Larios-Garcia v. Canada (Minister of Citizenship and Immigration), 2006 FC 1162

 

 

 

Date: 20060929

Docket: IMM-6409-05

Citation: 2006 FC 1162

Ottawa, Ontario, September 29, 2006

PRESENT:     The Honourable Mr. Justice Phelan

 

 

BETWEEN:

JULIA LARIOS-GARCIA and

ETHEL LARIOS-GARCIA

Applicants

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

I.          Introduction

[1]               The Applicants are citizens of Mexico; Julia Larios-Garcia is the mother of the minor Applicant. The Immigration and Refugee Board (Board) determined that neither of them were Convention refugees. This is the judicial review of that decision.

 

II.         Facts

[2]               The principal Applicant alleged that she faces risk from her former partner Felix. She claimed that he was physically and mentally abusive to her. She left him when she found that he was having an affair. She was also afraid that Felix would take her daughter away from her as he had attempted to do in the past.

 

[3]               In her PIF, the Applicant claimed that she did not go to state organizations for help because Felix was a close friend of the President of Mexico, Vincente Fox. Presumably Fox would have instructed government officials not to help her because of his friend from high school’s desire to cause her harm.

 

[4]               Shortly before the Board hearing, the Applicant amended her PIF to claim that her additional reasons for not seeking state protection was that Felix was a drug trafficker and had dangerous contacts including a “hit man” who followed her one time.

 

[5]               The Applicant also relied on a psychiatrist’s report which found her response to questions credible and that she suffered from post-traumatic stress disorder and depressive symptoms. These conditions were said to be aggravated if the Applicant returned to Mexico.

 

[6]               The Applicant raised four issues:

·                    that the Board erred in making an adverse credibility finding based solely on the grounds of the Applicant amending her PIF, an activity specifically permitted by law;

·                    that the Board did not conduct a fair hearing because of the Board’s frequent interruption during testimony, that a fire alarm went off and the interpreter had a cold;

·                    that the Board erred in its state protection analysis because it failed to take account of abused women’s reluctance to seek aid and because the Board did not adequately assess the connection with former President Fox; and

·                    that the Board erred in concluding that the Federal Court had endorsed Mexico City as an internal flight alternative (IFA) in respect of Mexico and failed to consider the impact of the medical evidence.

 

III.       Analysis

[7]               It has been well established that the standard of review for credibility is patent unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315); in respect of state protection, the standard depends on the basis relied on to make the finding such that it is either reasonableness or patent unreasonableness (contrast Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1449, [2004] F.C.J. No. 1755 (QL) and Larenas v. Canada (Minister of Citizenship and Immigration), 2006 FC 159, [2006] F.C.J. No. 218 (QL)). Nothing turns on that issue in this case. An IFA is assessed on the standard of patent unreasonableness (Sarker v. Canada (Minister of Citizenship and Immigration), 2005 FC 353, [2005] F.C.J. No. 435 (QL). Procedural fairness is assessed against a standard of correctness.

 

A.        Credibility

[8]               The Applicant made a significant amendment to her PIF raising an entirely new ground for her Convention claim. The Board did not accept her explanation for initially omitting such a key ground as her fear of her drug trafficking partner and his “thugs” (Court’s words). The Applicant argues that because amendments to PIFs are sanctioned in law, the Board cannot base an adverse credibility finding on the fact that the right to amend is involved.

 

[9]               The Board would be failing in its duty to assess credibility if it did not examine the reasons for amending a PIF. The reasons may assist an applicant or they may adversely affect credibility but it is a legitimate area of inquiry into the real reasons for a refugee claim. In the circumstances the Applicant’s explanation was unreasonable and the story contradictory to her initial claim.

 

B.         Procedural Fairness

[10]           I have reviewed the transcripts. There were numerous interruptions but they were made where clarification was sought or where the Board was attempting to keep the Applicant on topic.

 

[11]           Even where there are interruptions by a decision maker, the interruptions only become problematic when an applicant is denied a chance to make her case. (See Madi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1062, [2001] F.C.J. No. 1450 (QL)) The interruptions never rose to that level; indeed they seemed designed to maintain some order and clarity in the proceedings.

 

[12]           The other issues of a fire alarm (obviously not initiated by the Board) and the chest cold of the translator have not been shown to have any effect on the hearing other than to cause a minor delay. No objections were made nor adjournments sought if these events were of such importance to the Applicant.

 

C.        State Protection

[13]           The Board did not ignore the issue of concern that abused women are often reluctant to seek assistance.  The Board referred specifically to the Chairman’s Guidelines in this regard. The Applicant’s reluctance to seek assistance was not based upon cultural or religious concerns or on feelings of low self-esteem (or any other reasons). The fear was based firstly on concern that the then President Fox would assist Felix in some way as to prevent state assistance. It was subsequently changed to fear of Felix’s drug trafficking connections.

 

[14]           Examining whether the Board reached a patently unreasonable conclusion, it was clear that there was more than enough evidence, or absence of evidence, to ground its finding. While there was no specific finding concerning President Fox, a conclusion that the Applicant had not rebutted the presumption of state protection is inescapable based on this record. If the Applicant had not replaced concerns about President Fox for concerns about drug traffickers when the Applicant amended the PIF, then the Applicant was suggesting, without any evidence, that President Fox would aid some drug trafficking high school friend so that the Applicant could not secure state assistance. Absent any evidence, this is an unsustainable allegation.

 

D.        Internal Flight Alternative

[15]           The Applicant raises that the Board erred in its analysis of an IFA in Mexico City when the Board stated that Mexico City as an IFA was specifically endorsed in Torres (proper citation being B.O.T. v. Canada (Minister of Citizenship and Immigration), 2005 FC 284, [2005] F.C.J. No. 343 (QL)) and that the Court upheld “in clear terms” that IFAs exist in Mexico.

 

[16]           As I interpret the Board’s conclusion with respect to Torres, it means no more than that the Court endorsed, in the sense that it was not patently unreasonable to conclude, that that applicant had an IFA in Mexico City. I do not understand the Board to mean that this Court had directed the Board to make a finding of an IFA in Mexico City for all Mexicans.

 

[17]           The words chosen by the Board may have been taken by some to be given a broader meaning. It is important for the Board to be clear to the parties that decisions by this Court upholding a finding not being patently unreasonable are not directives as to specific results in other cases.

 

[18]           The same comments apply with respect to the Board’s comments about the case in Urgel v. Canada (Minister of Citizenship and Immigration), 2004 FC 1777, [2004] F.C.J. No. 2171 (QL). The Court upheld the reasonableness of the Board’s conclusion that IFAs existed for that applicant.

 

[19]           Considering the Board’s decision as a whole, the Board’s somewhat expansive wording does not exhibit any real constraint on the Board to reach the conclusion it did and which the evidence wholly supported. It was more than open to the Board to reach its conclusion that an IFA existed.

 

[20]           The Board did not ignore the psychiatric evidence but made its own assessment of the Applicant’s credibility, as it is obliged to do under the law.

 

IV.       Conclusion

[21]           Therefore, this application for judicial review will be dismissed. There is no question for certification.

 

JUDGMENT

            IT IS ORDERED THAT this application for judicial review will be dismissed.

 

 

 

“Michael L. Phelan”