Date: 20120106
Docket: IMM-2336-11
Citation: 2012 FC 6
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, January
6, 2012
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Leopoldo
Francico CORONEL ARCHUNDIA
Guillermo CORONEL
VERDIN
Sandra Maria VERDIN Y
SOLIS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
Aimable Ndejuru of the Refugee Protection Division of the Immigration and
Refugee Board (panel), submitted under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (Act). The panel rejected the
refugee protection claims of Leopoldo Francico Coronel Archundia (principal
applicant), his spouse Sandra Maria Verdin Y Solis and their son fils Guillermo
Coronel Verdin (applicants), finding that they were not Convention refugees or
persons in need of protection pursuant to sections 96 and 97 of the Act.
[2]
The
applicants are citizens of Mexico. The principal applicant worked as a
prison guard at La Palma, a maximum security prison. He was fired during
the guards’ strike in 2005 when the guards demonstrated against the insecurity of
their work environment.
[3]
On
October 20, 2004, the principal applicant, when he was still working at the
prison, allegedly heard the prison warden, Mr. Montoya, agree to murder a man (Arturo
Guzman Loera, “El Pollo”) in exchange for a sum of money, at the request of an
inmate, Mr. Benjamin Arrellano Félix. The warden then allegedly threatened to
kill the principal applicant if he repeated what he had heard.
[4]
On
December 31, 2004, El Pollo, the brother of a drug trrafficker, was apparently
murdered by an inmate named Jose Ramirez Villanueva. On January 2, 2005, the
warden of the penitentiary apparently sent the principal applicant to watch
over the murderer in order to see whether he would admit to the murder.
Eventually, the murderer reportedly confessed that he had killed El Pollo at
the request of the warden, Mr. Montoya.
[5]
On
January 6, 2005, the warden reportedly asked to meet the principal applicant at
his office, where he struck him and offered him 3,000,000 pesos in exchange for
his silence. The principal applicant apparently refused this offer. After this
refusal, the warden allegedly said: [TRANSLATION] “If you talk, you die.”
[6]
The
guards’ strike then took place, which led to the firing of the principal
applicant, among others.
[7]
From
August 2005 to November 2006, the principal applicant allegedly worked as a
taxi driver. During this period, there is no evidence that the applicants
received any threats. On March 3, 2006, by chance, the principal applicant was apparently
accosted by a former work colleague from the penitentiary, Gaspar Allegria. During
their conversation, the principal applicant reportedly repeated what he heard
in 2004 about the murder of El Pollo. During second meeting on August 30, 2006,
the principal applicant allegedly confessed to Allegria that it was the warden
who was paying the murderers. Then, on November 20, 2006, Allegria and another
former work colleague, Jorge Bravo, allegedly asked the principal applicant to
murder the warden, Mr. Montoya, for 5,000,000 pesos in order to avenge the
death of El Pollo; these men were supposedly part of a drug cartel. They
reportedly told the principal applicant that if he did not kill the warden,
they would kill him.
[8]
The
principal applicant and his son Guillermo claim that, on November 21, 2006, two
men and a woman took Guillermo out of school, put a gun to his head and
threatened to kill his family because of the principal applicant’s involvement
in this murder.
[9]
The
principal applicant and his family contend that they fear for their lives,
believing that members of the cartel are everywhere. In December 2006, the
principal applicant and his son Guillermo left Mexico to file a
refugee protection claim in Canada. Following their departure, the principal
applicant’s spouse apparently left their home to go live with a friend and then
with her sister. Some strangers apparently asked her where her husband was.
When she refused to answer, they allegedly beat her.
[10] In April
2007, the spouse of the principal applicant went to Montréal for two weeks, and
then returned to Mexico. In July 2007, she visited Montréal a second
time, and returned to Mexico the following August. On October 22, 2007,
after learning of the murder of a musician who was allegedly mistaken for
Guillermo, she left Mexico with her other son, her daughter-in-law and her two
grandchildren, all of whom claimed refugee protection in Canada on the same
day. However, her son, her daughter-in-law and her grandchildren subsequently
withdrew their refugee claims and returned to Mexico.
* * * * * * *
*
[11] The panel
found the applicants’ allegations not to be credible. In its decision, the
panel noted the inconsistencies and contradictions that led it to find that the
applicants’ account was fabricated.
[12] The only real
issue raised by this matter is whether the panel erred in finding that the
applicants were not credible. Since this is purely a question of weighing the evidence,
the applicable standard of review is reasonableness (Chen v The Minister of
Citizenship and Immigration, 2005 FC 767 at para 18; Zavalat v The
Minister of Citizenship and Immigration, 2009 FC 1279 at para 18; Afonso
v The Minister of Citizenship and Immigration, 2007 FC 51 at para 22; Dunsmuir
v New Brunswick, [2008] 1 S.C.R. 190 at para 47 (Dunsmuir)).
[13] After
reviewing the relevant evidence and hearing counsel for the parties, the
applicants have not convinced me that the panel based its decision on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it (see paragraph 18.1(4)(d) of
the Federal Courts Act, RSC (1985), c F-7). On the contrary, the
panel’s decision is based on the important evidence of the applicants’
statements and the documentary evidence.
[14] Suffice it
here to note the reasonableness of the negative inference drawn by the panel
with respect to the principal applicant’s inability to explain the reason for
the contradiction concerning the date of his alleged meeting with Mr. Montoya,
in view of the documentary evidence which specifies that on January 4, 2005,
Mr. Montoya had been replaced. This inference goes to the very heart of the
decision and is determinative, since if the meeting between the principal
applicant and Warden Montoya never took place, then the threats alleged in
support of the applicants’ fears are pure fiction.
[15] It must be
remembered that in such cases, this Court must demonstrate great deference and
can intervene only if the panel’s findings are not based on the evidence in the
record. In the case at bar, the inferences drawn by the panel are reasonable in
light of the evidence before it (see Aguebor v The Minister of Employment
and Immigration (1993), 160 NR 315).
[16] In addition,
the finding of a lack of credibility on the part of a refugee claimant may
extend to all evidence emanating from his or her testimony (see Sheikh v Canada (Minister of
Employment and Immigration) (CA), [1990] 3 FC 238).
[17] In the
circumstances, it is therefore not up to this Court to substitute its
assessment of the facts for that of the panel, whose decision appears to me to
be justified and transparent and to meet the standard of reasonableness as
defined in Dunsmuir.
* * * * * * *
*
[18] For all these
reasons, the application for judicial review is dismissed.
[19] I agree with
counsel for the parties that there is no question for certification arising.
JUDGMENT
The
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board dated March 18, 2011, is
dismissed.
“Yvon
Pinard”
Certified
true translation
Susan
Deichert, LLB
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