Date: 20090501
Docket: IMM-3438-08
Citation:
2009 FC 441
Ottawa, Ontario, May 1, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
GUSTAVO MENDOZA MARTINEZ
OLGA MARQUEZ VELAZQUEZ
ALBIA ALBINA MENDOZA MARQUEZ
GUSTAVO MOISES MENDOZA MARQUEZ
MONSERRAT MENDOZA MARQUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act,
2001, c. 27 (Act),
of a decision by the Refugee Protection Division of the Immigration
and Refugee Board (panel)
dated July 14, 2008, that the applicants are not Convention refugees or persons
in need of protection.
Issues
1. Did the panel err
in finding that the applicants are not credible?
2. Did the
panel err in finding that there was an internal flight alternative for the
applicants?
[2]
For the
following reasons, the application for judicial review will be dismissed.
[3]
The
applicants are citizens of Mexico. The principal applicant,
Gustavo Mendoza Martinez, was born on December 4, 1971, and his wife, Olga, was born
on March 6, 1980. They were married on February 5, 1999, and three children were born
of this marriage. The principal applicant claims to be a victim of constant
harassment and threats by a group of corrupt persons who are complicit with the
authorities and state officials. They would fear for their lives if they
returned to their country.
[4]
The panel
found that there was no basis for allowing the claim because the refugee
claimants were not credible regarding their subjective fear. The panel was also
of the opinion that there was an internal flight alternative (IFA) in the
cities of Campeche or Monterrey.
Standard of review
[5]
In
questions of credibility and assessment of evidence, it is well established
under paragraph 18.1(4)(d) of the Federal
Courts Act, R.C.S. 1985, c. F-7, that the Court will intervene only if the panel based its decision on an
erroneous finding of fact in a perverse or capricious manner or if it delivered
its decision without regard for the material before it.
[6]
Assessing credibility and weighing the evidence
fall within the jurisdiction of the administrative tribunal called upon to
assess the allegation of a subjective fear by a claimant (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.),
83 A.C.W.S. (3d) 264 at paragraph 14).
[7]
Following
the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the panel’s findings as to credibility of
a refugee claimant should continue to be subject to deference by the Court and
are reviewable on the standard of reasonableness (Dunsmuir, above at
paragraphs 55, 57, 62 and 64; see also Lin v. Canada (Minister of
Citizenship and Immigration), 2008 FC 698, 170 A.C.W.S. (3d) 161 at paragraph
11).
[8]
Before Dunsmuir,
the standard of review for IFA cases was patent unreasonableness (Khan v. Canada (Minister of Citizenship and Immigration), 2005 FC 44, 136 A.C.W.S.
(3d) 912 and Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, 238 F.T.R.
289). Since Dunsmuir, a decision is now reviewed according to the new
standard of reasonableness. Consequently, the Court will intervene only if the
decision does not fall within the range of possible and acceptable solutions which
are defensible in respect of the facts and law (Dunsmuir, above at
paragraph 47). The reasonableness of a decision is
concerned with the existence of justification, transparency and intelligibility
within the decision-making process..
[9]
At the
hearing, the applicants’ counsel declared that with the consent of her clients
she relied on the written submissions already filed.
1. Did the panel err in finding
that the applicants are not credible?
[10]
In this case,
the panel noted several problems in the applicant’s testimony:
- He
contradicted himself by stating at the hearing that he did not recognize the
people who assaulted him on July 23, 2007, while he stated in his PIF that he
recognized them.
- He
failed to indicate in his PIF that he started receiving phone threats in May
2007.
- He
failed to mention in his PIF that he was threatened close to 25 times during
the few weeks preceding his departure.
- He stated
that in Mexico, it was possible to find
anyone using the Internet if you have only the person’s social insurance number.
[11]
The panel
is in a better position to assess the explanations provided by the applicants
with respect to perceived implausibilities and discrepancies. It is not for the
Court to substitute its judgment for the findings of fact made by the panel
regarding the credibility of the applicants (Singh v. Canada (Minister of
Citizenship and Immigration), 2006 FC 181, 146 A.C.W.S. (3d) 325 at paragraph
36; Mavi v. Canada (Minister of Citizenship and Immigration), [2001] A.C.F. No. 1 (F.C.T.D.)
(QL)).
[12]
In this case,
the panel’s finding is not unreasonable in light of the multiple discrepancies
in the testimony of the principal applicant.
2. Did
the panel err in finding that there was an internal flight alternative for the
applicants?
[13]
In Ranganathan
v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, the Court
ruled as follows at paragraph 15:
. . . It requires
nothing less than the existence of conditions which would jeopardize the life
and safety of a claimant in travelling or temporarily relocating to a safe
area. In addition, it requires actual and concrete evidence of such conditions.
The absence of relatives in a safe place, whether taken alone or in conjunction
with other factors, can only amount to such condition if it meets that
threshold, that is to say if it establishes that, as a result, a claimant's
life or safety would be jeopardized. This is in sharp contrast with undue
hardship resulting from loss of employment, loss of status, reduction in
quality of life, loss of aspirations, loss of beloved ones and frustration of
one's wishes and expectations.
[14]
The
panel’s decision is based on the applicants’ testimony as well as documentary
evidence. The applicants did not succeed in persuading the panel that the
internal flight alternative is unreasonable. Moreover, the applicants did not
even file written submissions on this point.
[15]
No
question for certification was proposed.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Janine
Anderson, Translator
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