Date: 20090512
Docket: IMM-4750-08
Citation:
2009 FC 487
Ottawa,
Ontario, May 12, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
DANIA
PERLA CORTEZ GUTIERREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.
27, of a decision
by the Refugee Protection Division of
the Immigration and Refugee Board (panel) dated
September
30, 2008, that the applicant is not a Convention refugee or a person in need of
protection under sections 96 and 97 of the Act.
[2]
For the
following reasons, the application for judicial review will be dismissed.
[3]
The panel
found that the applicant was not credible because the narrative on which her
claim was based was inconsistent and implausible. Furthermore, the panel noted
that the applicant contradicted herself regarding a significant event.
[4]
According
to the panel, even if the applicant was credible, she did not persuade it that the
Mexican state could not protect her.
[5]
Even if
the applicant was credible and even if state protection was not available, the
panel decided that there was an internal flight alternative (IFA) for the
applicant in the cities of Tijuana, Guadalajara, Monterrey and Cancun.
Standard of review
[6]
In questions of credibility and assessment of
evidence, it is well established under paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F-7, that 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 made its decision without regard to the material
before it (Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.),
42 A.C.W.S. (3d) 886).
[7]
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 refugee 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). Before Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, the standard of review that was applicable in comparable
circumstances was patent unreasonableness. Since that decision, the standard is
reasonableness.
[8]
The
appropriate standard of review for state protection issues is reasonableness (Chaves
v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, 137 A.C.W.S.
(3d) 392 at paragraphs 9 to 11; Gorria v. Canada (Minister of Citizenship
and Immigration), 2007 FC 284, 310 F.T.R. 150 at paragraph 14; and Chagoya
v. Canada (Minister of Citizenship and Immigration), 2008 FC 721 at paragraph
3, [2008] F.C.J. No. 908 (QL)).
[9]
The appropriate
standard of review for IFA issues was patent unreasonableness (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). Following
Dunsmuir, the Court must continue to show deference when determining an
IFA and this decision is reviewed according to the new standard of
reasonableness. Consequently, the Court will intervene only if the decision
does not fall within the range “of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at
paragraph 47). The reasonableness of a decision is
concerned with the existence of justification, transparency and intelligibility
within the decision-making process.
[10]
The
applicant alleges that the panel erred in law because the reasons relied upon
by the panel were unreasonable and not based on the evidence and constituted
errors of law. In Maldonado v. Canada (Minister of Employment and Immigration),
[1980] 2 F.C. 302, the Federal Court of Appeal stated that when an applicant swears
to the truth of certain facts, this creates a presumption that those facts are
true unless there are valid reasons to doubt their truthfulness.
[11]
The
respondent noted that findings concerning the lack of credibility, the availability
of state protection and the existence of an IFA are each sufficient to defeat her
claim (Salim v. Canada (Minister of Citizenship and Immigration), 2005 FC
1592, 144 A.C.W.S. (3d) 326 at paragraph 31; Singh v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 185, 121 A.C.W.S. (3d) 127; Jaffier
v. Canada (Minister of Citizenship and Immigration), 2004 FC 722, 131
A.C.W.S. (3d) 503 at paragraphs 7 and 10; Rodriguez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 153, 137 A.C.W.S. (3d) 399
at paragraph 36; Baldomino v. Canada (Minister of Citizenship and Immigration),
2007 FC 1270, 167 A.C.W.S. (3d) 771 at paragraph 8; Del Real v. Canada (Minister
of Citizenship and Immigration), 2008 FC 140, 168 A.C.W.S. (3d) 368 at paragraphs
12 and 39).
[12]
The
respondent argued that the applicant did not establish any critical error that
could invalidate the panel’s decision as a whole. The panel’s decision relied
on the evidence and respected the appropriate principles of law. The panel
provided clear and unequivocal reasons with respect to the denial of the
refugee claim.
[13]
It was
open to the panel to find that the implausibilities, contradictions, and omissions
undermined the applicant’s credibility, as was repeatedly noted and established
by this Court.
[14]
The panel
is in the best position to assess the explanations provided by the applicant
with respect to the perceived contradictions and implausibilities. It is not up
to the Court to substitute its judgment for the findings of fact drawn by the
panel concerning the applicant’s credibility (Singh v. Canada (Minister of
Citizenship and Immigration), 2006 FC 181, 146 A.C.W.S. (3d) 325 at paragraph
36; Mavi v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1 (F.C.T.D.) (QL)).
[15]
In this
case, the panel’s finding was not unreasonable given the multiple discrepancies
in the applicant’s testimony. She did not provide any evidence corroborating
her romantic relationship with Roy Moran, a person with whom she had a serious
13-month relationship that seemed to be heading towards marriage. Furthermore,
it is implausible that the applicant did not know whether an autopsy had been
performed on his body.
[16]
The
panel’s finding can be considered rational and acceptable with regard to the
evidence submitted (Dunsmuir, above, at paragraph 47).
[17]
Regarding
state protection, this Court has confirmed decisions maintaining the
presumption of Mexican state protection (Luna v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1132, [2008] F.C.J. No.
1501 at paragraph 14; Sanchez v. Canada (Minister of Citizenship and Immigration),
2008 FC 134, 165 A.C.W.S. (3d) 336 at paragraph 12; Navarro v. Canada
(Minister of Citizenship and Immigration), 2008 FC 358, 169 A.C.W.S. (3d)
626 at paragraph 17; Canseco v. Canada (Minister of Citizenship and Immigration),
2007 FC 73, 154 A.C.W.S. (3d) 1182 at paragraph 14; De La Rosa v. Canada (Minister
of Citizenship and Immigration), 2008 FC 83, 164 A.C.W.S. (3d)
497 at paragraph 11; Martinez v. Canada (Minister of Citizenship and Immigration),
2006 FC 343, 146 A.C.W.S. (3d) 1052 at paragraph 12).
[18]
In this
case, it was legitimately open to the panel to find, given the present context,
that the applicant had not exhausted all possible avenues offered by the state.
Furthermore, the panel could reasonably consider as insufficient the applicant’s
explanation in her testimony that she went to see the police only once and that
the police refused to take her complaint.
[19]
In Kadenko
v. Canada (Minister of Citizenship and Immigration) (1996), 206 N.R. 272,
143 D.L.R. (4th) 532 (F.C.A.), the Court noted that it cannot
automatically be determined that a democratic state is unable to protect one of
its nationals because certain local police officers refused to intervene. In
this case, the applicant did not diligently seek her country’s protection
before coming to Canada. Consequently, the applicant
did not provide clear and convincing evidence to rebut the presumption that Mexico was able to protect her.
[20]
I agree
with the respondent that the applicant did not give the state the possibility
of ensuring her protection because she left the country before giving the
authorities time to act.
[21]
Regarding
the internal flight alternative, the Court held that a claimant cannot be required to encounter great physical
danger or to undergo undue hardship in travelling to and staying in a region. In Rasaratnam v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.),
the Court held that two criteria applied in establishing an IFA: 1) there
is no serious risk of the claimant being persecuted in the part of the country
where there is a flight alternative; and 2) the situation in the part of the
country identified as an IFA must be such that it is not unreasonable for the
claimant to seek refuge there, given all of the circumstances.
[22]
In Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, 163 N.R.
232 (F.C.A.) the Court ruled as follows by citing Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 at paragraph
15:
. . . 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. . . .
[23]
The
panel’s decision was based on the applicant’s testimony as well as on the
documentary evidence in the record. It took into account the applicant’s personal
situation and the reasonable possibility that she could relocate elsewhere in Mexico. The applicant did not meet
her burden of demonstrating that the panel had made a reviewable error. The
Court considers this decision reasonable because it is consistent with the jurisprudence.
[24]
This application does not raise any serious
question of general importance.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Janine
Anderson, Translator
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