Docket: IMM-2248-11
Citation: 2011 FC 1374
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Vancouver, British Columbia, November 28, 2011
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
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ANA LUZ ANAYA ALONSO
CARLOS ANDRES VILLANUEVA
VILLALPANDO
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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
ORDER AND ORDER
[1]
The
principal applicant based her refugee claim on the allegation that she had
received death threats from Senator Suarez Tomborrel when she was a
student in Mexico. Since he
has interests in the brick industry and uses toxic fuels, he wanted to kill her
because of her university thesis on the pollution caused by this industry in Mexico.
[2]
Given
the lack of credibility and subjective fear, the panel dismissed the applicants’
refugee claim. This is an application for judicial review of that decision. The
issue is to determine whether the decision of the member of the Refugee
Protection Division is reasonable.
[3]
The
member was of the view that it was implausible that the Senator wanted to kill
the principal applicant since the pollution associated with this industry is a
well known fact and has been the subject of a number of publications.
[4]
It
was not unreasonable for the member to doubt the applicant’s testimony.
Although it is submitted that the member misapprehended the applicant’s
arguments that there had never been a real analysis of the toxicity and the
origin of the fuels the peasants use, I do not find this argument convincing.
[5]
One
wonders to what extent the pollution caused by the brick industry in Mexico remains an
unexplored subject. Contrary to the applicant’s submissions, the evidence shows
that the effects of those fuels have been documented in a number of publications
by various organizations. There is a reference to this in a news article that
was entered into evidence:
[translation]
They stated that the manufacture of
bricks produces high levels of contamination because of the use of poor quality
fuel and that the emissions from the fuel constitute a high risk to health in
that they cause cancer on a long term basis.
[6]
Another
factor to keep in mind is the allegation that the applicant was kidnapped and
held for two days. During this period, she was drugged and woke up nude.
Despite that, she did not go to the doctor because he would have called the
police who, she says, are corrupt and under the Senator’s influence.
[7]
It
was also not unreasonable for the member to believe that a person would likely consult
a doctor after being drugged and waking up nude.
[8]
The
member had the advantage of meeting the witness, an advantage that must not be
taken lightly. As Mr. Justice Richie stated in Stein v Kathy K (The
Ship), [1976] 2 RCS 802, 6 NR 359, at paragraph 7:
In
this regard reference may be had to the case of S.S. Honestroom (Owners) v.
S.S. Sagaporack (Owners), where Lord Sumner said, at pp. 47-8:
. . .
not to have seen the witnesses puts appellate judges in a permanent position of
disadvantage as against the trial judge, and unless it can be shown that he has
failed to use or has palpably misused his advantage, the higher Court ought not
to take the responsibility of reversing conclusions so arrived at, merely on
the result of their own comparisons and criticisms of the witnesses and of
their own view of the probabilities of the case. . . .
See also N.V. Bocimar S.A. v Century
Insurance Co, [1987] 1 S.C.R. 1247, [1987] SCJ No 39 (QL).
[9]
The
decision the member made was among those reasonably open to him, as explained
in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph
47:
Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting
a review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[10]
Moreover,
it is my view that the allegations that the member was biased are not founded.
ORDER
FOR THE
FOREGOING REASONS;
THE COURT
ORDERS as follows:
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
Certified true
translation
Mary Jo Egan, LLB
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