Date: 20090317
Docket: IMM-3399-08
Citation: 2009 FC 275
Ottawa, Ontario, March 17, 2009
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
ANA MARIA ISABEL ORTIZ SOSA,
ALEXA YAMILETH ROJO ORTIZ
and LUIS IVAN ACOSTA ORTIZ
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) of a decision by
the Refugee Protection Division (the RPD) of the Immigration and Refugee Board
dated July 7, 2008, which found that the applicants were not Convention
refugees or persons in need of protection under sections 96 and 97 of the Act.
FACTS
[2]
The
applicants, a mother and her two minor children, are Mexican citizens. They
fear returning to their country because the principal applicant has become the
target of a corrupt police officer.
[3]
The
applicant witnessed the murder of a lawyer involved in drug trafficking by a
former neighbour, a member of the judicial police. After trying in vain to
report him, she took refuge with friends elsewhere in Mexico following
threats by the murderer.
[4]
After
learning that her alleged persecutor was looking for her, the applicant left Mexico for Canada on July 23,
2007, leaving her children hidden with members of her family. She claimed
refugee status in Canada on July 30, and her children rejoined her on
October 24 of the same year to claim refugee status.
IMPUGNED DECISION
[5]
After
analyzing all the applicant’s evidence, the RPD determined that the applicant’s
credibility was irremediably compromised on a number of points.
[6]
First,
the applicant was unable to explain to the panel’s satisfaction why the name of
the alleged victim in the Personal Information Form (PIF) is inverted and does
not match the name indicated in the objective documentary evidence.
[7]
The
RPD also pointed out a number of contradictions in the applicant’s testimony, in
particular, regarding when she learned that her persecutor was a police officer
and the period during which her persecutor was her neighbour.
[8]
The
RPD also noted certain implausibilities in the applicant’s story. They include
the applicant’s fear, in a context where her alleged persecutor would no longer
have a reason to go after her because her complaints were not accepted by his
police colleagues. Similarly, the RPD found it implausible that a judicial
police officer was unable to find her, knowing that she lived in the city of Coatzacoalcos for two
months.
[9]
The
RPD was also of the view that the applicant’s behaviour was not consistent with
that of a person who has a subjective fear. In fact, she had stayed in the city
of Coatzacoalcos for two
months despite knowing that her alleged persecutor was aware that she was living
there.
[10]
Last,
the RPD noted that the applicant did not provide any evidence to corroborate
her place of residence in Mexico during the period of alleged risk, nor did
she specify in her PIF where she was living during that period.
[11]
Even
if the applicant’s story had been considered credible, the presumption that the
state could protect the applicant was not rebutted. While recognizing that the
situation in Mexico regarding
victims of crime is not perfect, the RPD relied on the documentary evidence to
determine that there was a recourse available and that it was possible to
obtain assistance from the police or other bodies even where the persecutor is
a police officer. Consequently, the RPD determined that it was unreasonable for
the applicant to not have filed a complaint or taken any steps after her
setback with the local authorities, solely because she felt a subjective reluctance
to engage the state.
[12]
Last,
the RPD concluded that the applicant had not discharged her burden of
establishing on a balance of probabilities that there was a serious risk of
persecution everywhere in Mexico and that it would be unreasonable to seek
refuge in another region of the country.
ISSUES
[13]
This
application for judicial review raises three issues:
a.
Did the RPD
err by finding that the applicant was not credible?
b.
Did the RPD
err by concluding that the applicant had not rebutted the presumption of state
protection in Mexico?
c.
Did the
RPD err by determining that an internal flight alternative was available?
ANALYSIS
[14]
The
arguments advanced by the principal applicant regarding the credibility of her
story all involve questions of fact and, as such, must be reviewed on a
standard of reasonableness. There has been general consensus in the
jurisprudence that this Court must show considerable deference on such issues,
given the RPD’s expertise and the fact that it had the advantage of hearing the
applicants’ testimony and was thus in a better position to assess the
credibility of their story and the authenticity and sincerity of their actions.
[15]
The
issues of whether a state is capable of protecting its citizens and whether it
is possible to find an internal flight alternative are mixed questions of law
and fact that must also be reviewed on a standard of reasonableness.
[16]
Consequently,
the Court must focus its analysis on the justification for the decision, its
transparency and intelligibility. On the merits, it will also be appropriate to
ask whether the RPD decision falls within a range of possible and acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v.
New
Brunswick,
2008 SCC 9, at paragraph 47).
[17]
With
respect to the credibility of the applicant’s story, I am prepared to admit
that some of the RPD’s findings appear to result from a microscopic analysis of
her statements. The same is true, in particular, of the negative inference the
panel drew from the fact that the applicant inverted the name of the alleged
victim. Counsel for the respondent acknowledged at the hearing that some of the
RPD’s findings, taken in isolation, could be challenged. There is no question
that the RPD could draw a negative inference from the omissions,
inconsistencies and disparities between the applicant’s statements at the point
of entry, the PIF and her testimony, particularly regarding the length of time that
she and her alleged persecutor were neighbours and when he moved away.
[18]
The
same is true for the implausibilities noted by the RPD. It was entitled to
disbelieve the applicants based on the contradictions between their statements
about fearing persecution and their actions. Not only could the RPD reasonably consider
whether the principal applicant still had reason to fear her persecutor given
that his colleagues did not accept her complaints, but it was also open to the
RPD to consider whether it was plausible to stay in the city of Coatzacoalcos for
two months, knowing that the alleged persecutor was aware that the principal applicant
was in that city. Where the RPD determines that a claimant is not credible
because of implausibilities and its decision is supported by the evidence, this
Court will not intervene even if it would have reached a different conclusion.
[19]
Last,
this Court has also repeatedly confirmed that the RPD can draw an adverse
inference from the lack of evidence corroborating a claimant’s testimony where
the panel has concerns about his or her credibility. The applicants had to
properly document their alleged fear of persecution. In this case, the
applicant did not provide any evidence to corroborate her place of residence
during the period of alleged risk and did not even specify in her PIF where she
lived during that period. It was therefore not unreasonable for the RPD to
expect the applicants to provide credible evidence to corroborate the
allegations that were at the heart of their claim and were the very foundation
of their fear of persecution, given that the onus was on them to credibly establish
their allegations in support of that fear, which they failed to do in this
case.
[20]
Regarding
state protection, the applicant takes the position that the RPD erred by
failing to consider whether the protection that organizations like the Federal Attorney
General’s Office could provide was effective. Relying on the decision of this Court
in Razo v. Minister of Citizenship and Immigration, 2007 FC 1265,
the applicant contends that the RPD erred by not considering the effectiveness
of the protection offered by the Federal Attorney General’s Office.
[21]
It
is settled law that each case must be examined in light of the facts and the
evidence filed with the RPD. The applicant testified that she had not gone to
the Federal Attorney General’s Office because it was [translation] “a little like being able to speak to God” and
that [translation] “when someone
is in danger, the best thing is to flee, to get out fast . . . ”. The RPD properly
found that this was not sufficient to rebut the presumption of state
protection.
[22]
Regardless
of the deficiencies that may exist in the Mexican criminal justice system, the
fact remains that Mexico is a functioning democracy with a state
apparatus that provides a measure of protection for its citizens. The fact that
protection at the local level cannot be ensured does not exempt the applicant
from taking other steps.
[23]
The
applicant had to not only adduce evidence that the state protection was
inadequate, but that evidence also had to be relevant, reliable and convincing so
as to satisfy the trier of fact on a balance of probabilities that the state
protection was inadequate (Minister of Citizenship and Immigration v. Carrillo,
2008 FCA 94). Based on the the applicant’s evidence, the RPD was entitled to
find that she had not discharged her burden of proof. The applicant did not
even take the time to find out whether existing resources could be useful, such
as the Federal Attorney General’s Office, the Internal Investigations
Department or the Office of the Inspector General. The documentary evidence reveals
that complaints are treated confidentially and may be filed by telephone or
electronically. In these circumstances, it was open to the RPD to find that the
applicant had not shown that she had taken all reasonable steps to seek
protection in her country. Again, the question is not whether the Court would
have reached the same conclusion but whether the decision by the RPD was
reasonable based on the evidence that was before it.
[24]
Last,
it appears that the applicants did not seriously contemplate the possibility of
seeking an internal flight alternative in another part of their country. However,
this is an element of the very concept of being a refugee or a person in need
of protection. The applicant took the position that it would be unreasonable
for her and her children to move to another part of the country mainly because
of the risks posed by numerous murders and crime. Again, it was open to the RPD
to determine that this was insufficient to support a finding that there was no
possibility of an internal flight alternative and that the applicant had not
discharged her burden of proving that she could not live safely anywhere in Mexico.
Although she subsequently added that her alleged persecutor could go after her
anywhere in Mexico, this
assertion was based only on speculation. Considering the evidence that was
before it as well as the applicant’s testimony, the RPD could reasonably determine
that an internal flight alternative was available to her and her children.
[25]
Given
the foregoing reasons, I am of the opinion that this application for judicial
review should be dismissed. Since the parties did not submit a question for
certification, none will be certified.
ORDER
THE COURT ORDERS that the
application for judicial review is dismissed. No question is certified.
“Yves
de Montigny”
Certified
true translation
Mary
Jo Egan, LLB
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