DIEGO ENRIQUE CASILLAS GOMEZ Applicant v. THE MINISTER OF CITIZENSHIP, 2011 FC 578

Federal Court Cour fédérale Date: 20110524 Docket: IMM-5024-10 Citation: 2011 FC 578 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa , Ontario, May 24, 2011 PRESENT: The Honourable Mr.

Justice Pinard BETWEEN: DIEGO ENRIQUE CASILLAS GOMEZ Applicant 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 a member of the Refugee Protection Division of the Immigration and Refugee Board (panel) submitted in accordance with subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (Act) by Diego Enrique Casillas Gomez (applicant).

The panel found that the applicant was not a refugee or a person in need of protection and therefore rejected his refugee claim . [ 2 ] The applicant is a citizen of Mexico who was born on March 6, 1985. He was living in the State of Queretaro. [ 3 ] In October 2008, he was working as a parking valet. On October 25, 2008, during a wedding at his workplace, he allegedly obtained keys for the vehicle of Federico Ruiz Lomeli, a well-known and influential person, the son of one of the heads of the Coca-Cola company in the State of Queretaro. [ 4 ] On October 28, 2008, Mr.

Lomeli’s bodyguards apparently paid a visit to the applicant at his workplace. The bodyguards purportedly accused him of stealing a briefcase belonging to Mr. Lomeli when he had parked his car. The briefcase contained important documents and money. The applicant denied it. [ 5 ] Over the following days, the bodyguards purportedly came back several times. They apparently threatened the applicant with reprisals if he did not return the briefcase. The applicant apparently fled to the home of his sister and to the homes of some friends.

On November 11, he allegedly decided to come to Canada and purportedly obtained a passport. On November 15, Mr. Lomeli’s bodyguards apparently assaulted him again. On November 19, he travelled to Toronto.

[6] The panel noted that there was no evidence of one of the five grounds listed in

section 96 of the Act and it therefore determinedthat this

section did not apply. Moreover, as there was no evidence that the Mexican state had been the applicant’s agent of persecution,the panel also determined that paragraph 97(1)(

a) did not apply and that only paragraph 97(1)(

b) could be considered. The paneleventually found that the applicant had not established his credibility and had therefore not discharged his burden of demonstrating areasonable fear of persecution. [7] The panel found that, during his testimony, the applicant had had a great deal of difficulty recalling the events of the past andimportant details and dates, even though the alleged incidents had taken place less than 24 months before the hearing.

The contradictionsand omissions identified by the panel are related to major facts in the refugee claim. [8] The only issue is whether the panel’s decision is reasonable. [9] In fact, the applicable standard of review for credibility findings is reasonableness. At paragraph 47 of Dunsmuir v. NewBrunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, the Supreme Court of Canada noted that “reasonableness is concerned mostlywith the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned withwhether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” [10] After reviewing the evidence and hearing counsel for the parties, I am of the opinion that the decision is reasonable with respectto the assessment of the applicant’s contradictions and omissions, which are clearly apparent from reading the applicant’s PersonalInformation Form, the transcripts of his interviews with the immigration officers and the hearing transcript.

I agree with the panel thatthese bear on facts that are central to the account provided by the applicant, who was not even able to provide a coherent order of eventsjust days after the alleged incidents. I also agree with the respondent that Moscol et al. v. The Minister of Citizenship and Immigration,2008 FC 657, is relevant.

In his decision, Justice Luc Martineau wrote the following: [21] The case law states that differences between the claimant’s statement at the port of entry and the claimant’s testimony are enoughto justify a negative credibility finding when these contradictions bear on elements that are central to the claim: Chen v. Canada(Minister of Citizenship and Immigration), 2005 FC 767, [2005] F.C.J. No. 959 (QL), at paragraph 23 and Neame v. Canada (Minister ofCitizenship and Immigration), [2000] F.C.J. No. 378 (QL).

Further, the RPD is entitled to assess a claimant’s credibility based on asingle inconsistency where the impugned evidence is a significant aspect of the claim: see Nsombo v. Canada (Minister of Citizenshipand Immigration), 2004 FC 505, [2004] F.C.J. No. 648 (QL). [11] Moreover, the applicant criticizes the panel for failing to consider the fact that he was nervous and stressed during the hearing,alleging violence and stress are clearly elements that could have affected his emotional stability. He adds that he had clearly stated thathe had encountered Mr.

Lomeli’s bodyguards several times and the fact that he could not remember these meetings in a detailed mannerdoes not undermine his credibility. [12] However, according to the hearing transcript, the applicant mentioned his nervousness only once, and it was to try to justify whyhe failed to mention the incident of November 17, 2008, during his interview with the immigration officer. [13] Furthermore, as noted by the respondent, the applicant did not submit any medical evidence on his psychological state during thehearing, which he could very well have done. [14] Taking into account the fact that the panel had the opportunity to observe the applicant’s conduct as a witness and that he nevermentioned during the hearing that it was making him nervous, I do not intend to intervene concerning the assessment made by the panelregarding the applicant’s lack of credibility. [15] For all of these reasons, the application for judicial review is dismissed.

I am in agreement with counsel for the parties that this isnot a case for certification.

JUDGMENT The application for judicial review of a decision by a member of the Refugee Protection Division of the Immigration and Refugee Board that the applicant is not a refugee or a person in need of protection according to sections 96 and 97 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , is dismissed. “Yvon Pinard” Judge Certified true translation Janine Anderson, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5024-10 STYLE OF CAUSE: DIEGO ENRIQUE CASILLAS GOMEZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: April 13, 2011 REASONS FOR JUDGMENT AND JUDGMENT: Pinard J. DATED: May 24, 2011

APPEARANCES : Manuel Centurion FOR THE APPLICANT Gretchen Timmins FOR THE RESPONDENT SOLICITORS OF RECORD : Manuel Centurion FOR THE APPLICANT Montréal , Quebec Myles J. Kirvan FOR THE RESPONDENT Deputy Attorney General of Canada