Date: 20081031
Docket: IMM-1301-08
Citation: 2008 FC 1214
Montréal, Quebec, October 31, 2008
PRESENT:
The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
LETICIA
LIZET DEL
RIO
RAMIREZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The applicant seeks judicial review, under
subsection 72(1) of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27 (Act), of the decision dated December 24, 2007, by the Refugee
Protection Division of the Immigration and Refugee Board (the panel), which determined
that she is neither a “refugee” nor a “person in need of protection” as defined
by sections 96 and 97 of the Act, and, consequently, her refugee claim was
dismissed.
II. Facts
[2]
The
applicant is a Mexican citizen and was allegedly persecuted by her ex-spouse,
an officer employed by the Public Prosecutor.
[3]
According
to the applicant’s Personal Information Form, she and her ex-spouse began
living together in June 2005; his assaults began in December of that year and
continued with a number of successive violent episodes.
[4]
In
February 2006, the applicant reported her ex-spouse to an officer in the Public
Prosecutor’s office, but she did not follow up on this report. Although she was
threatened with death on March 18, 2006, in the presence of three witnesses, the
applicant waited until the end of May 2006 to file a report with the
police against her ex-spouse, but she did not follow up on this complaint
either. Finally, she did not seek assistance from organizations in her country
that protect abused and battered women.
[5]
After
temporarily taking refuge with members of her family, the applicant finally
left Mexico on July 11,
2006, to come to Canada and claim refugee status.
III. Impugned decision
[6]
The
panel found it difficult to reconcile the applicant’s behaviour with her
statement that she feared for her life and assigned no credibility to her
story.
[7]
The
panel also noted that, since she failed to take reasonable steps to avail herself
of the protection offered by the state of Mexico, the applicant
did not discharge her burden of rebutting the presumption that her country is
able to protect its citizens.
[8]
Last,
given the applicant’s level and type of education, the panel found that it was
reasonable to believe that the applicant would not have much difficulty finding
employment in, and relocating to Monterrey, Veracruz or elsewhere
in Mexico, without
endangering her life.
IV. Issue
[9]
Did the panel make an unreasonable error in its negative
assessment of the applicant’s credibility by finding that she was neither a
refugee nor a person in need of protection and by determining that she would
not be subject to a risk of cruel and unusual treatment if she had to return to
Mexico to seek refuge?
V. Submissions of the parties
[10]
The
applicant’s main criticism of the panel is that it erred by finding her not
credible and by completely disregarding Guideline 4 – Women Refugee
Claimants Fearing Gender-Related Persecution of the Immigration and Refugee
Board of Canada (Guideline), as well as evidence corroborating her testimony.
[11]
The
respondent defends the panel’s findings and submits that they are justified and
are based on its analysis of the evidence and its expertise. Consequently, the
respondent sees no valid reason that could justify this Court’s intervention.
VI. Analysis
Standard of review
[12]
Courts must show deference to the decisions of specialized
administrative tribunals, which have expertise in matters within their
jurisdiction (see Dunsmuir v. New Brunswick, 2008 SCC 9
(Dunsmuir)).
[13]
The
reasonableness standard applies to this case; accordingly, in order to
justify its intervention, the Court must inquire whether the impugned decision
is reasonable, having regard to the justification for the decision and
whether it falls within a range of possible, acceptable outcomes that are
defensible in respect of the facts and law (Dunsmuir, above, paragraph
47).
[14]
Within
this standard of review, can the Court find that the panel erred by deciding
that the applicant was neither a refugee nor a person in need of protection as
defined in the Act and that, on the contrary, she could reasonably find refuge
elsewhere in her own country without being subject to a risk of cruel and
unusual punishment?
Lack of
credibility
[15]
In
attempting to persuade the Court that the panel erred by drawing negative
credibility inferences from the evidence, the applicant is in fact seeking to
justify those parts of the evidence that the panel disregarded because it found
them unreliable, unsatisfactory, implausible, incomplete or uncorroborated. Let
us not forget that the applicant had every opportunity to fully present her
case and to convince the panel, but unfortunately she did not succeed.
[16]
Based
on the fact that the panel did not accept or comment in its reasons on certain
parts of the evidence that the applicant considered more important than the
parts that the panel accepted in making its credibility findings, the applicant
claims that the panel did not consider all the evidence that was before it, and,
therefore, characterizes its decision as unreasonable.
[17]
However,
this argument ignores the presumption that the panel considered all the
evidence before it (Florea v. Canada (Minister of Employment and Immigration),
(F.C.A.), [1993] F.C.J. No. 598 (QL)). The applicant is also
forgetting that when a panel concludes by explaining why a claimant is not
credible, it is not required to consider all the evidence supporting
allegations to the contrary, allegations that it did not accept because it found
them to be not credible, unreliable, uncorroborated or unnecessary to its findings
(Ahmad v. Canada (Minister of Citizenship and Immigration), 2003 FCT
471, at paragraph 26).
[18]
It
is not for the Court at this stage to start over, reassess the evidence and
substitute its opinion for the panel’s, particularly because the panel benefits
from its expertise and especially from the unique advantage of having heard the
applicant’s story and claims. The panel is certainly more qualified than this
Court to assess the applicant’s credibility.
[19]
On
the contrary, the Court must verify only whether the panel’s decision was
justified and reasonable in the sense stated in Dunsmuir, above.
Credibility determinations, which lie within “the heartland of the discretion
of triers of fact”, are entitled to considerable deference upon judicial
review. They cannot be overturned unless they are perverse, capricious or made
without regard to the evidence (Siad v. Canada (Secretary of State) (C.A.),
[1997] 1 F.C. 608, 67 A.C.W.S. (3d) 978, at paragraph 24; Dunsmuir,
above).
[20]
After
hearing the applicant’s story, the panel determined that her behaviour was not
credible and explained why. The panel did not believe her explanations about
the reports she made but could not corroborate. It also considered a number of
elements in the applicant’s story unlikely, which affected her credibility. It
also noted that there were no documents corroborating some of her allegations.
[21]
This
Court has stated on a number of occasions that “a tribunal can conclude that
there is lack of credibility by basing itself on improbabilities in the refugee
status claimant’s account, on common sense and on reason” (Garcia v. Canada (Minister of
Citizenship and Immigration), 2008 FC 206, at paragraph 9). In addition,
the lack of documentation corroborating the applicant’s allegations may
negatively affect his or her credibility (Singh v. Canada (Minister of
Citizenship and Immigration) 2007 FC 62, 159 A.C.W.S. (3d) 568).
[22]
Moreover,
the applicant points out that, under the Guideline, the decision maker
must bear in mind that a battered woman’s behaviour may seem inconsistent but
is not for a person who is being pursued, such as the applicant, who is living
in fear. The applicant claims the panel failed to consider the Guideline when
assessing her behaviour, but she did not demonstrate how the panel failed to
follow it.
[23]
The
fact that the panel made a negative finding on the applicant’s credibility does
not mean that it failed to consider the Guideline. The panel stated at the
beginning of its decision that it had taken the Guideline into account, and
there is no basis for doubting that or for finding that it failed to follow and
consider the Guideline at the hearing and in its analysis of the case. What
matters is that the reasons for decision show that the panel was sensitive
towards the applicant and that the evidence was sufficient to support its
conclusion (Kaur v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1066, at paragraphs 12 and 15,
163 A.C.W.S. (3d) 444).
[24]
In
this case, the applicant has not demonstrated how the panel failed to show
sensitivity towards her, and the evidence is sufficient to support its conclusion.
[25]
Consequently,
the panel’s finding on the applicant’s credibility is reasonable and does not justify
the intervention of this Court.
State
protection
[26]
The
panel also found that state protection was available to the applicant in Mexico and noted
that she did not provide clear and convincing evidence that her country was
unable to protect her.
[27]
The
applicant did not follow up on the report she filed belatedly against her
ex-spouse nor did she seek assistance from organizations that protect battered
women; she simply sought refuge with family and told her in-laws what her ex-spouse
had done. How can she now conclude that her country’s protection was
ineffective when she did not really test it seriously?
[28]
The
onus was on the applicant to first seek protection from the Mexican state
before asking another country for protection. She says she did not do so
because she did not believe that the protection provided in Mexico for women in
her situation was effective. Doubting the effectiveness of state protection
when she did not really test it does not rebut the presumption of state
protection in her country of origin.
[29]
It
is therefore not surprising that the panel was not persuaded that the
protection of the Mexican state was inadequate, given the applicant’s situation,
behaviour and credibility as well as the little effort she made to avail
herself of the existing protection.
[30]
For
all these reasons, the Court does not see how the panel’s decision on this
issue is unreasonable.
Internal
flight alternative
[31]
Last,
the panel found that the applicant could move and find refuge elsewhere in Mexico, either in Monterrey,
a city of over three million inhabitants, or in Veracruz, in the
south. Furthermore, given the applicant’s level of education in a field that is
very much in demand, the panel believed that she would not have much difficulty
finding employment in, and relocating to, one of those two cities or elsewhere
in Mexico.
[32]
It
is settled law that the burden of proof regarding an internal flight
alternative rests on the claimant (Del Real v. Canada (Minister of
Citizenship and Immigration), 2008 FC 140 at paragraph 18). Thus, the
applicant had to establish either that it would be unreasonable for her to seek
refuge in another part of the country or that there were, in fact, conditions
preventing her from relocating elsewhere in Mexico, and she failed
to do so.
[33]
In
fact, the panel stated in its reasons that the cities of Monterrey and Veracruz
were put forward as options to the applicant but that she had not considered
seeking refuge there because no one in her family lived in those areas.
However, the lack of a family connection in places offering an [translation] “internal flight
alternative” (IFA) does not mean that the suggested IFA would impose more
unreasonable conditions on the applicant than seeking refuge in Canada. Moving away from her family to take refuge and
settle in another part of the country to find work there and recommence her
life far from her family and friends would certainly be somewhat of a hardship
for the applicant, but not an undue or unreasonable hardship, and certainly not
comparable to the hardship of expatriation in a distant country.
[34]
Before
this Court, the applicant did not indicate how the panel’s finding on the
availability of an internal flight alternative was erroneous. In short, the
absence of family and friends in the IFA would not impose unreasonable
conditions on the applicant. Consequently, the panel’s determination on the suggested
IFA falls
within “a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” and does not justify the intervention of this
Court.
Persuasive
decisions
[35]
The
applicant’s final argument concerns the panel’s use of persuasive decisions. In
her memorandum, she submits that the panel unlawfully used these decisions because
they were not filed as evidence in the record and, therefore, the principle of
disclosing evidence was not adhered to. This argument is not valid since
persuasive decisions are not part of the evidence but are, at most,
jurisprudential markers that members may consult and follow, but that are not
binding on them (Rios v. Canada (Minister of Citizenship and Immigration),
2006 FC 1437, 153 A.C.W.S. (3d) 1214).
[36]
Here, the panel did not simply adopt the reasoning of the
decisions it referred to; it relied more on its personalized analysis of the
evidence adduced before deciding to adopt the reasoning in these decisions.
Accordingly, to ensure some consistency in members’ decisions and to the extent
that the facts of the case warrant, the panel could legitimately refer to
decisions cited as jurisprudential guides, just as this Court can.
[37]
For
all these reasons, the applicant was unable to establish that the decision
under review is unreasonable. Moreover, the analysis of the record, the
decision and the parties’ arguments leads the Court to conclude that the
impugned decision falls within a range of possible, acceptable outcomes that
are defensible in respect of the facts and law, and this is fatal to the
application for review of the decision.
[38]
Since
no serious question of general importance was proposed, none will be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Certified true
translation
Mary Jo Egan, LLB
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