Date:
20130124
Docket:
IMM-4469-12
Citation:
2013 FC 64
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal,
Quebec, January 24, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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SAMUEL SANCHEZ
CASTILLO
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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
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division (the RPD) of the Immigration and Refugee Board dated April 17,
2012, under subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 (the IRPA). The RPD determined that the applicant was
neither a Convention refugee under section 96 nor a person in need of
protection under section 97 of the IRPA.
I. Facts
[2]
The
applicant stated that he feared his boss, Hugo, the owner of the pharmacy
Farmapronto, and his allies, federal judicial police officers. He claimed that
he was threatened because he refused to distribute drugs in colleges.
[3]
The
applicant allegedly made two attempts to file complaints with the Mexico City
police.
[4]
The
applicant stated that he did not exhaust all avenues to obtain state protection
because he was afraid. In fact, he testified that his mother and he had imagined
that the Mexican authorities would protect Hugo and the two former members of
the Federal Investigation Agency (AFI) instead of his mother and himself.
Counsel for the applicant apparently confirmed this possibility. He did not
file a complaint with the federal police.
[5]
The
applicant decided to leave Mexico on July 23, 2008, and arrived in
Vancouver on August 4, 2008. He claimed refugee status on September 7,
2010, in Montréal.
[6]
On
September 5, 2010, when he was in Canada, he received an e‑mail from
his sister confirming that his pursuers are members of the AFI.
II. Reviewed
decision
[7]
The
RPD rejected the applicant’s refugee claim basing its decision mostly on a
problem of credibility because of significant omissions and contradictions in
the applicant’s testimony, the most important of which are conveyed in the decision.
[8]
First,
the applicant stated that two AFI police officers allegedly showed up at his
home in Mexico on September 5, 2010. However, he stated that he could not
provide a copy of his sister’s e‑mail, which confirms that the agents of persecution
are members of the AFI and explained that he did not think of keeping a copy of
this e‑mail.
[9]
Second,
the applicant contradicted himself with regard to the number of written complaints
filed with the city police. Initially, he claimed that he filed three written
complaints with the city police then stated that he had instead attempted to file
two complaints. Further, the applicant provided three specific dates on which
the complaints were allegedly filed and then retracted them. Therefore, the RPD
found that this undermined the applicant’s credibility.
[10]
Third,
the applicant claimed that he used the services of a lawyer in Mexico, Mr. Guzman,
who was supposed to have provided evidence to corroborate his testimony, a copy
of the complaint filed and thus allegedly conducted an investigation. However,
he claimed that he received nothing from him. When asked to explain what the
lawyer did for him, the applicant answered in a confused manner, stating first
that he did not know what the lawyer did, then stating that he knew that the
lawyer had told his mother that he had come to obtain a copy of the complaint. The
RPD found that the applicant’s confused answers undermined his credibility.
[11]
Finally,
the RPD considered that the applicant lacked credibility because he had not
mentioned in his account that his lawyer, Mr. Guzman, had allegedly confirmed
that his fear of not being protected by the authorities had merit given that
they support Hugo and the two former members of the AFI. When asked to explain
the reasons why he did not mention this fact, the applicant answered that he
did not think to do so.
[12]
The
RPD then considered that even if the applicant was credible with respect to his
story, he did not rebut the presumption of state protection.
[13]
The
applicant did not file a complaint with the federal police despite the fact
that he claimed that the persons involved are members of the AFI and, therefore,
are employees of the federal government. The applicant provided the simple explanation
that he was afraid. However, the documentary evidence shows that in Mexico,
when a person is a witness of an act of corruption within the federal
administration, he or she may file a complaint with the offices of the public
service secretariat and by telephone by using their SACTEL service.
[14]
In
the circumstances, the applicant did not provide clear and convincing evidence
to rebut the presumption of state protection, especially since he did not
exhaust all avenues available to him in Mexico. In fact, it is acknowledged
that a democratic state is presumed to be able to protect its citizens.
III. Position
of the applicant
[15]
The
applicant submitted that the RPD’s findings on his credibility are erroneous.
[16]
First,
the applicant submitted that the RPD erroneously criticized the applicant for
failing to mention the e‑mail received on September 5, 2010. In
addition, even if the applicant could not provide evidence confirming that he
had indeed received this e‑mail, the RPD should have considered that the
applicant tried to obtain such evidence to no avail in accordance with
section 7 of the Refugee Protection Division Rules, SOR/2012-256.
[17]
Second,
the applicant stated that he provided adequate and not confused answers to the questions
that he was asked with regard to the complaints. In fact, there is a nuance between
presenting himself before the authorities to file a complaint and the
acceptance of such complaints. Further, the applicant alleged that the answers he
gave with respect to the complaints are clear, because he referred to all the
complaints filed, orally or in writing.
[18]
Third,
with respect to what steps the lawyer Guzman had allegedly taken, the applicant
stated that he had communicated with his mother to explain that there had been
no progress with respect to the first complaint.
[19]
Fourth,
according to the applicant, his testimony that the Mexican authorities allegedly
would protect Hugo and his accomplices, the AFI officers, is a personal opinion
that had not been mentioned in his account.
[20]
Fifth,
the applicant argued that he was not given the opportunity to provide explanations
with respect to the contradictions in his testimony.
[21]
Sixth,
the applicant considered that the RPD’s findings on his credibility are not
reasonable given that they deal with elements that are not at the heart of his
application and that the RPD is relying on conjecture. Further, the testimony
given under oath is presumed to be true.
[22]
With
respect to state protection, the RPD should have considered the applicant’s particular
situation, including the profile of the individuals who were persecuting him. In
addition, the RPD ignored the documentary evidence showing that corruption of
the authorities is still a serious problem in Mexico.
IV. Position
of the respondent
[23]
With
respect to the findings on the applicant’s credibility, the respondent is of
the view that they are reasonable.
[24]
In
fact, the applicant failed to mention in his Personal Information Form (PIF)
that his lawyer had confirmed that the federal authorities would not help him. Further,
it is implausible that he could not provide the e‑mail from his sister
dated September 5, 2010, and the applicant’s testimony is tainted by
numerous contradictions.
[25]
During
his testimony before the RPD, the applicant contradicted himself about the
number of complaints and could not provide an explanation in judicial review. Further,
the applicant provided contradictory answers regarding his lawyer’s investigation.
[26]
With
respect to the allegation that his lawyer had told him that he should not file
a complaint with the federal authorities, it should have been found in the
applicant’s PIF given that it is an important element of his refugee claim.
[27]
As
for the e‑mail that he allegedly received on September 5, 2010, the
RPD had validly found that the fact that the applicant could not produce it and
without a valid reason affects his credibility. It is the applicant’s burden to
prove his allegations and provide the evidence they are based on.
[28]
Lastly,
the respondent submitted that even if the applicant had been considered credible,
he did not provide clear and convincing proof to rebut the presumption of state
protection. In fact, the evidence shows that there are specialized authorities
in the fight against corruption, particularly within the federal police, and
the applicant did not use these processes at the federal level, rather with merely
filing a complaint with the city police.
V. Issues
1. Did the
RPD err in concluding that the applicant was not credible?
2.
Did the RPD commit an error in determining that the applicant had failed to
rebut the presumption of state protection?
VI. Standard
of review
[29]
The
reasonableness standard is applicable to the RPD’s decision regarding the
applicants’ credibility (Aguebor v Canada (Minister of Employment and
Immigration), 160 NR 315, at para 4, 1993 CarswellNat 303 (FCA)) and
the issue of state protection because it is a question of mixed law and fact (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 47, [2008] 1 S.C.R. 190).
VII. Analysis
1.
Did
the RPD err in concluding that the applicant’s story was not credible?
[30]
The
RPD’s findings with respect to the applicant’s lack of credibility are
reasonable. He had the burden of establishing the facts on which his application
relies, based on the balance of probabilities.
[31]
First,
contrary to what is alleged by the applicant, the RPD criticized him for not
mentioning the fact that his lawyer was of the view that the authorities are siding
with Hugo and the two AFI officers and not for failing to mention the event on
September 5, 2010. On this matter, the RPD rightly found that the burden
was on the applicant to provide the evidence to corroborate his testimony, for
example, the e-mail he received from his sister. The RPD validly rejected the explanation
provided by the applicant to justify the fact that he did not produce an e‑mail.
In fact, no intervention is required since the RPD decided to reject an explanation
justifying gaps in the applicant’s evidence and that such a finding is reasonable
(Ortiz
Juarez v Canada (Minister of Citizenship and Immigration), 2006 FC 288, at paras 7-9,
146 ACWS (3d) 705).
[32]
The
RPD reasonably found that the failure of mentioning that the applicant’s lawyer
confirmed that the federal authorities would not help him negatively affected the
applicant’s credibility. In fact, it was acknowledged that the omission of an important
element in the applicant’s PIF could undermine his credibility (Basseghi v Canada (Minister of Citizenship and
Immigration),
[1994] FCJ
1867, at para 33, 52 ACWS (3d) 165).
[33]
Further,
the applicant argued that the federal authorities were on the side of his agent
of persecution, but did not bring evidence to demonstrate this fact; he was not
able to produce the copy of an e‑mail that he received to that effect or
the lawyer’s statement about this. Therefore, it was reasonable to find that
the applicant had not established that he was subject to persecution in Mexico,
because he is not credible on this fundamental element of his application.
[34]
Contrary
to what the applicant alleged, a reading of the hearing transcript reveals that
the answers provided on the PIF regarding the complaints were confused. The applicant
initially alleged that he made three complaints in writing, then explained that
in reality a single complaint was filed and that he made two attempts. The RPD
did not consider these explanations to be credible, all the more so because if
a complaint was filed, the applicant was not able to prove it.
[35]
Finally,
regarding the steps taken with the lawyer Guzman, the RPD validly found that
the applicant’s answers were contradictory, which undermined his credibility. In
fact, the applicant claimed initially that he did not know whether his lawyer
had tried to obtain a copy of the complaint filed with the public ministry, then
finally explained that his mother informed him that this was the case, but that
they refused to provide a copy of the complaint. These explanations were considered
by the RPD to be confused, which is a reasonable conclusion.
2.
Did
the RPD commit an error in determining that the applicant had failed to rebut
the presumption of state protection?
[36]
In
this case, the RPD assessed whether state protection in the circumstances would
be adequate, even if it did not consider the applicant’s story to be credible.
[37]
The
applicant alleged that he complained to the city police without being able to
give a specific answer as to the number of complaints actually filed and that
he was afraid of filing a complaint with the federal police.
[38]
It
is recognized that the Mexican authorities are dealing with problems of
corruption, which could, in certain circumstances, result in a fear of
persecution being justified. In this case, it was not proved on a balance of probabilities
that the applicant was persecuted by AFI officers. Further, if that was the
case, the applicant could have exhausted some avenues, which he did not do,
despite the fact that he alleged that his agent of persecution corrupted AFI
officers.
[39]
Therefore,
the RPD’s conclusion that the applicant did not rebut the presumption of state
protection is reasonable, because the evidence shows that he did not exhaust
all avenues available in Mexico (Canada (Minister of Employment and Immigration) v Villafranca, (1992) 18 Imm LR
(2d) 130, 150 NR 232 (FCJ)). It is acknowledged that when an
applicant alleges that the agent of persecution is part of the federal authorities
in Mexico, he or she is obliged to use the processes offered in Mexico for
people who are witnesses of corruption among these authorities (Flores Carrillo
v Canada (Minister of Citizenship and Immigration),
2008 FCJ 94,
at paras 34-35, 69 Imm LR (3d) 309).
[40]
The
parties were invited to submit a question for certification, but none was
proposed.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed. No question will be certified.
“Simon Noël”
Certified true
translation
Catherine Jones,
Translator
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