Montréal, Quebec, June 29, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
GABRIELA TREVINO MORENO
JUAN PABLO MONCADA TREVINO
MONICA TREVINO MORENO
MARCELA TREVINO MORENO
ELENA TREVINO MORENO
OMAR LARA ENRIQUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated October 13, 2005, by which the Refugee Protection Division of the Immigration and Refugee Protection Board (Board) determined that Monica Trevino Moreno (the principal applicant), Gabriela Trevino Moreno, Juan Pablo Moncada Trevino, Marcela Trevino Moreno, Elena Trevino Moreno and Lara Enriquez (the applicants) were not Convention refugees or persons in need of protection within the meaning of sections 96 and 97 of the Act.
RELEVANT FACTS
[2] The applicants are all citizens of Mexico. The principal applicant has a son named Juan Pablo Moncada Trevino. The principal applicant’s sister, Marcela Trevino Moreno, has a daughter named Elana Trevino Moreno. The applicants alleged having a well-founded fear of persecution because of their membership in a particular social group, namely the principal applicant’s family, which was allegedly threatened because she had admitted having knowledge of her supervisor’s corrupt practices.
[3] Since February 2002, the principal applicant had been employed at the office of the Minister of Public Education as assistant coordinator of human resources. The principal applicant claims to have been a witness to and victim of illegal practices in connection with the hiring of public servants. This practice was described as follows: a senior official in a government department would state having a certain number of vacant positions in his or her department in order to obtain salaries for these positions, but in reality the positions would never be filled, and the corrupt public servants would pocket the money. In some cases, employees without a position would be paid less, and the difference in salary would also be pocketed by the same corrupt persons.
[4] The applicants’ claim for refugee protection is essentially based on the persecution suffered by the principal applicant. She claims to have been persecuted by Fermin Villasenor Borvolla, her former supervisor at the Mexican Department of Education following a verbal complaint she made against him for his practice of stating that vacant positions had been staffed and pocketing the salaries.
[5] The applicant submits that her house was ransacked and that a threat was written in red on the floor. She moved to her sister’s place with her husband and son. On June 3, 2004, some persons illegally entered the home of the principal applicant’s sister to make threats. The police arrived shortly thereafter, but the persons had fled.
[6] Following this event, because the applicants feared for their safety, they decided to leave the country. They arrived in Canada on June 17, 2004, from Mexico. On June 30, 2004, the home of the principal applicant’s sister was vandalized. The applicants made a claim for refugee protection on July 7, 2004, 20 days following their arrival in Canada.
ISSUES
[7] 1. Did the panel err in finding the applicants not to be credible?
2. Did the Board err in concluding that the applicants did not prove the inability of the Mexican state to afford protection?
ANALYSIS
1. Did the Board err in finding the applicants not to be credible?
[8] In Anthonimuthu v. Canada (Minister of Citizenship and Immigration), 2005 FC 141, [2005] F.C.J. No. 162, at paragraph 45, my colleague Mr. Justice Yves de Montigny repeated that the assessment of credibility is a question of fact and that the intervention of this Court is not warranted unless this assessment is perverse, capricious or based on erroneous findings of facts:
Turning first to the credibility issue, it is trite to say that decisions of the Board which are based on credibility findings are to be accorded a high level of deference given that the Board has the benefit of hearing the testimony of witnesses. As indicated in a number of decisions, credibility determinations lie within “the heartland of the discretion of triers of fact” and cannot be overturned unless they are perverse, capricious or based on erroneous findings of facts (Aguebor v. Minister of Employment & Immigration, [1993] F.C.J. No. 732 (F.C.A.); Siad v. Canada (Secretary of State), [1997] 1 F.C. 608 (F.C.A.); Oyebade v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. No. 1113; Sivanathan v. Canada (Minister of Citizenship & Immigration), [2003] F.C.J. No. 662 (F.C.).
[9] There are several ways of reaching conclusions as far as credibility is concerned. For example, to assess the reliability of an applicant’s testimony the Board may take into consideration a lack of details, hesitations, inconsistencies, contradictions and conduct (Ezi-Ashi v. Canada Secretary of State) [1994] F.C.J. No. 401). In El Balazi v. Canada (Minister of Citizenship and Immigration) 2006 FC 38, [2006] F.C.J. No. 80, Mr. Justice Yvon Pinard affirmed that even in some circumstances the applicant’s behaviour may be sufficient to dismiss a claim for refugee protection:
The respondent correctly says that the IRB may take into account a claimant’s conduct when assessing his or her statements and actions, and that in certain circumstances a claimant’s conduct may be sufficient, in itself, to dismiss a refugee claim (Huerta v. Minister of Employment and Immigration (March 17, 1993), A-448-91, Ilie v. Minister of Citizenship and Immigration (November 22, 1994), IMM‑462-94 and Riadinskaia v. Minister of Citizenship and Immigration (January 12, 2001), IMM-4881-99).
(Decision of the Board, October 13, 2005, at page 5.)
[10] The applicants allege that the Board erred in assessing credibility with regard to the reason invoked to explain why the applicant’s husband did not come to Canada. The Board had concluded as follows:
Questioned as to why her husband did not come along with her to Canada, she then reiterated that she came with the intention to stay for a short period of time but when her sister’s house was again vandalized, she was afraid to return. She further added that her husband does not want to come to Canada. The panel cannot but seriously question why her husband would stay behind if she and her family were targeted as the claimant alleges and does not find these actions consistent with the claimant’s allegations for fear for their lives.
[11] The principal applicant alleges that her husband lives in a small village and, being self-employed, is not registered with the authorities, so he cannot be found for all intents and purposes. The principal applicant alleges that the Board erred in not taking into consideration this reasonable explanation. I do not agree with the applicants’ argument. It is quite reasonable for the Board to draw a negative inference concerning the applicants’ credibility because of the way in which the principal applicant tried to explain why her husband did not come to Canada.
[12] On several occasions in its decision, the Board characterized the applicants’ testimonies, especially that of the principal applicant, as not being credible because of the contradictions, implausibilities, inconsistencies, hesitations and lack of details. For example, the Board drew negative inferences concerning credibility in the following situations:
- The reason given to explain why the principal applicant’s husband did not come to Canada;
- The reason for which the applicants did not make a claim for refugee protection when they arrived in Canada on June 17, 2004;
- The reason why the principal applicant did not complain to the police in Mexico after her house was ransacked;
- The explanation for why Mr. Borvolla would be interested in the principal applicant and her family, considering that she did not make an official complaint against him nor follow up on the issue, that she had no intention of bringing accusations against him if she returned to Mexico and that she had never been called on to testify against him.
[13] In this case, the Board specified in clear and unequivocal terms why it did not believe the applicants. The unfavourable conclusions it drew were based on an analysis of a certain number of implausibilities and inconsistencies arising from the applicants’ Personal Information Forms (PIF) and on their testimonies concerning certain essential elements of the application.
[14] It is up to the Board to decide if the applicants are credible. The applicants did not succeed in showing that the decision was rendered on the basis of an erroneous conclusion of fact or one that is perverse or capricious. The decision was made after a complete analysis of the evidence, and I am of the opinion that the Board did not err in finding the applicants not to be credible.
2. Did the Board err in concluding that the applicants did not prove the inability of the Mexican state to afford protection?
[15] The Board concluded that the applicants did not meet the burden of proof on them so as to show in a clear and convincing way that the Mexican state could not provide adequate protection. The standard of review applicable to matters concerning state protection is that of reasonableness simpliciter (Chaves v. Canada (Minister of Citizenship and Immigration) 2005 FC 193, at paragraphs 9-11).
[16] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, The Supreme Court of Canada stated, at paragraph 50:
[C]lear and convincing confirmation of a state’s inability to protect must be provided . . . . Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
[17] The Supreme Court confirms that, in the absence of a complete breakdown of state apparatus, it should be assumed that the state is capable of protecting its citizens. Moreover, it is up to the applicants to rebut the presumption with clear and convincing evidence to the effect that the state was unable to protect them.
[18] The applicants allege having proven by documentary evidence that the police in Mexico are corrupt and that they would have difficulty in obtaining justice against persons so highly placed in the state administration.
[19] There is a presumption that presumption that the panel considered all the evidence that was before it (Taher v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1433). In this case, the Board expressly acknowledged that corruption was endemic in Mexico. There was documentary evidence to the effect that corruption was still a problem in Mexico and that the Mexican government is trying to reduce it. It its decision, the Board specified:
In the documentary evidence we also read that there are many investigations that have been undertaken by the present Government to look into corruption cases within the Attorney General’s Office of the Federal District, and recourses are available to people who expose corruption in the Attorney General’s Office. It also refers to a unit being formed to investigate issues of corruption and this is the Central Office of the Public Prosecutor which has undertaken numerous such investigations. Therefore the panel retains that there are no recourses that are available in Mexico, and although the situation may not be perfect, there have been many steps taken to initiate investigations and bring to justice those who are guilty of corrupt or criminal practices.
(Decision of the Board, October 13, 2005, at page 11.)
[20] The Board concluded that, even if there was corruption, the Mexican authorities were able to ensure the safety of the applicants. The applicants did not adduce clear and convincing evidence to the contrary. For these reasons, I am of the opinion the Board did not err in concluding that the applicant did not rebut the presumption of state protection. Accordingly, the application for judicial review is dismissed.
[21] The parties did not submit any question for certification.
JUDGMENT
- The application for judicial review is dismissed.
- No question will be certified.
“Pierre Blais”
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6802-05
STYLE OF CAUSE: GABRIELA TREVINO MORENO, JUAN PABLO MONCADA TREVINO, MONICA TREVINO MORENO, MARCELA TREVINO MORENO, ELENA TREVINO MORENO, OMAR LARA ENRIQUEZ v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 27, 2006
REASONS FOR ORDER AND ORDER BY: THE HONOURABLE MR. JUSTICE BLAIS
APPEARANCES:
|
Sébastien Dubois
|
FOR THE APPLICANTS |
|
Suzanne Trudel |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Saint-Pierre Grenier LLP Montréal
|
FOR THE APPLICANTS |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |