Toronto, Ontario, this 24th day of November, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated December 17, 2004, which determined that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant seeks an order setting aside the decision of the Board and directing that the matter be redetermined by a differently constituted panel of the Board.
Background
[3] Alejandro Flores Montero (the "applicant") is a citizen of Mexico. He alleged that as a member of the Frente Cardenista de Reconstrucion Nacional Party (the "Cardenista Party"), he delivered charitable goods to the people in Chiapas, as a consequence of which he was targeted by federal agents in Mexico on suspicion of providing arms to the Zapatistas.
[4] The applicant alleged the following facts in the narrative portion of his Personal Information Form ("PIF"). In 1994, the applicant joined the Cardenista Party, which is one of the smaller opposition parties in Mexico. The Cardenista Party collected money, clothing, food and toys to donate to the people in the state of Chiapas.
[5] On March 18, 2000, the applicant and another party member, Virgilio Sanchez ("Sanchez"), left Mexico City in Sanchez's pick-up truck to deliver donated goods to Chiapas. They arrived the following day in Tuxtla Gutierrez, Chiapas. They were in a restaurant when five federal agents entered and demanded to know who owned the pick-up truck parked outside. The agents forced the applicant and Sanchez into a vehicle, took them to a warehouse, and placed them in separate rooms. The agents beat and interrogated the applicant and accused him of bringing arms for the Zapatista Army of National Liberation (the "EZLN"). The applicant denied this, and explained that they were bringing charitable goods to the people in Chiapas. Sanchez was also beaten up.
[6] The two men were released the next day because the federal agents did not find arms in the pick-up truck. They returned to Mexico City on March 20, 2000. The applicant saw a private doctor to treat the injuries from the beating. He also went to the Cardenista Party office to report the incident, and was advised by the Cardenista Party branch co-ordinator to file a report at the Public Ministry in Mexico City. At the Public Ministry, the applicant's complaint was not recorded as the incident happened outside their jurisdiction. He was told that he should make a report in Tuxtla Gutierrez. However, he was too afraid to return to Chiapas to make the report.
[7] On May 8, 2000, the applicant was abducted by some men into a dark-coloured car with tinted windows, where he was beaten and accused of bringing another shipment of arms to Chiapas. He struggled, kicked and bit the men, and when the car was stopped at a red light, he opened the car door, jumped out, and ran away into the crowd as the men fired a pistol at him. After that incident, the applicant moved his wife and children to Cuernavaca where they stayed at his aunt's home and he sold housewares in the market.
[8] In June 2000, the applicant noticed that he was being watched by occupants of a parked car and recognized one of the men as one of his abductors. The men pursued him but he managed to escape. That afternoon, he moved his family to Ecatepec where they stayed with his brother-in-law.
[9] Two weeks later, the applicant's father telephoned him to tell him that the federal agents had been looking for him. On the advice of his father, the applicant left Mexico on October 8, 2000 with his wife and children, and arrived in Toronto the same day.
[10] The applicant applied for refugee protection on November 2, 2000. His claim was heard on December 12, 2003 and March 11, 2004. The Board dismissed his claim in a decision dated December 17, 2004. This is the judicial review of that decision.
Reasons of the Board
[11] The Board accepted the applicant's personal and national identity. However, the Board made several adverse credibility findings with respect to the applicant's fear of persecution by federal agents in Mexico.
[12] First, the PIF alleged that the applicant belonged to the Cardenista Party, but on a refugee claim form, he stated, "I've never belonged to any organizations". When the applicant was asked at the hearing about this statement, he explained that he did not speak English. He explained that the interpreter had asked him if he belonged to a union, and he answered that he did not. The Board did not accept this explanation. The Board noted that the completed claim form had been disclosed to counsel well in advance of the hearing and the applicant had not disputed the accuracy of the information until the contradiction was pointed out to him at the hearing.
[13] Second, the Board found it implausible that the applicant would still be of interest to the federal agents after they released him in March 2000 after having failed to find any arms in the pick-up truck. The Board noted that the applicant was merely a volunteer truck driver for the Cardenista Party, not a high-profile political activist with a record of anti-government activities. The documentary evidence stated that a report of federal authorities arresting people outside Chiapas because of their past support to the Zapatistas could not be found.
[14] Third, the Board found it implausible that the applicant was abducted into a car on May 8, 2000 and beaten by armed federal agents, and yet the armed federal agents were so inept and unprepared that they would allow him to escape so easily. The Board stated at page seven of the reasons:
Alone, beaten, outnumbered and unarmed, the claimant fought the federal agents by kicking and biting them while he was a hostage in their vehicle and still managed to escape his captors. The panel finds this incredible. It was easy for them to shoot him there and then.
[15] Fourth, the Board noted that the applicant had omitted significant information from the PIF with respect to the surveillance of his relatives by federal agents in Mexico. The applicant testified at the hearing that he feared persecution by the federal agents because they continued to visit, threaten and surveil his father, aunt and brother-in-law after he left the country. When the Board asked the applicant at the hearing why this information was not in his PIF which he signed on December 18, 2001, the applicant explained that he concentrated mainly on the problem that he had at the time and the questions asked by Legal Aid. The Board did not accept this explanation. The Board found that the alleged visits and threats to his relatives in Mexico were significant events that caused him to seek protection. Therefore, he should have provided this information when he was interviewed by the immigration officer, or included it in his PIF or in the subsequent amendment to the document which was received by the Board on November 28, 2003. Also, the Board noted that the reference letters from his relatives did not mention that their homes were under surveillance or that they had been visited by federal agents. The Board had serious concerns about this omission of information, and concluded that it negated the credibility of the applicant's evidence.
[16] Finally, the Board found that there was a general lack of credibility about the applicant that extended to the remaining evidence emanating from his testimony. Thus, the Board gave no weight to the reference letters from his relatives confirming that he lived in their houses on certain periods. The Board also gave no weight to the applicant's Cardenista Party membership certificate or his medical certificate dated March 20, 2000.
[17] As a result, the Board concluded that the applicant did not have a well-founded fear of persecution if he returned to Mexico. The Board also concluded that he was not a person in need of protection, as there were no substantial grounds to indicate that he would face danger of torture, risk to his life or risk of cruel and unusual treatment or punishment if he returned to Mexico.
Issue
[18] The applicant raised the following issue:
Is the Board's rejection of the applicant's credibility perverse or capricious or arrived at without regard for the material before it?
Applicant's Submissions
[19] The applicant submitted that the Board made a perverse finding when it determined that the applicant's allegations of events are mere concoctions, on the basis of the inconsistent statement ("I've never belonged to any organizations") on one refugee claim form. The applicant submitted that it did not make sense for the Board to reject his explanation that the interpreter had asked him if he belonged to a union. It was submitted that this explanation was supported by the written statements on the form, which suggested that the interpreter had difficulties with the English language. She had written grammatically incorrect phrases such as, "I was charge for my wife with assault offence", and misspelled the word "unemployed" twice.
[20] The applicant submitted that the above finding tainted the remainder of the Board's assessment of the applicant's credibility. As a result, the Board failed to give any weight to reference letters from his relatives, his Cardenista Party membership certificate, or his medical certificate.
[21] The applicant submitted that the Board's finding that the applicant would no longer be of interest to federal agents was arrived at by having selective regard for the documentary evidence. The applicant submitted that there was documentary evidence before the Board of ongoing conflict and increased military and paramilitary activities in Chiapas, which would sustain interest in persons such as the applicant who are perceived by federal agents to be supplying arms to the Zapatistas in Chiapas. Thus, it was submitted that it was a material error for the Board to conclude that there was no objective evidence that the applicant's life would be in danger.
[22] The applicant submitted that it was patently unreasonable for the Board to disbelieve the abduction of May 8, 2000. Although the applicant was asked at the hearing about certain aspects of this incident, the applicant was not confronted with the proposition that it was implausible that the federal agents would be so inept and unprepared as to allow him to escape.
Respondent's Submissions
[23] The respondent submitted that the Board's credibility findings cannot be overturned unless they are patently unreasonable.
[24] The respondent submitted that the Board may draw a negative inference from inconsistencies between statements made at the port of entry and the content of subsequent testimony (see Mongu v. Canada (Solicitor General) (1994), 86 F.T.R. 59, [1994] F.C.J. No. 1526 (T.D.)). Also, the Board may test the applicant's credibility by comparing the PIF with the oral testimony (see Basseghi v. Canada(Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (T.D.) (QL)).
[25] The respondent submitted that the Board must be allowed to apply its understanding of human behaviour in determining whether the applicant's story is plausible (see Gonzalez v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 805 at paragraph 27 (T.D.) (QL)). The respondent submitted that the onus was on the applicant to provide credible and trustworthy evidence to support the alleged May 8, 2000 abduction.
[26] The respondent submitted that the test for Convention refugee status requires evidence of a prospective risk of persecution if the applicant returns to his country of nationality (see Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 at 404 (C.A.)). Thus, the Board did not err in considering the omission from the applicant's evidence of alleged continued surveillance of his relatives.
[27] The respondent submitted that the Board may rely on objective country documentary evidence in preference to the testimony provided by the applicant (see Zhou v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (C.A.) (QL)).
[28] The respondent submitted that the Board considered the totality of the evidence and did not make any patently unreasonable findings of fact. The Board therefore committed no reviewable error in its assessment of the evidence.
Relevant Statutory Provisions
[29] Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or . . . |
|
95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas: . . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; . . . |
[30] Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
|
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Standard of Review
[31] The Board's findings of credibility are reviewable on a standard of patent unreasonableness, and cannot be overturned unless they are made in a perverse or capricious manner or based on erroneous findings of facts (see Sivanathan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 500 at paragraph 13; Anthonimuthu v. Canada(Minister of Citizenship and Immigration), 2005 FC 141 at paragraph 45).
Analysis and Decision
[32] The Board found the applicant not to be credible for a number of reasons, but the primary reason appeared to be because of a difference in the statements contained in an immigration form and other evidence in his PIF and at the hearing. In the immigration form, which was completed with the assistance of an interpreter, the following information was provided:
List any organizations that, since your 18th birthday, you have been (or still are) a member of or have been associated with or have supported, including political, social, youth, student or vocational organizations such as trade unions and professional associations. If you have never belonged to or been associated with any organizations, print "I HAVE NEVER BELONGED TO ANY ORGANIZATIONS".
RESPONSE: I've never Belonged to any organizations.
[33] The applicant in other evidence stated that he was being persecuted because he belonged to the Cardenista Party and was suspected of delivering arms to the Zapatistas in Chiapas.
[34] At the hearing, the applicant was asked about his response stating that he did not belong to any organizations. The following exchange appears at pages 46 to 47 of the transcript:
Q All right then. So sir, can you clarify this statement to Immigration, "I've never belonged to any organizations"?
A Yes. When I went to Immigration with the interpreter, I didn't speak English. I didn't understand. I couldn't read, nothing. My interpreter asked me whether I had belonged to a union. A union is very different from belonging to a party. And that's what he asked me and that's why I answered "no".
[35] The Board did not accept this explanation because the applicant had been provided with the document containing the response well before the hearing and did not indicate to anyone that the information was incorrect until he was questioned about it at the hearing. In my view, the Board's conclusion on this point was not patently unreasonable. Furthermore, I would note that the response noted in the immigration form to the effect that the applicant never belonged to any organizations would not seem to be an answer to the question, "Did you belong to a union?"
[36] The Board went on to state at page six of its decision:
The claimant's statement that he never belonged to any organization is very significant because if he did not belong to any organization, then his alleged membership to the Partido rente Cardenista de Reconstucion Nacional, and his alleged persecution by the federal agents arising from his delivery of the party's donated goods to the people of Chiapas are mere concoctions to establish his claim. In Neame, the Court upheld a CRDD decision which found that the claimant was lacking in credibility solely on the basis of a contradiction between her PIF and the POE notes.
[37] I am of the view that the Board's conclusion, above, was not patently unreasonable.
[38] The Board also found that it was implausible that the applicant could escape from the men (at least one of whom was armed) who abducted him in May 2000. This is a finding that was open to the Board to make. It was not patently unreasonable.
[39] The Board also found that it was implausible that the applicant would still be of interest to the federal agents after they did not find any arms when they searched his friend's truck in March 2000. In light of the fact that the applicant was only a volunteer for the Cardenista Party, I do not find this plausibility finding by the Board to be patently unreasonable.
[40] The Board's findings on credibility already noted are sufficient to find that the applicant's story was not credible. Thus, I do not propose to deal with the omission from the PIF and the family letters of the continued threats of violence and surveillance.
[41] The application for judicial review is therefore dismissed.
[42] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-286-05
STYLE OF CAUSE: ALEJANDRO FLORES MONTERO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 27, 2005
APPEARANCES:
Neil Cohen For The Applicant
Allison Phillips For The Respondent
SOLICITORS OF RECORD:
Neil Cohen
Toronto, Ontario For The Applicant
John H. Sims, Q.C.
Deputy Attorney General
of Canada For the Respondent