Date: 20081007
Docket: IMM-482-08
Citation: 2008 FC 1132
Montréal,
Quebec,
October 7,
2008
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
Edith Angelica VASQUEZ LUNA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an application for judicial review against a decision of the
Refugee Protection Division of the Immigration and Refugee Board (Board), dated
October 31, 2007, to the effect that the applicant Edith Angelica Vasquez Luna and her
daughter Brenda January Barrientos Vasquez are
not Convention refugees or persons in need of protection within the meaning of
sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
Note however that only the mother is a party to
this application for judicial review, and she did not raise any ground on which
she would be justified to act on behalf of her daughter Brenda January
Barrientos Vasquez, who is also contemplated in the Board’s decision. This judgment
therefore only involves the application of Edith Angelica Vasquez Luna.
II. Statement of facts
[3]
The
applicant alleges that her daughter, a young woman of 19 years of age, became pregnant
after she was raped by one Paul who allegedly threatened to kill her and rape
her again if she were to refuse an abortion. Further, this individual made the
same threats to the applicant.
[4]
The
Board dismissed the application for protection of the mother and her daughter
on three grounds: the lack of credibility in their story, the availability of
protection from the state of Mexico and the existence of an internal flight
alternative.
III. Issues
[5]
The
application raises the following issues:
a. Did the Board
make an unreasonable error in making a negative finding regarding the credibility
of the applicant and her daughter, by refusing the applicant status as a
refugee or a person in need of protection and in deciding that she would not
face cruel and unusual treatment or punishment if she were to return to Mexico
to avail herself of the protection of her country?
b. Did the Board
make an unreasonable error in finding that an internal flight alternative was
available?
IV The standard of review
[6]
As a specialized administrative tribunal, the Board benefits from
expertise in matters within its jurisdiction. The courts must afford deference
to the decisions of these tribunals when, as in this case, they are acting
within their power. It must therefore be asked whether the impugned decision is
reasonable, falling within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law (Dunsmuir v. New Brunswick, 2008 SCC 9). The
standard of reasonableness requires no more than the answer to this question.
[7]
Within
this standard of review, can we determine that the Board erred in determining
that the applicant does not qualify as a “Convention refugee” or as a “person
in need of protection” within the meaning of the Act?
V. Analysis
The
credibility of the application
[8]
The Board states that it considered the Guidelines on Women
Refugee Claimants Fearing Gender-Related (Guidelines)
when it assessed the refugee claim.
[9]
It still found a lack of credible or plausible evidence that would
support the fear of persecution or the serious prejudice alleged in support of
the refugee claim, in terms of the applicant’s actions as well as those of her
daughter:
a. There
was no complaint by the applicant or her daughter to the police after the alleged
rape by the assailant.
b. There
was no medical exam of the daughter by a physician following the incident and
no suggestion by the parents, including the applicant, to consult one;
c. There
was no identification of the assailant or of his parents, not even a name,
despite the statement that the assailant was a “bum” and a criminal protected
by a father who was counsel with great political influence who would place the applicant
in even more danger if she were to file a police report;
d. Neither
the applicant nor her daughter availed themselves of the protection measures available
in their country;
e. Neither the
applicant nor her daughter sought an internal flight alternative.
[10]
An
administrative tribunal has the jurisdiction to decide whether testimony is
plausible, insofar as its finding is not unreasonable to the point
where the Court’s intervention is justified (Divsalar v. Canada (Minister of Citizenship and Immigration), 2002
FCT 653, 114 A.C.W.S. (3d) 923, at paragraphs 22 to 24). Such
that the Court will not intervene to set aside a finding on plausibility, unless
the evidence does not support the stated reasons (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), 42 A.C.W.S. (3d) 886).
[11]
There
is no ground to intervene on this issue, as the Board was entitled to take into
account the above-mentioned actions or omissions of the applicant and her
daughter in making the negative credibility finding on their story.
State
protection
[12]
The
Board also notes that the applicant could have availed herself of the protection
available in Mexico from her assailant.
[13]
We
will never know whether the applicant and her daughter were justified in
distrusting the Mexican judicial mechanism, since they never sought help from
the police following the alleged acts of the assailant, nor did they request or
seek the protection of an authority or internal agency of any kind able to
provide assistance, support or shelter.
[14]
In
order to justify her conduct, the applicant, like her daughter, insists on the
ineffectiveness of the police protection offered in Mexico for female
rape victims. This position must nevertheless result from clear and convincing evidence
(Canada
(Attorney General) v. Ward, [1993]
2 S.C.R. 689, 41 A.C.W.S. (3d) 393)). The Court cannot disregard that
democracy is working in Mexico, that this country is a member of NAFTA, and that it has democratic institutions. Accordingly,
for this country there is a strong presumption of state protection, even if the
situation is not always ideal (Zepeda v. Canada (Minister of
Citizenship and Immigration), 2008 FC 491, at paragraphs 17
and 18).
[15]
The applicant had to establish that it was objectively reasonable
for her not to seek protection from the Mexican authorities. It is not enough
to qualify this protection as ineffective; it must also be established by convincing
evidence, which the applicant did not provide. Simply stating, as she did,
without supporting evidence, that she did not seek protection because the assailant’s
father has a great deal of political influence that would put her in more
danger if she were to report to the police, suggests that the applicant at the
very least is aware of the assailant’s identity and/or that of his father. Otherwise,
how could she say that the father of her daughter’s assailant has such
influence if she does not know who he is? Can we question the Board for having
doubted such a statement?
[16]
As
the applicant failed to show the Board that she had exhausted all of the
recourse available to her, or that it was objectively unreasonable for her to
seek recourse, she cannot be exempted from her obligation to seek protection from
her country. Accordingly, the Court cannot intervene in the Board’s findings of
fact regarding the existence of a strong presumption that
protection is available in the Mexican state that could benefit the applicant.
The internal flight
alternative
[17]
Subparagraph 97(1)(b)(ii)
of the IRPA reads as follows:
|
97. (1) A person in need of protection is a
person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
…
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
…
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
…
|
97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée:
[…]
(b) soit à une menace à sa vie ou au risque de traitements ou peines cruels
et inusités dans le cas suivant:
[…]
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
[…]
|
[18]
This
excerpt from the Act provides that the person must be subjected to a risk to their life or to a risk of cruel and
unusual treatment or punishment in every
part of their country. The internal flight
alternative is also a component of the notion of “person in need of
protection” provided under subparagraph 97(1)(b)(ii), supra.
Such that the refugee claimant must establish that there is a serious
risk of persecution across the entire country with
no available flight alternative (Gilgorri v. Canada (Minister of
Citizenship and Immigration), 2006 FC 559, 152 A.C.W.S. (3d)
695).
[19]
In
this case, the Board determined that the applicant had an internal flight
alternative elsewhere in Mexico. The applicant stated nevertheless that
because of the power of the assailant’s father and his contacts, she would be hunted
down and ultimately found. However, the Board was
entitled to take into account the fact that she had not filed any report, to doubt
the ground raised for not having filed a report, and to accept that she had not
sought any assistance for her or her daughter, that she did not have her
daughter consult a physician after the rape and that she did not advise her to
consult one, i.e. sufficient evidence that taken as a whole supported the Board
in finding as it did.
[20]
As the applicant failed to persuade the Board, through credible
and convincing evidence, that there was a serious risk of persecution without
any internal flight alternative, the Court does not see grounds for it to
intervene.
[21]
It is not
the Court’s responsibility, at this stage, to reassess the evidence and substitute
its opinion for that of the Board. The Board has the benefit of its expertise and
especially the unique advantage of having heard the applicant and her daughter
on their allegations and claims. Master of
the facts, the Board
remains the best qualified to determine the credibility to assign to the story
of the applicant and her daughter.
VI. Conclusion
[22]
After
reviewing the evidence in the record, the Court determines that the findings in
the decision contemplated by this proceeding are more than justified, supported
by the facts as well as by the law. It is therefore a reasonable decision, giving
rise to the dismissal of the application for judicial review. No serious
question of general importance was proposed, no question will be certified.
JUDGMENT
FOR THESE REASONS, THE COURT ORDERS that:
The application for judicial
review is dismissed.
“Maurice
E. Lagacé”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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