Docket:
IMM-5743-11
Citation:
2012 FC 497
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, April 30, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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FELIPE MENDOZA
BERBER
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Applicant
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and
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THE 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 submitted in accordance with subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
(Act), of a decision dated July 21, 2011, by the Refugee Protection Division of
the Immigration and Refugee Board (panel) that the applicant is not a refugee
or a person in need of protection within the meaning of sections 96 and 97 of
the Act.
I. Background
A. Factual
background
[2]
Felipe
Mendoza Berber (the applicant) is a citizen of Mexico. He is claiming refugee
protection in
Canada based on his fear of reprisals from drug dealers in his country of
origin.
[3]
The
applicant was a police officer with the public safety branch, traffic division,
in Ciudad Juarez, in the state of Chihuahua, Mexico, for a period of six (6)
years.
[4]
On
November 25, 2006, at around 2 a.m., the applicant participated in a police
intervention involving a dozen police officers, seven police patrols and a
recovery car. The intervention was supervised by the commanding officer, Javier
Macias.
[5]
During
the police intervention, a speeding vehicle without licence plates was stopped.
There were four armed men in the vehicle. After a minor scuffle, the men in the
vehicle were immobilized and handcuffed by the police officers.
[6]
During
the intervention, the men in the vehicle uttered death threats against the
police officers. The men also told the officers that they were members of the
“LINEA” cartel, led by “JL” under the orders of Mario Zambada.
[7]
When
the vehicle was inspected, the police officers found several weapons, a grenade,
numerous cartridges of various calibres, Federal Investigation Agency uniforms
and bulletproof vests.
[8]
Thirty
(30) minutes later, at around 2:30 a.m., the commanding officer allegedly
received a call ordering him to release the detainees. The order was given by
Guillermo Prieto Quintana, who was the director of public safety at the time of
the intervention.
[9]
When
they left, the men repeated their death threats against the police officers.
[10]
The
next day, the police officers who had participated in the intervention started
receiving death threats through anonymous calls and text messages on their cellphones.
The applicant submits that headquarters had given out the telephone numbers of
the police officers involved in the group’s arrest to the drug traffickers.
[11]
In
the months and years following the intervention, some of the officers were
murdered, some quit their jobs and others disappeared.
[12]
In
December 2006, the applicant fled Mexico for Florida, in the United States.
[13]
In
March 2009, the applicant returned to Mexico – specifically to Ciudad Juarez
and to Mexico City – to see his wife, his children and his gravely ill mother.
[14]
The
applicant left Mexico and arrived in Canada on May 28, 2009, where he claimed
refugee protection.
[15]
On
May 6, 2011, his refugee claim was heard by the panel.
B. The
impugned decision
[16]
Having
considered all of the evidence, the panel declared that the applicant had not
discharged his burden of proof. The panel was of the opinion that the
applicant’s testimony was not credible because it contained omissions and
implausibilities.
[17]
Furthermore,
the panel found there was a lack of subjective fear on the applicant’s part
because he never applied for refugee status in the United States in spite of
the fact that he had lived there for two (2) years and because he had returned
to Mexico to visit his family. The panel found the applicant’s explanations to
be unsatisfactory.
[18]
Lastly,
the panel determined that there was an internal flight alternative (IFA) for
the applicant in Mexico City.
II.
Issues
[19]
The
Court is of the opinion that this matter raises the following issues:
Were the panel’s
negative findings with respect to the applicant’s credibility made in a
capricious manner or without regard for the evidence before it?
Did the panel err in
finding that there was an IFA in Mexico City?
III.
Applicable
legislative provisions
[20]
Sections
96 and 97 of the Immigration and Refugee Protection Act read as follows:
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Refugee Protection,
Convention Refugees and Persons in Need of Protection
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 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.
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Notions
d’asile, de réfugié et de personne à protéger
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 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.
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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,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
Person in need of protection
(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.
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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 tout lieu 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 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.
Personne à protéger
(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.
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IV.
Applicable
standard of review
[21]
It is established in the case law that the
standard of review applicable to the assessment of the credibility of a refugee
claimant is that of reasonableness (Aguebor
v Canada
(Minister of Employment and Immigration) (FCA), (1993)
160 NR 315, 42 ACWS (3d) 886; Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 (Dunsmuir)).
[22]
The standard of review applicable to IFA issues is also
that of reasonableness (Goltsberg v Canada (Minister of Citizenship and Immigration),
2010 FC 886 at paragraph 16, [2010] FCJ No 1103; Mejia v Canada (Minister of Citizenship and Immigration),
2009 FC 354 at paragraph 29, [2010] FCJ No 438).
[23]
Consequently, according to the standard of
reasonableness, this Court will intervene only where the panel has come to a conclusion
that is not transparent, justifiable and intelligible or that does not fall within
a range of possible, acceptable outcomes based on the evidence before it (Dunsmuir,
supra, at paragraph 47).
V.
Applicant’s
position
[24]
According
to the applicant, the panel erred in its assessment of the credibility of his
testimony. Citing Sheikh v Canada
(Minister of Employment and Immigration)
(CA), [1990] 3 FC 238,
[1990] FCJ No 604; Attakora v Canada (Minister of Employment and Immigration) (FCA), [1989] FCJ No
444, 99
NR 168; Rajaratnam v Canada (Minister of Employment
and Immigration) (FCA), [1991] FCJ No 1271, 135 NR 300; and Owusu-Ansah v Canada (Minister of Employment
and Immigration) (FCA), [1989]
FCJ No 442, 98
NR 312,
the applicant argues that the panel should not have demonstrated such excessive
zeal trying to find instances of contradiction in the applicant’s testimony and
should not have been overly vigilant in undertaking a microscopic examination
of the evidence.
[25]
In
addition, the applicant contends that, pursuant to the decision in Maldonado
v Canada (Minister of Employment and Immigration) (FCA), [1980] 2 FC 302,
31 NR 34, when an applicant swears that certain facts are true, there is a
presumption that they are true, unless there is a valid reason to doubt their
truthfulness. The applicant argues that the panel misunderstood part of his
testimony regarding his fear of the drug traffickers and their leader. Also,
the applicant submits that the panel erred in finding that he was not credible
on this point, because it had no evidence to the contrary to support that
finding. The applicant states that the panel ought to have based its negative
credibility finding on credible evidence.
[26]
Furthermore,
the applicant notes that fact that the panel acknowledged that there is an
extremely precarious situation in Mexico in terms of police officers being
caught between the drug cartels, the army and the government. However, the
applicant claims that the panel misapprehended the documentation on drug
traffickers in Mexico.
VI.
Respondent’s
position
[27]
For
its part, the respondent argues that the panel is in the best position to
decide credibility and evidentiary issues, and to make determinations on a
claimant’s explanations regarding any contradictions and implausibilities that
appear in his or her claim for refugee protection.
[28]
The
respondent submits that the panel was correct in finding that the applicant
lacked credibility in light of the contradictions, inconsistencies and
implausibilities that had been noted in his testimony. In the respondent’s view,
although the applicant was given the opportunity to provide satisfactory
explanations with respect to the contradictions between his statements in his PIF
and his testimony, he failed to do so. The respondent further asserts that it
was open to the panel to use the implausibilities in the applicant’s narrative
as a basis on which to assess his credibility. Moreover, while there is a
presumption of truthfulness attached to the allegations of a refugee claimant,
that presumption was rebutted on the basis of the contradictions, omissions,
implausibilities and inconsistencies in the evidence.
[29]
In
this case, the respondent submits that the panel correctly found that the
murders and disappearances of police officers in Ciudad Juarez and the
applicant’s flight had not been specifically linked to the police operation in
question. The respondent claims that the panel provided a thorough analysis of
the events that led to the disappearances and to the applicant’s flight: the
generalized violence in Ciudad Juarez, the war between the Mexican government
and groups of drug traffickers, and the corruption of a significant number of
police officers involved with the drug cartels.
[30]
Lastly,
the respondent submits that it was open to the panel to find that the applicant
lacked subjective fear because he had not sought refugee protection in the United
States, had later returned to Mexico and had been unable to provide a
satisfactory explanation for these actions.
VII.
Analysis
[31]
With respect to the issue of the applicant’s
credibility, the Court points out that the panel is in the best position to
determine credibility and evidentiary issues. It is also in a better position
to assess a claimant’s explanations (Cortes v Canada (Minister of
Citizenship and Immigration), 2009 FC 583, [2009] FCJ No 734).
[32]
After having reviewed all of the evidence in
the record and heard the parties, the Court cannot agree with the applicant’s
arguments and conclude that the panel erred in its assessment of his
credibility. There is a presumption that the panel has considered all of the
evidence (Florea v Canada (Minister of Employment and Immigration) (FCA),
[1993] FCJ No 598, and, in this case, the arguments put forth by the applicant
have not convinced this Court.
[33]
In particular, the panel noted the following:
•
Although
at the beginning he feared the drug traffickers in general, during the hearing
he was more precise and alleged that he fears a leader of the drug traffickers
named Mario Zambada, because one of the people arrested during the traffic
check was allegedly a member of Mr. Zambada’s family. However, the panel noted
that the applicant had failed to report this fact in his Personal Information
Form (PIF). The panel also noted the applicant’s lack of a satisfactory
explanation on this point.
•
The
panel found it implausible that the officers had never tried to identify the
detained individuals, that the car had no licence plates and that the individuals
were released thirty (30) minutes after the intervention.
•
The
panel determined that it was implausible that these arrested traffickers would
become “so angry in the 30 minutes during which they were allegedly in custody
that, once released, they would begin killing all of the police officers”. The
panel concluded that the killings of the police officers were not linked to the
intervention. Rather, the panel determined that the officers had been killed as
a result of the widespread violence in Ciudad Juarez and of corruption among a
great many police officers who are involved with the drug cartels. (the Court
notes that most of the exhibits on the subject – such as P-6 and P-7 (Tribunal
Record, pages123 and 125) confirm this.
•
The
panel was of the view that the applicant was not credible as to the death
threats that he allegedly received. The panel determined that he quit the
police because of the widespread violence and not because of any death threats.
[34]
But more importantly, the Court notes that the
applicant left Mexico a first time and lived in the United States for over two
(2) years without claiming refugee protection. Throughout his stay in the
United States, the applicant did not seek the protection of that country. He
then returned to Mexico before coming to Canada and claiming refugee protection.
It is therefore difficult, given these circumstances, to conclude – as the
panel reasonably noted – that the applicant’s behaviour indicated a subjective
fear on his part.
[35]
The
decision, as far as the reasonableness of the panel’s finding that an IFA
existed in Mexico City, is also reasonable.
[36]
First, the Court takes note of the comments of
Justice O’Reilly in Velasquez v Canada (Minister of Citizenship and Immigration),
2010 FC 1201 at paragraph 15, [2010] FCJ No 1496:
[15] The concept of an IFA is an
inherent part of the Convention refugee definition because a claimant must be a
refugee from a country, not from a particular region of a country …
[37]
The Court also recalls that when an IFA is raised, a
two-prong test must be applied: the onus is on applicants to demonstrate, on a
balance of probabilities, that there is a serious possibility they will be
persecuted in the proposed IFA location, and that in all the circumstances, it
would be objectively unreasonable for them to seek refuge there (Chevarro v
Canada (Minister of Citizenship and Immigration), 2010
FC 1119, [2010] FCJ No 1397; Thirunavukkarasu v Canada (Minister of Employment and Immigration,
(CA) [1993] FCJ No 1172, [1994] 1 FC 589). In addition, applicants are required to demonstrate this by
providing actual and concrete evidence of conditions jeopardizing their life
and safety (Ranganathan v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 2118 at paragraph 15, [2001] 2 FC 164).
[38]
Furthermore, in both Farias v Canada
(Minister of Citizenship and Immigration), 2008 FC 1035,
[2008] FCJ No 1292 and Khokhar v Canada (Minister of Citizenship and Immigration),
2008 FC 449, [2008] FCJ No 571, the Court noted
that the threshold is high for what makes an IFA unreasonable in the circumstances
of a refugee claimant.
[39]
In
the present case, the applicant stated at the hearing before the panel that he
had worked in the restaurant business for 15 years prior to becoming a police
officer in 1999 (Tribunal Record, p. 174) and that he had worked in
construction (renovation) during his stay in the United States (Tribunal
Record, pages 16, 190-192).
[40]
Thus, in considering the applicant’s testimony with respect
to an internal flight alternative in Mexico City, the panel wrote the following:
[32] The panel proposed to the claimant an internal
flight alternative in Mexico City, which has a population of more than 10
million. In the panel’s opinion, the claimant could live in Mexico City. When
asked whether he could find a job in Mexico City, he stated that it would be
practically impossible for him to find a job. He stated that Mexicans do not
hire former police officers. However, he quit the police about five years ago,
and he could work in construction, an area he knows well because he worked in
construction in the United States for more than three years. He could also work
in the restaurant industry, which he worked in before he became a police
officer. The panel is of the opinion that the claimant has an internal flight
alternative. Given all of the evidence, the panel is of the opinion that the
claimant did not discharge his burden of proof.
[41]
In light of the evidence in the record, the Court finds the
panel’s conclusion that there was an IFA in Mexico City to be reasonable based
on the fact that the applicant did not demonstrate that there was a serious possibility he would be persecuted in the proposed
IFA area, or that it would be objectively unreasonable for him to seek refuge
there. Moreover, the Court notes that the applicant submitted no documentary
evidence in support of his claims and that the IFA issue is determinative in
itself.
[42]
For
these reasons, the application for judicial review is dismissed.
[43]
There
is no question to certify.
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