Ottawa, Ontario, October 26, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] [23] A panel hearing a claim for refugee status must be allowed reasonable latitude, consistent with its statutory mandate, in questioning a claimant. Extensive and energetic questioning alone will not, in itself, give rise to a reasonable apprehension of bias: Osorio v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1792, 2005 FC 1459; XXXX v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1831, 2005 FC 1499.
(Bankole v. Canada (Minister of Citizenship and Immigration), 2005 FC 1581, [2005] F.C.J. No. 1942 (QL), as stated by Mr. Justice Richard Mosley).
NATURE OF THE PROCEEDING
[2] This is an application for judicial review of a decision by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (panel) dated February 23, 2006, that the applicant is neither a “Convention refugee” nor a “person in need of protection” under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.-27 (the Act).
[3] The applicant, Mr. Marquez Herrera, is a citizen of Mexico. According to the Personal Information Form submitted in support of his refugee claim, he was born on March 14, 1976. He is single and his entire family lives in Mexico.
[4] Mr. Herrera states that, as a homosexual, he was a victim of physical and mental abuse on numerous occasions, both in his private life and at work.
[5] According to Mr. Herrera, seven students assaulted him on September 19, 1990. He sustained second-degree burns to his neck.
[6] In February 1996, Mr. Herrera met Ricardo Perez Berrera, a colleague at work, and began a relationship with him. In July 1997, rumours about his relationship with Mr. Berrera circulated, and the work environment became more hostile and intolerant towards him. The manager threatened to dismiss him and his partner. They were subsequently transferred to other departments. Mr. Herrera was dismissed in May 2000. Four months later, his partner met the same fate.
[7] On September 15, 2000, Mr. Herrera was forced into a police van as he was leaving a gay bar. The police officers struck him in the face. He suffered contusions and underwent rhinoplasty. However, he did not inform the authorities because he did not know the identity of his assailants. Mr. Herrera and Mr. Berrera separated after this incident.
[8] In October 2001, Mr. Herrera began working at the Banca Serfin, S.A. At a party in February 2002, he was badly beaten by other employees. He was subsequently dismissed again.
[9] On January 4, 2003, Mr. Herrera began a relationship with Alejandro Lara Oropeza, who owned an aesthetics salon where Mr. Herrera went to have his hair cut. As he was leaving the salon on February 1, 2003, Mr. Oropeza invited Mr. Herrera to his home for dinner. Upon arriving at Mr. Oropeza’s apartment, they discovered that it had been robbed. According to Mr. Herrera, Mr. Oropeza and his sister reported the robbery to the police, because they suspected their neighbours of this crime; the neighbours had previously threatened Mr. Oropeza about his sexual orientation. Mr. Herrera recognized one of the suspects in this incident, Victor Portilla Rea, who was a police officer himself. Mr. Herrera was present when the report was made.
[10] Finally, when Mr. Herrera was at Mr. Oropeza’s aesthetics and hairdressing salon on March 3, 2003, six individuals entered the establishment, destroyed the furniture, and took money and valuables from the salon. Mr. Herrera knew three of the six individuals (Jorge Portilla Rea, Osvaldo Argeta and Sergio Trujano). He and his friend were beaten and threatened with death. Although Mr. Herrera claims this incident was the subject of a police investigation, he did not report it to the police for fear that the assailants would retaliate.
[11] On March 28, 2003, passport in hand, Mr. Herrera left Mexico for Canada via the United States. On April 25, 2006, he claimed refugee protection based on a fear of persecution by the Portillo Rea family in Mexico by reason of his homosexuality.
DISPUTED CLAIM
[12] The panel determined that Mr. Herrera’s subjective fear of persecution should he return to his native country was not credible, and rejected his claim.
ANALYSIS
[13] The Court reviewed the written and oral representations of the parties, and heard the submissions of counsel.
[14] Mr. Herrera challenges the panel’s adverse findings of credibility, and submits that the panel erred, essentially on three issues: (1) in assessing the applicant’s evidence, (2) in analyzing the possibility of an internal flight alternative, and (3) by breaching the rules of natural justice.
[15] The standard of review applicable to the panel’s adverse findings of credibility is patent unreasonableness. The panel has a well-established expertise in determining questions of fact, and particularly in evaluating a refugee claimant’s credibility and subjective fear of persecution. The Court must accord considerable deference, because it is for the panel to assess the claimant’s testimony and to evaluate whether his allegations are credible. If the panel’s findings are reasonable, no intervention is warranted. However, its decision must be supported by the evidence; it must not be made capriciously, based on an erroneous finding of fact or without regard to the evidence (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration, [1998] F.C.J. No. 1425 (QL), at paragraph 14; Mugeserav v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39 (QL), at paragraph 38; Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (QL), at paragraph 4).
[16] After reviewing all the evidence in this matter, including the transcript of the hearing, the Court is not persuaded that the panel’s decision was patently unreasonable, given that it was based on significant contradictions and improbabilities in Mr. Herrera’s written and testimonial evidence that were directly linked to the crux of the claim:
(a) Mr. Herrera’s evidence regarding the identity of the people in his country whom he claimed to fear was quite vague. At the hearing, the applicant stated that he feared the police and his assailants. He subsequently withdrew the reference to the police and added the Portillo Rea family, as well as someone named Edgar, and Sergio Trujillano. It was only during the hearing that the panel learned that one member of the Portillo Rea family is also employed by the judicial police. However, Mr. Herrera’s declaration at the point of entry did not emphasize that he feared the police, but rather the current level of crime in his country.
(b) Mr. Herrera and his friend, Mr. Berrera, separated after the incident of September 15, 2000. However, upon their arrival in Canada, they both claimed refugee protection the same day, although they arrived on different flights.
(c) With regard to the incident of March 3, 2003, Mr. Herrera was able to file only medical documents (he suffered a broken foot and had a chest X-ray taken). On that occasion, Mr. Oropeza was hospitalized and lapsed into a coma. According to the documentary evidence, when people are victims of crimes, the doctors must make a report to the police; it is therefore surprising that the applicant did not file documents from the Mexican authorities about this incident. Mr. Herrera stated that he is still in touch with Mr. Oropeza’s sister, and she sent him only the medical report.
(d) With regard to the incident that occurred at Mr. Oropeza’s apartment on February 1 , 2003, there was a police investigation. It is strange that in the case of an offence against property, Mr. Herrera was present when the report was made to the authorities, whereas following the unfortunate events allegedly committed against persons, including a friend of the applicant who was reportedly in a coma, Mr. Herrera did not file a complaint with the police. It is very odd that Mr. Herrera was unable to file a copy of the police report of such a serious incident.
(e) In addition, Mr. Herrera testified that he filed a complaint about his dismissal with the relevant authorities, and obtained satisfactory compensation. Thus it appears that when the applicant made the effort to complain, he obtained satisfaction.
[17] It is not the role of the Court to re-assess the evidence or to substitute itself for the panel. A judicial review is not an appeal, and even where the decision is referred for a rehearing by a panel composed of different members, the RPD is an independent tribunal that evaluates and makes decisions as to credibility based on the evidence before it. The jurisdiction of a specialized first level tribunal must be respected. The Court can intervene only where the tribunal has acted beyond its jurisdiction in a capricious, malicious or inherently illogical manner, which is not the case here.
[18] Despite finding that Mr. Herrera was not credible, the panel appropriately reviewed the applicant’s documentary evidence. On that issue, in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, [1990] F.C.J. No. 604 (QL), the Federal Court of Appeal ruled that a finding that the claimant’s testimony is not credible may extend to all evidence emanating from his testimony. Although decided under the former Immigration Act, that decision is still valid. In fact, under the current Act, “A tribunal’s perception that a claimant is not credible on an important element of their claim can amount to a finding that there is no credible evidence to support the claim” (Chavez v. Canada (Minister of Citizenship and Immigration), 2005 FC 962, [2005] F.C.J. No. 1211 (QL), at paragraph 7; Touré v. Canada (Minister of Citizenship and Immigration), 2005 FC 964, [2005] F.C.J. No. 1213 (QL), at paragraph 5).
[19] In this case, contrary to Mr. Herrera’s assertions, the panel reasonably determined that an internal flight alternative existed in Mexico. According to the documentary evidence, there are places in Mexico, such as Mexico City, that are open to homosexuality, but the applicant stated that he had problems in that city. Asked whether he could not live elsewhere in the country, such as Cancun, the applicant maintained he could not, because the Portillo brothers would find him anywhere in the country. It was reasonable for the panel to doubt this statement, given that the country has a population of over 100 million, and that the applicant had not attempted to live in any other city to try to ease the problems he claims to have experienced.
[20] The panel could reasonably draw a negative inference from Mr. Herrera’s failure to seek protection in Mexico after the incident of March 3, 2003, especially considering that on February 1, 2003, he was present when a complaint was made to the authorities, and that he had obtained satisfaction from the authorities after being dismissed from his employment.
[21] Mr. Herrera arrived in Canada on March 28, 2003, fearing for his life and aware that Canada offered refugee protection. However, he did not request refugee protection until a month later, on April 23, 2003. He gave no valid explanation for the delay (Riadinskaia v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 30 (QL).
[22] The Court believes that the panel properly determined that Mr. Herrera’s behaviour failed to establish a subjective fear and seriously called into question his credibility and that of his allegations. With regard to Mr. Herrera’s assertions that the panel erred in not giving any probative value to the documentary evidence, the Federal Court has already decided that a finding of a lack of subjective fear in and of itself warrants dismissal of the refugee claim, because both elements of the alleged fear of persecution, subjective and objective, must be met in order to fall within the definitions of “refugee” and “person in need of protection”
(Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695 (QL); Fernando v. Canada (Minister of Citizenship and Immigration), 2001 FCT No. 759, [2001] F.C.J. No. 1129 (QL), at paragraph 3).
[23] The Court is also of the view that there has been no breach of the principles of natural justice or procedural fairness in this case. In Thamotharem v. Canada (Minister of Employment and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL) at paragraphs 91 and 92, Mr. Justice Edmond P. Blanchard held that the order of questioning at a hearing before the panel does not in itself result in a breach of the principles of natural justice, because there is no inherent right to an examination-in-chief at a refugee protection hearing. It is not possible at the outset to state that the panel is required by the rules of natural justice to allow counsel for an applicant to be the first to question his client and witnesses, if any. Moreover, Blanchard J. states that Guideline 7 in and of itself does not affect a panel member’s role in refugee determination hearings. The RPD is an administrative tribunal with investigatory powers, and thus the panel member can take measures that are useful in the conduct of refugee proceedings.
[24] With regard to the discretion of the member hearing the refugee claim, in Thamotharem, above, Blanchard J. determined that where the member feels bound by Guideline 7 and thus prevented from proceeding in the most appropriate manner to achieve a just and equitable hearing, his discretion has been fettered. Everything is a question of circumstances and how the member perceives and interprets Guideline 7. However, it must be noted that this decision is under appeal to the Federal Court of Appeal. Mr. Justice Mosley arrived at a quite a different conclusion on the issue of a member’s discretion in Benitez v. Canada (Minister of Employment and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 (QL) at paragraph 171:
There is considerably more evidence before me as to the manner in which Guideline 7 is actually being applied by RPD members than there was before my colleague in Thamotharem. On that evidence in these proceedings, I am not satisfied that the applicants have demonstrated that the discretion of RPD members to determine the procedure to be followed in the refugee proceedings before them has been fettered by the implementation of Guideline 7.
[25] There is no evidence in this case to suggest that the panel’s discretion was fettered. The member explained to Mr. Herrera why he exercised his discretion to question him first, instead of his own counsel. It is evident from the panel’s decision that proceeding in this manner did not prevent Mr. Herrera from presenting his case, since he was able to adduce his evidence and testify as to the facts of his refugee claim. The Court notes that the panel clearly understood Mr. Herrera’s account. Therefore it cannot be said that the order of questioning in this case gave rise to a denial of natural justice.
[26] In short, the panel’s findings of fact are reasonable. Moreover, the panel did not breach the principles of natural justice. Accordingly, the intervention of this Court is not warranted.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed.
2. There is no serious question of general importance to be certified.
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1499-06
STYLE OF CAUSE: OSCAR MARQUEZ HERRERA
v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 18, 2006
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE SHORE
APPEARANCES:
|
Alain Vallières
|
FOR THE APPLICANT |
|
Lynne Lazaroff
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Istvanffy vallieres & associés Montréal, Quebec
|
FOR THE APPLICANT |
|
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT |