Docket: IMM-2186-14
Citation:
2015 FC 603
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 7, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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TOMAS GOMEZ MONDRAGON
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LEONOR AYALA LEYVA
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EDUARDO GOMEZ AYALA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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ORDER AND REASONS
I.
Introduction
[1]
The applicants, Mr. Mondragon, his wife, Ms.
Leyva, and the couple’s minor child, Eduardo, are citizens of Mexico. They are
seeking, in this case, judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (RPD) dated March 12, 2014, that
they are not Convention refugees or persons in need of protection under
sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001,
c 27 (Act).
[2]
This was the second time that the RPD was called
upon to rule on the applicants’ refugee protection claim. It did so for the
first time in April 2012, but its decision was set aside by the Court in a judgment
rendered in December 2012 by my colleague Justice Michel Beaudry. The matter
was therefore returned for redetermination.
[3]
For the following reasons, the applicants’
application for judicial review is dismissed.
II.
The refugee protection claim
[4]
The facts underlying the applicants’ refugee
claim can be summarized as follows:
- On February 26, 2009,
while driving home, the applicants were apparently stopped by a vehicle
and forced to get out of theirs. The occupants of that vehicle, masked and
armed, purportedly searched the applicants’ car, took their identity
documents and made some telephone calls. After realizing that they had
stopped the wrong people, the assailants allegedly let the applicants go
but stated that they would kill them if they told anyone about it;
- Following that
incident, Mr. Mondragon apparently decided to file a complaint with the authorities.
The police, after being unreceptive because Mr. Mondragon was unable to
identify his assailants, apparently finally agreed to receive the complaint;
- Three days after
the complaint was received, that is, on March 20, 2009, a neighbour
purportedly informed Mr. Mondragon that armed men were looking for him and
had shown up at his house during his absence, which made Mr. Mondragon think
that corrupt police officers had informed his assailants of the complaint
that he had filed;
- Fearing for his
life, Mr. Mondragon stated that he moved his family that same day to the
home of a relative who lives in a neighbouring village, and that, three
days later, on March 23, 2009, he left Mexico for Canada by himself and claimed
refugee protection here on March 25, 2009;
- Ms. Leyva, who
was apparently not fit to travel because of psychological problems for
which she was receiving therapeutic counselling, allegedly returned to the
family home on April 1, 2009, with her son, convinced that the assailants
of the February 26 incident were only targeting her husband;
- However, on May
5, 2009, she apparently received a telephone call from someone claiming to
be a police officer who asked to speak with her husband. She therefore
allegedly pretended she was a neighbour and asked the caller to call back
later. That telephone call purportedly terrorized Ms. Leyva to the point
where, from that day on, she stopped answering the phone and withdrew her
son from school;
- One week later,
a car apparently parked close to Ms. Leyva’s house and someone dressed in civilian
clothing allegedly got out of it and purportedly watched the house for
about an hour. That incident apparently aggravated Ms. Leyva’s anxiety to
the point where she apparently decided to go join her husband in Canada, which
she did, accompanied by her son, on May 24, 2009. Their refugee claim was
filed the day after they arrived.
[5]
The fear raised in support of the applicants’
refugee claim is twofold: first, the applicants fear being killed by those who
stopped them on February 26, 2009, who Mr. Mondragon suspects are members
of a criminal gang, because of the complaint he filed with the police; second,
having stayed in Canada, a rich country, they fear extortion upon their return
to Mexico.
[6]
In its first decision, the RPD rejected the
applicants’ refugee claim on the ground that Mr. Mondragon apparently
failed to report, in a timely manner, the events related to his refugee claim
that occurred since his arrival in Canada. The Court, however, found that the
RPD did not adequately consider Mr. Mondragon’s explanations in that regard and
returned the matter for redetermination.
III.
Decision under review
[7]
In the decision under review, the RPD first did
not believe that a complaint was filed following the incident on February 26,
2009, and also did not believe, as a result, that the perpetrators of the
incident took an interest in them afterwards. Its decision in that respect was
based on the fact
- That according
to her psychosocial follow-up since arriving in Canada, Ms. Leyva allegedly
did not mention to the case workers who treated her the complaint or the post‑complaint
incidents (suspicious calls and visits to the house, presence of a suspicious
person close to the house);
- That Mr.
Mondragon purportedly contradicted himself as to the number of complaints
he made to the authorities and as to the date of the filing of the
complaint related to the incident on February 26, 2009; and
- That the content
of the document submitted by Mr. Mondragon as being a copy of said
complaint had little probative value because it was not consistent, in
terms of substantive information, with content typically found in that
type of document, according to the objective documentary evidence.
[8]
The RPD also found that, even accepting that a
complaint was indeed filed and that the events subsequent to that filing,
between April and May 2009, did occur, the applicants did not establish the
existence of a prospective risk if they were to return to Mexico. In that
respect, the RPD found that
- Mr. Mondragon was
simply speculating on the identity of the perpetrators of the incident on
February 26, 2009, because they were apparently masked;
- Having been
released because they were not the individuals who the perpetrators of the
incident had been looking for, the applicants were not targets or persons
of significance for those individuals;
- The neighbours’ letters
submitted by the applicants, which report that, after they left for
Canada, they have still apparently been sought by suspicious persons,
could not be given any probative value because none of them are
handwritten, they do not report any incident between December 2011 and
December 2012 and save one letter, they are all contemporaneous with the
second hearing of the refugee claim; and
- The fact that
the applicants are apparently still being sought is inconsistent with the
objective documentary evidence, which shows that the powerful criminal
groups that they allege to fear have ways of knowing that they are in
Canada, as well as with the fact that the local crime group responsible
for kidnapping one of Mr. Mondragon’s cousins who lives in another Mexican
state was, itself, apparently aware that the applicants were in Canada.
[9]
Finally, the RPD determined that the applicants’
fear of extortion should they return to Mexico because they stayed in Canada
was unfounded because, first, Mr. Mondragon hesitated when asked the question
and, second, that is a generalized risk in a country such as Mexico.
IV.
Issue
[10]
The issue here is whether the RPD committed
errors in assessing the applicants’ situation that warrant the intervention of
the Court. The applicants specifically take issue with the findings made by the
RPD regarding the credibility of their fear of persecution.
[11]
The parties agree that the applicable standard
of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190). According to that standard of review, the Court must show
deference to the RPD’s findings and, as a result, intervene only if they are
not justified, transparent or intelligible and if they fall outside the range
of possible, acceptable outcomes which are defensible in respect of the facts
and law (Dunsmuir, above, at para 47).
V.
Analysis
[12]
It has been well established that the
prospective nature of the risk raised in support of a refugee claim is a
central element in the entitlement to protection set out in section 97 of the
Act (Portillo v Canada (Citizenship and Immigration), 2012 FC 678,
[2014] 1 FCR 295, at para 40). In fact, the applicants, as also specified by
the RPD, had to establish not only that they were targeted by criminals before
leaving Mexico, but also that they are at risk of being targeted if they were
to return to that country. In other words, they also had to demonstrate that
the threat to them is prospective (Acosta v The Minister of Citizenship and
Immigration, 2009 FC 213, at para 13; Gonzalez v The Minister of
Citizenship and Immigration, 2013 FC 426, at para 18; Mancillas v The Minister
of Citizenship and Immigration, 2014 FC 116, at para 25).
[13]
In this case, the RPD found that the applicants did
not succeed in proving this.
[14]
For the purposes of this application for
judicial review, the applicants certainly focused their efforts on trying to
demonstrate that the RPD erred by finding that they did not establish, in a
credible manner, the threat that purportedly led them to leave Mexico for
Canada. However, they said very little about the RPD’s findings on the absence
of a prospective risk.
[15]
In fact, the applicants are essentially criticizing
the RPD for giving, on that point, no weight to the neighbours’ letters that
report that suspicious people have been looking for them since they left for
Canada. In particular, they criticize the RPD for having disregarded those
letters on the basis that they were not supported by any proof of mailing when
that evidence was submitted to the RPD as additional evidence.
[16]
However, as stated by the respondent, that was
not the only factor that led the RPD to find that there was a lack of a
prospective risk. In fact, the following factors also influenced the RPD’s
decision on that point:
- The purely
speculative nature of the membership of the individuals who were
responsible for the incident on February 26, 2009, in an organized crime
group that could be attributed a modus operandi that may constitute
a threat for the applicants if they were to return to Mexico;
- The release of
the applicants once their assailants understood that they were not whom
they were supposed to stop, which made it possible to infer that the
applicants were not, for them, targets or persons of significance;
- The outcome of
the complaint presumably filed by Mr. Mondragon, which was not acted upon
and, therefore, apparently did not worry those who were the subject of it,
thus rendering it not credible that the applicants’ assailants, four years
after the fact, could still be interested in them and might deploy efforts
and resources to find and persecute them;
- The fact that
there was supposedly no incidents by those supposed persecutors according
to the applicants’ neighbours between December 2011 and December 2012 and
the fact that the letters from those neighbours were contemporaneous with
the hearings of the refugee claim before the RPD; and
- The
inconsistency in that the local crime group that kidnapped one of Mr. Mondragon’s
cousins is said to have known that the applicants were in Canada, which is
allegedly not the case for the powerful criminal groups who are apparently
still looking for them, while the objective documentary evidence shows
that those groups have the resources and means to know that the applicants
are in Canada.
[17]
Based on all of these factors, it seems evident to
me that the RPD did not disregard the neighbours’ letters based only on the
fact that apparently no proof of mailing was provided. Its analysis seems to me
to have been more extensive than what the applicants imply and involved, in my
opinion, a reflection on the weight to be given to those letters in light of
all of the evidence.
[18]
Ultimately, the applicants’ argument amounts to
saying that the RPD should have given more weight to those letters. However,
the role of the Court is not to reweigh the evidence and to substitute its own
findings of fact for those of the RPD. Instead, the Court must show deference
to the RPD’s findings of fact and intervene only if they were made in a
perverse or capricious manner or without regard for the material before it. In
other words, the issue is not whether a reassessment of the evidence could lead
to a different result, but whether not having given predominant weight to those
letters affected the reasonableness of the RPD’s decision (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 72; Idony
v Canada (Minister of Citizenship and Immigration),
2010 FC 970, at para 13; Rahal v Canada (Minister of Citizenship and
Immigration), 2012 FC 319).
[19]
In my opinion, there was ample support for the
RPD’s finding on the central issue of the prospective nature of the risk of
persecution alleged by the applicants. As previously stated, it assessed that
issue according to a number of factors from which it drew inferences that seem
to me to fall within the range of possible, acceptable outcomes in respect of
the facts and law (Dunsmuir, above, at para 47).
[20]
Having found that the RPD’s decision on the lack
of a prospective risk is reasonable, within the meaning of Dunsmuir, this
is sufficient to dispose of this application for judicial review because the
presence of such risk is an essential element of a refugee claim filed under
sections 96 and 97 of the Act. In those circumstances, it is unnecessary to
determine whether the RPD erred by finding that the applicants did not credibly
establish the very existence of the risk alleged in support of their refugee
claim.
[21]
The application for judicial review will
therefore be dismissed. Neither party requested the certification of a question
by the Federal Court of Appeal, as set out in paragraph 74(d) of the
Act. I also do not see any matter for certification in this case.
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