Date:
20060123
Docket:
IMM-4548-05
Citation:
2006 FC 61
Montréal, Quebec, January 23, 2006
PRESENT: THE HONOURABLE MR. JUSTICE
SIMON NOËL
BETWEEN:
Miguel
Nagel Vazquez Encinas
Claudia
Osorio Castillo
Mabel
Fernanda Vazquez Osorio
Applicants
and
The
Minister of Citizenship and Immigration
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial
review under section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) of a decision of the Refugee Protection
Division (RPD) dated July 11, 2005, whereby it denied the refugee claim of
Miguel Nagel Vazquez Encinas (the male applicant), his wife Claudia
Osorio Castillo (the female applicant) and their daughter of minor age, Mabel
Fernanda Vazquez Osorio, on the grounds that they are not Convention refugees
or persons in need of protection and that they had an internal flight
alternative (IFA).
ISSUES
[2] The issues are the following:
- What is the applicable standard of review?
- Did the RPD err in deciding that the applicants are not
Convention refugees or persons in need of protection?
- Did the RPD err in deciding that the applicants had an
IFA that they could have used instead of making a refugee claim in Canada?
CONCLUSION
[3] For the following reasons, the
application for judicial review is dismissed.
FACTS ALLEGED BY APPLICANTS
[4] The male applicant alleges in his
Personal Information Form (PIF) that he had worked since 1999 as a freelance
graphic designer for various Mexican publications, listed hereunder (I repeat
the description provided for each by the applicant):
- Asuntos 2000
(from 1999): a national left-wing weekly;
- Imagen Medica
(from 1999): a medical publication including political analysis;
- Proceso (from
2002): a magazine of political and economic analysis.
The applicant contends that his position as a
graphic designer placed him in a situation in which he had access to inside
information concerning fraudulent practices being carried on within the Mexican
public administration. When President Vicente Fox came to power in 2000, he
says, the media were now able to publicize these practices and disclose the
links between the public authorities and the private sector. This led to some
settling of scores and a wave of violence in the country. Despite that, the
applicant says he retained his journalistic jobs and thought he was immune from
reprisals by virtue of not himself being a journalist.
[5] On August 10, 2003, the applicant
says he was intercepted by two men claiming to belong to the Federal Judicial
Police (PJF), who forced him into a car. After having threatened and beaten
him, the two men are said to have made an offer to the applicant to work for
their superior in exchange for money, threatening to go after his wife and
daughter if he refused. The police objective, he says, was to discover the
sources of the reporter Jaime Velazquez in the investigation he was conducting
into the Mexican Social Insurance Institution (IMSS) and Santiago Levi
Algazi, its Director General. The applicant says the two men gave him four days
to think it over.
[6] On that same day, in the afternoon,
the applicants left their home and went to stay with the female applicant’s
mother. Valentin Cardona, the publisher of Asuntos 2000 and Imagen
Medica and an associate with Proceso, is said to have advised him to
go to a hotel and wait until he had spoken to a lawyer.
[7] On August 13, 2003, the applicant
says he was notified by the owner of his building that he had been burglarized.
He went to his apartment two days later to find that his computer had been
destroyed and its hard disk drive was gone.
[8] On August 16, 2003, the applicant
says he met with Mr. Cardona, who proposed that he act as a double agent
for him in order to find out more about the origins and motives behind the PJF
threats. Mr. Cardona is also said to have informed the applicant that without
evidence no judicial action could be taken. The applicant says he refused to
act as an informer for Mr. Cardona, who then suggested to the applicant that
he leave the country for his own safety.
[9] Having been invited six weeks
earlier to go and visit his sister in Canada, the applicant chose to accept the
offer and took a flight to Montréal on September 1, 2003, leaving behind his
wife and daughter [translation] “until things calmed down”.
[10] On February 5,
2004, the female applicant and their daughter in turn left Mexico after they
themselves had been threatened by the PJF. On April 20, 2004, following the
assassination of Roberto Mara Garcia, a journalist, the applicants made a
refugee claim.
IMPUGNED DECISION
[11] The RPD decision
is based on two grounds. First, the RPD thought that, for reasons of
credibility, the applicants were neither persons in need of protection nor
Convention refugees. Second, the RPD decided that in its opinion there was an
IFA for the applicants.
[12] According to the
RPD, the applicants’ credibility is marred for the following grounds:
- The male applicant was unable to
file any magazine with a date subsequent to January 23, 2000, although he said
he had worked for the aforementioned publications from August 1999 to August
2003;
- The male applicant delayed
requesting asylum (he took more than seven months to file a refugee claim — he
did so only on April 20, 2004, although his wife is said to have been
threatened in February 2004).
[13] As for the IFA,
the RPD notes that the male applicant told the hearing that “the situation for
journalists was worse outside of Mexico City”. It adds that the applicant said
he did not know anyone outside Mexico City while he had a sister in Canada.
According to the RPD, “the fact that he [the applicant] felt comforted by the
presence of his sister in Canada is not a serious reason preventing him from
seeking refuge within Mexico”.
ANALYSIS
1. Standard
of review
[14] Since the RPD’s
findings on the issue whether the applicants were Convention refugees or
persons in need of protection are based on questions of credibility, the
standard of the patently unreasonable decision applies (Mugesera
v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005]
S.C.J. No. 39, at paras. 39 to 43; Aguebor v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 732, at para. 4). On the issue of the
IFA, it is likewise the standard of the patently unreasonable decision that
applies (see in particular the following recent cases, which refer abundantly
to the relevant case-law: Nwokomah v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1535, at para. 9 and Singh v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1588, [2005] F.C.J. No. 1961, at
para. 22).
2. Did the RPD
err in deciding that the applicants were not Convention refugees or persons in
need of protection?
[15] The applicants
submit that the RPD erred in fact in deciding that their conduct was
incompatible with that of persons who are feeling fear. To justify the period
that elapsed between the male applicant’s date of arrival in Canada and the
date of filing of the refugee claim, it is alleged that the applicant’s initial
intention was not to make a refugee claim upon arrival in Canada, but that the
subsequent events (the threats against his wife and the murder of
Roberto Mara Garcia, the journalist) convinced them to make this claim.
Therefore, it is alleged that this delay cannot be determinative on the
question of credibility.
[16] The respondent,
for his part, argues that the RPD’s conclusions are reasonably supported by the
facts of record, and that the essential ingredients of a refugee claim have not
been established. Although the applicant did not orally make this submission,
he did append to his affidavit some additional evidence, an undated letter (the
fax notations indicate the date of August 22, 2005) signed by a certain Hector
Martinez Morales, a legal officer for Imagen Medica and Asuntos 2000.
The respondent says the RPD rightly viewed the applicant’s failure to produce
this letter within the time granted by the RPD as a circumstance affecting his
credibility. The respondent adds that the RPD cannot be criticized for not
having considered this evidence, which was not in its possession at the time it
delivered its decision. On the question of the time that elapsed between the
applicant’s arrival in Canada and the filing of his refugee claim, the
respondent alleges that it is hardly credible that the applicant was personally
threatened in August 2003, that the female applicant was threatened in February
2004 and that the applicants waited until April 2004 before filing their claim.
[17] In my opinion,
on the question of the delay in filing a refugee claim, it does not appear
patently unreasonable to have found in light of the facts that the applicant
was not credible. It is true that this consideration alone, taken in isolation,
would not be sufficient to taint the credibility of the applicants (Canada
(Minister of Citizenship and Immigration) v. Koriagin, [2003] F.C.J.
No. 1534, 2003 FC 1210, at para. 7). However, it should be recalled that
the RPD’s finding on the applicant’s credibility is based on an additional and
important consideration: the applicant’s failure to produce any evidence of his
employment relationship with the publications for which he alleges he worked.
Also, the RPD could, as it did, find that the applicant’s explanations concerning
the period that he allowed to elapse before filing a refugee claim were not
satisfactory. In this regard, it is worth noting the following facts:
- The applicant left Mexico, leaving
his wife and daughter behind him for more than five months although he claimed
that the PJF said they knew their names and would go after them if he did not
comply with their instructions;
- The female applicant alleges that
she was personally threatened in February 2004 but she did not file a refugee
claim until April 2004;
- The male applicant was informed of
the assassination of the journalist Roberto Mara Garcia in mid-March 2004,
but waited one month before filing his refugee claim.
It is also notable that
the case law is unequivocal: questions of credibility, as a general rule, are
within the province of the RPD, as long as the inferences it draws are not
unreasonable, as in this case. On this question, Mr. Justice Décary writes, in Aguebor
v. Canada (Minister of Employment and Immigration), supra, at para.
4:
There is no longer any doubt that the
Refugee Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony: who is in a better position than the
Refugee Division to gauge the credibility of an account and to draw the
necessary inferences? As long as the inferences drawn by the tribunal are not
so unreasonable as to warrant our intervention, its findings are not open to
judicial review.
[18] The applicants
further argue that the triggering events (the threats against his wife and the
murder of the journalist Roberto Mara Garcia) were not considered by the RPD.
On this point, it is appropriate to note that the RPD is presumed, failing
proof to the contrary, to have considered all of the evidence before it (see in
particular Florea v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 598 (F.C.A.); Lewis
v. Canada, 2004 FC 1195, [2004] F.C.J. No. 1436, at para 19 (F.C.)).
The applicants have not adduced any evidence that would persuade me that not all
of the relevant evidence was considered. Moreover, the RPD decision
specifically mentions some of the evidence in question, at pages 2 and 4 :
[p. 2] In mid-March, the claimant
discovered, on the Internet, that a certain Garcia, journalist and contributor
at various magazines, had died as a result of his journalistic activity. Even
though the claimant had nothing to do with Garcia’s magazine, the claimant
maintains that he knew him personally and that they sometimes exchanged
information. Garcia’s death caused the claimant to worry about his safety as
well as that of his family.
. . .
[p. 4] The claimant, arriving in Canada on
September 1, 2003, only sought refugee protection on April 20, 2004.
The excuse he gave, that he was hoping for things to settle down in Mexico for
his return, has no merit, since his wife would have fled Mexico to escape
supposed harassment and surveillance by the police on February 5, 2004.
This argument is therefore rejected.
[19] The applicants further contend that
no evidence sullying the female applicant’s credibility was cited by the RPD.
There is no basis for this submission, since the RPD explained why it thought
the applicants’ story was not credible. It is true that no ground specifically
singling out the female applicant was propounded. In my opinion, the RPD could
not take the female applicant’s story in isolation while overlooking the male
applicant’s evidence. It had to take the evidence as a whole, and that is what
it did. It was reasonable for the RPD, relying on the record, not to believe
the male applicant’s story, and such a finding logically affected the
credibility of the female applicant’s testimony.
[20] Finally, the male applicant
criticizes the RPD for blaming him for failing to produce within the agreed time
evidence pertaining to the job he held with the various print media referred to
above between January 2000 and August 2003. The letter of August 22, 2005,
appended to the applicant’s affidavit, is intended in part to respond to this
concern of the RPD. Unfortunately for him, this evidence is inadmissible. As a
general rule, only the evidence on which the impugned decision is based shall
be considered on judicial review (see Smith v. Canada, 2001 FCA 86,
[2001] F.C.J. No. 450). In Chopra v. Canada (Treasury Board), [1999]
F.C.J. No. 835, at para. 5, Mr. Justice Dubé writes:
These decisions [on the rule that fresh
evidence is inadmissible on applications for judicial review] are premised on
the notion that the purpose of judicial review is not to determine whether or
not the decision of the Tribunal in question was correct in absolute terms but
rather to determine whether or not the Tribunal was correct based on the record
before it.
The Court may, by way of
exception, examine documents that did not exist at the time of the application
for judicial review, where issues of procedural fairness or jurisdiction are at
stake (Ontario Association of Architects v. Association of Architectural
Technologists of Ontario, [2003] 1 F.C. 331, 2002 FCA 218). Since there is
no question of procedural fairness or jurisdiction at issue in the case at bar,
it is necessary to follow the general rule. I would add that the applicant
acknowledges in his affidavit that the RPD granted him five days in which to
locate the requested document but that he did not do so. That time seems
reasonable in view of the modern means of communication to which the applicant,
his solicitor and the applicant’s employer have access, as the evidence
indicates. Therefore, the presentation of fresh evidence is not authorized.
[21] I would add that
it is clear from reading the transcript of the hearing that the applicants did
not discharge their onus of proof to convince the RPD that their claim was
well-founded. Indeed, the RPD informed them more than once that certain facts
should have been put in evidence (the employment relationship in 2003, for
example). Consequently, the RPD, not having at its disposal the evidence that
it would have liked to receive, found that the version of the facts in the claim
was not credible. That finding was certainly open to the RPD. (See Muthiyansa
and Minister of Citizenship and Immigration, 2002 FCT 17, [2001] F.C.J.
No. 162, at para. 13.)
3. Did the RPD
err in deciding that the applicants had an IFA that they could have used
instead of making a refugee claim in Canada?
[22] The applicants
contend that the RPD erred in fact when it said it found, in light of the male
applicant’s testimony, that he had an IFA, and that it is a notorious fact that
the PJF can intervene anywhere on Mexican territory.
[23] The respondent,
however, is of the opinion that the male applicant acknowledged at the hearing
that he could have availed himself of an IFA, and that no evidence to the
contrary was presented.
[24] The following
extract from the transcript of the oral testimony (panel record, page 221),
clearly supports the respondent’s argument:
Q. So, sir. when you had all those problems, you could
not go to any other cities before coming to Canada?
A. I think that yes. I could have gone to another city.
Q. Why did not you?
A. Because I did not know anybody else in another city,
here I have my sister and my brother.
- M’hm.
A. And it was possible for us to leave the country, we
had that option.
Q. Your sister you said is here?
A. Yes.
Q. Okay. So, that is why you came here instead of going
to another city in Mexico?
A: Yes, because my sister and my... and my brother too, I
have...
At the end of his
testimony (panel record, page 243), the applicant explained why he and his family
did not have an IFA, and provided explanations similar to those found in his
PIF. However, from reading the above extract, it was reasonable for the RPD to
find that this alternative exists, given the applicant’s blatant admission.
[25] In light of the
evidence as a whole and given the applicable standard of review, it appears
there is no reason to warrant the intervention of this Court. For these
reasons, the application for judicial review is dismissed.
[26] The parties were
invited to put questions for certification and no question was submitted.
ORDER
THE COURT ORDERS:
- The application for judicial review
is dismissed and no question will be certified.
“Simon
Noël”
________________________________
Judge
Certified true
translation
François Brunet,
LLB, BCL
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