Docket: IMM-4859-12
Citation: 2013 FC 1070
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, October 23,
2013
PRESENT: The Honourable Mr.
Justice de Montigny
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BETWEEN:
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VICTORIA GOMEZ, JULIO CÉSAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
against a decision rendered by Edward Aronoff, of the Immigration and Refugee
Board, Refugee Protection Division (the member or the RPD) dated May 3,
2012, determined that the applicant was not a Convention refugee and was not a
person in need of protection.
[2]
Having carefully examined the record and taken
into account the parties’ written and oral representations, I believe that the
applicant cannot succeed. The member did not believe the applicant’s account
and the applicant did not demonstrate that a significant error in assessing the
evidence justified this Court’s intervention. For the following reasons, the
application for judicial review must be dismissed.
I. Facts
[3]
The applicant is a citizen of Mexico.
[4]
The applicant’s father was a court officer of a
civil tribunal in the state of Puebla. He allegedly collected information that police
officers were torturing and even killing detainees. The documents collected
allegedly involve the governor, the Attorney General and the director of the Department
of Organized Crime. In May 1996, the applicant’s father was allegedly
fired so that this information would not become public. He died in 1999, at the
age of 56 and the cause of his death remains undetermined. The applicant was
persuaded that the Attorney General’s Office was responsible for his father’s
death, which would explain why no autopsy was done.
[5]
In 2006, the applicant obtained his law degree. So
as to receive his degree cum laude, he had to write a thesis. To meet
this requirement, the applicant decided to prepare a bill, based on his father’s
papers, which his mother had kept, to stop the system of torture used by the
police in the state of Puebla. When he submitted his draft thesis in February 2007,
the Attorney General (also a professor at the Faculty of Law) had access to it
and allegedly threatened the applicant, making it very clear that he had to
abandon his project.
[6]
On December 21, 2007, the applicant allegedly
took a different route to get home. While he was at a red light, two
individuals on foot climbed into his car and stole his computer (which
contained a draft of his thesis), a USB key and the stereo system for his car. The
applicant complained to the Attorney General’s Office, which required a
composite sketch of the perpetrators and expertise in the car.
[7]
Two days later, two armed individuals allegedly
stormed into his work and robbed and bound the three employees present. They
stole the applicant’s voting card, his debit card, his money, his driver’s
licence and his cell phone. According to the applicant, he was clearly targeted
by these two robberies and the assailants allegedly also told him that he had
to stop his work.
[8]
On May 13, 2008, on the return of the applicant
after an absence of four days, a lawyer friend allegedly informed him that his
brother and three other people had been tortured so that they would reveal
where the applicant had gone and that they confessed that the applicant kidnapped
a family friend, on the ground that he had collaborated with the police with a
view to capturing him and confiscating the information that he had received
from his father. The applicant’s house, where his brother lived, was apparently
emptied by the police at that time. The applicant submitted that all this staging
was orchestrated by the people that the applicant had information on.
[9]
Realizing that his life was in danger, the
applicant alleged that he hid with members of his family in other Mexican
states, but the police authorities of the state of Puebla were able to track
him down. On May 15, 2008, he apparently commenced proceedings to obtain
the suspension of an arrest warrant that he had assumed had been issued. However,
a decision rendered on July 9, 2008, that the court was not able to authorize
the suspension of such a warrant because the director general of the judicial
police of the state of Puebla indicate that the police never filed a preliminary
report in support of a request for an arrest warrant against the applicant, so
that no arrest warrant was issued and that the request was therefore moot. A
week later, the applicant left his country and he made a refugee claim the very
day of his arrival, on July 16, 2008.
[10]
On January 25, 2010, the applicant’s
brother and four other co-accuseds were allegedly found guilty of kidnapping
and robbery and sentenced to 26 years in prison. This decision, which seems to
have 304 pages, although the applicant only submitted two short excerpts from
it, indicated that and arrest warrant was issued against the applicant and another
person on December 15, 2009, for kidnapping and robbery. The applicant’s
brother apparently appealed and the Court of appeal has not yet rendered its
decision.
II. Impugned
decision
[11]
After summarizing at length the applicant’s
allegations, the RPD found that the applicant was not credible and that his
claims were not corroborated by the evidence. After a carefully reasoned
analysis of the applicant’s testimony and the evidence submitted, the member
wrote:
[19] In the
opinion of the Tribunal, the narrative postulated by the claimant lacks
plausibility. It is the claimant’s submission that his brother Omar Rafael and
the three other accuseds were arrested and tortured in an effort to have them
confess that the claimant kidnapped Armando Rios Bonilla because he had
collaborated with the police in order for the claimant to be captured and the
information collected by his father, confiscated. It is not believable that the
claimant’s brother and the three other accuseds were convicted and sentenced to
26 years in prison unless there was some concrete evidence to substantiate
such charges. In addition, the direction of the Department of Organized Crime,
during the month of May 2008, never filed preliminary reports in order to
substantiate the issuance of an arrest warrant against the claimant. The
claimant has provided no evidence whatsoever to support an allegation that the
legal system in the state of Puebla is corrupt. There is no evidence to support the claimant’s contention that his brother Omar Rafael and the three other accused were
arrested on false charges and convicted of kidnapping for the sole purpose of
arresting the claimant. It may well be that there is a warrant of arrest
against the claimant outstanding in Mexico; however, in the opinion of the
Tribunal, should the claimant be arrested upon his return to Mexico, there is
no evidence that he would be persecuted or tortured. Moreover, the Tribunal
believes that it is available for the claimant to seek the issuance of a
suspension of such arrest warrant. The Tribunal concludes on a balance of
probabilities, there is no reasonable chance or serious possibility that the
claimant would be persecuted if he were to return to Mexico. In the same
fashion, on a balance of probabilities, more likely than not, the claimant
would not be subject personally to a risk to his life or to a risk of cruel and
unusual treatment or punishment if he were to return to Mexico.
III. Issue
[12]
The only issue is whether the RPD erred by
finding that the applicant’s allegations are not credible, implausible and not corroborated
by the evidence.
IV. Analysis
[13]
It is not disputed that the applicable standard of review
when the issues raised relate to findings of fact, of law or mixed findings of
law and fact is that of reasonableness: Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 (Dunsmuir). Therefore, the Court must determine
whether the RPD decision is part of the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” and whether the
underlying reasons are transparent and intelligible (Dunsmuir, above, at
para 47).
[14]
An attentive review of the evidence in the
record and the testimony during the hearing before the RPD shows that several of
the applicant’s allegations are not corroborated, contrary to what he claimed. Therefore,
the applicant stated that his father was a lawyer, that he worked as a court
officer within a mixed tribunal (civil and criminal) and that he had challenged
his unlawful dismissal. Further, Exhibit D-2 (a notarial document) instead established
that he was dismissed because he was not a lawyer although his position
required it and Exhibits D-3, D-8 and D-9 state that he did not challenge his
dismissal, but rather that his pension was not paid.
[15]
Moreover, some of the applicant’s statements
were purely speculative and did not rely on any evidence. This is particularly
the case with his claim that he was personally the target of the two robberies,
as well as the death of his father who was allegedly killed because he expected
to reveal the corruption of the representatives of the government of the state
of Puebla.
[16]
The RPD also be considered a certain number of
statements from the applicant, in particular that the Head of the Organized
Crime Division was present when the applicant’s brother was tortured and that he
himself hit him, that his lawyer friend was also present and could have sent
the applicant a letter from his brother relating these events, that the two
individuals who attacked the applicant in his car knew that he would take a
different route and that he would have to stop at a red light and that the applicant’s
father, a court officer in a civil tribunal, was able to gather the information
about the torture and murder of people who were arrested and detained.
[17]
Finally, the RPD noted a certain number of contradictions
and omissions in the evidence. Therefore, the applicant did not mention in his
Personal Information Form (PIF) that he had been forced to tear up the first
complaint that he had filed and in which he stated that he was targeted at the
time of the robbery in his automobile, when this was the explanation that he
had not mentioned that his attackers had been sent by the Attorney General’s
Office. He also stated at question 31 of his PIF that his brother had
informed him in his letter that he and three other persons were tortured, that
a plot was thought up to have the applicant accused and that an individual named
Armando Rios Bonilla was allegedly kidnapped, while the letter does not mention
this information.
[18]
Considering these implausibilities,
contradictions and omissions and the speculativeness of several of the applicant’s
statements, the RPD could have reasonably found that the applicant was not credible.
[19]
The applicant also tried to argue that the
member had erred by speculating on the applicant’s recourse in Mexican law. It
is well established that foreign law is a question of fact that must be proven:
Hernandez Rodriguez v Canada (Minister of Citizenship and Immigration),
2012 FC 1331, at para 26 (available on CanLII); Lakhani v Canada (Minister
of Citizenship and Immigration), 2007 FC 674, at para 22-23, 158 ACWS
(3d) 638. In this case, the member found that the applicant could commence an
action to have the second arrest warrant suspended, as he had done in 2008 for
the warrant that he assumed had been issued. The applicant attempted to argue
that he could not take such an action because there was res judicata, but
did not submit any evidence with respect to Mexican law in this regard. He
cannot now rely on his own negligence to dispute the RPD’s finding.
[20]
The applicant submitted that the RPD had failed
to consider some pieces of evidence that are probative and that could have had
an impact on the decision. First, he referred to his travel itinerary, the
first two pages of which only two were kept in his record. On the one hand, the
applicant did not give the document to the RPD, but rather to the Border
Services Agency authorities on arriving in Canada. On the other hand, the
applicant did not indicate what harm he allegedly experienced because of the absence
of this page and has not mentioned which important information it contained.
[21]
The applicant also criticized the RPD of not
taking into account the evidence demonstrating the corruption of the former governor
of the state of Puebla. However, I note that the documents submitted in
evidence do not describe the corruption of the courts and, thus, there is no
reason to believe that the applicant could not have the warrant for his arrest
vacated if he was indeed not the perpetrator of the offence charged. In any
event, this question seems secondary as of when the applicant failed to
establish that he was targeted because of the thesis that he allegedly wanted
to submit and the information in his possession. In this respect, the member
was entitled to rely on common sense to question the applicant’s choice of
disclosing this information as part of a university thesis rather than alerting
the media.
[22]
Finally, I note that the applicant did not see
fit to submit the Mexican court’s judgment in its entirety, which convicted his
brother and his co-accused for kidnapping and extortion. This judgment could
have given relevant insight into the allegations that these persons were all arrested
and convicted for the sole purpose of seizing the applicant. The member could
very well draw a negative inference as to the applicant’s credibility on the
basis of this omission.
[23]
For all the above reasons, I am of the view that
the applicant failed to establish the unreasonableness of the impugned decision.
The applicant proposed to certify a question as to how to prove foreign law. There
is no reason to grant this request, first because this question has already
been the subject of several judgments and, second, because it would not be determinative
for the purposes of this case.
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