Date: 20081113
Docket: IMM-2274-08
Citation: 2008 FC 1258
Toronto, Ontario, November 13,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
RICHARDO
ALBERTO ANAYA AYALA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult male citizen of Mexico. He came to Canada from Mexico and made a
claim for refugee protection. That claim was considered by a Member of the Immigration
and Refugee Board who, in a written decision dated April 29, 2008 rejected that
claim. This is a judicial review of that decision.
[2]
I
find that the application for judicial review is to be dismissed.
[3]
The
determinative issue upon which the Member based his decision was whether there
was an internal flight alternative (IFA) in Mexico where the
Applicant could safely live without serious possibility of being persecuted.
The Member found on the evidence that Mexico City offered such an
alternative.
[4]
In
the present case, the Applicant, who is a reasonably well educated man, was an
employee of Pemex, a state run petroleum monopoly, engaged in a white collar
position. He became involved in union activities as a result of which he
claims to have been harassed and beaten. He fled to another city, Monterrey, where he
alleges that harassment continues. He alleges that his ex-wife was nearly run
over by a car, an incident which he believes is connected to his harassment but
no evidence of such connection has been led. The Applicant says that even if
he were to reside in Mexico City he fears that
harassment will continue.
[5]
The
Federal Court of Appeal in Carillo v. Canada (Minister of Citizenship and
Immigration), 2008 FCA 94, in considering the issue of state protection
wrote at paragraphs 17 to 19 that the Applicant bears the burden of adducing
evidence of inadequate state protection and the burden of persuading the trier
of fact that such evidence demonstrates that state protection is inadequate. At
paragraphs 20 to 26 the Court wrote that the trier of fact is to consider the
evidence on a standard of proof which is not higher than that established by
the normal standard of balance of probabilities.
[6]
The
same criteria apply to a consideration of internal flight alternatives (IFA).
In Villa v. Canada (Minister of
Citizenship and Immigration) 2008 FC 1229 I wrote about a case where a
Member did not properly weigh and consider the relevant evidence or, at least,
did not set out in the Reasons what evidence was considered, apart from
footnotes referring a large bundle of material.
[7]
Applicant’s
counsel argues that the Member failed to consider relevant documents, took into
account irrelevant documents and made findings of fact not supported by the
evidence in coming to the conclusion under review.
[8]
In
conduction a review of the manner in which the evidence was handled by a Member,
considerable guidance can be gained from the decision of the Supreme Court of
Canada in Boulis v. Canada (MMI), [1974] S.C.R. 875 and in particular the
reasons delivered by Laskin J. where in concluding paragraphs he states that a
Board’s “reasons are not to be read microscopically; it is enough to show
that they had a grasp of the issues”.
[9]
Guidance
can also be gained from the Federal Court of Appeal’s brief reasons in Zhou
v. Canada (MCI), July 18, 2004, [1994] F.C.J. No. 1087 where Linden JA. for
the Court said that the “Board is entitled to rely on documentary evidence
in preference to that of the claimant; [t]here is no general obligation on the
Board to point out specifically any and all items of documentary evidence upon
which it might rely”.
[10]
I
observed in Villa v. Canada (MCI), 2008 FC 1229 that the Board is
required to look at the evidence provided by the Applicant and weigh it against
the other evidence in the case, quite often documentary and give an indication
in its reasons that it has done so providing at least some examples with
sufficient particularly, as to the evidence which it was found to be
persuasive. However this is not an invitation to counsel to review the
evidence microscopically and find some statement or statements that would tend
to support an opposite conclusion. The criteria on review are whether, taken
as a whole, the findings and conclusions are reasonable. Questions of law are,
of course, to be reviewed on a standard of correctness but again, this is not
an invitation to counsel to argue that to overlook or fail to state in the
reasons all the evidence, or reach a conclusion as to what the evidence leads
one to conclude, is a matter of law.
[11]
It
is when truly material evidence has been overlooked or misunderstood either by
reading the reasons, or what is not in the reasons of the Board, that the Court
may wish to intervene if what has been done or overlooked would be likely to
have a material effect in respect of the findings and conclusions reached by
the Member of the Board.
[12]
In
this case, I find that there was no relevant evidence overlooked or
misunderstood or apparently overlooked or misunderstood that would have or
would be likely to have a material effect on the findings and conclusions of
the Member.
[13]
Applicants’
counsel argued that the Member’s reasons state that Mexico City is a tourist
destination and has an atmosphere where criminality is combated to ensure that
tourism flourishes. Counsel argues that there is no support for this statement
in the Record.
[14]
A
Board Member is entitled, just as a Court is, to take notice of certain facts
that are well known and common place. The fact that Mexico City is a tourist
destination is such a fact. To conclude that there is an effort, therefore, to
combat criminality, while perhaps logical, goes beyond what is well known or
commonplace. However given all the other findings as to Mexico City in the
reasons that are supported by the evidence this finding is not one that had or
would have been likely to have had a material effect on the result.
[15]
Here
the Member has been careful, not only to state the applicable law correctly,
but also to set out in his Reasons the various pieces of evidence that were
considered in coming to a conclusion that Mexico City offered an appropriate
IFA. I find that such a determination was reasonable under the standards
established by the Supreme Court of Canada in Dunsmuir v. New Brunswick
2008 SCC 9 and therefore will not be set aside on judicial review.
[16]
The
matter is fact specific; no question is to be certified. There are no special
reasons to award costs.
JUDGMENT
For the
Reasons provided:
THIS COURT
ADJUDGES that:
1.
The
application is dismissed;
2.
There
is no question for certification;
3.
There
is no order as to costs.
“Roger T. Hughes”
Email this Content