Date: 20081222
Docket: IMM-334-08
Citation: 2008 FC 1383
Ottawa, Ontario, December 22,
2008
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
Andres
CARINO RIOS
Yasmin SUAREZ CHAVEZ
Andres Zahid CARINO
SUAREZ
Yameli Mayte CARINO
SUAREZ
Applicants
and
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, S.C. 2001, c. 27,
of a decision dated March 15, 2008, by the Immigration and Refugee
Board (the IRB).
[2]
Andres
Carino Rios (the applicant), his wife Yasmin Suarez Chavez (the principal
applicant) and their children Andres Zahid Carino Suarez and Yameli Mayte
Carino Suarez are Mexican citizens. The refugee claims of the applicant and the
two children are based on the principal applicant’s claim.
[3]
The
panel found that the testimony of the principal applicant and her husband
lacked clarity and spontaneity and contained contradictions and improbabilities.
The panel therefore did not find it believable.
[4]
Moreover,
the panel found that the principal applicant had an internal flight alternative
elsewhere in Mexico.
[5]
Since
the issue here is fundamentally an assessment of facts and credibility, it is
appropriate to reproduce the following excerpt from the Federal Court of Appeal
decision in Aguebor v. Minister of Employment and Immigration
(1993), 160 N.R. 315:
[4] There is no longer any doubt
that the Refugee Division, which is a specialized tribunal, has complete
jurisdiction to determine the plausibility of testimony: who is in a better
position than the Refugee Division to gauge the credibility of an account and
to draw the necessary inferences? As long as the inferences drawn by the tribunal
are not so unreasonable as to warrant our intervention, its findings are not
open to judicial review.
[6]
In
this case, the panel found a number of aspects of the applicants’ testimony
improbable, in particular, (1) that the government did not seem to know
who were the real “leaders” of the Popular Assembly of the People of Oaxaca
(APPO); (2) that the principal applicant could be described as a “leader” after
only four months in the organization; (3) that her uncle could liberate
her so quickly; (4) that she could [translation]
“forget” to mention in her Personal Information Form that the authorities
raided their house and (5) that a private company refused to load the
applicant’s truck with fruit. After reviewing the evidence, and without
completely endorsing the panel’s analysis, these references do not appear
unreasonable to me.
[7]
Moreover,
the applicants submit that the panel erred by not paying enough attention to
the evidence since the notes taken at the first of two interviews with the
principal applicant were mislaid.
[8]
The
principal applicant and her family participated in two hearings before the IRB:
the first took place on November 6, 2007, and the second in
January 2008. At paragraph 11 of her memorandum, the principal
applicant wrote that the member began the hearing on January 15 [translation] “by saying that she was
confused because she had lost all her notes.” The principal applicant also wrote
as follows:
[translation]
12. In
reading the panel’s decision, the applicants noticed that the decision
basically only deals with the improbabilities in the applicant’s testimony
regarding the reprisals that he suffered as a truck driver. No comments were made
about the November 6, 2007 testimony of Ms. Suarez Chavez or
about the evidence that was filed. Since the member had lost her notes, she
could not refer to them;
[9]
Counsel
for the applicants at their hearings describes the incident as follows in her affidavit:
[translation]
8.
At the
beginning of the hearing, the member did not remember that the hearing was a continuation;
9.
She stated
that she did not have the notes she took at the last hearing in her file;
10.
She asked
for some time to reread the file;
11.
She then
questioned my client and her husband for about an hour;
12.
The
decision referred mainly to the testimony from the second hearing;
[10] Although
the applicants have framed the issue in this case as one of procedural
fairness, I find that their submissions challenge the panel’s findings of fact (Barm
v. Minister of Citizenship and Immigration, 2008 FC 893, at paragraph 10).
In other words, it appears to me that this is a problem of interpretation of
the evidence, including the principal applicant’s
testimony at the first hearing.
[11] However, I do
not find that the panel’s decision makes no reference to the principal
applicant’s testimony. For example, it is clear, on reading the decision and
the transcript of the second hearing, that the member had not been satisfied at
the first hearing that the applicant played more than a minimal role in the APPO.
[12] More
troubling, in my view, is the allegation that the panel did not pay attention
to certain relevant aspects of the documentary evidence. However, I cannot
conclude that the panel disregarded the written evidence that he does not mention
in his decision. In any event, I agree with the respondent’s main contention that
the IRB’s finding as to an internal flight alternative (IFA) in the Mexican
capital [translation] “is
determinative”. In Sukhpal Singh v. Minister of Citizenship and Immigration,
2006 FC 709, Mr. Justice Noël wrote the following:
.
. . I share my colleagues’ opinion to the effect that
an application for judicial review cannot be allowed when the refugee claimant
has an IFA, even if the RPD
[Refugee Protection
Division] has indeed made errors of fact.
[13] The test to determine
whether there is an internal flight alternative is clearly stated in Kumar v. Minister of
Citizenship and Immigration, 2004 FC 601:
[20] In order for the
Board to find that a viable and safe IFA exists for the applicant, the
following two-pronged test, as established and applied in Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunavukkarasu,
supra, must be applied:
(1) the Board must be satisfied
on a balance of probabilities that there is no serious possibility of the
claimant being persecuted in the proposed IFA; and
(2) conditions in the proposed
IFA must be such that it would not be unreasonable, upon consideration of all
the circumstances, including consideration of a claimant's personal
circumstances, for the claimant to seek refuge there.
[14] In this case,
the part of the panel’s analysis dealing with the IFA issue is found at
page 4 of his decision:
The
panel also analyzed the possibility of an internal flight alternative for the
claimants. When questioned about the possibility of finding refuge elsewhere in
Mexico, the principal claimant pointed out that
she could be found through the number on her voter’s registration card.
However,
she went to live with her mother in the state of Mexico
from November 26 to January 27, the date of her arrival in Canada, and she was not arrested.
[15] Although succinct,
this analysis is not irrational. It must also be considered in the context of
the finding that the principal applicant and her husband were not credible.
Even more important, the panel’s determination that there was an internal
flight alternative is not disputed by the applicants in their written
memorandum. The existence of an IFA cannot therefore be questioned.
[16]
For
all these reasons, the application for judicial review is dismissed.
JUDGMENT
The application for judicial review
of the decision dated March 15, 2008, by the Immigration and Refugee
Board is dismissed.
“Yvon
Pinard”
Mary
Jo Egan, LLB
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