Date: 20080924
Docket: IMM-576-08
Citation: 2008 FC 1076
Ottawa, Ontario, September 26, 2008
PRESENT:
The Honourable Mr. Justice Louis S. Tannenbaum
BETWEEN:
Ramon LAMOTHE VALERIO
Elsa Yasmin BRITO HUESCA
Megan Shaiel LAMOTHE BRITO
Jesse LAMOTHE BRITO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a January 16, 2008 decision of the
Refugee Protection Division (the Panel) that the applicants, a couple and their
two children, Mexican citizens, are neither “Convention refugees” nor “persons
in need of protection”.
[2]
The
principal applicant, Ramon Lamothe Valerio, was born on November 28, 1975,
in Veracruz, Mexico, and has Mexican citizenship. He is married to the
applicant, Elsa Yasmin Brito Huesca, and has two children: a boy, Jesse Lamothe
Brito (Jesse), and a girl, Megan Shaiel Lamothe Brito (Megan), who are also
applicants in this case.
[3]
The
applicants’ children attended a day care centre in the city of Veracruz, Mexico.
[4]
On
September 20, 2006, Jesse told his mother that someone was talking to him
through a hole in the wall and giving him little gifts.
[5]
On
September 27, 2006, she reported the event to management at the day care
and criticized the lack of supervision. A few days later, while they were
taking a walk, Jesse pointed to one of the police officers in the park and said
that he was the person who had been talking to him and giving him gifts. His
mother learned that the police officer’s name was Carlos Espinoza Fuentes
(Fuentes) and that he reported to Commander Cadena.
[6]
On
October 12, 2006, the applicants received a note threatening the lives of
their children, saying that they could make money from the children and
demanding that the children be handed over. The applicants took the note to the
Office of the Public Prosecutor to file a complaint and they were told to come
back the next day. The next day, the Public Prosecutor claimed to have
misplaced the papers.
[7]
On
October 16, 2006, the children began attending a different day care centre.
[8]
On
November 9, 2006, the applicants were the victims of a false alert
concerning the kidnapping of Jesse and related extortion. The applicants said
that they went to file a complaint with the authorities, but the authorities
would not take the complaint.
[9]
That
evening, the applicants received an initial phone call saying that, since they
had refused to pay and had filed a complaint, their son (Jesse) was going to be
taken away and killed. They were also told that the same thing would happen to
the entire family. They received similar phone calls over the next few days.
[10]
On
November 14, 2006, Commander Cadena allegedly ordered Fuentes to go
to the day care centre to take Jesse away. However, a woman by the name of
Maraboto saw Fuentes taking Jesse away. She made Fuentes let go of the boy and
the officer drove away in a Veracruz municipal police vehicle.
[11]
After
that incident, the applicants moved to Mata de Uva, however, according to the
mother, they continued receiving threatening phone calls during the two weeks
that they lived there; the caller would say that they would be tracked down and
she would be raped and then killed, like the rest of the family.
[12]
On
November 30, 2006, the applicants decided to flee Mexico.
[13]
On
December 24, 2006, the applicants left Mexico and arrived at Dorval the
same day.
[14]
On
January 30, 2007, the applicants filed a claim for refugee protection.
[15]
On
November 8, 2007, the Panel heard the claim for refugee protection. The
claim was rejected on January 16, 2008.
[16]
On
February 1, 2008, the applicants filed an application for judicial review
of the Panel’s decision of January 16, 2008.
[17]
In its
decision of January 16, 2008, the Panel found that the mother’s
credibility was undermined. It raised the following points:
a.
Following the incident of October 12, 2006,
she said she tried to file a complaint with the Office of the Public
Prosecutor, but was told the documents had been misplaced. At the hearing on
November 8, 2007, when asked why she had not filed another complaint, she
said she tried twice to lay a complaint on November 13, 2006. However, her
narrative made no reference to these attempts and she was unable to explain the
omission.
b.
Following the incident of November 9, 2006,
she allegedly tried to file a complaint with the authorities, but they refused
to take it. At the hearing, when she was told that according to the documentary
evidence, there was a procedure for filing a complaint with the Federal Prosecutor’s Office (MEX101374.EF–
June 5, 2006), she told the Panel she was not aware of that possibility.
c.
In her narrative, she said it was Commander
Cadena who ordered Fuentes to take Jesse away. The Panel regarded that as mere
speculation, not substantiated by any evidence.
[18]
The
applicant did not submit any issues. However, the respondent put forward an
issue, which the Court has rephrased as follows:
a. Was the Panel’s credibility finding unreasonable?
b. Was the Panel’s finding on internal flight alternative
unreasonable?
[19]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada held
that there ought to be only two standards of review: correctness and
reasonableness. The Court indicated that the standard of correctness must be
maintained in respect of jurisdictional and some other questions of law (see Dunsmuir at paragraph 50). When
applying the correctness standard, a reviewing court will not show deference to
the decision maker’s reasoning process; it will rather undertake its own
analysis of the question. The analysis will bring
the court to decide whether the tribunal’s decision was correct.
[20]
The
Supreme Court also indicated that 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 (see Dunsmuir at paragraph 47).
[21]
Guidance
with regard to the questions that will be reviewed on a reasonableness standard
can be found in the existing case law (see Dunsmuir at paragraph 54).
Appropriate deference to a tribunal is determined based on the following
factors: the existence of a privative clause; whether the decision maker has
special expertise in a discrete and special administrative regime; and the
nature of the question of law (see Dunsmuir at paragraph 55).
[22]
With
respect to the first issue, the standard of review
applicable to a panel’s decision based on the refugee applicant’s lack of
credibility is reasonableness (Mubiayi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 562 at paragraph 13; and
Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J.
No. 732 (Lexis) at paragraph 4).
[23]
As
for the second issue at bar, the standard of review
to be applied to the question of whether or not an internal flight alternative
is available to the applicant is one of reasonableness: Chorny v. Canada (Minister of Citizenship and Immigration),
2003 FC 999 (Lexis).
See also: Vargas v. Canada (Minister of Citizenship and Immigration),
2008 FC 367 at paragraph 20; Navarro v. Canada (Minister of Citizenship
and Immigration), 2008 FC 358 at paragraph 12; and Ali v. Canada (Minister
of Citizenship and Immigration), 2001 FCTD 193 at paragraph 5.
a) Was the Panel’s credibility
finding unreasonable?
[24]
The
applicant argued there were no contradictions between her narrative and what
she said at the hearing. She complained to the authorities on three occasions:
on October 12, 2006, November 8, 2006, and November 9, 2006. Furthermore,
she did not make two complaints on November 9, 2006, because the
authorities refused to register her complaint. As for her suspicions that
Commander Cadena ordered Fuentes to take Jesse away, she said this was her own supposition
or deduction and had no bearing on her credibility.
[25]
The
respondent pointed out that there were sufficient omissions and contradictions between
what the applicants said in their testimony and what they related in their Personal
Information Form (PIF). The respondent also submitted that the Panel’s adverse
credibility findings were reasonable given the omissions and lack of evidence
on essential elements of their claim.
[26]
With
respect to the contradiction over the number of times the applicant complained
to the authorities on November 13, 2006, the transcript of the hearing
indicates the following:
[TRANSLATION]
A. … we
tried to file a complaint, we did … we did file a complaint. The next day when
we went to find out what could be done about it, they told us they didn’t have
the complaint or the statement or the note in question, as if we … as if we
hadn’t even been there.
Q.
Yes. And so, did you try to renew the
complaint?
A.
Yes.
Q. So, what
happened?
A. They
didn’t want to take the complaint.
- Um-hum,
accept the complaint.
Q. How is
it that … there is nothing about this second attempt in your narrative?
A.
I don’t know.
[Emphasis added.]
[27]
There is no mention of these two attempts in her
narrative dated January 31, 2007. Moreover, the applicant signed
Declaration A at the end of her PIF, which states, among other things:
Declaration A
I declare that the
information provided in this form and all attached documents is
complete, true and correct.
[Emphasis added.]
[28]
Therefore, it was reasonable for the Panel to
make an adverse credibility finding; the applicant was unable to give any
explanation for the contradiction between her PIF and her testimony.
[29]
With regard to the applicant’s assertion that it
was Commander Cadena who ordered Fuentes to take Jesse away, the Panel said: “[This]
is merely speculation intended to support her alleged persecution. This only
further undermines her credibility.” The transcript of the hearing indicates
the following:
[TRANSLATION]
Q. You
have some documentary evidence on that, don’t you? Some newspaper articles,
some…
A. No.
I didn’t even bring any.
- Rumour
has it.
A. Yes.
…
Q. How
can you say that? Do you have any evidence of that, of what you’re saying?
A. No.
Q. No. Well,
then, don’t say it or say it, and it will be assessed on the merits. So, then,
you figure that since he has to ask permission to use a car, it must be …
Cadena who sent Fuentes to kidnap your child?
A. Are
you asking me?
- Yes.
A. We
think it was Commander Cadena who sent Carlos Espinoza Fuentes to
kidnap my son.
[Emphasis added.]
[30]
Therefore, the Court is of the view that given
the lack of evidence in support of the applicant’s claim that Commander Cadena ordered
Jesse’s abduction, it was reasonable for the Panel to give it less weight and
for that to have undermined the applicant’s credibility.
[31]
For the foregoing reasons, the Panel’s adverse
credibility finding was not unreasonable and does not warrant this Court’s
intervention.
b) Was
the Panel’s finding on internal flight alternative unreasonable?
[32]
The applicant feels the Panel disregarded her
testimony to the effect that the applicants went into hiding in Mata de Uva and
that two weeks after arriving there, they were still receiving threatening
phone calls.
[33]
The respondent submitted that the applicants
were required, but failed, to go to the Mexican authorities before seeking the
protection of another country. The respondent also noted that the applicants
spent two weeks in Mata de Uva without seeking local police protection. In addition,
the applicants acknowledged that they could find work to support the family. It
was therefore not unreasonable for the Panel to find that there was an internal
flight alternative.
[34]
It is settled law that on
the issue of internal flight alternative, the burden of proof is on the
applicant (Del Real v. Canada (Minister of
Citizenship and Immigration), 2008 FC 140 at paragraph 18; and Palacios
v. Canada (Minister of Citizenship and Immigration), 2008 FC 816 at
paragraph 9). The refugee applicant must show that it would be
unreasonable to seek refuge in another part of the country (Ranganathan v. Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 164 (F.C.A.)
at paragraph 8).
[35]
In the case at bar, the applicants have not
presented any evidence to support the claim that there was no internal flight
alternative available to them in Mexico. On the contrary, they acknowledged
that they could support their family in another region of Mexico. Furthermore,
over the course of their two-week stay in Mata de Uva, they did not seek out
the assistance of the authorities; it was therefore not unreasonable for the
Panel to find that there was an internal flight alternative, given that the
burden of establishing the opposite was on the applicants.
[36]
The Court also agrees with the Panel’s finding
that the applicant failed to establish, with clear and convincing evidence,
that Mexico was unable to provide adequate protection.
Other than the complaints filed in Veracruz, the applicants did not avail
themselves of any other recourse, in Veracruz or elsewhere.
[37]
For these reasons, the Court is of the view that
the Panel’s finding on internal flight alternative was not unreasonable.
[38]
The application for judicial review will
accordingly be dismissed. No question of general importance was proposed for
certification.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that for
the foregoing reasons, the application for judicial review be dismissed.
“Louis S. Tannenbaum”
Certified true
translation
Peter Douglas
Authorities consulted by the
Court
1.
Aguebor
v. Canada, 1993, F.C.J. No. 732.
2.
Aslam v.
Canada, 2006,
F.C.J. No. 264.
3.
Pushpanathan
v. M.C.I., [1998]
1 S.C.R. 982.
4.
Canada
(PG) v. Ward,
[1993] 2 S.C.R. 689.
5.
Lizette
Guzman Sanchez v. Canada (M.C.I.), 2008 FC 66.
6.
Ramirez
et al v. Canada (M.C.I.),
1007 FC 119.
7.
Rajaratnam
v. Canada (M.E.I.),
1991, 135 N.R. 300 (F.C.A.).
8.
Fuentez-Valoy,
Ruben Dario v. Canada (M.E.I.), 1993,
F.C.A.,
No. A-709-90.
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