Date: 20080521
Docket: IMM-4548-07
Citation: 2008
FC 633
Toronto, Ontario, May 21,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
CECILE DEL CARMEN RODRIGUEZ
ESTRELLA
(A.K.A. CECILIA DEL CAR RODRIGUEZ
ESTRELLA)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review made pursuant to
section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of
the Immigration and Refugee Board (the Board) dated October 5, 2007 wherein the
Applicant is found not to be a “Convention refugee” or a “person in need of
protection”.
I. Facts
[2]
Citizen of
Mexico, the Applicant claims refugee
protection on the basis of an abusive former common-law partner who has
threatened to kill her. In support of this, the Applicant provides a set of often
contradictory allegations regarding specific incidents of abuse in her Personal
Information Form (PIF) and in her oral testimony before the Board. This
includes an incident where she was attacked at work on October 28, 2005 by her
former common-law partner and made a denunciation to the police.
[3]
At the
conclusion of the hearing, the Board requested that an attempt be made by the Applicant
to obtain the denunciation made on October 28, 2005. The Applicant did not
provide the Board the denunciation and neither explained the reasons it was not
provided.
II. Decision of the Board
[4]
The Board
rejects the Applicant’s claim because: (1) her testimony is neither credible
nor trustworthy, due to inconsistencies and omissions with respect to the
salient aspects of her claim; and (2) an Internal Flight Alternative (IFA) is
available in Mexico
City (the
“Federal District”).
[5]
First, the
Board notes a number of inconsistencies in the Applicant’s testimony about the
alleged assaults. The Board examines these inconsistencies and contradictions
found in the Applicant’s allegations of abuse, and finds that on the balance of
probabilities that most, if not all of the alleged incidents of abuse did not
occur. However, the Board does not come to a clear conclusion on how these
inconsistent findings affect the Applicant’s claim to be a Convention refugee
or a person in need of protection.
[6]
Instead,
the Board finds as a determinative issue the fact that the Applicant has an IFA
in the Federal
District. In
reaching this conclusion, the Board reviews the documentary evidence for
information regarding domestic violence in the Federal District. The Board
notes that:
- the legislative framework for
addressing violence against women differs from state to state in Mexico;
- the Federal District classifies domestic
violence and spousal rape as a crime;
- there are national regulations
requiring health centers to record domestic violence complaints and
establishing standards to ensure medical staff recognize and report
violence to competent authorities;
- there are penal sanctions for abuse
extending to common-law relationships;
- there are a number of government resources
available for individuals in the Federal District, and that the Domestic
Violence Assistance Center offers comprehensive psychological, legal,
medical and social assistance (such as referrals to shelters and
assistance in filing claims with the public prosecutors office);
- there are specific requirements for
how domestic violence complaints are handled.
[7]
Finally the
Board concludes that while there are still serious problems with violence
towards women in Mexico, the documentary evidence indicates that the Federal District authorities are making a
serious effort to fight it and that it would be reasonable for the claimant to
approach these authorities if she feels at risk. The Board also concludes that
it would not be unduly harsh for the claimant to move to Mexico City as the
Applicant has worked as a sales representative for a number of different
companies, and has previously relocated herself within Mexico and has been able to find employment.
III. Issue
1.
Did the
Board err in interpreting and applying the IFA test?
IV. Standard of Review
[8]
The
standard of review for an IFA issue has traditionally been one of patent
unreasonableness (see, for example, Ali v. Canada (Minister
of Citizenship and Immigration), 2001 FCT 193; Chorny v. Canada (Minister of Citizenship and Immigration)
(2003), 238 F.T.R. 289, 2003 FC 999). This is the standard that the respondent
has urged the Court to use before the release by the Supreme Court of Canada’s of its decision in Dunsmuir
v. New Brunswick, 2008 SCC 9.
[9]
The question at issue
is factual in nature and falls within the expertise of the Board; and as a
result deference is owed as
decided in Dunsmuir, above,
at paragraph 47:
…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.
The same is true for the Board finding
on the
availability of an IFA.
V. Analysis
[10]
The Applicant’s
allegations are riddled with inconsistencies relevant to her claim as a person
in need of protection. There are significant inconsistencies within her oral
testimony before the Board and also between that testimony and her PIF
regarding the alleged incidents of abuse. The Board recognizes these
inconsistencies, clearly outlines them, and gives valid reasons for rejecting
the applicant’s explanations for them.
[11]
However, the
Board does not actually come to a proper conclusion as to how its credibility
findings affect the Applicant’s claim. Instead, the Board finds the
availability of an IFA to be the determinative issue. Therefore, despite both
parties making submission on the Board’s statements regarding the Applicant’s
credibility, this issue does not really need to be well addressed since it is unclear
how the credibility of the Applicant relates to the Board’s ultimate decision on the availability of an IFA.
[12]
It is well-established that the existence of a valid IFA is determinative
of a refugee claim. Therefore the Court needs not consider the other issues
raised by the Applicant (Shimokawa v. Canada (Minister
of Citizenship and Immigration), 2006 FC 445 at paragraph. 17;
Sran v. Canada (Minister of Citizenship and Immigration), 2007
FC 145 at paragraph. 11).
[13]
In determining
that the Applicant has an available IFA, the Board reviews the documentary
evidence on State Protection in Mexico
as noted above, and acknowledges that the evidence is mixed. It then considers
the evidence with regard to the test set out in Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C.
589, [1993] F.C.J. No. 1172 (F.C.A.) and Rasaratnam v. Canada
(Minister of Employment and Immigration), [1992] 1
F.C. 706 (C.A.). This test for determining whether a viable IFA exists is
two-pronged: first, the Board must be satisfied on a balance of probabilities
that there is no serious possibility that the claimants will be persecuted in
the proposed IFA; second, the conditions in the proposed IFA must be such that
it is not unreasonable for the claimants to seek refuge there.
[14]
The
Applicant’s only criticism of the Board’s judgment on the IFA is that it did
not examine the evidence as to whether or not the serious efforts to fight
violence were paying off.
[15]
The
Board is presumed to have considered all evidence, and is not required to refer
to all the evidence unless the contrary is shown (Florea
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 598 (F.C.A.)). In this case, the Applicant has failed to point
to contradictory evidence that was before the Board regarding the Federal
District.
[16]
It
is clear that the Board reviewed the evidence that was before it that related
to the legislative and institutional framework that exists in the Federal
District, as it is clear also that it reviewed the available information
regarding implementation’s results from of that framework. While the information
regarding the “effectiveness” of the serious effort to deal with domestic
violence in the Federal District is limited, it does not contradict the
Board’s findings.
[17]
Further,
it is important to recognize that the information about the Federal District
must be distinguished from the generalized information about Mexico. The
information before the Board clearly shows that the legislative framework
differs from state to state. The documentary evidence before the Board refers
often to the Federal District separately from other states with regard to
domestic violence.
[18]
Ultimately,
the Board came to a reasonable conclusion on the evidence before it, even if it
was not the only reasonable conclusion possible.
[19]
Upon
review, it appears clearly that the Board did review the available information
on Mexico before it
came to a clear and reasonable conclusion with regard to the first prong of the
test for an IFA.
[20]
As
far as the second prong of the IFA test, the Court fails to see anything unreasonable
about the Board’s determination that the Applicant had been previously able to
relocate and find work within Mexico, and therefore, should be able to do so in
the Federal District. The Applicant has not specifically pointed to any relevant
factor concerning her situation that the Board failed to consider; and the
Court has found in the Tribunal record and in the transcript no indication of other
pertinent factors that were raised by the Applicant and that the Board failed
to consider.
[21]
For all
these reasons the Court has no other alternative but to find that the impugned decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law, and that for her part the Applicant has failed with her burden to
demonstrate the decision’s unreasonableness.
[22]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING REASONS THIS COURT dismisses the application.
"Maurice E. Lagacé"
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