Date: 20080523
Docket: IMM-5107-07
Citation: 2008 FC 648
Ottawa, Ontario, May 23,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ANALLEELY CORTEZ MUNOZ
DANIEL CORTEZ MUNOZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for
judicial review of a decision of Refugee Protection Division of the Immigration
and Refugee Board (the Board), pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), in which the Board
found that the applicants, Ms. Analleely Cortez Munoz and her son, are not
Convention refugees nor persons in need of protection.
ISSUES
[1]
The
present application raises the following issue: did the Board err in refusing
to grant the adjournment requested by the applicant to adduce additional
documentary evidence?
[2]
The
application for judicial review shall be dismissed for the following reasons.
FACTUAL BACKGROUND
[3]
The
principal applicant (the applicant)
is a 22 year old national of Mexico. She came to Canada on February 11, 2006 with her son, and claimed
protection on the ground that she fears the father of her child, as well as his
family. The applicant alleged that she had a knife held to her throat and was
threatened that her son would be taken by force if necessary. The applicant
stated at the hearing that this occurred while she was living in Mexico City, approximately three
months after the birth of her son.
[4]
The
applicant alleged that since her arrival in Canada, her parents and brother returned to Mexico, where her brother was
hit by a car and killed. She claims that his death was a murder perpetrated by
persons attempting to extort money from her parents, and that she would risk
the same fate if she were returned.
DECISION UNDER REVIEW
[5]
The
Board determined that certain elements of the applicant’s original claim were
not credible.
a) The Board
noted that the applicant omitted from her Personal Information Form (PIF) any
mention of the knife threat, and any attempt to seek help from the police in Mexico City. The
applicant explained that the knife was mentioned in the Spanish version of her
narrative; however, this version was never provided to the Board. The applicant
explained that she failed to indicate that she reported the incident to the
police in her PIF because the police refused to take a report. The Board did
not accept her explanation.
b) The Board
also noted that an incident with a knife was mentioned in the applicant’s
report to the Municipal Police Department which occurred at her parent’s home
in Tlaxco, Tlaxcala. This is in contradiction to her oral testimony in which
she claimed the incident occurred in Mexico City. The Board further
noted that the applicant told an Immigration Officer that her problems began
when the child was four months old, at which time the applicant was living with
her parents and not in Mexico City.
[6]
The
Board was satisfied on the aforementioned grounds that no incident had occurred
involving the knife and the father of the applicant’s son. However, the Board’s
determinative ground for refusing the claim was the availability of state
protection. This conclusion was based on the following reasons:
a) The Board
examined the legislative framework in place to protect women who fear violence
as a result of their gender, and was satisfied that it provided recourse
through the rule of law, at least in the federal district.
b) The Board
noted significant differences between the states in how the federal initiatives
were implemented, but determined that the initiatives were implemented in the
federal district, and therefore narrowed the analysis to that area. The Board
reviewed a number of documents providing evidence to this effect.
c) The Board noted that a lack of
reliable data made it difficult to evaluate the effectiveness of the recent
initiatives in assisting women who fear violence as a result of their gender. The
Board reviewed what information there was and found that in the federal
district, there was adequate, but not perfect, protection.
d) The Board
examined the applicant’s fear on the ground that her family members had been
extorted, and possibly murdered. The Board found that none of the attempts to
extort the applicant’s family had affected her directly, and she had lived in
Mexico City without incident even after her family had fled to Canada.
e) The Board
reviewed the documentary evidence and determined that state protection would be
available to the applicant, at least in the federal district, should she seek
it with regard to her alleged fear of extortion.
[7]
The
Board noted counsel’s objection to proceeding with the hearing without allowing
the applicant to provide evidence of the problems faced by her family.
However, the Board concluded that any additional evidence would not advance the
applicant’s claim, because it was denied on the ground that state protection
was available to the applicant, and not only on the ground of credibility. The
Board rejected counsel’s oral application for an adjournment.
RELEVANT LEGISLATION
[8]
Refugee
Protection Division Rules, SOR/2002-228.
|
48. (1) A party may make an
application to the Division to change the date or time of a proceeding.
…
(4)
In deciding the application, the Division must consider any relevant factors,
including
(a)
in the case of a date and time that was fixed after the Division consulted or
tried to consult the party, any exceptional circumstances for allowing the
application;
(b)
when the party made the application;
(c)
the time the party has had to prepare for the proceeding;
(d)
the efforts made by the party to be ready to start or continue the
proceeding;
(e)
in the case of a party who wants more time to obtain information in support
of the party’s arguments, the ability of the Division to proceed in the
absence of that information without causing an injustice;
(f)
whether the party has counsel;
(g)
the knowledge and experience of any counsel who represents the party;
(h)
any previous delays and the reasons for them;
(i)
whether the date and time fixed were peremptory;
(j)
whether allowing the application would unreasonably delay the proceedings or
likely cause an injustice; and
(k)
the nature and complexity of the matter to be heard.
|
48. (1) Toute partie peut
demander à la Section de changer la date ou l’heure d’une procédure.
…
(4)
Pour statuer sur la demande, la Section prend en considération tout élément
pertinent. Elle examine notamment :
a)
dans le cas où elle a fixé la date et l’heure de la procédure après avoir
consulté ou tenté de consulter la partie, toute circonstance exceptionnelle
qui justifie le changement;
b)
le moment auquel la demande a été faite;
c)
le temps dont la partie a disposé pour se préparer;
d)
les efforts qu’elle a faits pour être prête à commencer ou à poursuivre la
procédure;
e)
dans le cas où la partie a besoin d’un délai supplémentaire pour obtenir des
renseignements appuyant ses arguments, la possibilité d’aller de l’avant en
l’absence de ces renseignements sans causer une injustice;
f)
si la partie est représentée;
g)
dans le cas où la partie est représentée, les connaissances et l’expérience
de son conseil;
h)
tout report antérieur et sa justification;
i)
si la date et l’heure qui avaient été fixées étaient péremptoires;
j)
si le fait d’accueillir la demande ralentirait l’affaire de manière
déraisonnable ou causerait vraisemblablement une injustice;
k)
la nature et la complexité de l’affaire.
|
ANALYSIS
Standard of Review
[9]
It
is trite law that a breach of the rules of procedural fairness is not owed any
deference, and will be reviewable on the standard of correctness.
[10]
Though
the applicant does not directly argue that the Board erred in its finding of
state protection, I intend to address the question briefly. I find that
reasonableness is the standard applicable to a decision determining the
adequacy of state protection (Wong v. Canada (Minister of
Citizenship and Immigration), 2008 FC 534, at paragraph 5, [2008]
F.C.J. No. 679; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.J. No. 9 at paragraphs 57, 62, and 64).
[11]
For
a decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, above at paragraph 47).
Did
the Board err in refusing to grant the adjournment requested by the applicant
to adduce additional documentary evidence?
[12]
The
applicant submits that the Board erred in refusing to grand the adjournment
requested by the applicant, who wished to adduce additional evidence which
would corroborate her account of her brother’s murder. The applicant suggests
that the Board ignored her submission that she would have to live with her
family, and not in Mexico City, should she return to Mexico.
[13]
The
applicant further submits that the Board must consider the factors established
in subsection 48(4) of the Refugee Protection Division Rules when making
a determination of whether or not to grant an adjournment.
[14]
The
respondent replies that the applicant failed to address the reason provided for
the Board for refusing the adjournment; any additional evidence the applicant
might provide would have no consequence on the outcome of her refugee claim,
since the determinative ground for refusing the claim was the availability of
adequate state protection.
[15]
I
am of the opinion that it was open to the Board to refuse the adjournment on
the ground that any further information provided by the applicant would have been
inconsequential. The Board’s finding that state protection was available
continues to apply even if the Board accepts that the applicant’s brother was
extorted and murdered.
[16]
It
is noteworthy that paragraph 48(4)e) of the Refugee Protection
Division Rules expressly provides that the ability of the Board to proceed
in the absence of information without causing an injustice, is a factor which
should be considered in determining whether to grant an adjournment. In the
case at bar, the fact that the claim would ultimately be determined on other
grounds, regardless of the availability of additional information, is precisely
the type of scenario envisioned by this provision.
[17]
While
the applicant does not directly challenge the Board’s finding of state protection,
it is clear on the face of the reasons that the Board conducted a thorough
analysis of the relevant documentary evidence, including that which addressed
the effectiveness of the protective measures and initiatives in place. I
therefore conclude that the Board’s finding is reasonable.
[18]
For
the foregoing reasons, I find that the Board did not err or breach the
rules of procedural fairness in refusing to grant an adjournment. Because the
finding with regard to state protection is determinative, I also decline to
deal with the issues raised by the applicant regarding alleged errors made by
the Board in its assessment of the credibility of the claim.
[19]
No
questions were submitted for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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