[2]
In a decision, dated
August 28, 2008, a panel of the Immigration and Refugee Board, Refugee
Protection Division (the Board) determined that the Applicant was neither a
Convention refugee nor a person in need of protection. The key reasons for the
refusal were that:
1.
The Board found that
the Applicant’s evidence was “not credible or trustworthy in areas central and
material to his claim”; and
2.
Even if the Board had
accepted the Applicant’s story as credible, the Board concluded that adequate
state protection is available to the Applicant.
I. Issues
[3]
The Applicant, in
seeking to overturn the Board’s decision, raises the following issues:
1.
Did the Board err in
its credibility finding by applying the wrong test for the grant of protection
as a Convention Refugee under s. 96 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27
(IRPA)?
2.
Did the Board make an
unreasonable finding that the Applicant was not credible?
3.
Did the Board err by
failing to consider objective evidence of the risk to the Applicant in Mexico?
II. Analysis
A. Standard
of Review
[4]
The decisions of the
Board on the question of credibility and the finding of state protection are
subject to a standard of review of reasonableness. However, whether the Board
applied the correct test for a finding of refugee protection is a question of
law, subject to review on a correctness standard (Mugadza v. Canada (Minister of Citizenship and
Immigration), 2008 FC 122 at para. 10). With these standards in mind, I turn to
consider the issues raised by the Applicant.
B. Did the Board Member apply the
wrong test for the grant of protection as a Convention Refugee?
[5]
The Applicant submits
that the Board erred by applying the wrong test in assessing his Convention
refugee claim. In his decision, the Board made the following statements:
Therefore,
the panel finds that there is less than a mere possibility that the claimant
will be persecuted by Javier and his accomplices for a Convention ground,
should he return to [Mexico].
…
Based
on the documentary evidence, there is no persuasive evidence to indicate that
the claimant will be subject to any other risk, other than the risk of
general violence in Mexico. [Emphasis added]
[6]
The Applicant submits
that the Board incorrectly applied the standard of whether the Applicant “will
face a risk to life or be subjected to cruel and unusual punishment”. This is a
higher standard than required under s. 96 of IRPA and constitutes an error in
law (Mugadza, above, at paras. 24-26).
[7]
I agree with the
Applicant that the appropriate standard of proof under s. 96 of IRPA is less
than a balance of probabilities but more than a mere possibility of persecution
upon return (Adjei v. Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 680 (C.A.) at paras. 5-6, Mugadza, above, at para. 12, Chan
v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. no. 593
at para. 120, Ponniah v. Canada (Minister of Employment and Immigration)
(1991), 132 N.R. 32, [1991] F.C.J. No. 359 (C.A.) (QL)).
[8]
However, a reading of
the decision as a whole demonstrates that, in spite of the one instance where the
Board used the word “will”, the Board applied the correct standard or test for
its analysis. For example, at page 4 of the decision, the Board wrote:
Based
on the totality of the evidence adduced, because of a number of credibility
issues, the panel finds that the claimant’s evidence is not credible or
trustworthy in areas central and material to his claim. Therefore, the
panel finds that there is less than a mere possibility that the claimant will
be persecuted by Javier and his accomplices for a Convention ground, should he
return to [Mexico]. [Emphasis added]
[9]
The Board concluded
that there was insufficient credible evidence to establish that there was even
a “mere possibility” that the Applicant will be persecuted. Based on my reading
of the Board’s decision, I fail to see how the Board applied a standard that
was higher than “substantial grounds”. I conclude that the Board applied the
correct standard to its analysis under ss. 96 and 97 of IRPA; there is no error
of law.
C. Did
the Board err in its credibility findings?
[10]
While the Board
accepted that the Applicant was a journalist, the Board did not accept the
entirety of his story. To support his claim that he was a political cartoonist
who criticized the government, the Applicant submitted a number of cartoons
that he allegedly had drawn. On the basis that the signature on the cartoons
was not his name and that he was unable to produce any documentary evidence to
substantiate this key aspect of his claim, the Board did not believe that he
was the person who had drawn and published the cartoons. The Board did
not accept the Applicant’s explanation that persons who could have provided corroboration
of his claim, such as a letter, feared reprisal. The Board rejected this weak
explanation; so would I. While I might have acknowledged that the person who
signed the cartoons and the Applicant were the same person, the problem still
remains that the Applicant failed to provide convincing evidence that any such
cartoons were actually published with the impact claimed. The Board’s
conclusion was based on the record before it and falls within the possible
range of outcomes.
[11]
The next alleged
error involves the Board’s findings related to Javier, the alleged agent of
persecution. The Board first noted that, in spite of being asked specifically
for the name of his alleged agent of persecution during his Port of Entry (POE)
examination, the Applicant replied “I don’t know”. However, in his PIF, the
Applicant described Javier and his role within PAN in great detail. When asked
about the omission, the Applicant’s only response was that he was nervous
during the POE interviews. The Board was not convinced that this was an
adequate explanation and drew a negative inference from the omission.
[12]
The identity of
Javier, both as the agent of persecution and as a Director within PAN, was a
key aspect of the Applicant’s claim. Given the importance of the omission, it
was not unreasonable for the Board to conclude that this “raises a serious
doubt in the panel’s mind as to whether the claimant was ever targeted by
Javier and some members of PAN” (See, for example, Fernando v. Canada (Minister of Citizenship and
Immigration), 2006 FC
1349, (2008) 58 Imm. L.R. (3d) 227 at para. 20).
[13]
What is also
important to recognize is that the omission in the POE notes was not the only
problem that the Board had with the evidence. As further support for its
overall finding on this aspect of the claim, the Board found that the
Applicant’s story was further undermined by the lack of documentary evidence
regarding Javier’s employment at a senior level with PAN, as alleged by the
Applicant. Finally, the Board noted that, in 2007, the President of Mexico had
signed a law that
decriminalised defamation
and insults (which, I accept, would include the type of political cartoons
allegedly published by the Applicant). This raised a question in the Board’s
mind as to why Javier, a government official, would have targeted the
Applicant.
[14]
In sum, there were at
least three areas of concern for the Board that cumulatively led it to conclude
that the story of attacks by Javier because of the Applicant’s political
opinions was fabricated for the purpose of his refugee claim. The Board’s
conclusion was supported by the evidence and is not unreasonable.
D. Did
the Board err by failing to conduct an objective assessment of the Applicant’s
risk?
[15]
The Applicant submits
that the Board, having accepted the Applicant’s identity as a journalist, was
obligated to assess the objective documentary evidence and failed to do so. In
the Applicant’s view, had the evidence not been ignored, it would have been
sufficient to show that the Applicant’s fear of persecution is objectively
well-founded. By failing to refer to this evidence, which directly
contradicted the Board’s findings on risk, the Applicant argues that the Board
committed a reviewable error (Zheng v. Canada
(Minister of Citizenship and Immigration), (1995) 27 Imm. L.R. (2d) 101, [1995] F.C.J. No. 140 (T.D.)
(QL), Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998), 157
F.T.R. 35).
[16]
As well-established
in the jurisprudence, a claimant must satisfy the Board that his risk is both
subjectively and objectively well-founded (see Canada (Attorney General v. Ward, [1993] 2 S.C.R. 689 at para. 47). In this case, because the Board did not
believe his story of persecution by Javier for his political cartoons, the
Applicant was unable to satisfy the Board that his fear of persecution was
subjectively well-founded. Simply asserting that he is a journalist is not
sufficient to establish a subjective fear. Accordingly, the fact that
journalists have been persecuted in some instances is of no assistance to the
Applicant.
[17]
Even if the Board
ought to have considered the objective documentary evidence as part of the
Applicant’s refugee claim, any error in this regard is of no consequence. This
is because the documentary evidence regarding journalists was considered in the
context of the Board’s analysis of state protection. A valid finding of state
protection would be determinative of the Applicant’s claim.
E. Did
the Board err in its assessment of state protection?
[18]
While rejecting, as
not credible, the claims of the Applicant regarding the nature of and
publication of his cartoons, the Board did not explicitly reject the
Applicant’s claim to be a journalist. Therefore, as required, the Board
addressed the issue of whether the Applicant had met his “burden of
establishing ‘clear and convincing’ proof of a lack of protection for
individuals like him in Mexico”. It is evident from reading the Board’s
reasons on state protection that the Board considered that “individuals like
him” included journalists.
[19]
The Applicant submits
that the state protection analysis was fatally flawed. I do not agree.
[20]
Every assessment of
the availability of state protection in a particular country must begin with
the presumption that a state is capable of protecting its citizens. The onus
is on the individual claimant to provide clear and convincing proof of a lack
of state protection in his or her country of origin (Ward, above, at para.
52). In addition, the more democratic the state’s institution, the more the
claimant must have done to exhaust all courses of action open to him or her
(see N.K. v. Canada (Minister of Citizenship and Immigration) (1996), 143
D.L.R. (4th) 532, [1996] F.C.J. No. 1376 at para. 5 (C.A.) (QL); Hinzman
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, 282
D.L.R. (4th) 413 at paras. 56-57).
[21]
In the present case,
the Applicant admitted that he did not avail himself of state protection in Mexico at all. He knew of but did not seek protection from a
number of government agencies that, arguably, could have provided assistance.
When questioned, the Applicant explained that he acted this way because he felt
that Javier had connections within the government and that it would be risky to
seek help from the police or any other state protection agencies available in Mexico.
[22]
The Board concluded
that adequate state protection was available to the Applicant for three
reasons. First, the Board stated that it was reasonable to expect the
Applicant, living in a democracy, to seek out any of the above state agencies
to obtain help from them prior to seeking international protection in Canada. Second, there was also documentary evidence from
reputable sources, which indicated that state protection was available in Mexico. The documentary evidence indicated that the Mexican
government had taken many steps towards protecting journalists. Lastly, there
was no evidence that similarly situated individuals were unable to receive
adequate state protection. For these reasons, the Board found that state
protection was available to the Applicant.
[23]
In my opinion, this
conclusion was available to the Board based on evidence before it. Ultimately,
the Applicant failed to provide clear and convincing proof that he could not
obtain state protection in Mexico because he simply did not bother to
attempt to seek any state protection. As a result, the Board reasonably
concluded that the Applicant had failed to rebut the presumption of state
protection. Its finding is therefore well “within the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir
v. New Brunswick, 2008 SCC 9, at para. 47).
[24]
I also reject the
Applicant’s suggestion that the use of “boilerplate passages” in the Board’s
decision renders it unreasonable by default. On the whole, the Board’s state
protection analysis addresses the correct question of whether a journalist such
as the Applicant would be at risk. It is self-evident that much of the analysis
will be the same for any given country. Provided that the “boilerplate” is
based on the documentary evidence and addresses the particular evidence and
position of a claimant, the Board’s repetition of certain passages from other
decisions is not, in and of itself, an error.
III. Conclusion
[25]
Ultimately, the
Applicant’s claims relating to risk were unproven because the Board found
serious credibility issues in his evidence. His claims about the unavailability
of state protection were unproven because of the insufficiency of evidence. The
Board properly and carefully considered the Applicant’s claim. There is no
reviewable error.
[26]
Neither party
proposed a question for certification. None will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The application for judicial
review is dismissed; and
2. No question of general
importance is certified.
“Judith
A. Snider”
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