Date: 20100420
Docket: IMM-4906-09
Citation: 2010 FC 413
Ottawa, Ontario, April 20, 2010
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
ALEXANDER VILLANUEVA PINON
MAYRA PAULETTE JIMENEZ CERVANTES
MELANIE JOHALY VILLANUEVA JIMENEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C., 2001, c. 27 (the Act) for judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (the panel) dated September 9, 2009, determining that the
applicants are not Convention refugees or persons in need of protection.
Factual background
[2]
The
principal applicant, Alexander Villanueva Pinon, his wife, Mayra Paulette
Jimenez Cervantes, and their minor daughter, Mélanie Johaly Villanueva, are all
citizens of Mexico.
[3]
The
principal applicant alleges that he went to a party with his family members,
including Gabriel Cervantes, his wife’s cousin, on September 1, 2007. Some
young men who were at the party insulted him and struck him for no reason. The
young men allegedly made death threats against the applicant and his friends.
[4]
A
week later, Gabriel Cervantes was stabbed 16 times by the young men who
had threatened them at the party on September 1, 2007. Gabriel Cervantes told
the applicant that his assailants had also made threats against the applicant.
[5]
The
applicant and his family members filed a complaint, but nothing came of it
since, it is alleged, members of the assailants’ families worked for the
judicial police.
[6]
Fearing
for his life, the applicant left his country on September 10, 2007, and arrived
in Canada on the same date. After he arrived in Canada, the applicant learned
that the same individuals had shot at Gabriel Cervantes on November 2, 2007.
[7]
The
applicant’s wife states that she was also threatened by the same men, who were
trying to find out where her husband was. Fearing for her safety, she arrived
in Canada on July 29,
2008, with her minor daughter. Both of them claimed refugee protection in early
August 2008.
Impugned decision
[8]
The
panel concluded that the applicants had not discharged their burden of proving
on a balance of probabilities that they would be subject to a danger of
torture, a risk to their life or a risk of cruel and unusual treatment or
punishment if they returned to Mexico. The panel also concluded that the
applicants had an internal flight alternative in Mexico, in Sonora state. The
applicants did not discharge their burden of proving that returning them to Mexico would
subject them to a risk to their lives or a risk of cruel and unusual treatment
or punishment or a danger of torture.
Issues
[9]
This
application raises the following issues:
1. Did
the panel err when it found that the applicants were not credible?
2. Did
the panel err when it found that the applicants had an internal flight
alternative (IFA) in Sonora state?
Standard of review
[10]
Assessing
credibility and assessing the evidence are matters within the authority of the
administrative tribunal, which must assess a refugee claimant’s allegation of
subjective fear (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), (1998), 157 F.T.R. 35 (F.C.T.D.), 83 A.C.W.S. (3d) 264 at para. 14).
Since Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the standard of review that has applied in
circumstances like these is reasonableness.
[11]
As
stated in Dunsmuir, the standard of review applicable to questions of
state protection is reasonableness (Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, 137 A.C.W.S. (3d) 392 at
paragraphs 9 to 11 and Gorria v. Canada (Minister of Citizenship and
Immigration), 2007 FC 284, 310 F.T.R. 150 at paragraph 14).
1. Did
the panel err when it found that the applicants were not credible?
[12]
The
Court would note that the burden of proof rests on the applicants, who must
present all the evidence that is available and that they consider to be
necessary to establish their claim at the hearing (Zheng v. Canada (Minister
of Citizenship and Immigration), 2001 FCT 1244, 213 F.T.R. 39; Hazell v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1323, 158
A.C.W.S. (3d) 807).
[13]
It
is also settled law that the panel has jurisdiction to assess the evidence
submitted by the applicants and to identify implausibilities (Aguebor v. Canada
(Minister of Employment and Immigration) (F.C.A.) [1993] F.C.J. No. 732,
160 N.R. 315; He v. Canada (Minister of Employment and Immigration),
(1994), 49 A.C.W.S. (3d) 562; [1994] F.C.J. No. 1107 (F.C.A.) (QL); Shahamati
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.)
(QL)).
[14]
In
this case, the panel identified several points that undermine the applicants’
credibility.
[15]
First,
the applicant received medical care at the Margarita Salinas hospital following
the fight at the party on September 1, 2007. He received a medical certificate,
which stayed in Mexico and was not submitted in support of his claim. The panel
found that the medical certificate was an important piece of evidence to be
submitted in support of his claim for refugee protection since the injuries
alleged were suffered on the date that marked the beginning of his problems in
Mexico. The panel concluded that the medical certificate could easily have been
obtained since it was at the applicant’s home in Mexico. The applicant was not
diligent in that he did not try to obtain an important document that could have
corroborated his testimony. Under Rule 7 of the Refugee Protection Division
Rules, SOR/2002-228, the applicant had to provide documents establishing
this crucial element, which is central to his claim.
[16]
It
is clear from section 7 of the Refugee Protection Division Rules
that a claimant has a duty to provide the documents and other elements of the
claim. While the French version states that “[l]e demandeur transmet […]”, the
English speaks more directly to the duty imposed on the claimant: “The claimant
must provide […]”.
[17]
Second,
the claimant replied that the fresh threats made against him after the attack
on Gabriel Cervantes had made him fear for his safety if he were to return to
Mexico. However, the applicant failed to mention this important piece of
information in reply to question 31 in his Personal Information Form
(PIF). The panel noted that if death threats had really been made against him
at the alleged event on November 2, 2007, the applicant would have thought
to report them in his PIF. The courts have held that all important elements of
a claimant’s claim must be stated in the PIF and omissions are conclusive when
it comes to central and important events in the narrative, as in this case (Ovais
v. Canada (Minister of Citizenship and Immigration), (2000), 100 A.C.W.S. (3d)
1045, [2000] F.C.J. No. 1702 (QL); Arunasalam v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1070, 108 A.C.W.S. (3d) 518).
[18]
Third,
in answer to how Gabriel Cervantes could have been stabbed 16 times,
including in the back and abdomen, without suffering major injuries, the
applicant explained that he did not know what Gabriel Cervantes was stabbed
with and he also did not know whether he suffered cuts or other injuries. In
spite of the many questions the panel asked on this point (transcript at pp. 199-200),
the Court finds that the applicant’s replies were at all times vague and
imprecise.
[19]
As
the final point, the applicant’s wife also testified, and stated that she had
been threatened several times after her husband left. She alleged that she had
moved in with her parents, who lived a few blocks from her home, to be safe.
The panel concluded that this was not the behaviour of a person who had to live
in hiding for the safety of herself and her minor daughter. In the Court’s
view, the panel could reasonably have considered the behaviour of the female applicant,
who had not taken serious steps to protect herself, in assessing whether her
fear was well-founded (Mardones v. Canada (Minister of Citizenship and
Immigration), (1997), 72 A.C.W.S. (3d) 907; [1997] F.C.J. No. 351 (QL)). It
was therefore reasonable for the panel to conclude that the female applicant
had no subjective fear, because of her behaviour, which was inconsistent with
the behaviour of a person who feared for her safety.
[20]
The
evidence in the record shows that in assessing the applicants’ credibility, the
panel had regard to their explanations concerning the implausibilities and
inconsistencies identified, but did not consider them to be satisfactory.
[21]
After
analyzing and considering the documentary evidence, the written and oral
submissions of the parties and the case law submitted, the Court is of the
opinion that the panel’s conclusion falls within the range of outcomes that are
acceptable, having regard to the evidence. The panel is in the best position to
assess the explanations given by the applicants regarding the apparent
contradictions and implausibilities. It is not the role of the Court to
substitute its judgment for the findings of fact made by the panel regarding the
applicants’ credibility (Singh v. Canada (Minister of Citizenship and
Immigration), 2006 FC 181, 146 A.C.W.S. (3d) 325 at paragraph 36; Mavi
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1
(QL)).
[22]
Having
regard to all of the foregoing, the Court concludes that the panel did not err
when it found that the applicants were not credible.
2. Did
the panel err when it found that the applicants had an internal flight
alternative (IFA) in Sonora state?
[23]
The
burden of proving that they did not have any internal flight alternative in
another part of Mexico rests on the applicants. It was therefore up to the
applicants to prove that they were at serious risk of being persecuted
throughout Mexico and that it was objectively unreasonable for them to avail
themselves of an internal flight alternative (Thirunavukkarasu v. Canada (Minister
of Citizenship and Immigration), [1994] 1 F.C. 589, 163 N.R. 232; Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, 140
N.R. 138 (F.C.A.)). In this situation, the threshold is set very high for the
unreasonableness test (see Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164 at paragraph 14).
[24]
More
specifically, to quote Justice Létourneau in that decision:
... It requires nothing less than
the existence of conditions which 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. …
[25]
In
the case before us, the panel’s decision is based on the applicants’ testimony
and the documentary evidence in the record. The panel had regard to the
applicants’ personal situation and the reasonableness of them relocating to Sonora state.
Moreover, the applicants presented no credible evidence to show that they could
not live in Sonora state. On
the contrary, the evidence shows that Gabriel Cervantes, who is targeted by the
same men as the applicant, has lived in that state since November 2007.
[26]
The
applicants have therefore not discharged their burden of proving that the panel
erred in identifying an internal flight alternative. The Court considers that
decision to be reasonable and in accordance with the case law.
[27]
The
application for judicial review is accordingly dismissed. This application does
not involve a serious question of general importance.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for
judicial review be dismissed. No question will be certified.
“Richard
Boivin”
Certified
true translation
Susan
Deichert,
Reviser
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