Date: 20090430
Docket: IMM-3876-08
Citation: 2009 FC 421
Ottawa, Ontario,
April 30, 2009
PRESENT: The Honourable
Orville Frenette
BETWEEN:
Rene
Alejandro MUNOZ TEJEDA
applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(Board), dated August 22, 2008, which found that the applicant was not a
Convention refugee nor a person in need of protection under section 96 or 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), and
thereby denying his claim for refugee protection.
Facts
[2]
The applicant, Rene Alejandro Munoz Tejeda, a citizen of Mexico, is claiming
refugee protection on the grounds that his life would be in danger if he
returned to Mexico.
[3]
The
applicant was born in Mexico on November 5, 1973, where he went to
grade school, high school and college, and became an engineer.
[4]
He
held several jobs in Mexico between 1989 and 2006. Among other things,
he worked for the National Public Security Service as the official in charge of
the gymnasium; his duties included organizing courses on public safety. The
applicant indicated that in August 2005, the commandant of the State of Quintana Roo, Bernabé de
León Álvarez, asked for his help in obtaining copies or originals of accounts
of the institution where licentiate Jorge Guadarrama Saldaña was in charge; the
latter was the executive director of the regional academy. The commandant told
him that he suspected licentiate Saldaña of corruption and wanted these
documents to determine how much he had embezzled.
[5]
The
applicant refused to cooperate, and on December 10, 2005, he allegedly received
a note from commandant Álvarez, which he took as a death threat.
[6]
On
January 20, 2006, he was allegedly attacked by four individuals sent by commandant
Álvarez. At the hearing, he added that his attackers were uniformed municipal
police officers.
[7]
Following
this attack, he filed a complaint with the Public Ministry of the State of Tlalixcoyan; he was told
that he would be notified in writing of a meeting to identify the suspects.
[8]
After
seeking refuge with an aunt in Veracruz for a month and a half, he fled Mexico to seek
refuge in Canada.
[9]
The
applicant arrived in Toronto on March 13, 2006 but
only filed his claim for refugee protection on March 7, 2007.
Impugned decision
[10] After
reviewing all of the evidence presented by the applicant, the Board found that
his credibility was questionable on several points. The Board found that his
account was not credible in several respects, including a testimony that was
difficult to understand, a nonchalant attitude and a lack of effort to obtain
the necessary documents that the Board would expect, significant omissions in
his Personal Information Form (PIF) and contradictions between this document
and his testimony. The applicant did not make enough effort to obtain state
protection in Mexico, nor did he
attempt to relocate. Finally, the applicant did not discharge the burden of
demonstrating, on a balance of probabilities, that he was a victim of
persecution or threats to his life in Mexico.
Issues
Standard of judicial review
[12] Questions of
fact and questions of mixed fact and law are governed by the reasonableness
standard (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
paragraphs 51 to 64). Decisions by the Board on this question call for judicial
deference (Dunsmuir and Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12). Again according to Dunsmuir,
questions of law are subject to the correctness standard. The question of state
protection is a question of mixed fact and law (Mendez v. Minister of
Citizenship and Immigration, 2008 FC 584; Paguada v. ministre de la
Citoyenneté et de l’Immigration, 2009 CF 351).
[13] Breaches of
the rules of natural justice or procedural fairness are governed by the
correctness standard. But even if these occurred, the court may refuse to allow
the application for review if the breach is minimal and if the challenge of the
decision is hopeless (Cartier v. Attorney General, [2003] 2 F.C. 317
(F.C.A.), at paragraphs 30 to 36; Thaneswaran v. Minister of Citizenship and
Immigration, 2007 FC 189).
Legislation
[14] Sections 96
and 97 of the Act read as follows:
|
96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual
residence
and is unable or, by reason of that fear, unwilling to return to that
country.
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
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(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,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as
being
in need of protection is also a person in need of protection.
|
96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de
son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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:
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie
d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
|
Analysis
[15] The Board
found numerous omissions and contradictions between the PIF and the applicant’s
testimony. It also noted the applicant’s difficult testimony, his nonchalant
attitude and his lack of effort to obtain the necessary documents he was
supposed to provide. It was open to the Board to draw adverse inferences based
on all of these factors (Koval’ok v. Minister of Citizenship and Immigration,
2008 FC 145, paragraphs 24 to 26; Olmos v. Minister of Citizenship and
Immigration, 2008 FC 809, paragraph 32). According to the standards of review
and the deference that the Court must show administrative decisions, it cannot intervene
in this area (Dunsmuir and Khosa, supra).
[16] The breaches of
the principles of natural justice and procedural fairness claimed by the
applicant are unfounded.
[17] The applicant
complained that his last application for adjournment, made at the beginning of
the hearing on August 19, 2008, was not allowed. He claimed that he had not
been given enough time to prepare for the hearing, and that he had not been
given the opportunity to present briefs or documents to corroborate his facts.
[18] These
complaints call for the events or actions that did or did not occur to be
reviewed.
[19] The applicant
arrived in Canada on March 13,
2006 and did not claim refugee status until March 7, 2007, that is to say
almost one year later. On April 15, 2008, the applicant and his counsel at the
time, Marie-José Blain, were notified that the application would be heard on
June 5, 2008. On May 28, 2008, the applicant changed lawyers, to be represented
by Angelica Pantiru, who, in a letter dated May 28, 2008, requested a deferral
of the hearing and gave her availability. This application for adjournment was
granted. The documentary evidence shows that notices were sent to the applicant
and to the office of Ms. Pantiru indicating that the hearing was scheduled for August
19, 2008. The applicant admitted that he had received this notice, but his new
counsel claimed that she had not. However, she admitted that she was told of the
hearing date by telephone in June 2008. Despite this notice, neither the
applicant nor his counsel communicated regarding the hearing until August 16,
2008.
[20] At the
beginning of the hearing, counsel for the applicant submitted a new application
for adjournment, which was discussed and denied by the Board. The applicant
testified, and his counsel presented her arguments. They now complain that the
rules of procedural fairness were breached.
[21] The applicant
submits that the Board failed to consider the factors under section 48 of the Refugee
Protection Division Rules, SOR/2002-228 (in particular paragraphs 4(e),
4(h), 4(i), 4(j) and 4(k)) regarding the exercise
of discretionary authority on adjournments.
[22] Where the
obligation of procedural fairness is concerned, the standard of review which
applies here is correctness (see Ha v. Canada (M.C.I.), [2004] 3 F.C.R.
195 (F.C.J.)). In support of his claims, the applicant cited the following decisions:
Bhinder v. Minister of Citizenship and Immigration (October 9, 1998),
IMM-439-98 (F.C.T.D.); Mangat v. Minister of Citizenship and Immigration,
189 F.T.R. 62; Yang v. Minister of Citizenship and Immigration, 2001 FCT
219; Kruglov v. Minister of Citizenship and Immigration, 2001 FCT 1165
and Chohan v. Minister of Citizenship and Immigration, 2006 FC 390.
[23] On the
subject of adjournment and the application of the rules of procedural fairness,
I believe one must bear in mind what the Federal Court of Appeal had to say in Schurman
v. Canada, 2003 FCA 393, where Justice Robert Décary wrote:
[6] It is trite law that the decision as to whether to grant an
adjournment is a discretionary decision with which this Court will not
intervene unless there are exceptional circumstances . . .
[24] In this case,
both the applicant and his counsel were notified of the hearing two months
ahead of time. If they did not take it upon themselves to communicate with each
other and properly prepare for the hearing, they have only themselves to blame.
[25] In my
opinion, there was no breach of procedural fairness or of the principles of
natural justice.
[26] As to state protection,
the applicant did not discharge the burden of establishing that the Mexican
government was unable to protect him (Luna c. ministre de la Citoyenneté et
de l’Immigration, 2008 CF 1132; Sanchez v. Minister of Citizenship of
Immigration, 2008 FC 134; Ruiz et al. v. Minister of Citizenship and
Immigration, 2009 FC 337).
[27] The applicant
did not discharge the burden of proving that there was no possibility of refuge
for him in Mexico. He did not
explain his one-year delay in claiming refugee protection.
[28] For all of
the above reasons, intervention by this Court is not warranted.
JUDGMENT
This Court orders that:
The application for judicial review of the decision by the
Refugee Protection Division of the Immigration and Refugee Board of August 22,
2008 is dismissed.
No question is
certified.
“Orville
Frenette”
Certified true
translation
Brian McCordick,
Translator
Email this Content