Date: 20081203
Docket: IMM-5077-07
Citation: 2008 FC 1347
Montréal, Quebec, the 3rd day of December 2008
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
GEMMA
OLIVARES VARGAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board, dated October 31, 2007, in
which the applicant was determined not to be a Convention refugee or a person
in need of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act (the IRPA).
FACTS
[2]
The
applicant, a citizen of Mexico, was born on June 21, 1988. She
essentially alleges that she was a victim of violence and that she was beaten
by her ex-boyfriend, a young man named Ivan Reyes Guzman, with whom she
had a relationship that began in March 2004.
[3]
The
applicant allegedly filed a complaint against Ivan two days after he assaulted
her on March 21, 2005. She claims that she temporarily left school at
that time, and that she returned only in the fall of 2005.
[4]
It is
alleged that, on December 12, 2005, Ivan went to the applicant’s family’s home
and broke windows by throwing stones. After this, the applicant allegedly
moved to another family residence in Campestre, which her ex-boyfriend did not
know about. Nonetheless, it is alleged that he easily found the residence with
the help of his police contacts, and that, on January 10, 2006, he
stationed himself outside her home with two of his friends and threatened her
again. Frightened, the applicant returned to her parents’ home to live.
[5]
On May 22,
2006, Ivan and two of his friends allegedly attempted to kidnap the applicant, shoving
her mother and hitting her father with a pistol. Alerted by her sisters’
screams, the police allegedly arrived on the scene, but let Ivan get away
because the applicant’s mother refused to give them money.
[6]
The
applicant says that she subsequently received anonymous notes as well as death
threats. She left Mexico for Canada on June 24, 2006, and
claimed refugee status upon arrival.
IMPUGNED DECISION
[7]
The RPD
rejected the applicant’s refugee protection claim on the grounds that her
account was not credible and that there was an internal flight alternative. It
also rejected her application under section 97 of the IRPA.
[8]
After
hearing the applicant’s testimony, the RPD determined that she was not credible
for the following reasons:
- She contradicted herself
with respect to the date on which she decided to leave Mexico. According to the
notes from the interview at the point of entry, she said that she decided to
leave Mexico during the first week of June 2006, after her ex-boyfriend found
her and attempted to kidnap her. However, in her testimony, she said that
she decided to leave her country on May 22, 2005. Upon being
confronted with the inconsistency, she corrected herself and said that she made
the decision in 2006.
- Her conduct was inconsistent
with the conduct of someone with a well-founded fear of persecution, in that she
returned to her family home in order to live with her parents after she was
threatened in Campestre.
- It was unlikely that her
17-year-old ex-boyfriend could have found her in Campestre thanks to his police
contacts.
[9]
The RPD
also determined that the applicant had an internal flight alternative in Monterrey
or León, two major Mexican cities. Having examined the circumstances as a
whole, the Board expressed the opinion that it would not have been unreasonable
for the applicant to seek refuge in one of those two cities.
ISSUES
[10]
This case
essentially raises three substantive issues: (1) Did the RPD err in failing to
consider the Guidelines on Women Refugee Claimants Fearing
Gender-Related Persecution (the Guidelines)? (2) Did the RPD err in
determining that the applicant was not credible? (3) Did the RPD
err in determining that there was an internal flight alternative within Mexico?
ANALYSIS
Standard of review
[11]
It is settled
law that the Court must show deference to decisions of the RPD regarding questions
of credibility and assessment of the evidence. The decision of the Supreme
Court in Dunsmuir v. New Brunswick, 2008 SCC 9, has
not changed the wording of paragraph 18.1(4)(d) of the Federal Courts
Act, under which this Court will intervene only if the board, commission or
other tribunal based its decision or order on an erroneous finding of fact that
it made in a perverse or capricious manner or without regard for the material
before it.
[12]
The same
principles apply to the internal flight alternative. This Court’s decisions
prior to Dunsmuir stood for the proposition that the “patently
unreasonable” standard of review applied to cases of this nature. Since that
standard of review is no longer applicable, we must apply the reasonableness
standard. Does this mean that the Court must now intervene more readily?
Not necessarily. The Supreme Court took care to note that courts should
never lose sight of the reasons that legislatures have created administrative
bodies. As it wrote in Dunsmuir, at paragraph 49:
In short, deference requires respect for
the legislative choices to leave some matters in the hands of administrative
decision makers, for the processes and determinations that draw on particular
expertise and experiences, and for the different roles of the courts and
administrative bodies within the Canadian constitutional system.
[13]
Consequently,
the Court should refrain from intervening unless the impugned decision is unreasonable.
This requires an assessment that looks at both process and outcome. Thus, the
Court must consider justification, transparency and intelligibility within the
decision-making process, and must also be concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir, at paragraph 47).
The Guidelines
[14]
The
applicant submitted that the RPD failed to consider the Guidelines, even
though, at the end of its analysis, the Board expressly stated that it took
them into account. The proof, she submits, is that the Guidelines are referred
to as an obligatory formality, and that the applicant’s youth, inexperience and
unfamiliarity with countries other than Mexico were not taken into account in
assessing her testimony.
[15]
It is true
that the mere mention of the Guidelines by the RPD is not a sufficient basis on
which to conclude that the Guidelines were truly taken into account in the
decision. The sensitivity that the RPD must show toward women who are
persecuted because of their gender must manifest itself in more than merely a formal
and ritual reference to the Guidelines. On the other hand, the mere fact that
the RPD did not find the applicant credible will be insufficient to show that
it was insensitive to the fate of women. In the case at bar, I am of the
opinion that the Board could find that the applicant was not credible based on
the inconsistencies, omissions and implausibilities that it identified in her
testimony.
[16]
It is no
doubt true that the applicant was vulnerable and may have been shaken by what she
claims happened to her. However, this does not explain why, after being
threatened in Campestre, she returned to her parents’ home where she could
easily be found, rather than seeking refuge in another major Mexican city. If
her parents were able to take out a loan to send her to Canada, they could no
doubt have financed her relocation elsewhere in Mexico as well. Such a finding
does not reflect insensitivity to her situation; rather, it results from an
assessment of the facts.
Assessment of the evidence
[17]
The
applicant submits that the Board erred by failing to consider the evidence
before it, including the abundant documentary evidence concerning the lack of
protection offered by the Mexican government. She also submits that it is not
implausible for a young man aged 17 to have friends in the police, and to be
able to track down the applicant anywhere in Mexico.
[18]
I should
begin by noting that the documentary evidence cannot help the applicant if her
account is determined not to be credible. A refugee claimant must prove not
only an objective fear, but a subjective fear as well. The situation of women
who are victims of conjugal violence in Mexico was only relevant to the extent
that the applicant could show that she truly feared persecution on that ground,
and this she failed to do.
[19]
Counsel
for the applicant attempted to convince the Court that it was entirely possible
for a young man aged 17 to have police contacts. That is one possible
assessment. However, it is not this Court’s mandate to substitute its
discretion for that of the RPD, unless its findings find no support in the
evidence or were made in a perverse or capricious manner. I cannot come to such
a conclusion based on a reading of the record. Although I might have been able
to arrive at a different conclusion, that is not the test that I must apply.
The RPD had the advantage of seeing and hearing the applicant, weighing her
testimony and prior statements, examining her behaviour and considering her
explanations. It came to the conclusion that her account did not hold water. I
have not been convinced that this conclusion was unreasonable in view of the
evidence.
Internal flight alternative
[20]
The RPD
determined that the applicant had an internal flight alternative in other major
Mexican cities, notably Monterrey and León. In so doing, the Board did not
accept the applicant’s arguments that her ex-boyfriend could have tracked her
down anywhere in Mexico using school records.
[21]
The
Federal Court of Appeal has specified that the onus is on the refugee claimant
to show that he or she could not relocate elsewhere in his or her country. In
order to make its finding, the Board needed to be satisfied that there was no
serious risk of the applicant being persecuted in the cities in which it found
that an internal flight alternative existed, and that, in the circumstances, it
would not have been unreasonable for the applicant to travel there. In this
regard, the burden of proof on the person seeking refugee protection is a heavy
one. As the Federal Court of Appeal reiterated in Ranganathan v. Canada
(Minister of Citizenship and Immigration), [2001] 2 F.C. 164,
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.
[22]
The
applicant, however, did not dispute the RPD’s findings concerning the existence
of an internal flight alternative. This finding alone was sufficient to reject
the claim for refugee protection. Indeed, an internal flight alternative
is inherent in the very concept of a refugee and of a person in need of
protection. As for the vague allegation that the applicant could be tracked
down anywhere in Mexico using school records, I consider it baseless, and it
was not corroborated by any evidence.
[23]
For all
these reasons, the application for judicial review is dismissed. No question
was submitted for certification, and none is worthy of certification.
ORDER
THIS COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
“Yves de Montigny”
Certified
true translation
Brian
McCordick, Translator
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