Ottawa, Ontario, March 6, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
XOCHITL ARIZMENDI ARENAS
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. and Mrs. Ortiz Juarez are citizens of Mexico whose refugee application was denied by the Immigration and Refugee Board (IRB) on the grounds that (a) they were not credible; and (b) they had not displaced the presumption of state protection.
[2] The IRB drew adverse conclusions with respect to credibility for the following reasons:
· the Applicants' oral evidence raised significant new information not included in their Personal Information Forms (PIFs);
· the Applicants failed to provide satisfactory explanations for these omissions to the PIFs;
· there was an absence of corroborative documentary evidence of Mrs. Ortiz Juarez's illness and of the transfer of funds between two accounts to pay off the alleged kidnappers; and
· the Applicants were represented by experienced counsel and, as such, the failure to explain omissions or corroborate their evidence must be held against them.
[3] On the matter of state protection, the IRB found that the standard of proof to rebut the presumption of the availability of state protection to be high, as Mexico had a functioning democracy. Moreover, the IRB found that if the police were implicated in the kidnappings, there were still alternate effective state agencies to be approached for protection. The IRB drew negative inferences from Mr. Ortiz Juarez's failure to seek state protection and Mrs. Ortiz Juarez's six month delay in reporting the kidnapping.
II. Analysis
[4] For judicial review of IRB decisions relating to credibility and/or state protection, it is settled law that the standard of review is patent unreasonableness. (See Aguebor v. (Canada) Minister of Employment and Immigration, [1993] F.C.J. No. 732 (QL); (1993), 160 N.R. 315 and Alizadeh v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 11 (C.A.) (QL).)
[5] The Applicants attempted to lay the blame on their former counsel for the various omissions from Mrs. Ortiz Juarez's PIF. The essence of their complaint is that counsel filed clearly erroneous evidence. So blatant were the errors, according to their new counsel, that the IRB should have seen the errors and made allowances for it.
[6] In my view, the IRB cannot be faulted for taking the evidence as presented and drawing adverse conclusions because of material omissions. The issue of counsel's alleged failures will be dealt with later.
[7] The Applicants complain that there was no basis for requiring corroborative evidence since there is a presumption of veracity in favour of the Applicants. This submission is simply startling. The requirement for corroboration is only a matter of common sense. In The Law of Evidence in Canada, Sopinka, Lederman and Bryant, Toronto: Butterworths, 1999, 2nd ed., the matter is succinctly put at page 973:
The general rule is that the testimony of a single witness, if believed to the requisite degree of certainty, is sufficient to found a conviction or civil judgment. Because there may be concerns about the reliability of a witness' testimony - perhaps the witness has a financial interest in the outcome of the proceedings or he or she is an accomplice - the trier of fact may search for supporting evidence to confirm that witness' testimony. This search for confirmatory evidence is a matter of common sense.
[8] The Applicants contend that they could not document the transfer of funds between the accounts because the records were lost when the bank went through a restructuring. There was neither evidence of such loss nor any evidence that the Applicants took any steps to request the bank records.
[9] The bank records, or at least the attempt to secure the records, were material evidence and could reasonably be expected to be available. It was more than reasonable for the IRB to seek out such evidence and to then draw adverse conclusions from the Applicants' failure to provide it.
[10] With respect to state protection, Mexico is a democracy with a functioning police force. Even if the police or some of them were agents of persecution, there is no evidence of a pervasive undermining of democratic institutions. In addition, there is evidence of state-run aid and protection available through non-police organizations. The IRB is therefore justified in drawing a negative conclusion of the Applicants flowing from their failure to seek protection.
[11] Lastly, this case had a troublesome twist. New counsel for the Applicants attempted to assign to former counsel responsibility for the errors and omissions in the Applicants' evidence. There was not an ounce of compelling evidence to support this allegation, an allegation tantamount to a claim of negligence or professional irresponsibility.
[12] Former counsel was given no notice that this allegation would be advanced, nor was there a complaint to the Law Society or to the professional insurers. In my view, it is totally unacceptable conduct for the new counsel, as an officer of the Court, to impugn the professional quality of a member of the Bar without any evidence and without notice or some other action which would permit former counsel to respond to these allegations.
[13] There are no grounds for granting this judicial review. There is no question to be certified.
JUDGMENT
IT IS ORDERED THAT:
1. The application for judicial review is dismissed.
2. There is no question for certification.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2410-05
STYLE OF CAUSE: Jose De Jesus Ortiz Juarez
Xochitl Arizmendi Arenas
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 2, 2006
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
| Mr. Boniface Ahunwan
|
|
| Mr. Kevin Lunney
|
SOLICITORS OF RECORD:
| Mr. Boniface Ahunwan Barrister & Solicitor Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|