Date: 20070530
Docket: IMM-4028-06
Citation: 2007 FC 572
Ottawa, Ontario, May 30,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
JOSE HERIBERTO CASTILLO
SANVICENTE
GABRIELA SANCHEZ ACOSTA
ELSHY VALERIA CASTILLO SANCHEZ
DAVID EDUARDO CASTILLO SANCHEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Jose Heriberto Castillo Sanvicente,
his spouse, Gabriela Sanchez Acosta, and their children, Elshy Valeria Castillo
Sanchez and David Eduardo Castillo Sanchez, from a decision of the Refugee
Protection Division of the Immigration and Refugee Board which denied their
claims to refugee protection.
Background
[2]
The
Applicants came to Canada from Mexico in early 2004. Their
claim to protection was based on an alleged history of abuse and persecution at
the hands of the Mexican police between 1998 and 2004. The initial incident
took place in January 1998 when Mr. Castillo claimed to have been robbed at
gunpoint and beaten by plain clothes members of the judicial police. Mr. Castillo
was threatened with death if he reported this crime but, nevertheless, he said
that he made a report and identified one of the attackers. This was followed
almost immediately by a history of threatening behaviour which allegedly caused
Mr. Castillo to move to Nuevo Laredo in the north of Mexico.
[3]
Mr.
Castillo testified that he remained in the north for about one year but even
there he was subjected to weekly threats by the local police. He also claimed
that his parents in Mexico City continued to be threatened.
[4]
In
1999 Mr. Castillo returned to Mexico City to manage a new
business. Once again, he claimed that the police would attend at his business
3 or 4 times every month to take all the money in his wallet. He said that he
was the only business owner in the area to be subjected to this criminal treatment.
This problem continued unabated until sometime in 2000 when Mr. Castillo found
a new job and the family moved to a new residence about an hour away. For a
time Mr. Castillo was not bothered by the police. However, he claimed that his
parents continued to receive threatening calls seeking information about him
and, at one point, his father’s vehicle (a vehicle Mr. Castillo had previously
driven) was hit by police gunfire. In the face of this 6-year history of
continuous harassment and menacing police behaviour, the family made no further
official complaints to anyone in authority.
[5]
In
February 2004, Mr. Castillo claimed that a bullet was shot through a window of
the family home causing he and his wife to immediately decide to leave Mexico.
Notwithstanding their decision, Mr. Castillo and Ms. Sanchez took their son to
a Mexican psychologist and made an official police denunciation. Later, on the
same day as the alleged shooting, Mr. Castillo claimed that he was confronted
by a police commander who threatened to kill either Mr. Castillo or other
members of his family unless he transported “some packets to some people”.
This frightened Mr. Castillo and he took his family to stay with his
parents-in-law.
[6]
According
to Ms. Sanchez, she was also accosted by the Mexican police on the same day
they had purchased their tickets to travel to Canada. She told
the Board that she was detained at gunpoint at a local shopping mall and told
that she was being punished because of Mr. Castillo’s failure to do what he had
been told. She testified that she was molested and explained her failure to
tell her husband about the full extent of this assault as a means of protecting
him.
[7]
The
evidence indicated that the family was delayed in leaving Mexico by a lack of
resources. Eventually they were able to save and to borrow enough money to
purchase the tickets. When they arrived in Canada, they
quickly applied for refugee protection.
The Board Decision
[8]
The
Board’s decision turned on its negative credibility assessment of the two
principal claimants. In simple terms their story of an almost continuous
history of abuse, harassment, threats, assaults, theft and extortion by the
Mexican judicial police was found to be unbelievable and largely implausible.
The Board also rejected most of the documentary evidence tendered to
corroborate certain aspects of their narrative.
Issues
[9]
a. What
is the appropriate standard of review for the issues raised on this
application?
b. Did
the Board err in its assessment of the evidence or did it breach its obligation
of fairness?
Analysis
[10]
The
primary focus of the Applicants’ challenge to the Board’s decision concerned
the treatment of particular aspects of the evidence. It was argued that the
Board made a number of evidentiary findings that were perverse, capricious or
made without regard to the evidence and that those erroneous findings affected the
Board’s overall rejection of their credibility. They also raised an issue of
fairness related to the Board’s refusal to deviate from its practice of
reverse-order questioning.
[11]
The
Applicants contend that the Board was wrong to reject the authenticity of a
police report which purported to verify Mr. Castillo’s initial complaint
following the alleged 1998 police robbery and assault. The error asserted is
that the Board should not have drawn a conclusion about authenticity based on
perceived deficiencies on the face of the document. For this they rely upon
authorities like Ramalingam v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 10
(T.D.) and Cheema v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 255, 2004 FC 224 which hold that the assessment of the
validity of foreign documents usually falls outside of the Board’s expertise.
[12]
While
it is correct that the Board must not stray outside of the realm of its
evidentiary expertise, it is not always precluded from ruling on issues of
document authenticity based on its own observations. Where defects in
documents are apparent on their face or are obvious, the Board may draw an
appropriate inference: see Riveros v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1380, 2001 FCT 1009 at para. 55. Similarly,
the Board can reject a document as a forgery where it concludes that a claimant’s
story is not credible: see Riveros at paragraph 54.
[13]
Here,
Mr. Castillo could not explain why the 1998 police report did not bear any
signatures. There was also some basis for the Board’s concern that the format
of this report was unusual, particularly where it differed from the format of
the second police report which verified Mr. Castillo’s 2004 shooting
complaint. Of even more importance to this issue was the Board’s rejection of
the 1998 police report based on its rejection of Mr. Castillo’s credibility.
It is clear from the decision that the Board reasonably rejected Mr. Castillo’s
allegations of years of police
persecution on the basis that they were
irrational and implausible. The Board’s plausibility conclusion is contained
in the following passage:
2) There is also a serious
question of plausibility. The principal claimant explained that his
aggressors, judicial police officials, want to take revenge from him in 2006
because of the denunciation above mentioned, a denunciation he made eight years
ago. According to the claimants’ testimony, this complaint did not have any
consequence on the lives of these police officers, there was no enquiry, no
arrest, no disciplinary measures taken against them. Moreover, the claimants do
not even know their name. Asked why these men would want revenge, the claimant
said he also found it irrational and could not explain it. Claimants do not
have to explain the behaviour of their aggressors but when the allegations
stated show no plausibility at all, it is legitimate for the tribunal to
seriously question their veracity. Here, the lack of plausibility of this
central element again seriously undermines the credibility of the claim.
The principal claimant testified clearly
at the beginning of the hearing that he feared that his aggressors, corrupted
judicial police officials, would kill him. For eight years, these policemen
apparently promised to kill the claimants but never did. Considering their
means and the vulnerability of the claimants, they certainly had the occasion
to get vengeance many times but never did. Why shoot at the claimant’s window
if they could as easily kill the claimant? The claimant has no explanation.
Again, we find this allegation very difficult to believe and it leads me to
question again seriously the credibility of this claim.
When all of the Board’s concerns about the
1998 police report are considered together, there is an adequate foundation for
the Board’s rejection of its authenticity.
[14]
The
Applicants also criticized the Board’s rejection of a letter ostensibly written
by Mr. Castillo’s uncle which corroborated his story of police harassment
during the time he claimed to be living in Nuevo Laredo. The Board
expressed considerable scepticism that the judicial police in Mexico City would have
an interest in pursuing Mr. Castillo to northern Mexico given that
they had nothing to gain by such conduct. The Board also noted that Mr.
Castillo had never mentioned a move to northern Mexico in his
Personal Information Form (PIF) let alone being harassed there. It was, therefore,
not unreasonable for the Board to give no weight to this letter.
[15]
It
was also argued that the Board erred by failing to consider important
documentary evidence which corroborated the 2004 shooting incident including
photographs and a police complaint. It is clear that the Board was sceptical
that the Applicants would put up with 6 years of police persecution but only
make an official complaint on the threshold of their departure to Canada. The Board
expressed a similar concern with respect to the Applicants’ rather leisurely
travel arrangements in the face of their alleged fear. Indeed, the Board found
many of the Applicants’ actions at that time to be implausible and it rejected
their allegations concerning the 2004 shooting event for the following reasons:
6) We do not give any probative
value to the police declaration of February 2004, allegedly done following the
shooting.
The principal claimant testified that he
went to the police after deciding that the family would leave for good for Canada. Why, then, did the claimant
bother going to the police despite the order of their aggressors of not going
and considering these aggressors worked for the police? The principal claimant
testified that he wanted to protect the house. It is very difficult to believe
that someone who is targeted by police officials, who is afraid that these men
would kill him and his family, who never sought protection from the authorities
for the last eight years because when he tried in 1998 it made the matter worse
and decided to leave the country anyway, would go to the police. This is
simply not plausible.
Moreover, the police declaration is very
vague and makes no mention that the aggressors are police officials. When
asked how could he have gotten protection from the authorities if he did not
mention whom he thinks was responsible for the shooting, the principal claimant
answered that the agent who took his declaration did not want to write that he
suspected police officials because he did not have any evidence. This is not
credible because nothing else in this declaration anyway, was supported by
tangible evidence.
This declaration is based only on the
principal claimant’s allegation that we do not find credible. It was not
supported by any independent evidence. Nothing in the declaration supports the
previous allegations. Moreover, as mentioned earlier, the reasons given for
going to the police were not plausible. Consequently, I conclude that the
declaration is fabricated and I do not give any probative value to it.
[16]
The
Board’s apparent view was that the Applicants’ behaviour shortly before their
departure for Canada was opportunistic
and motivated by a desire to build a refugee claim. That was not an
unreasonable inference for the Board to draw from the evidence before it. The Applicants
argued, nevertheless, that the Board erred by holding that there was no
tangible or independent evidence to corroborate the 2004 shooting incident.
They point to the photographs of the broken window and the bullet and to the
psychologist’s reports which described their son’s related anxiety and
avoidance behaviours. They also refer to an obvious error in the Board
decision describing their son’s condition as “attention deficit disorder”.
[17]
The
Board’s assignment of weight to any piece of real evidence may depend in large
measure upon its assessment of the testimony that relates to it. That is
particularly true of evidence that is amendable to fabrication or which is
based upon self-serving histories provided by an interested party. The potential
danger in accepting at face value psychological opinions based on histories
obtained from children is exemplified by the evidence offered by Mr. Castillo
when he was asked to identify the source of his son’s fears:
BY COUNSEL (to person concerned)
-
Okay. And
you said that he thought a policeman wanted to kill him. Why would he think
that?
BY PERSON CONCERNED (to counsel)
- Because he heard our comments…the
comments that we made when…and the time of the incident of the shooting and we
were mentioning that it was probably this person, the policeman.
It is no little wonder that their son would
exhibit fear and anxiety if he was told by his parents that the Mexican police
were attempting to kill the family.
[18]
The
evidentiary value of the photographs and medical reports relied upon by the Applicants
was almost entirely dependant upon the Board’s assessment of their individual
credibility. Having rejected their evidence as unreliable and implausible, it
was inevitable that the related documentary evidence would also be rejected. Given
the minimal value, if any, of this evidence and the Board’s reasonable
rejection of the Applicants’ credibility, the Board’s failure to mention the
photographs and its misdescription of David’s condition are not material and do
not create a basis for a successful review of its decision.
[19]
The
Board’s similar rejection of the psychological report which recited Ms. Sanchez’s
history of abuse cannot be faulted for the same reasons. Such opinions are no
stronger than the histories which support them and here Ms. Sanchez was not
believed.
[20]
I
also do not accept that the Board failed to appropriately apply its Gender
Guidelines to Ms. Sanchez’s testimony. The Board did not draw any
unfavourable inference from her failure to make an early report of her alleged
sexual assault, and there is no indication that the Board was otherwise
insensitive in its approach to this issue. Finally, although the Board
described the fact of the psychological report being unsigned and undated as an
anomaly, there is no indication that this evidence was assigned less weight for
that reason.
[21]
I
also do not accept the Applicants’ arguments bearing on the issue of reverse-order
questioning. Where counsel for a party offers no reasons for deviating from an
accepted procedure, the Board cannot be faulted for giving an equally thinly
based ruling. Furthermore, I do not believe that the authorities which have
recognized a duty to give reasons for a final administrative decision have any
application to procedural rulings of the sort impugned here. If such a ruling
does give rise to a situation of unfairness (not the situation here), it can be
challenged on that basis but not because the reasons to support it were
arguably inadequate. This ground of review is also rejected because it did not
form part of the grounds raised at the time leave was sought and obtained: see Benitez
et al v. Canada (Minister of Citizenship and Immigration), [2007] 1
F.C.R. 107, 2006 FC 461 at para. 235.
[22]
In
the result, this application for judicial review is dismissed. Neither party
proposed a certified question and no issue of general importance arises on this
record.
JUDGMENT
THIS COURT ADJUDGES that
this application for judical review is dismissed.
"R.
L. Barnes"
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