Date: 20090417
Docket: IMM-3667-08
Citation: 2009 FC 388
Montréal, Quebec, April 17, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
JOSE
SALVADOR HERNANDEZ VICTORIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is
an application for judicial review made pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act)
of a decision by the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated July 31, 2008, wherein the applicant was found not to
be a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Act, on the basis of three main findings: his claim
was not credible, the availability for him of adequate state protection in
Mexico, and the availability of a viable internal flight alternative.
I. Facts
[2]
The
applicant, a Mexican-born citizen fled his home country and came to Canada on August 5,
2007, to claim refugee status against criminals who had kidnapped his boss on
September 20, 2006.
[3]
The
applicant states that when the abductors were arrested, he was called upon to
make an incriminating statement against these individuals. As a result, the
applicant began receiving threats and alleges that he was even threatened at gunpoint.
[4]
The
legal proceedings against these criminals ended in December 2006, whereupon the
claimant’s boss left Mexico and returned to live in Spain while the
applicant went to live with one of his relatives in Zacatecas where he stayed
until July 4, 2007, when allegedly the kidnappers found him and threatened him again
at gunpoint. Following this last incident, he obtained his passport on July 5,
2007 and left for Canada the following month.
II. Impugned Decision
[5]
Before producing any
evidence, the applicant’s counsel requested that the
Board member recuse
himself. This request was based on negative statistics invoked by the applicant’s
counsel concerning his rate of success before this Board
member in cases involving
Mexican claimants. The Board member dismissed this request and stated that all
his decisions took into consideration the particulars of each case, and that
the statistics invoked for his recusation did not give rise to a reasonable
apprehension of bias on his part and did not constitute a sufficient and valid reason
for the Board member to recuse himself.
[6]
The case
then proceeded and, in its decision, the Board found many inconsistencies and
omissions in the applicant’s evidence that negatively affected his credibility.
[7]
The Board
also found that the applicant’s failure to seek state protection simply because
he did not trust the Mexican authorities was insufficient to rebut the
presumption of state protection in his home country and did not justify the applicant’s
claim for protection in Canada.
[8]
Finally,
the Board held that the applicant had a viable internal flight alternative.
III. Issues
[9]
The
issues submitted by the parties can be phrased as follows:
a.
Did
the Board member breach procedural fairness in not apprehending bias and by
refusing to disqualify himself in light of the applicant’s criticism of his
prior decisions with regards to Mexican claims?
b.
Did
the Board commit a reviewable error with respect to its three main findings
with regards to the claimant’s credibility, the availability of state
protection in Mexico, and the
existence of an internal flight alternative?
IV. Analysis
Standard of review
[10]
The
present case involves questions of facts and weight of evidence intertwined
with legal issues which attracts the standard of reasonableness (Dunsmuir v.
New
Brunswick,
2008 SCC 9). As stated at paragraph 161 in Dunsmuir, “decisions on questions of fact always
attract deference”, especially when the credibility of the applicant is
affected.
[11]
This deferential standard recognizes that certain questions before
administrative tribunals do not lend themselves to one specific, particular
result but instead give rise to a number of possible and reasonable conclusions
(Dunsmuir,
at paragraph 47). Where the decision at issue falls within that spectrum,
the Court should not interfere.
[12]
On
a question of law,
however, such as one involving procedural fairness, the review should conform
to a correctness standard.
State protection
[13]
The Court must keep in
mind that the Board is not required to establish the existence of state
protection, since the onus to rebut the presumption of state protection remains
at all times on the refugee claimant (Canada (Attorney General) v. Ward,
[1993] 2. S.C.R. 689). It is now stated law that the standard of
reasonableness applies to decisions concerning the availability of state
protection (Chaves v. Canada (Minister of Citizenship and
Immigration), 2005 FC
193; Navarro v. Canada (Minister of Citizenship and
Immigration), 2008 FC
358).
[14]
The applicant’s main fear, if he were to return
to Mexico, is related to
the threats
of a few criminals who kidnapped his boss in 2006. But, as the Board mentions in its decision, absent a complete breakdown of
government apparatus, “States are presumed to be able to protect their
citizens”. To counter this presumption of state protection, a claimant must
provide clear and convincing evidence of the state’s inability to
protect.
[15]
The applicant has
chosen not to contest the Board’s finding that Mexico is a functioning
democracy with a judiciary and that he has not rebutted the presumption of
state protection availability (Espinosa v. Canada (Minister of Citizenship and Immigration) 2005 FC 1393). This conclusion that
state protection is available to the applicant constitutes sufficient grounds,
in itself, to reject his refugee claim (Sarfraz v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1974 (T.D.) (QL); Kharrat
v. Canada (Minister of Citizenship and Immigration), 2005 FC 106).
[16]
The fact
that the criminals involved in the kidnapping of the applicant’s boss were
arrested and faced criminal charges shows that the judiciary functions and that
state protection against criminals exists in Mexico.
[17]
However,
the applicant never sought protection from the Mexican authorities. To explain
his failure to seek protection, he simply states that he does not trust the
authorities, and relies on reports stating that police corruption is rampant in
Mexico. However, the Court finds it
rather odd that the applicant accepted to testify as an eyewitness and
ultimately assisted the police with their investigation, while apparently lacking
complete confidence in the entire Mexican system.
[18]
But one
thing is sure. The end result of the applicant’s attitude is that one will
never know if the protection available for him in his home country was
reasonably inadequate or not.
This strategy can be of no assistance to the applicant, since it is stated law,
even if he had no trust in the local protection offered by the police, that the
applicant was required to at least request protection from his government.
[19]
Consequently, it was
not unreasonable for the Board in its decision to conclude that state
protection was available in Mexico to protect the applicant from the criminals
against whom he testified, and that the applicant had not rebutted the
presumption that Mexico is able to provide him adequate
protection.
[20]
This conclusion in itself provides sufficient
grounds for the Court to reject the applicant’s recourse against the impugned
decision.
Internal
flight alternative
[21]
The Board
dismissed the applicant’s asylum claim for the further reason that it found
that the applicant had an internal flight alternative (IFA) available to him
The applicant here chose not to seriously challenge this conclusion.
[22]
“It is well-established that the existence of a valid IFA is
determinative of a refugee claim. Once an IFA is found, the Court need not
consider the other issues raised by an applicant on judicial review” (Shehzad Khokhar v.
Canada (Minister of Citizenship and Immigration), 2008 FC 449, at para. 42;
Shimokawa
v. Canada (Minister of Citizenship and Immigration),
2006 FC 445 at para. 17; Sran v. Canada (Minister of Citizenship and
Immigration), 2007 FC 145 at para. 11). This finding
constitutes reason enough to dismiss this
application for judicial review.
Credibility issue
[23]
Although the Board
could have rejected the applicant’s claim on the sole basis of the availability
for him of state protection and/or of an IFA, the Board also found that the applicant had not even provided
credible and consistent evidence in support of his claim.
[24]
The Board has a well-established expertise in
determining questions of facts, particularly in the evaluation of the
applicant’s credibility and subjective fear of persecution. The Court will
usually not intervene with the findings of fact reached by a Board unless they
are found to be unreasonable, capricious or unsupported by the evidence (Aguebor
v. Canada (Minister of Employment and Immigration) (F.C.A.),
[1993] F.C.J. No. 732; Navarro, above at paragraph 18).
[25]
The RPD findings in
this case with regard to the applicant’s lack of credibility are relevant and
well supported by the evidence. These findings are not capricious, are
sufficiently serious and well stated, and are relevant and supported by the
evidence. Therefore, they are not unreasonable.
[26]
Having
heard the applicant and analysed the evidence, the Board was in a much better
position than this Court is to assess the claimant’s credibility and to
conclude as the Board did on this issue. The Court finds that it was reasonable for the
Board to conclude as it did.
Allegations
of Bias
[27]
At the
very beginning of the hearing before the Board, the applicant’s counsel accused the
Board of being
biased towards Mexican applicants and, consequently,
asked him to disqualify himself. In support of this request, the applicant’s
counsel invoked negative decisions rendered by the Board member in other cases
involving Mexican applicants, and claimed in particular that in those cases the Board had ignored important evidence. The Board
member dismissed this request judging the reasons submitted for his recusation insufficient and ill-founded as all his decisions depended on the particular facts
of each case. Therefore, he saw no valid reason
to recuse himself in the present matter. In his arguments before this Court, the
applicant pleads
that the aggressive attitude of the Board member, as demonstrated by the
transcript of the hearing, proves in retrospect that the apprehension of bias alleged
against the Board member at the beginning of the hearing to obtain his
recusation was in fact well founded.
[28]
The Board
is entitled to rely on a claimant’s demeanour to assess his credibility. In the
case at bar, and at the very beginning of the hearing, the Board found it
unusual that that applicant smiled while answering a serious question, and he
therefore asked him why he was smiling. The question was a perfectly
normal one for the Board member to ask. It was this question that led the applicant’s counsel
to request the Board member to recuse himself. But the applicant seems to
forget here that the Board is entitled to rely on a claimant’s demeanour to
assess his credibility, and that if the Board found it unusual that he smiled
while answering a serious question, it was reasonably permissible to ask him
why he was smiling.
[29]
Furthermore, the
Board is owed considerable latitude in the manner in which it conducts a
hearing, including the right to extensively and energetically question a
claimant. Extensive and
energetic questioning alone will not, in itself, give rise to a reasonable
apprehension of bias (Osorio v. Canada (Minister of Citizenship and
Immigration), 2005 FC
1459. (Banklow v. Canada (Minister of Citizenship and
Immigration) 2005 FC
1581, at para. 23).
[30]
With respect to the
manner of questioning during the hearing, the Court,
having reviewed
the transcript, finds that the questioning by the Board came nowhere near satisfying the test for a
reasonable apprehension of bias. That test, paraphrased from the widely accepted
views expressed in Committee for Justice and Liberty v. Canada (National
Energy Board) [1978] 1 S.C.R. 369, at p. 394, is whether an informed
person, viewing the matter realistically and practically – and having thought
the matter through – would conclude that it is more likely than not that the
Board, whether consciously or unconsciously, would not decide fairly.
[31]
The Court disagrees
with the applicant that the method and way of questioning in this particular
affair should be considered cumulatively with the errors and/or bias attributed
to the Board member in other affairs involving Mexican applicants. The merit of
the decisions rendered
by the Board member in other
cases was
and remains irrelevant. If
it were so simple to establish bias, allegations of bias would become quite
popular in applications
for judicial review before this Court.
[32]
“An allegation of bias, especially actual
and not simply apprehended bias, against a tribunal is a serious allegation. It
challenges the integrity of the tribunal and of its members who participated in
the impugned decision. It cannot be done lightly. It cannot rest on mere
suspicion, pure conjecture, insinuations or mere impressions of an applicant or
his counsel. It must be supported by material evidence demonstrating conduct
that derogates from the standard. It is often useful, and even necessary, in
doing so, to resort to evidence extrinsic to the case. That is why such
evidence is admissible in derogation of the principle that an application for
judicial review must bear on the matter as it came before the court or
tribunal” (Arthur v. Canada (Attorney General), 2001 FCA 223, at para.8). It cannot
also rest on the statistics of the number of cases won by a counsel before a
particular decider, since every case has its own particularities and the facts
are never the same and depend, especially in this type of case, on the
situation of each individual claimant.
[33]
The gratuitous
allegation made here by the applicant’s counsel and related to decisions
rendered by the Board member in other cases where the applicant’s counsel acted
has no merit whatsoever : firstly, nothing proves that the alleged
negative decisions of the Board member in other cases involving Mexican applicants
were ill-founded or resulted from a bias of the Board member; secondly,
the Court should not concern itself with such wild allegations and should limit
itself to verify here if the impugned decision contains any reviewable error or
if the file shows any bias on the part of the Board member towards the present
applicant, thus justifying its intervention.
[34]
The applicant has
been unable to demonstrate in the present matter in what way or why the Board member was not impartial or which
statements made by him show any bias on his part. As a
consequence, the applicant fails on this issue.
V. Conclusion
[35]
Having
reviewed the evidence, the
Court concludes that the applicant has failed to show that the impugned decision is unreasonable because not being within the range of acceptable outcomes
defensible in fact and in law.
Therefore, this application for judicial review will be dismissed.
[36]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING REASONS, THIS COURT dismisses the application.
“Maurice
E. Lagacé”
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