Date: 20101224
Docket: IMM-1858-10
Citation: 2010 FC 1334
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 24, 2010
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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ELEAZAR RODRIGUEZ CORONADO and
BRENDA YUNUENT RODRIGUEZ CORONADO
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Applicant
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and
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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 pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “Act”), of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the “panel”) dated March 2,
2010, wherein it was determined that the applicant is not a Convention refugee or
a person in need of protection under the Act.
Facts
[2]
The applicant, Eleazar Rodriguez Coronado, is a
Mexican citizen who lived in Atlalanhuacan, Morelos, and who fears persecution for
having reported her father’s inappropriate conduct towards her daughter Brenda.
[3]
The applicant apparently spent her childhood in
a difficult family environment owing to her father’s alcoholism and violence.
[4]
In 1996, the applicant, who was unmarried,
became pregnant with her daughter Brenda. Shortly before Brenda’s birth, the
applicant’s fiancé, Eusebio Martinez, left them, and the applicant continued to
live with her parents.
[5]
In November 2006, the applicant confronted
her father, accusing him of having fondled her daughter Brenda. She reported
the situation to the authorities. As a result, her father was detained, but
only for having physically assaulted his spouse.
[6]
In 2007, her father took steps to resolve
his alcohol problem, but to no avail.
[7]
In 2008, the applicant, who was no longer
living with her parents, entrusted Brenda to their care on several occasions. Her
father had a relapse, began drinking again and assaulted Brenda.
[8]
On June 22, 2008, Brenda was attacked by
two masked men in the house where she was living with her mother. Her mother
filed a complaint with the police. Some days later, Brenda identified one of
the masked assailants as being a friend of her grandfather.
[9]
The police investigated but could not track down
the individual in the village.
[10]
In the days following, the applicant was
threatened. If she did not withdraw her complaint, she and her daughter would
suffer the consequences.
[11]
The person making the threats followed the
applicant, who fell and took 20 days of leave because of headaches caused
by that fall. She then decided to flee to Canada with her daughter Brenda.
Impugned decision
[12]
First, the panel found that the principal
applicant’s fear of her father’s behaviour when drunk was genuine but that the
alleged fear of the individuals who had supposedly assaulted her and her
daughter after the complaint was filed with the authorities was unfounded.
[13]
Second, the panel concluded that there was an
internal flight alternative (IFA) in Mexico. It therefore refused the applicant’s claim for refugee protection.
Issues
[14]
This application for judicial review raises the
following questions:
1. Did the panel err in finding the applicant
not to be credible regarding her and her daughter’s alleged assault by third
parties?
2. Did the panel err by concluding that the
applicant had an IFA in moving elsewhere in Mexico?
Analysis
A. Standard of review
[15]
Evaluating credibility and weighing evidence
fall within the jurisdiction of the administrative tribunal assessing a refugee
protection claimant’s allegation of a subjective fear (Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264, at
paragraph 14). The applicable standard of review in similar circumstances
was patent unreasonableness; it is now reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190).
[16]
The existence of an IFA is a question of mixed
fact and law and is consequently reviewable on a standard of reasonableness. On
this subject, Justice Beaudry, in Gutierrez v. Canada (Minister of Citizenship and
Immigration), 2009 FC 487, [2009] F.C.J.
No. 617 (QL), at paragraph 9, wrote the following:
Following Dunsmuir, the Court must continue to show deference when
determining an IFA and this decision is reviewed according to the new standard
of reasonableness. Consequently, the Court will intervene only if the decision
does not fall within the range “of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47). The reasonableness of a decision is concerned
with the existence of justification, transparency and intelligibility within
the decision‑making process.
B. Applicant’s
credibility
[17]
Issues related to credibility, the assessment of
the facts and the weight of the evidence are entirely within the discretion of
the Board, as the trier of fact (Chen v. Canada (Minister of Citizenship and Immigration), 2005 FC 767, 148 A.C.W.S. (3d) 118, and Khangura v. Canada (Minister of Citizenship and
Immigration) (2000), 191 F.T.R. 311, 97 A.C.W.S. (3d)
1228).
[18]
The applicant submitted that the panel had erred,
since it had accepted her fear of being assaulted by her father but refused to
believe her version of events regarding the fear of being attacked by third
parties. However, a careful reading of the panel’s decision shows that all of
the evidence adduced was considered. In this regard, the panel relied on the
applicant’s statement, made during an interview, confirming that she feared
only her father. It was therefore reasonable for the panel to make that finding,
which does not as a result exclude all other fears, as the applicant claims,
but rather confirms that she requires protection from her father.
[19]
After having reviewed the evidence and heard counsel
for the parties, the Court is of the view that it was perfectly reasonable for
the panel to find the applicant not to be credible, considering, among other
factors, the panel’s expertise and specialization, which enable it to
adequately assess witnesses’ credibility and evidence presented (Aguebor v.
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S.
(3d) 886 (F.C.A.)).
C. Internal flight alternative
[20]
At paragraph 21 of Gutierrez, above,
Justice Beaudry summarizes as follows the general principles that apply whenever
IFA issues are raised:
Regarding the
internal flight alternative, the Court held that a claimant cannot be required
to encounter great physical danger or to undergo undue hardship in travelling
to and staying in a region. In Rasaratnam v. Canada
(Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), the
Court held that two criteria applied in establishing an IFA: 1) there is no
serious risk of the claimant being persecuted in the part of the country where
there is a flight alternative; and 2) the situation in the part of the country
identified as an IFA must be such that it is not unreasonable for the claimant
to seek refuge there, given all of the circumstances.
[21]
The case law of this Court is consistent. For
the Court to intervene, it requires nothing less than the existence of conditions
that would jeopardize the life and safety of a claimant in travelling or
temporarily relocating to a safe area. In addition, it requires actual and
concrete evidence of such conditions. The absence of parents, relatives or
help in such an area is not in itself a danger to the claimant’s life and
safety (Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, [2000] F.C.J. No. 2118 (QL), at
paragraph 15).
[22]
In Hernandez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1126, [2008] F.C.J. No. 1397
(QL), in which the applicant was abused and threatened by her ex‑husband,
Deputy Justice Tannenbaum wrote the following at paragraph 34:
In countering
these submissions, the applicant was able to do little more than offer vague
allegations of the risks of being located arising from the state’s inability to
protect her; however, she did not avail herself of this protection before
leaving her country to seek protection in Canada. In addition, she did not file any genuine, concrete evidence of
existing conditions preventing her from relocating in her country. Under these
circumstances, the Board could reasonable find that there was an internal
flight alternative in Mexico.
[23]
It is reasonable, and even necessary, for
refugee protection claimants to exhaust all avenues in their countries before seeking
international protection (Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706, [1991] F.C.J. No. 1256 (QL)). In
Hernandez, above, at paragraphs 31 to 33, Deputy Justice Tannenbaum
aptly describes the claimant’s burden of proof: there must be a real risk in
every part of the claimant’s country.
[24]
The applicant essentially criticizes the panel
for having based its decision on erroneous findings of fact. At the hearing, counsel
for the applicant argued that the panel had erred in determining that the
resources to protect her could be found in Puebla. In counsel’s opinion, the evidence on file shows that the
resources available are concerned with providing victims with psychological
comfort only and therefore have nothing to do with the physical protection of
someone who feels threatened, as is the case here.
[25]
Counsel for the respondent refer to certain
documentary evidence on file clearly establishing that such resources exist in Puebla,
among other places, and make it possible to obtain judicial orders, which are
followed up on by the police. Thus, in counsel’s view, the panel did not err in
assessing the facts.
[26]
They also submit that the panel correctly
applied the two‑part test for determining, first, that there is an IFA in Puebla, among other places, where there is no risk of the claimant’s being
persecuted; and, second, that it was not unreasonable for the claimant to
relocate there.
[27]
The panel held that the applicant had failed to
establish that her father would be able to find her if she moved elsewhere in Mexico, or that he even wanted to do so. As
for the applicant’s argument that it was hard for her to find a job in one of
the IFAs in Mexico, the panel
did not err in evaluating the situation. In this case, this Court is of the
opinion that, given her education and work experience, the applicant could
easily obtain adequate protection in Puebla or relocate to another part of her country without undue hardship.
[28]
The panel’s decision is based on both the
applicant’s testimony and the documentary evidence in the record. In its
assessment, the panel correctly took into account the applicant’s situation and
opportunity to relocate elsewhere in Mexico. The applicant needed to demonstrate to this Court that the panel had
made a reviewable error on a standard of reasonableness. Unfortunately, the
applicant has not discharged her burden of proof.
[29]
This application raises no serious question of
general importance.
JUDGMENT
THE COURT ORDERS AND ADJUGES that the application for judicial review is dismissed and no
question is certified.
Certified true
translation
Tu-Quynh Trinh
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