JERONIMO RAMIREZ PEREZ Applicant v. THE MINISTER OF CITIZENSHIP, 2011 FC 567

Federal Court Cour fédérale Date: 20110517 Docket: IMM-6414-10 Citation: 2011 FC 567 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, May 17, 2011 PRESENT: The Honourable Mr. Justice Shore BETWEEN: JERONIMO RAMIREZ PEREZ Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT I.

Introduction [ 1 ] The issue here is the lack of credibility of the applicant, who is a citizen of Mexico: it is settled law that it is up to the Immigration and Refugee Board (Board), as a specialized tribunal, to be the trier of the facts and, more specifically, of the credibility of an applicant. The Court must show deference when reviewing such decisions. II.

Judicial procedure [ 2 ] This is an application for judicial review, in accordance with subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA ), of a decision by the Board’s Refugee Protection Division (RPD) , dated October 13, 2010, that the applicant is not a Convention refugee under

section 96 of the IRPA or a person in need of protection under

section 97 of the IRPA on the basis of his lack of credibility. III. Facts [ 3 ] The applicant, Jeronimo Ramirez Perez, was born on February 29, 1968, and is a Mexican citizen. At the time of the events that are the subject of his refugee claim, he was living in the city of Tijuana.

[ 4 ] Mr. Perez alleges that he worked as a salaried employee for approximately two years delivering milk for a company called Jersey. In July 2008, he was delivering milk when three armed individuals purportedly robbed him of the money in his possession. He then apparently filed a complaint with the Office of the Public Prosecutor. The same individuals allegedly went after him on two other occasions in the two weeks that followed.

The applicant purportedly returned to the Office of the Public Prosecutor after each assault and asked that his employer transfer him to a route in the south end of the city, without explaining the situation. A few weeks later, Mr. Perez was allegedly again the victim of extortion and decided to pay the sum of money demanded by his persecutors, without mentioning these facts to his employer or to the Office of the Public Prosecutor. [ 5 ] On November 20, 2008, Mr. Perez allegedly decided to talk directly to his employer about the situation. The employer then had Mr.

Perez followed by security guards on his delivery route. A few days later, one of the persecutors was killed in a gunfight between the security guards and the armed individuals. It was allegedly later discovered that the deceased was a police officer. The applicant purportedly wrote his letter of resignation on December 1, 2008, and went to hide at his mother’s home. A relative allegedly informed him that police officers were asking questions about him in the surrounding areas. [ 6 ] Mr. Perez arrived in Canada on December 29, 2008, and claimed protection that same day. IV.

Impugned decision [ 7 ] The RPD found that the applicant is not a Convention refugee or a person in need of protection under the IRPA . The RPD first noted that the story alleged by the applicant had no nexus to any of the grounds listed in

section 96 of the IRPA and that the issue in this case was instead a fear related to criminality. The analysis was therefore made under

section 97 of the IRPA with the purpose of determining whether the applicant was a person in need of protection on the ground that corrupt police officers apparently want to kill him. [ 8 ] The RPD found that the applicant had not established in a credible manner the essential elements of his refugee protection claim and that he had not established that he had to resign from his job as a milkman for the reasons alleged. The RPD found that the applicant was not credible based on contradictions and implausibilities contained in the evidence.

More specifically, in the reasons for the decision, the RPD noted the following: There are discrepancies in the applicant’s statements regarding the length of his employment with the company Jersey.

In fact, the port of entry statement indicates September 2006 as the month he started his employment, whereas the Personal Information Form (PIF) indicates April 2006 (Tribunal Record (TR) at pages 14 and 76); The applicant’s explanation for failing to talk to his supervisor about the robberies that he was allegedly the victim of before November 2008 is implausible given that the robberies would have inevitably resulted in losses of revenue for his employer; The letter from his former employer (Exhibit P-4, TR at page 51), submitted by the applicant before the RPD, reveals contradictions in relation to a number of the applicant’s statements, especially regarding the fact that the said letter was dated November 14, 2008, whereas the applicant allegedly resigned on December 1, 2008.

The letter also makes no mention of the fact that the applicant had apparently resigned; The fact that the applicant had not thought about quitting his job after experiencing three armed robberies and having 800 pesos per week for several weeks extorted from him demonstrates a conduct inconsistent with his alleged fear. (Decision at paragraphs 7 to 15) V. Issue [ 9 ] Does the decision by the RPD contain an error in fact or in law that warrants the intervention of this Court? VI. Relevant statutory provisions [ 10 ] The following provisions of the IRPA apply to this application: Convention refugee 96.

A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à

opinion, (

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (

b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97.

(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (

a) to a danger, believed on substantial grounds to exist, of torture within the meaning of

Article 1 of the Convention Against Torture; or (

b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (

i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, un groupe social ou de ses opinions politiques :

a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;

b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne à protéger 97.

(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :

a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;

b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (

i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tous lieux de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et

and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.

(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait

partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. VII. Parties’ claims [ 11 ] The applicant explains that the discrepancies between the start date of employment in the PIF and in the statement at the port of entry as well as the erroneous date on the letter of resignation are simple errors that should not impact his credibility. He adds that he did all he needed to do to inform his employer about the robberies by filing a complaint with the Office of the Public Prosecutor.

The applicant also claims that the fact that he did not think about quitting his job or moving demonstrates only that reactions to danger vary from person to person. The applicant cites Giron v.

Canada (Minister of Employment and Immigration) , (1993), 143 NR 238 , 33 ACWS (3d) 1270 , which states that triers of fact are in no better position than others to draw inferences based on the implausibility of the extrinsic criteria, such as rationality, common sense and judicial knowledge. [ 12 ] The respondent claims that this argument by the applicant has no basis in law and that this principle was reviewed in Aguebor v.

Canada (Minister of Employment and Immigration) , (1993), 160 NR 315 , 42 ACWS (3d) 886 , at paragraphs 3 and 4 , by Justice Robert Décary, who confirmed that the test for the Court’s intervention is not different depending on whether the finding is “plausibility” or “credibility”.

The respondent contends that the applicant did not demonstrate that the RPD had made an unreasonable decision that does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, or an arbitrary decision without regard for the material before it by gauging the testimonial and documentary evidence submitted or by drawing illogical inferences. VIII.

Standard of review [ 13 ] It is settled law that the credibility of an applicant, the assessment of the facts and the weighing of the evidence are within the purview of the RPD and must be considered according to the standard of reasonableness: [19] The panel is in the best position to assess the explanations submitted by applicants for any perceived inconsistencies and implausibilities, and the role of this Court is not to substitute its judgment for the panel’s on findings of fact relating to the applicant’s credibility ( Singh v. Canada (M.C.I.) , 2006 FC 181 , 146 A.C.W.S. (3d) 325 at para. 36 ; Mavi v.

Canada (M.C.I.) , [2001] F.C.J. No. 1 (QL) ). Here, the applicant’s explanations for the lack of evidence corroborating his narrative are not reasonable. ( Castaneda v. Canada (Minister of Citizenship and Immigration) , 2010 FC 393 ) [ 14 ] The issue is therefore whether the RPD’s decision is reasonable in light of the facts of this case and not whether this Court would be of an opinion contrary to that of the RPD. IX. Analysis

[ 15 ] Analyzing the evidence and assessing the credibility of a refugee claimant is the responsibility of the RPD, a tribunal specializing in such matters. The RPD pointed out numerous implausibilities and contradictions that undermined the applicant’s credibility. In particular, it was open to the RPD to consider the applicant’s conduct in response to the alleged dangerous events and to determine that, if he seriously feared persecution, he would have moved or changed jobs at the earliest opportunity ( Huerta v.

Canada (Minister of Employment and Immigration) , (1993), 157 NR 225 , 40 ACWS (3d) 487 (FCA) ). [ 16 ] Regarding the probative value of the evidence, it is not up to the Court to reweigh the evidence submitted before the RPD. The applicant cannot ask the Court to substitute its opinion for that of the RPD with respect to the probative value attached to this evidence or to his explanations ( Zrig v. Canada (Minister of Citizenship and Immigration) , 2003 FCA 178 , [2003] 3 FC 761 at paragraph 42 ).

It was also reasonable for the RPD to attach no probative value to the letter from the applicant’s employer that was submitted into evidence after analyzing its content against the testimony given at the hearing. X. Conclusion [ 17 ] In light of the foregoing, the Court’s intervention is unwarranted. The applicant has not raised any serious grounds that would permit the Court to allow the application for judicial review. The applicant’s application for judicial review is dismissed. JUDGMENT THE COURT ORDERS AND ADJUDGES that the application for judicial review be dismissed.

No question for certification arises. “ Michel M.J. Shore ” Judge Certified true translation Janine Anderson, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6414-10 STYLE OF CAUSE: JERONIMO RAMIREZ PEREZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: May 10, 2011 REASONS FOR JUDGMENT AND JUDGMENT: SHORE J.

DATED: May 17, 2011 APPEARANCES : Luciano Mascaro FOR THE APPLICANT Margarita Tzavelakos FOR THE RESPONDENT SOLICITORS OF RECORD : Arpin, Mascaro & Associés Montréal, Quebec FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT