Date: 20090227
Docket: IMM-434-08
Citation: 2009 FC 210
Ottawa, Ontario, February 27, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JUAN JOSE CASTILLO GRANADOS
GUADALUPE BELINDA ESQUIVEL MERCADO
DAYANA MONSERRAT CASTILLO MERCADA
NORMA ALICIA
MERCADO ENRIQUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
Mexican family requested judicial review of a decision by the Immigration and
Refugee Board (IRB) rejecting their refugee claim on the grounds of lack of
credibility, internal flight alternative (IFA), and state protection.
[2]
The
Applicants, in oral argument, raised for the first time the issue of whether
the IRB had a duty to confront an applicant with each and every inconsistency
upon which it ultimately based its credibility finding.
II. BACKGROUND
[3]
The
Applicants’ claim was based on the harm they would suffer because they were
caught up in a corrupt police ring. The alleged scheme was that police officers
would sell cars, then other officers would arrest the new owner for auto theft
and would demand a sizeable bribe for their release.
[4]
The
Applicants say that they were victims of this scam, that the principal
Applicant was arrested, paid the bribe and released (and/or beaten unconscious),
and subsequently threatened by police when he went to file a report of police
misconduct.
[5]
Without
taking any further steps, the principal Applicant came to Canada in February
2006.
[6]
The
principal Applicant’s wife and daughter came to Canada in July 2006 but
returned to Mexico in August.
The wife decided not to live in their home because a man allegedly came looking
for her husband while they were in Canada.
[7]
The
daughter returned to Canada in September 2006 with
her cousin. The mother stayed in Mexico until December because
either she had no money or because she had a job and needed to take care of
matters before leaving Mexico.
[8]
The
IRB found the principal Applicant not credible. The Board cited numerous
inconsistencies or contradictions in his story, frequently between what was
contained in his PIF and his oral evidence. The Board also found a number of
instances of implausibility.
In the
alternative, the Board found that if these events occurred, they were evidence
of criminal acts and not of persecution on Convention grounds.
[9]
The
Board found that there were IFAs in other parts of Mexico because the
local police showed very limited interest in them.
[10]
Lastly,
the Board, while recognizing that Mexico faced problems with police corruption,
concluded that the Applicants should have done more to file a complaint and
that they had failed to rebut the presumption of state protection with clear
and convincing evidence.
III. ANALYSIS
A. Standard
of Review
[11]
Following
Dunsmuir v. New Brunswick, 2008 SCC 9, the issues
of credibility, IFA, and state protection are questions of fact or mixed law
and fact for which the standard of review is reasonableness. Given the highly
factual basis for the decision, the Board is entitled to some degree of
deference in light of its position to observe the witnesses and its
institutional expertise.
On the issue
of the duty to confront an applicant with inconsistencies, it is either an
issue of law of general application or one of procedural fairness.
B. Duty
to Confront
[12]
As
indicated earlier, this issue was not raised in the Applicants’ Memorandum but
was raised orally. The Respondent objected to this issue being argued at the hearing
as it could not have been anticipated, it caught the Respondent by surprise and
it is too complex an issue to be resolved extemporaneously.
[13]
Having
heard the parties’ arguments, I am generally in agreement with the Respondent.
It is improper to raise the issue at this time. It is also a complex issue
which is deserving of more fulsome treatment.
[14]
I
have doubts that such a right exists per se. This is particularly so
where the applicant knows or should know of the inconsistencies and
contradictions but does not address the issue directly.
[15]
Without
deciding the issue, as a matter of procedural fairness I see nothing in the
conduct of the hearing that indicates an unfairness in the Board not
confronting the Applicants with the problems in their evidence. Had there been
some basis for concern that the Applicants did not receive a fair hearing, the
Court could have adjourned the matter to permit the parties to file memoranda
addressing this issue. However, that process should be rarely used. Parties are
to put their full case in at the designated time and in the designated manner.
C. IFA
[16]
The
Applicants put in almost no real evidence that there was nowhere else in Mexico that they
could live in relative safety.
[17]
It
was open to the Board, in the context of alleged local police corruption, to
find that these officers were unlikely to continue to be interested in the
Applicants once they moved to some other location in Mexico.
D. State
Protection
[18]
It
is apparent that the Board was aware that the alleged agents of persecution
were the police. That factor could lessen the degree of effort an applicant
must expend to seek state protection. However, the Applicants’ major problem is
that they did not establish a credible basis for the allegation of police
corruption.
[19]
Further,
as found in decisions such as Hinzman v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 171 and Flores Carrillo v. Canada (Minister of
Citizenship and Immigration), 2007 FC 320, the Applicants were required
to show why it was unreasonable for them not to seek assistance from other
state agencies. These Applicants made one attempt at the local station and then
fled to Canada without ever approaching the offices of the Attorney-General,
the federal police, NGOs, or human rights organizations.
[20]
It
was reasonable for the Board to conclude that the Applicants had not rebutted
the presumption of state protection.
IV. CONCLUSION
[21]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
Email this Content