Date: 20111208
Docket: IMM-3023-11
Citation: 2011 FC 1438
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Montréal, Quebec, December 8, 2011
PRESENT: The Honourable
Mr. Justice Boivin
BETWEEN:
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CARLOS ALBERTO VAQUERA GARZA
ROCHEL ESMERALDA ORTEGA
DAVILA
ANGEL ALAN VAQUERA ORTEGA
FERNANDO VAQUERA ORTEGA
JUAN CARLOS VAQUERA ORTEGA
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision
dated April 11, 2001, in which the Refugee Protection Division of the
Immigration and Refugee Board (the panel) found that the applicants were
neither refugees nor persons in need of protection under sections 96 and
97 of the Act.
I.
Background
A. Facts
[2]
Carlos
Alberto Vaquera Garza (the principal applicant), his spouse Rochel Esmeralda
Ortega Davila, and their three minor sons Angel Alan Vaquera Ortega, Fernando
Vaquera Ortega and Juan Carlos Vaquera Ortega, are Mexican citizens who are
seeking refugee protection under sections 96 and 97 of the Act.
[3]
The
principal applicant alleges that in March 2008 a municipal police commander in
Escobedo (Nuevo León) attempted to recruit him for an “intimidation operation”.
The principal applicant refused this request and, as a result, was attacked,
beaten and threatened by police officers.
[4]
The
principal applicant says that he moved his family to his mother‑in‑law’s
home to hide from the police officers in question.
[5]
The
applicants subsequently left Mexico and came to Canada on
October 1, 2008. The family members claimed refugee protection upon
arrival at the Montréal airport.
[6]
The
family members base their refugee claim on the principal applicant’s narrative.
The Court will therefore refer to the applicant in its reasons.
[7]
The
hearing before the panel took place on April 7, 2011.
B. Impugned
decision
[8]
In
its decision dated April 11, 2011, the panel did not consider the
applicant’s testimony credible. The panel determined that the applicants were neither
“Convention refugees” under section 96 of the Act nor “persons in need of
protection” under section 97 of the Act.
[9]
With
respect to the issue of state protection, the panel observed that the applicant
had not filed a complaint at the state level in Nuevo León or at the federal
level. The panel therefore found that the applicant had failed in his duty to
seek protection in his country of nationality before seeking protection
elsewhere. The panel also stated that the applicant did not provide clear and
convincing evidence to rebut the presumption of the state’s ability to protect (Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689, [1993] SCJ No 74).
[10]
Finally,
in the absence of real, concrete and probative evidence to the contrary, the
panel found that an internal flight alternative (IFA) was available to the
family in this case, either in Mérida (Yucatan) or in La Paz (Baja
California Sur).
II.
Issue
[11]
The
issue to be determined is as follows:
Did the panel err
in assessing the principal applicant’s credibility and the validity of his fear
of persecution?
III.
Applicable
statutory provisions
[12]
Sections 96
and 97 of the Act read as follows:
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Refugee Protection, Convention
Refugees and Persons in Need of Protection
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.
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Notions d’asile, de réfugié et
de personne à protéger
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.
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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.
Person
in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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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.
Personne à
protéger
(2) A également qualité de personne à protéger
la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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IV.
Appropriate
standard of review
[13]
The
panel’s findings on credibility, state protection and the availability of an
internal flight alternative are reviewable on a reasonableness standard (see Barajas
v Canada (Minister of Citizenship and Immigration), 2010 FC 21, [2010] FCJ No 8, and Khokhar v Canada (Minister
of Citizenship and Immigration), 2008 FC 449, [2008] FCJ No 571). Pursuant to Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the
Court will intervene only where it appears that the panel made findings in a
capricious or unreasonable manner or in a way that is not supported by the
evidence in the record.
V.
Analysis
[14]
The
applicant maintains that the reasons for the panel’s decision are unfounded,
arbitrary and based on an erroneous assessment of the evidence in the record. The
applicant claims that the inconsistencies noted by the panel stem from the
applicant’s nervousness during the hearing before the panel.
[15]
In
addition, the applicant says that the inconsistencies in his testimony pointed
out by the panel are merely superficial, secondary details and do not call into
question the validity of his statements. Essentially, the applicant argues that
the panel failed to deal with the primary element of his claim: the fear of
persecution alleged by the applicant. Consequently, the applicant submits that
the panel’s decision is unreasonable under the principles set out in Attakora v Canada (Minister of Employment and Immigration) (1989), 99 NR 168 (FCA) [Attakora], Djama v Canada
(Minister of Employment and Immigration), [1992] FCJ No 531 (FCA) [Djama], and Gracielome v Canada (Minister of Employment
and Immigration) (1989), 9 Imm LR (2d) 237 (FCA) [Gracielome].
[16]
For
his part, the respondent submits that the panel’s decision in this case is well‑founded.
The respondent points out, inter alia, the inconsistencies and omissions
in the applicant’s testimony and maintains that the applicant did not discharge
his onus of establishing that he and his family could not move to other areas
in Mexico (Thabet v Canada (Minister of Citizenship and Immigration),
[1998] 4 FC 21, [1998] FCJ No 629, Pena v Canada (Minister
of Citizenship and Immigration), 2009 FC 616, [2009] FCJ No 739,
and Lopez v Canada (Minister of Citizenship and Immigration),
2010 FC 990, [2010] FCJ No 1352).
[17]
The
applicant’s primary argument in this judicial review is that the panel did not
develop its findings on the issue of credibility. The Court notes that the
applicant focused his arguments on the issue of the applicant’s credibility and
his fear of persecution in Mexico. However, the panel’s findings on state
protection and the IFA in Mexico were not challenged before this Court.
[18]
After
examining the evidence in the record and hearing the parties, the Court is of
the view that the panel did not err in assessing the applicant’s credibility
and the validity of his fear of persecution.
[19]
Although
the decision on the credibility issue is detailed and would probably have
benefited from being developed, it was addressed by the panel, and its findings
are supported by the evidence in the record.
[20]
In
this case, the Court points out that the inconsistencies and omissions noted by
the panel are well‑founded in this case. The applicant testified that he
had been beaten twice whereas his PIF mentions only one incident (Tribunal
Record, pp. 23 and 175); the applicant was stopped and threatened by the
police, but his narrative does not refer to this episode (Tribunal Record, pages
23 and 183-190); the applicant moved in with his mother‑in‑law in
May 2008, but his PIF indicates August 2007 (Tribunal Record, pages 19 and
195-196). The Court also finds that these inconsistencies exist in the
applicant’s testimony despite the fact that the panel gave the applicant the
opportunity to reread the documents and submissions and to make corrections
prior to the hearing (Tribunal Record, pages 165, 166).
[21]
More
importantly, the decision also deals with the issues of the state’s ability to
protect and the IFA in Mexico. The Court notes that the applicant did
not provide clear and convincing evidence to rebut state protection or the IFA
in this case, and, as the respondent correctly points out, a finding on an IFA
is determinative in itself and is sufficient to have a refugee claim rejected (Pena
and Lopez).
[22]
Under
the appropriate standard of review in this case—reasonableness—the Court is of
the view that the reasoning of the Board’s decision falls within a range of
reasonable outcomes, and accordingly the Court’s intervention is not warranted.
For all these reasons, the application for judicial review is dismissed.
[23]
The
parties did not submit any question for certification.
JUDGMENT
THE COURT
RULES as follows:
1. This
application for judicial review is dismissed.
2. No question will
be certified.
“Richard
Boivin”
Certified
true translation
Mary
Jo Egan, LLB
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