Date: 20090216
Docket: IMM-2520-08
Citation: 2009 FC 163
Ottawa, Ontario, February 16, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
EDGAR
LLAMAS GONZALEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), for judicial review
of a decision dated May 2, 2008, by the Refugee Protection Division
of the Immigration and Refugee Board (the panel) that
Edgar Llamas Gonzalez (the applicant) is not a Convention refugee or
a person in need of protection under sections 96 and 97 of the Act.
Issues
[2]
Did the
panel err in finding that the applicant was not credible?
[3]
Did the
panel err in finding that the applicant had an internal flight alternative?
[4]
For the
reasons that follow, the application for judicial review will be dismissed.
Facts
[5]
The
applicant is a young man in his twenties from Mexico. He states that he witnessed the kidnapping
of his two friends while he was with them in a restaurant on
July 15, 2007.
[6]
He says
that he fears returning to his country because he received intimidating and
threatening calls after his friends were released on July 30, 2007,
upon paying a ransom.
[7]
He states
that he did not have money to pay a ransom, which was why he decided to come to
Canada, since he saw on the Internet
that Canada provided assistance in such
situations.
Impugned decision
[8]
After
analyzing the facts, the panel found that the applicant lacked credibility and
that there was no credible basis for his story. In the alternative, he had an
internal flight alternative in four cities in Mexico.
Analysis
Standard of review
[9]
In matters
of credibility and assessment of evidence, it is well established under
subsection 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F‑7, that the Court will intervene only where
the decision was based on an erroneous finding of fact that was made in a
perverse or capricious manner or where the decision was made without regard for
the evidence.
[10]
The panel is a specialized
tribunal, and its findings on credibility are questions of fact. The Court
should therefore intervene only if a patently unreasonable error was made (Aguebor v.
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315
(F.C.A.), 42 A.C.W.S. (3d) 886).
[11]
Assessing
credibility and the evidence is within the jurisdiction of the administrative
tribunal that has to assess a claimant's allegation of subjective fear (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). Prior to Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, the standard of review applicable in such circumstances was
patent unreasonableness. Since that decision, the reasonableness standard has
applied.
[12]
The
standard of review applicable to questions of state protection 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, and Gorria v. Canada (Minister of Citizenship and
Immigration),
2007 FC 284, 310 F.T.R. 150, at paragraph 14), as well as the
one newly articulated in Dunsmuir.
1. Did the panel err
in finding that the applicant was not credible?
[13]
The
panel's conclusion on this point is not unreasonable given that the applicant
never went to the police. There is a major discrepancy between the port‑of‑entry
notes and the applicant's Personal Information Form with regard to the
applicant's reasons for not going to the police (Grinevich v. Canada
(Minister of Citizenship and Immigration) (1997), 70 A.C.W.S. (3d)
1059 (F.C.T.D.), [1997] F.C.J. No. 444 (QL); Basseghi v. Canada
(Minister of Citizenship and Immigration) (1994), 52 A.C.W.S. (3d) 165
(F.C.T.D.), [1994] F.C.J. No. 1867 (QL); Sanchez v. Canada
(Minister of Citizenship and Immigration) (2000), 98 A.C.W.S. (3d)
1265 (F.C.T.D.), [2000] F.C.J. No. 536 (QL)).
[14]
The panel
is in the best position to assess claimants' explanations of apparent
contradictions and implausibilities. It is not this Court's role to substitute
its judgment for the panel's findings of fact on the credibility of claimants (Singh v.
Canada (Minister of Citizenship and
Immigration),
2006 FC 181, 146 A.C.W.S. (3d) 329, at paragraph 36; Mavi v.
Canada (Minister of Citizenship and
Immigration),
[2001] F.C.J. No. 1 (QL)).
2. Did the panel err
in finding that the applicant had an internal flight alternative?
[15]
The
applicant was questioned at the port of entry about the possibility of going to
live elsewhere in Mexico, and he answered: [translation] "Yes, I thought about
it, but I didn't do it. But I know I'll feel more protected here, and I know
that those people might look for me if I went to another city"
(page 49, panel record). When examined at the hearing, the applicant
answered that he could live safely in one of the places suggested as an IFA and
that he might be able to find work (pages 110 and 111, panel record).
[16]
In Kanagaratnam v.
Canada (Minister of Employment and Immigration) (1996), 194 N.R. 46
(F.C.A.), 60 A.C.W.S. (3d) 1216, at paragraph 4, the Federal Court of
Appeal noted the following:
. . . In assessing whether a
viable IFA exists, the Board, of course, must have regard to all the
appropriate circumstances. This was done in this case. Since an IFA existed,
therefore, the claimant by definition could not have a well‑founded fear
of persecution in her country of nationality. Thus, while the Board may
certainly do so if it chooses, there was no need as a matter of law for the
Board to decide whether there was persecution in the area of origin as a
prerequisite to the consideration of an IFA.
[17]
In the
instant case, the panel's decision was based on the applicant's testimony as
well as the documentary evidence on file. The panel considered the applicant's
personal situation and the reasonable possibility that he could move to other
cities in Mexico. The applicant has not
discharged his burden of proving that the panel erred in establishing an
internal flight alternative. The Court considers this decision reasonable
because it is consistent with the case law.
[18]
This
application does not raise any serious question of general importance.
JUDGMENT
THIS COURT ORDERS that the
application for judicial review is dismissed. No question is certified.
"Michel
Beaudry"
Certified true
translation
Susan Deichert, Reviser
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