Date: 20110322
Docket: IMM-2673-10
Citation: 2011 FC 350
Ottawa, Ontario, March 22, 2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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KARLA MARTINEZ VERGARA
OMAR MUNGUIA ALBARRAN
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Applicants
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and
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THE MNISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) of a decision of
the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated April 19, 2010, wherein the Board determined that the applicants are not
Convention refugees or persons in need of protection pursuant to sections 96 or
97 of the Act.
Factual Background
[2]
The
principal applicant, Karla Martinez Vergara and her husband, Omar Munguia
Albarran, are citizens of Mexico.
[3]
Mrs.
Vergara was employed as a lawyer for the Institutional Revolutionary Party (PRI)
in Coacalco de Berriozabal. She was responsible for dealing with complaints
made against the party. She also was a member of another political party
affiliated with the IRP, the Action Revolucionaria Mexicanis.
[4]
In
2005, the party allegedly suggested that she should run for municipal counsel
for the city of Coacalco, Mexico. After receiving 90% of
the votes, she took on her new position as a municipal counsel.
[5]
On
July 23, 2007, when leaving their home, Mrs. Vergara and her husband were
stopped by two men who allegedly had guns and were police officers. Mrs.
Vergara testified that one of the two police officers told her that she should
not go back to the party if she didn’t want anything to happen to her. Her
husband tried to intervene and one of the men struck him over the head. After
being brought to the hospital, officers of the Public Ministry came to take his
deposition regarding the incident.
[6]
Mrs.
Vergara stopped working for the party. On August 8, 2007, Mrs. Vergara’s
husband noticed that the same police officers, who had attacked him, were at
his work place. He immediately quit his job.
[7]
On
August 26, 2007, Mrs. Vergara and her husband saw the same two individuals
through the peephole of their front door. One of their neighbours called the
police and told the applicants they should file a complaint at the Public Ministry.
On her way to the Public Ministry, Mrs. Vergara called her brother in Canada about the
incidents that had happened on July 23 and August 26, 2007. Her brother
allegedly told her she should consider coming to Canada.
[8]
On
August 27, 2007, the applicants obtained their passports and reserved a flight
to Canada for
September 8, 2007. Mrs. Vergara received a phone call from the Public Ministry
and was told to show up at their offices on September 7, 2007 to confirm the complaint
they had made on August 26, 2007.
[9]
On
September 7, 2007, Mrs. Vergara and her husband went to the Public Ministry’s
office to confirm the complaint. They were asked to identify the individuals
who had threatened and beaten them from among the detainees. They identified
one of the individuals. On their way out, the applicants ran into the second
individual who had beaten Mr. Albarran. The police officer threatened to kill
them.
[10]
The
applicants left Mexico on September 8, 2007. They claimed refugee status
upon their arrival in Canada. Since their departure from Mexico, Mrs.
Vergara’s father has allegedly received threatening phone calls.
Impugned Decision
[11]
The
Board determined that the applicants were not Convention refugees or persons in
need of protection because it found that there were many contradictions,
inconsistencies and omissions in their testimonies. The Board also found
that Mrs. Vergara was not credible because she was unable to explain why she
was incapable of obtaining a copy of the complaint she and her husband filed on
July 23, 2007. The Board was of the view that Mrs. Vergara was not diligent in
her efforts to obtain a copy of the complaint.
[12]
The
Board stated that there were inconsistencies between Mrs. Vergara’s personal
information form (PIF) and her testimony. She testified that her lawyer called
to obtain copies of the complaint. However, this was not mentioned prior to the
hearing. When confronted to provide an explanation, she changed her story and
blamed her other lawyer. She changed her story again to blame his secretary,
alleging she is racist. The Board determined this affected her credibility.
[13]
With
respect to the legal document submitted, the Board decided not to give it much
weight. The Board noted that the document lacked descriptions of the attackers
and failed to indicate that they were police officers. The document also
mentioned that the applicants were injured and received threats.
[14]
In
its analysis of state protection, the Board raised the different possibilities
available to the applicants. The Board also underlined that the initial
complaint was filed on July 23, 2007, the second complaint was filed on August
26, 2007 and the confirmation of the first complaint on September 7, 2007.
However, the applicants had their passports and were ready to leave the day
following the confirmation of their initial complaint. The Board noted that
there was no time for the police to follow up on their complaints.
[15]
Relying
on the case law of this Court, the Board considered that the applicants did not
take all measures that were offered by the state to protect them.
Statutory Provisions
[16]
The
following provision of the Immigration and Refugee Protection Act is relevant
to these proceedings:
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Convention
refugee
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
Person in need of protection
97. (1)
A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
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Définition
de « réfugié »
96. A qualité de réfugié au sens
de la Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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Issues
[17]
The
present application for judicial review raises the following issues:
a)
Did the Board
err in its assessment of the applicants’ credibility?
b)
Did the Board
properly consider the evidence before it?
c)
Did the Board
err in its analysis of state protection?
Standard of review
[18]
As a result of the decision of the Supreme Court of Canada in Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, it is trite law
that credibility and fact findings are reviewable on the reasonableness
standard. As it was held in Dunsmuir, supra, at para 47,
reasonableness is concerned with “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”.
[19]
With
regard to the issue of adequacy of state protection, this question requires an
analysis of facts and should therefore be reviewed on a standard of
reasonableness (Jabbour v Canada (Minister of Citizenship and Immigration), 2009 FC 831, [2009] FCJ No. 961, at para 18).
Analysis
a)
Did
the Board err in its assessment of the applicants’ credibility?
[20]
The
applicants argue that the Board erred in its assessment of their credibility
because it misunderstood Mrs. Vergara’s explanation regarding the possibility
of obtaining originals or copies of the complaint. After reviewing the transcripts,
the Court notes that Mrs. Vergara’s testimony was confusing and did not reflect
her story.
[21]
The
issue of filing additional documents to substantiate the applicants’ story was
raised throughout the hearing before the Board as it was at the heart of their
claim. The burden is on the applicants to adduce evidence in support of their
claim. Thus, it is not unreasonable for the Board to rely on their failure to adduce
evidence relating to important aspects of their claim in order to make an
adverse finding of credibility regarding their story.
[22]
The
applicants also argue that the Board erred in its negative credibility
assessment based on Mrs. Vergara’s omission in her PIF related as to her
efforts to obtain a copy of her complaint made on July 23, 2007. The Court
believes that it was reasonable for the Board to reject the applicants’
explanations on the basis of this omission in their PIF.
[23]
Finally,
the applicants submit that there is no legal requirement for refugee claimants
to provide corroborative evidence for all key pieces of evidence. Thus, they
contend that they were not legally required to obtain a copy of the
confirmation of their initial complaint, dated September 7, 2007. (Mahmud v Canada
(Minister of Citizenship and Immigration), [1999]
FCJ No. 729, 167 FTR 309.
[24]
In
the case at bar, the Court finds that the failure to provide confirmation of
their initial complaint, dated September 7, 2007, is an important omission that
is key to the applicants’ claim. It was reasonable for the Board to find that
it affects their credibility.
b)
Did the Board
properly consider the evidence before it?
[25]
The
applicants argue that the Board erred in the evaluation of the evidence before
it by making misstatements of the evidence. The applicants allege that in
evaluating Exhibit P-9, - i.e. the complaint made by the applicants on August
26, 2007 - the Board suggested that Mrs. Vergara contradicted herself by
stating in her narrative that the complaint was made on August 26, 2007, while
the document was dated August 27, 2007. Further, the document makes no
reference to the police who have allegedly threatened the applicants. The Court
is of the view that the Board did not reject the document based on this
inconsistency. The Board accepted the evidence but determined that it would not
award it much weight because it could not substantiate the applicants’
allegations. It was not unreasonable for the Board to determine that this
evidence was not sufficient to establish the identity of the alleged assailants
or the details of the incident.
[26]
Finally,
the applicants claim that the Board erred by not considering other
corroborating evidence, such as the medical reports (P-5, P-6) as well as the
medical exam conducted at the Public Ministry’s office (P-8). In fact, these
reports refer to the applicants’ own declarations regarding the circumstances
surrounding their injuries. The Board was therefore again entitled to give no
probative value to these documents.
c)
Did the Board
err in its analysis of state protection?
[27]
The
applicants contend that the Board incorrectly analysed the availability of
state protection by not analyzing its effectiveness in Mexico. There is
simply no evidence to conclude that there was no state protection or that it
was ineffective. Indeed, the applicants left their country without following up
on their complaints. There was only one day between the moment where the
applicants went to the Public Ministry to confirm their first complaint and the
moment they left for Canada. The applicants clearly had access to the
police.
[28]
This
Court has recognized that it is trite law that applicants are first required to
exhaust all available protection in their country before coming to Canada (see Kadenko
v Canada (Minister of Citizenship and Immigration), [1996]
FCJ No. 1376, 206 NR 272; Alvarez v Canada (Minister of
Citizenship and Immigration), 2010 FC 190, [2010] FCJ No 233). In the case
at bar, this Court cannot conclude that the applicants have exhausted all
protection as they left their country prematurely and failed to wait and see
whether state protection was forthcoming. The police reacted
promptly to the applicants’ complaint and followed up in order to protect them.
The
evidence demonstrates that the state had not only the interest but the capacity
to protect the applicants.
[29]
For these reasons, the Court concludes that the decision of
the Board was reasonable. The intervention of the Court is not warranted. The
application for judicial review is therefore dismissed.
[30]
No
question was proposed for certification and none arises in this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is certified.
“Richard Boivin”
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