Date: 20090423
Docket: IMM-3987-08
Citation:
2009 FC 397
Ottawa,
Ontario, April 23, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
SANTA YAZMIN AHUMADA LARA
APRIL DIAZ AHUMADA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration
and Refugee Protection Act, S.C. 2001,
c. 27 (Act),
of a decision by the Refugee Protection Division of the
Immigration and Refugee Board (the
panel) dated August 15, 2008, that the applicants are not Convention refugees or
persons in need of protection.
Issues
1. Did the
panel err in finding that the principal applicant was not credible?
2. Did the
panel err in finding that there was an internal flight alternative (IFA)?
[2]
For the
following reasons the application for judicial review will be dismissed.
Factual background
[3]
The
applicants, Santa Yazmin Ahumada Lara, 43 years of age, and her daughter April
Diza Ahumada, 17 years of age, are citizens of Mexico who are claiming refugee status in Canada in accordance with section 96
and paragraph 97(1)(b) of the Act. The principal applicant alleges that
she is a victim of conjugal violence and fears returning to her country because
she is scared of Francisco Solano Cruz. Santa Yazmin Ahumada Lara is the
designated representative of her minor daughter.
[4]
The
applicant alleges that she entered into a romantic relationship with Francisco
Solano Cruz in November 2006. After a few months of dating, the applicant
became pregnant in May 2007 and she decided to inform him of the news. He
became furious and struck her violently and she apparently lost the baby.
Impugned decision
[5]
The panel found
that the applicant’s story was not credible. However, even if it were, the
panel found that there was an internal flight alternative (IFA) in the Federal
District (Mexico
City) and
explained the reasons that support this finding in light of the documentary
evidence and the personal situation of the applicant.
[6]
The panel noted
several implausibilities in the testimony of the principal applicant, notably
with respect to her visit to a doctor who was suggested by her former lover as
well as the lack of a medical certificate.
[7]
The panel
also noted several inconsistencies regarding a complaint filed with police.
Analysis
Standard of review
[8]
When the
issue is credibility and assessment of evidence, the Court
will intervene only if the panel based its decision on an erroneous finding of
fact made in a perverse or capricious manner or if it delivered its decision
without regard for the material before it. (Aguebor v. Canada (Minister of
Citizenship and Immigration) (1993), 160 N.R. 315 (F.C.A.), 42 A.C.W.S.
(3d) 886).
[9]
Assessing
credibility and weighing the evidence fall within the jurisdiction of the administrative
tribunal called upon to assess the allegation of a subjective fear by a
claimant (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.), 83 A.C.W.S. (3d) 264 at
paragraph 14). Since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, the standard of review that is applicable in comparable circumstances is
reasonableness.
[10]
The same
standard now applies to IFA issues. In the past, this issue was subject to the
patent unreasonableness standard (Khan v. Canada (Minister of Citizenship
and Immigration), 2005 FC 44, 136 A.C.W.S. (3d) 912 and Chorny v. Canada (Minister of Citizenship and
Immigration),
2003 FC 999, 238 F.T.R. 289). Therefore, the Court will intervene only if
the decision does not reflect an acceptable and rational solution (Dunsmuir,
para. 47). The reasonableness of a decision is concerned
with the existence of justification, transparency and intelligibility within
the decision-making process.
1. Did
the panel err in finding that the principal applicant was not credible?
[11]
After
having analyzed and considered the transcript, the documents in the record as
well as the written submissions and the case law submitted, the Court is of the
opinion that the panel’s finding falls within the range of acceptable solutions
based on the evidence.
[12]
The panel
took into account the Board’s Guidelines on the claims of women victims of gender-related
persecution. When it assessed the credibility of the principal applicant it
took into account the explanations provided by her regarding the
implausibilities and inconsistencies raised but it did not consider them to be
satisfactory. The Court is of the opinion that the panel is in a better position
to assess the credibility of a claimant through the claimant’s testimony and/or
conduct at the hearing (Chen v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 266, [2002] 4 F.C. 193; Ithibu v. Canada (Minister
of Citizenship and Immigration), 2001 FCT 288, 202 F.T.R. 233; Gonzalez
v. Canada (Minister of Citizenship and Immigration) (1999), 88 A.C.W.S.
(3d) 1062, [1999] F.C.J. No. 805 (F.C.T.D.) (QL); Grinevich v. Canada (Minister of Citizenship and
Immigration)
(1997), 70 A.C.W.S. (3d) 1059, [1997] F.C.J. No. 444 (F.C.T.D.) (QL); Boye v.
Canada (Minister of Citizenship and
Immigration) (1994),
83 F.T.R. 1, 50 A.C.W.S. (3d) 643).
[13]
In the
case at bar, the finding of the panel is not unreasonable considering the
multiple discrepancies in the testimony of the applicant. The applicant did not
obtain a medical certificate following the surgical procedure done by the
friend of her former lover and she did not bring a copy of the complaint filed
with the police authorities with her when she came to Canada. It was reasonable for the panel to find
that it was implausible that the applicant did not ask questions with respect
to the medical procedures performed by the friend of her former lover and that
she not see a doctor after being raped by her former lover.
2.
Did
the panel err in finding that there was an internal flight alternative (IFA)?
[14]
The
finding of the panel on the internal flight alternative is reasonable with
respect to the particular circumstances in this case. The applicant did not provide
any evidence showing that the IFA is unreasonable.
[15]
In Ranganathan
v. Canada (Minister of Citizenship and
Immigration),
[2001] 2 F.C. 164 (F.C.A.) at paragraph 15, the Court establishes a very high
threshold for those who claim refugee status:
. . . It requires
nothing less than the existence of conditions which would jeopardize the life
and safety of a claimant in travelling or temporarily relocating to a safe
area. In addition, it requires actual and concrete evidence of such conditions.
The absence of relatives in a safe place, whether taken alone or in conjunction
with other factors, can only amount to such condition if it meets that
threshold, that is to say if it establishes that, as a result, a claimant's
life or safety would be jeopardized. . . .
[16]
The
decision of the panel in this proceeding is based on the testimony of the
principal applicant as well as the personal situation of the applicants, the
documentary evidence and the reasonable possibility that they could have relocated
elsewhere in Mexico. The intervention of the Court
is not warranted given that there was no reviewable error.
[17]
This
application does not raise any serious question of general importance.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the application for judicial review is dismissed. No question is certified.
"Michel
Beaudry"
Certified
true translation
Janine
Anderson, Translator
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