Date:
20090414
Docket:
IMM-4080-08
Citation: 2009
FC 370
Ottawa,
Ontario, April 14, 2009
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
RICARDO TREVINO ZAVALA
YOLANDA DELABRA SERRATO
LILIANA ALEJAND TREVINO DELABRA
and MELISSA JAZMIN TREVINO DELABRA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants are challenging the legality of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 22,
2008, that the applicants are not “Convention refugees” or “persons in need of
protection” under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act), as amended. In this
proceeding, the Board rejected their claims for refugee protection because of
the principal applicant’s lack of credibility and the existence of an internal
flight alternative for the applicants.
[2]
The
principal applicant, his spouse and their two children are all Mexican citizens.
An inhabitant of the city of Monterrey in the state of Nuevo Leon, the
principal applicant alleges that he worked for eight years as a driver and
messenger for a government institution that manages a national workers’ housing
fund (Instituto del Fondo Nacional de la Vivienda para los Trabajadores
(Infonavit)). The refugee claim is mainly based on an incident of which the
applicant was allegedly a victim in the course of his work. On August 8, 2007, while
unloading boxes for a delivery, the applicant states having identified that the
boxes contained illicit substances. After having concluded that his immediate
superior (named “Manuel”) was involved in drug trafficking, death threats were apparently
made against the applicant by his superior if he talked to anyone about what he
had discovered. On August 10, 2007, the applicant was purportedly beaten by
unknown persons. Having found refuge in the city of Tampico, on September 2, 2007, the applicant
left Mexico for Canada to claim refugee status. He
was joined by his other family members on November 19, 2007.
[3]
Several
reasons are given in the decision for rejecting the refugee claim, all relating
to the principal applicant’s lack of credibility. The Board found the applicant’s
testimony “particularly hesitant”. His version of the facts at the hearing was
confused or did not correspond with the essential elements of the narrative
provided in his Personal Information Form (PIF). Specifically, there were discrepancies
in relation to the dates on which the applicant was beaten and moved with his
family to his sister’s home in Tampico. More importantly, the Board
did not believe that the applicant worked for Infonavit, a position that he
said he held for eight years. For example, the applicant had difficulty
describing the mission of the organization and was unable to even remember the
name of his immediate superior with whom he worked for one year. In addition, the
applicant could not provide any evidence of his employment at Infonavit. Invited
by the Board to corroborate his account and to complete the evidence submitted concerning
his employment relationship, using his employer’s own website, which provides
information on employees’ employment history, the applicant did not provide any
additional evidence. All of these considerations led the Board to find that the
principal applicant was not credible:
[16] Considering the weak
testimony given by the principal claimant, the mistakes in the chronology made
at the hearing and the fact that he was unable to establish that he worked for Infonavit,
the panel finds that the principal claimant’s allegations are generally lacking
in credibility.
[4]
Alternatively,
the Board also found that there was an internal flight alternative for the
applicants. Accordingly, after the incident on
August 10, 2007, the Board noted that the applicants did not mention any new
incident in which their assailants tried to persecute them. The Board concluded
that the danger that the applicants were in no longer existed and that there
was an internal flight alternative in the city of Tampico (or another city in Mexico).
[5]
It is well
established in the case law that considerable deference must be accorded to the
Board’s decisions on issues of credibility and assessment of the evidence (Mugesera
v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 38;
Hattou v. Canada (Minister of Citizenship and Immigration), 2008 FC 230 at
para. 12, [2008] F.C.J. No. 275 (QL); Navarro v. Canada (Minister of
Citizenship and Immigration), 2008 FC 358 at paras. 13-14, [2008] F.C.J.
No. 463 (QL)). According to the case law, the same considerations apply for the
internal flight alternative, which is essentially a question of fact. Consequently,
the unreasonableness standard must, in this proceeding, guide our analysis of
the impugned decision (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 (Dunsmuir)).
[6]
That being
said, it is apparent from paragraph 18.1(4)(d) of the Federal Courts
Act, R.C.S. 1985, c. F-7, according to which this Court will intervene only
if a tribunal based its decision on an erroneous finding of fact, made in a
perverse or capricious manner, or without regard for the material before it, that
Parliament clearly intended administrative fact finding to command a high
degree of deference. Without having been invited by counsel to rule upon this
point, it seems clear that the decision delivered by the Supreme Court of
Canada in Dunsmuir did not change the legal significance of paragraph 18.1(4)(d)
of the Federal Courts Act, R.C.S. 1985, c. F-7: Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12 at para. 46.
[7]
Of course,
when considering the impugned decision as a whole, I analyzed the justification
that can be found in the written reasons, which allowed me to evaluate the
transparency and the intelligibility of the decision-making process. This
basically involves determining whether the result arrived at by the Board falls
within the range of possible and acceptable solutions in light of the facts and
the law, which is of course in accordance with the reasonableness standard (Dunsmuir,
para. 47; Khosa, para. 59).
[8]
In this
proceeding, intervention is unwarranted. In fact, the impugned decision appears
reasonable as a whole. It is clear that the reproaches made by the applicants
are unjustified.
[9]
Thus, the
Board specifically took into account the fact that the principal applicant was
nervous at the hearing. However, nervousness alone cannot explain the
hesitation, inconsistencies or unsatisfactory explanations of the applicant. The
Board was clearly entitled to draw negative inferences concerning the quality
of the applicant’s testimony (Wen v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 907 at para. 3 (QL); Jarada v. Canada (Minister
of Citizenship and Immigration), 2005 FC 409 at para. 18, [2005] F.C.J.
No. 506 (QL)).
[10]
Furthermore,
discrepancies noted by the Board between the applicant’s account and the
narrative of his PIF must not be considered in isolation but rather within the
general scope of the applicant’s account, which puts great emphasis on the fact
that his problems started in 2007 when he worked as a messenger at Infonavit.
[11]
Nor is it
unreasonable for the Board to conclude that the failure on the applicant’s part
to overcome the gaps in the evidence submitted with respect to his employment
relationship with Infonavit, which constitutes a determinative element of his account,
also diminished the credibility of the applicant (Singh v. Canada (Minister
of Citizenship and Immigration), 2007 FC 62, at paras. 27-30, [2007] F.C.J.
No. 97 (QL); Ortiz Juarez v. Canada (Minister of Citizenship and Immigration),
2006 FC 288, at paras. 7-9, [2006] F.C.J. No. 365 (QL); Encinas v. Canada (Minister
of Citizenship and Immigration), 2006 FC 61, [2006] F.C.J. No. 85 (QL); Kengkarasa
v. Canada (Minister of Citizenship and Immigration), 2007 FC 714, [2007] F.C.J.
No. 970 (QL)).
[12]
In short, the
finding of a lack of credibility in the principal applicant’s account relies on
the evidence in the record and does not appear unreasonable in this case.
[13]
The lack
of credibility in the principal applicant’s account was sufficient in my
opinion to reject the applicants’ refugee claim and to dispose today of this
application for judicial review. In any event, the Board equally found that
there was an internal flight alternative for the applicants. According to the case
law, the Board must be satisfied that a refugee claimant seriously risks being
persecuted in the city or cities given as internal flight alternatives, and
that it is unreasonable for him or her to move in light of the circumstances. In
this proceeding, the Board identified the city of Tampico, where the applicants had sought refuge
without having been subject to subsequent threats, as a safe area that is
reasonably accessible and where the applicants could settle.
[14]
Regarding
the internal flight alternative, I cannot accept the applicants’ claim that the
Board’s finding is unreasonable. The applicants were confronted during the
hearing with this possibility and had the opportunity to present their case. Before
me today, the applicants’ counsel referred to a generalized situation of
violence in Mexico stemming from drug
trafficking, and the fact that Infonavit’s website (which indicates the name of
the employers for which a person works or worked in Mexico) would allow drug
traffickers to find the principal applicant easily in Mexico.
[15]
In this
proceeding, the vague allegation that the principal applicant could be found
anywhere in Mexico through computerized databanks seems without merit and is
not corroborated by the evidence in the record, which clearly shows that the
principal applicant’s family lived in Tampico without any problem for several
months and that the principal applicant himself lived there for a few weeks before
his departure for Canada. The assumption that it is only a matter of time before
the principal applicant is found in Mexico
seems speculative under the circumstances.
[16]
The
alleged risk could reasonably be rejected by the Board, which also noted that “[t]he
claimant never disclosed to the police or to anyone else what he allegedly saw
(a few twigs of green plant material in a box, which in itself is not very
incriminating) or what “Manuel”, his immediate superior, allegedly told him”, all the more so since more
than a year has passed since the incidents alleged by the applicants.
[17]
To
conclude, the unreasonableness of the decision in question has not been established.
In my humble opinion, the findings of fact of the Board are all within the
range of possible options and it is not up to the undersigned justice to
substitute, after the fact, his opinion for that of the Board, which is better
placed than the Court to assess the credibility of a refugee claimant as well
as the existence of persecution or a risk referred to in the Act.
[18]
This
application for judicial review must therefore be dismissed. Counsel did not propose
any question for certification, and I agree that no question arises on this
record.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the application for judicial review is dismissed. No
question is certified.
“Luc
Martineau”
Certified true
translation
Janine Anderson,
Translator
Email this Content