Date: 20100401
Docket: IMM-4004-09
Citation: 2010 FC 360
Ottawa, Ontario, April 01, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
MERCEDES ROSALES UTRERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
concerns an application brought pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, ("the Act") by
Mercedes Rosales Utrera (the “Applicant”) whereby she is seeking the judicial
review of a decision of a panel of the Refugee Protection Division of the Immigration
and Refugee Board (the “Panel”) dated July 20, 2009 and bearing file number
TA8-06636, rejecting the Applicants’ refugee protection claims under section 96
and subsection 97(1) of the Act.
[2]
This
application is dismissed for the reasons set out below. In a nutshell, the
Panel’s decision was based on findings of fact, including an assessment of the
Applicant’s credibility. The Panel did not believe important aspects of the
Applicant’s testimony concerning her abusive common-law partner, largely in view
of the fact that she had given a number of different versions of her story in
the past. In addition, the Panel found that the Applicant had an internal flight
alternative within Mexico. These findings were
well articulated and fell within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
Background
[3]
The
Applicant is a citizen of Mexico who entered into a common-law relationship with a
university physics teacher in 2005. The couple resided in Veracruz. He became abusive and his
aggressive behaviour culminated in an assault on the Applicant which occurred
on January 2, 2007. Though the Applicant did report to the police this
incident, she did not feel safe in Mexico and decided to leave for Canada on May 31, 2007 in
order to seek protection.
Analysis
[4]
The
standard of review of decisions of the Refugee Protection Division of the
Immigration and Refugee Board based on issues of witness credibility and the
assessment of evidence is that of reasonableness: Aguebor v. Canada
(Minister of Employment and Immigration), (1993) 160 N.R. 315, [1993]
F.C.J. No. 732 (QL) at para. 4; Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427, [2008] F.C.J. No. 515 (QL) at
para. 15; Sierra v. Canada (Minister of Citizenship and Immigration), 2009 FC 1048, [2009]
F.C.J. 1289 (QL) at para. 20; Focil v. Canada (Minister of
Citizenship and Immigration), 2010 FC 50, [2010] F.C.J. No. 49 (QL) at para.
25. I will accordingly apply that standard in this judicial review.
Consequently, my analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 (QL) at para. 47).
[5]
The
Panel was troubled by the fact that the Applicant had submitted different
versions of her story. She was interviewed by immigration authorities on June
1, 2007, her personal information form was completed with the assistance of
legal counsel in June 2007, and she amended her personal information form in
October 2008. Yet, she failed to mention on each of these occasions that she
had been abducted in Mexico
City in
November 2006 and forcibly returned to her common-law husband by men acting on
his behalf. This last event was raised by the Applicant for the first time on April
2, 2009 only, a short time prior to her hearing before the Panel.
[6]
The
Applicant explained this important omission as the result of the psychological
trauma she suffered following her abuse, and she submitted a report from a
psychologist which noted that she suffered from Post Traumatic Stress Disorder.
The Panel accepted that diagnosis, but found nothing in the psychological
report which would explain any memory loss, particularly in regard to an event
as important as being forcibly abducted. The Panel noted that the Applicant did
not appear to have any difficulties remembering the sexual abuse she had
suffered as a child, and thus found it was not credible that the Applicant
would have simply forgotten about being abducted as an adult.
[7]
When
asked to explain how her common-law husband could have found her in Mexico City in order to abduct her,
she testified before the Panel that he was a drug trafficker, an allegation
which did not appear in any of her previous statements and which was first
raised at the hearing.
[8]
In
its decision, the Panel accepted that the Applicant had suffered an abusive
relationship with her common-law partner, but did not believe that the
Applicant had been abducted or that her husband was a drug trafficker. The
Panel further concluded that little evidence had been submitted showing that
her former common-law partner still had an interest in pursuing her. The Panel
noted that since the Applicant’s departure from Mexico, her former partner’s interest in her had
faded out; since then he had merely made the occasional telephone call to her
mother. These findings of fact are all reasonable in the circumstances of this
case.
[9]
The
Panel thus reasonably found that the Applicant had no more than a mere
possibility of being persecuted by her former common-law partner should she
return to Mexico.
[10]
In
any event, the Panel also found that the Applicant had an available internal
flight alternative in Mexico, namely Monterrey, where she could safely live free from serious
harm from her former common-law partner. The Applicant did not submit that the
Panel applied the wrong legal test for finding that an internal flight
alternative was available to her. Rather it was argued that this finding was erroneous
in view of the fact that her former common-law husband was a drug dealer who
could thus seek out the Applicant anywhere in Mexico. Since that submission was not accepted by
the Panel, and since this finding of fact was itself reasonable, the overall
finding that the Applicant had an internal flight alternative in Mexico is also reasonable.
[11]
At
the hearing before this Court, the Applicant’s counsel challenged at length the
Panel’s findings on the availability of state protection. Those attacks on the
Panel’s findings on state protection are all based on facts which were
reasonably rejected by the Panel. In any event, since the Panel reasonably
found that the Applicant did not face more than a mere possibility of persecution
on the part of her former common-law partner should she return to Mexico, and
that she also had an available internal flight alternative in Mexico, I need
not delve any further on the findings pertaining to the issue of state
protection.
[12]
This
case turns essentially on questions of fact, in particular, the credibility of
the Applicant. As I have already noted, the findings of fact and those
regarding credibility were well articulated by the Panel and fell within the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[13]
In
recent years, the Supreme Court of Canada has clearly stated that, in reviewing
a decision of an administrative tribunal, a superior court should avoid
substituting its own assessment of the evidence for that of the tribunal. This applies
particularly where the administrative tribunal, as in this case, has had the
opportunity of hearing the testimony viva voce and is thus in a much
better position to assess the credibility of witnesses. The role of this Court
is to ascertain that the Panel has carried out its mandate in accordance with
the legal framework set out by its constitutive legislation and with due regard
to the rules of fairness and of fundamental justice. As long as the Panel has
acted within this legal framework and has adhered to the rules of fundamental
justice, a reviewing court should not interfere unless the decision is
unreasonable. The findings of the Panel in this case are not unreasonable.
[14]
This
case raises no important question warranting certification under paragraph
74(d) of the Immigration and Refugee Protection Act. Therefore, no such
question shall be certified.
JUDGMENT
THIS COURT
ORDERS AND DECIDES that the application for
judicial review is dismissed.
"Robert
M. Mainville"
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