, the Board did not believe the Applicant. In
its decision, the Board’s overall conclusion was that there was no credible
basis for the claim. In reaching this overarching conclusion and rejecting the
claim, the Board made a series of key findings:
•
The 18-month delay in making his refugee claim demonstrated
a lack of subjective fear;
•
The Applicant’s claim with respect to his indigenous
identity was rejected due to his failure to identify this risk earlier and a
failure to produce any reliable evidence in support of this particular aspect
of his claim;
•
The Applicant’s claim under s. 96 of IRPA fails
because, as a victim of crime, the Applicant had no nexus to a Convention
ground;
•
With respect to his s. 97 claim, the Applicant failed to
provide “clear and convincing evidence” that his uncle was involved with a criminal
gang that would have made the Applicant a target of revenge; and
•
The Applicant failed to rebut the presumption that state
protection was adequate.
II. Issues
[3]
The Applicant seeks to overturn that decision, alleging the
following reviewable errors:
1.
The Board did not make clear credibility findings. The
Board failed to outline why it rejected particular elements of the Applicant’s
explanation for his delay in claiming refugee status.
2.
The Board’s “no credible basis” finding is unreasonable
since the evidence on the file was enough to support a positive determination.
3.
The Board refused to receive relevant case specific
documents without considering the factors listed in Rule 30 of the Refugee
Protection Division Rules, SOR/2002-228 (the RPD Rules).
4.
The Board ignored relevant evidence with regard to state
protection in Mexico.
III. Analysis
A. Credibility
Findings
[4]
The key issue raised by the Applicant is that the Board
provided inadequate reasons for its credibility findings, and for its decision
as a whole. Although all parties acknowledge that the decision is not well
written, bad writing does not make a decision unreasonable. Having reviewed the
decision and the record, including the transcript, I am satisfied that the
Board’s decision as a whole was reasonable.
[5]
The Board provided many concrete examples of
problems with the Applicant’s credibility. For example:
•
The Board commented generally that the Applicant’s
testimony was vague and he failed to provide documents to support his
allegations.
•
The Board drew a negative inference from the Applicant’s
delay in claiming of a year and a half. The Board drew a second negative
inference based on the Applicant’s explanation that he delayed to obtain
documents, given his own admission that he was not able to substantiate certain
aspects of his claim. The Board found that the Applicant’s behaviour was not
consistent with a subjective fear.
•
The Applicant claimed at the hearing not to understand
Spanish, when he stated in his Personal Information Form (PIF) that this was
the language he understood the best. The Applicant initially alleged at the
hearing that Nahuatl was the dialect he understood, but later admitted that he
could speak English. The Board drew negative inferences from this inconsistent
evidence.
•
The Applicant attempted to present a number of documents at
the hearing, stating that the documents were “his whole life”. The Board noted that
the Applicant’s explanation why the documents were late was vague. The Board
also formed a negative inference regarding the Applicant’s credibility from his
embellishment and argumentative behaviour.
•
The Board drew a negative inference from the Applicant’s
outburst in the middle of the hearing that he was not listened to because of
his physical appearance, linked to his indigenous race. The Board noted that
the outburst was an attempt to avoid a question relating to whether the
Applicant had contacted the police and the Applicant was overly dramatic. The
Board concluded that this incident portrayed the Applicant as not trustworthy.
•
The Board drew a negative inference from the Applicant’s
testimony and lack of corroborating evidence concerning his claim based on his
indigenous ethnicity, which was not brought up in his PIF or in the
point-of-entry (POE) notes.
[6]
In my view, the Board provided unmistakable reasons for its
finding that the Applicant lacked of credibility.
[7]
In particular, the Board’s analysis of the Applicant’s
delay in claiming is reasonable. I acknowledge that the Board misstated the
evidence when it noted that the Applicant had relatives in Canada – this is inconsistent with his PIF which states that his relatives all reside in the United States. Further, the Board misstated the law when it characterized the risk to the
Applicant on the basis of his indigenous heritage as a sur place claim.
Neither of these errors is material to the relevant conclusion, which was
simply that the Applicant’s delay in claiming is inconsistent with a subjective
fear of persecution. The Board drew a negative inference with respect to the 18
month delay, which the Applicant primarily attributed to his need to gather
evidence, given the Applicant’s submission of late documents and failure to
substantiate parts of his claim. This conclusion was within the range of possible,
acceptable outcomes.
[8]
The Board’s statement, at paragraph 11 of its reasons, that
“the claimant failed to provide any documents to support his allegations” is
not entirely accurate. However, this one sentence is not sufficient to render
the whole credibility finding unreasonable. In any event, in the body of the
decision, the Board does refer to some of the documents that were submitted
(for example, Dr. Pilowsky’s report and a medical report relating to the
Applicant’s brother). This demonstrates that the Board was aware that the
Applicant did submit certain documents to support his claim. Although the Board
should have outlined exactly which allegations were unsubstantiated, which
would likely have explained this comment, the credibility finding was not made
without regard to the evidence submitted by the Applicant.
[9]
Therefore, given the significant credibility concerns
clearly outlined by the Board, most of which are undisputed by the Applicant
and all of which are supported on the record, the credibility finding as a
whole is reasonable. The Board’s credibility findings were sufficiently
supported and were within the range of possible, acceptable outcomes.
B. No Credible Basis
[10]
The Applicant also submits that the Board’s conclusion that
there was no credible basis for his claim is unreasonable, given that the Board
appears to have accepted as credible the Applicant’s identity as an indigenous
person and some of the events described in the testimony of the Applicant.
[11]
Justice Rennie recently stated that, “If there is any credible
or trustworthy evidence that could support a positive determination the Board
cannot find there is no credible basis for the claim, even if, ultimately, the
Board finds that the claim has not been established on a balance of probabilities”
(Levario v Canada (Minister of Citizenship and Immigration), 2012 FC 314
at para 19, 9 Imm LR (4th) 198 [Levario], emphasis in the
original). In Levario, Justice Rennie found that the Board’s no credible
basis finding was unreasonable because the Board accepted the applicant was
bisexual, a risk which was supported by extensive documentary evidence (Levario,
above at paras 17-21).
[12]
The situation in the present case differs from that
discussed in Levario. In Levario, the Board accepted certain evidence
of the claimant, which evidence clearly demonstrated a risk posed and was supported
by the documentary evidence. However, in this case, the credibility of
Applicant’s risk as a result of his indigenous heritage and as a result of
revenge at the hands of the Los Zetas and his uncle was reasonably questioned
by the Board.
[13]
The Applicant did submit country documentation, death
certificates and medical information; however, without any evidence linking
these documents to a particular risk the Applicant faces, these documents are
arguably not relevant. The death certificates and the medical notes do not
provide any information aside from the nature of the injuries, which could have
been caused in many different ways. Without the Applicant’s account to connect
these documents to a possible risk that he faces, these documents could
reasonably be seen to have no probative value.
[14]
In sum, I cannot conclude that the decision on the
Applicant’s lack of credibility or its finding of “no credible basis” is unreasonable.
The Board rendered a decision that falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190). There is no
reviewable error.
C. Late
Documents
[15]
The Applicant also asserts that the Board erred by
rejecting the documents advanced for the first time at the hearing without
proper consideration of Rule 30 of the RPD Rules. This raises a question
of procedural fairness. Contrary to the Applicant’s submission, there were
substantial grounds for refusing the documents aside from the fact that the
documents were late.
[16]
Each request to admit late documents must be considered in
its particular factual context. In my view, the Board did not breach the duty
of procedural fairness on the facts of this case. Although not clearly written,
I am satisfied that the Board considered more than the question of the lateness
of the documents. In particular, the Board referred to a number of the
documents in the decision, demonstrating that their nature and purpose was
considered. The Board also considered that the Applicant was unable to provide
a sufficient explanation why the documents were late and that he had plenty of
time to gather them.
[17]
There is no reviewable error.
D. State
Protection
[18]
The Applicant argues that the Board ignored relevant
evidence related to the adequacy of state protection. I note first that, the
lack of credible basis finding by the Board is dispositive of this case. Having
made no reviewable error on that aspect of the Applicant’s claim, the issue of
state protection is not determinative. Nevertheless, having reviewed the
record, I am not persuaded that the Board erred as alleged.
[19]
Viewed as a whole, the Board’s state protection analysis is
reasonable. It is the role of the Board to weigh the evidence. Although the
Board’s analysis of state protection is brief and not ideally organized, it is
clear that the Board turned its mind to the relevant considerations to the
Applicant’s case. The Applicant’s account includes many incidents of violence
which caused the family to fear for their lives and to relocate. In this
context, the Applicant made relatively few attempts to seek protection and
demonstrated a lack of diligence to determine what actions the police took
after the deaths of his father and his uncle. Therefore, the conclusion that
the Applicant did not take all reasonable steps and failed to rebut the
presumption of state protection is within a range of possible outcomes.
III. Conclusion
[20]
In sum, the Board’s decision is reasonable and there was no
breach of procedural fairness that would warrant the Court’s intervention. The
Application for Judicial Review will be dismissed. Neither party proposes a
question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
The application for judicial review is dismissed; and
2.
No question of general importance is certified.
“Judith
A. Snider”
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