Date: 20080516
Docket: IMM-4323-07
Citation: 2008 FC 602
BETWEEN:
Jose
Oswaldo RAMIREZ RAMIREZ
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT
Pinard J.
[1]
This is an application for judicial review of the decision
by the Refugee Protection Division (hereinafter “RPD”) of the Immigration and
Refugee Board that the applicant is neither a Convention “refugee” nor a
“person in need of protection” under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. (2001), c. 27 (the Act).
* * * * * * * *
[2]
The
applicant is a Mexican who alleges a fear of the drug dealers in his
neighbourhood, because he twice reported them to the police. He made his first
complaint by telephone on January 5, 2005, which led to the arrest
and imprisonment of the drug dealers. However, after his second complaint, made
after they had been released from prison, they or persons connected with them
broke the windows of the applicant’s house and car and attacked him,
threatening him with death.
[3]
The
applicant hid, but his family feared that the drug dealers would find him and
kill him. Therefore, the applicant left his country and sought refuge in
Canada.
* * * * * * *
*
[4]
The
applicant received a notice dated July 6, 2007, to the effect that the
tribunal would be composed of three commissioners for training purposes. The
hearing was held on July 31, 2007, before three commissioners.
[5]
The
RPD made no adverse finding as to the applicant’s credibility. However, it
relied on the existence of state protection in finding that the applicant was
neither a refugee nor a person in need of protection. According to the RPD, the
police response to his first complaint demonstrated the effectiveness of the
protection of the state. However, the applicant did not contact the authorities
after the subsequent event that took place on January 12, 2007.
[6]
The
RPD also noted the existence of an internal flight alternative (hereinafter
“IFA”). Despite the applicant’s testimony that he feared being located through
the national telephone network, the RPD preferred the documentary evidence
showing that it was [TRANSLATION] “almost impossible for people such as drug
dealers to find the refugee claimant in another large city within the country.”
* * * * * * *
*
[7]
The
RPD may consist of a panel of three members pursuant to section 163 of the
Act, which reads as follows:
|
163.
Matters
before a division shall be conducted before a single member unless, except
for matters before the Immigration Division, the Chairperson is of the
opinion that a panel of three members should be constituted.
|
163. Les affaires sont tenues
devant un seul commissaire sauf si, exception faite de la Section de
l’immigration, le président estime nécessaire de constituer un tribunal de
trois commissaires.
|
* * * * * * *
*
[8]
This
case raises the following two issues:
(1) Was the RPD validly
constituted?
(2) Did the RPD err in basing its
finding on the existence of state protection and an IFA?
* * * * * * *
*
(1) Was the RPD validly
constituted?
[9]
According
to the applicant, the constitution of the RPD was unfair because two of the
members were in training and because claimants could be intimidated by the fact
that the message they were being sent was that [TRANSLATION] “ three of us
will gang up to find reasons to refuse the claim.” The applicant argues that
the policy of the Immigration and Refugee Board (hereinafter “IRB”) regarding
the training of members is that new members may act only as observers of
experienced members for the first six months of their mandates. I disagree.
[10] In fact, the
arguments of the applicant, whose counsel did not object during the hearing
before the RPD, regarding the training of members, are based on the following
comments made by the IRB Chairperson (applicant’s record, at page 24):
. . . A team, comprising a trainer from
the Professional Development Branch, a legal advisor, and an experienced CRDD
member who is designated to serve as the new member's mentor, is assigned to
work closely with the new member for the first six months of the new member's
mandate. . . . Each new member is initially assigned to sit with his or her
mentor. They are then paired with other experienced members to widen their
exposure and experience.
[11] I am of the
opinion that the applicant misunderstood these comments in arguing that the IRB
Chairperson indicated that new members could only observe hearings for the
first six months. The IRB’s policy regarding the constitution of three-member
panels is clear. According to the document entitled “Designation of
Three-Member Panels—RPD Approach” (Exhibit A to the affidavit of Hélène Jarry,
respondent’s record):
Of the cases which are designated to be
heard by three-member panels, most will be for the purpose of permitting newer
members to enhance their presiding skills. . . .
. . . For example, those members newly
appointed to the Division, may have the benefit of sitting with an experienced
member if they are assigned to three member panels. This will enable them to
enhance their presiding skills before beginning to hear cases as a single
member.
[12] There is no
evidence to indicate that this policy is contrary to section 163 of the
Act that enables the IRB Chairperson to constitute a three-member panel. Nor is
there any evidence that the applicant suffered real prejudice in the
circumstances.
(2) Did the RPD err in basing its
finding on the existence of state protection and an IFA?
[13] The applicant
argues that the documentary evidence shows the serious problems in Mexico
related to drug trafficking and that the RPD’s finding that there existed an
IFA was unreasonable because [TRANSLATION] “all over the world, people can be
traced with the Internet, through their phone numbers or just by typing their
names.”
[14] It is up to
the refugee claimant to show that he cannot seek the protection of his state
and that no IFA exists (see, inter alia, Villasenor
v. Canada (Minister of Citizenship and Immigration),
2006 FC 1080, [2006] F.C.J. No. 1359 (F.C.T.D.) (QL), Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 52
and Thirunavukkarasu v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 589 (C.A.)). As a specialized tribunal, the RPD should
be afforded considerable deference regarding its decisions, which should be
reviewed according to the standard of reasonableness. The Supreme Court of
Canada wrote the following in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9 (QL), at paragraph 47:
. . . 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.
[15] In my
opinion, the documentary evidence cited by the applicant does not show that the
RPD’s findings regarding the existence of state protection and an IFA were
unreasonable. The RPD did indeed consider the particular facts concerning the
applicant and all of the documentary evidence (particularly the evidence at
pages 16, 20, 21 and 22 of the tribunal record) and reasonably concluded that
he had not shown that state protection was not available to him.
[16] Moreover, as
submitted by the respondent, the applicant’s allegations regarding the
existence of an IFA were general in nature and did not address his personal
situation, which was duly considered by the RPD.
* * * * * * *
*
[17] For all these
reasons, the application for judicial review is dismissed.
“Yvon Pinard”
Ottawa,
Ontario
May 16,
2008
Certified true
translation
Francie Gow, BCL, LLB
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