Date: 20110323
Docket: IMM-2417-10
Citation: 2011 FC 360
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, March 23, 2011
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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MIGUEL ANGEL BELMONTE SOTO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review in
accordance with subsection 72(1) 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 (panel), dated April 7, 2010, that the applicant
is not a Convention refugee or a person in need of protection.
Factual background
[2]
The
facts as stated by the panel are as follows: the applicant, Miguel Angel
Belmonte Soto, is a citizen of Mexico. He is alleging that he fears José de
Jesus Claudio, who purportedly was his employer from November 2005 to December
2006. A few weeks after starting his job, José Claudio’s brother, Juan Claudio,
apparently told the applicant that he and his brother were involved in trafficking
drugs.
[3]
On
November 30, 2006, Juan Claudio was allegedly apprehended by the police and
charged with drug trafficking. On December 3, 2006, José Claudio apparently
went looking for the applicant at his restaurant but did not find him.
[4]
In
early December 2006, the applicant apparently started working in another
restaurant. On December 5, he was purportedly intercepted by José Claudio and
two other individuals. The two individuals allegedly took him by the arms and
beat him, insulting him and telling him to keep his mouth shut. The applicant
purportedly suffered scratches and hematomas as a result of this incident.
[5]
On
December 7, 2006, the applicant allegedly went to the office of the public
prosecutor in Léon, where he allegedly tried to file a complaint in writing. However,
the uniformed officer purportedly made only a few notes. The applicant
apparently did not sign anything and saw the uniformed officer put everything
in a filing cabinet. The applicant apparently did not mention that José Claudio
was involved in drug trafficking.
[6]
A
few days later, the applicant was apparently threatened again when José Claudio
purportedly came to his home with two individuals. After that, the applicant
apparently stayed home. The applicant then purportedly went to stay with his
aunt, Soledad Soto Lara, approximately one hour from his home in Léon. The
applicant testified that he decided to apply for a passport in February 2007 and
that he left the country on March 23, 2007. He claimed refugee protection in Canada in April
2007.
[7]
The
refugee claim hearing took place on March 29, 2010. On April 7, 2010, the panel
rejected the applicant’s refugee claim.
Impugned decision
[8]
The
panel rejected the applicant’s refugee claim for three distinct and independent
reasons: lack of credibility on the part of the applicant, availability of
state protection in Mexico and an internal flight alternative (IFA).
[9]
With
respect to the applicant’s credibility, the panel found that his testimony
contained several contradictions and omissions, namely, the fact that he did
not mention drug trafficking in paragraph 13 of his PIF, the inconsistencies in
the number of death threats he alleges to have received and when they were made,
the question of whether José Claudio had hit him or not, and the very existence
of José Claudio and his brother, Juan.
[10]
The
panel described the applicant’s testimony as “laboured and contain[ing] several
contradictions and omissions” (Certified Tribunal Record, decision of the panel,
at paragraph 10). The panel noted that the applicant submitted only his
Personal Information Form (PIF) as an exhibit in support of his testimony and
testified that he did not attempt to obtain additional documents that could
have corroborated his version of the facts, such as a police report or the
complaint he filed. The panel rejected the applicant’s explanations that he did
not try to obtain corroborative documents because he feared that this would
have repercussions on his family.
[11]
Regarding
state protection, the panel found that the applicant did not succeed in
rebutting the presumption of state protection and did not, with the support of
clear and convincing evidence, prove the inability of the state of Mexico to
ensure his protection. The panel did not assign any credibility to the fact
that the applicant tried to seek state protection by filing a complaint with
the police or to the fact that he did not try to seek protection from the
federal authorities.
[12]
The
panel reiterated that the adequacy of state protection cannot rest on a refugee
protection claimant’s subjective fear (Martinez v. Canada
(Minister of Citizenship and Immigration), 2005 FC
1050, [2005] F.C.J. No. 1297). Furthermore,
the panel noted from the documentary evidence that Mexico has made a great deal
of progress in terms of protecting its citizens against corruption and drug
trafficking.
[13]
Finally,
the issue of an internal flight alternative (IFA) was discussed at the hearing.
The cities of the Federal District of Mexico City, Guadalajara, Monterrey, Acapulco and Cancun were
mentioned. The panel found that the applicant had failed the two components,
subjective and objective, of the IFA test.
[14]
The
panel rejected the applicant’s claim.
Relevant statutory
provisions
[15]
The following provisions of the Immigration and Refugee
Protection Act are relevant in this case:
Convention
refugee
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.
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Définition
de « réfugié »
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.
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Person
in need of protection
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.
Person
in need of protection
(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.
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Personne
à protéger
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.
Personne
à protéger
(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.
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Issues
[16]
The
issues that arise in this case are the following:
a.
Did
the panel err in finding that the applicant was not credible?
b.
Did the panel err in finding that the applicant
had failed to rebut the presumption of Mexican state protection?
c. Did the panel err in finding that there
was an internal flight alternative?
Standard of review
[17]
The
courts have consistently held that the standard of reasonableness applies to
credibility issues (see Malveda v. Canada (Minister of Citizenship and Immigration),
2008 FC 447, [2008] F.C.J. No. 527; Aguirre v.
Canada (Minister of Citizenship and Immigration), 2008 FC 571, [2008] F.C.J. No. 732; Khokhar v. Canada (Minister of
Citizenship and Immigration), 2008 FC 449, [2008] F.C.J. No.
571; and Tovar v. Canada (Minister of Citizenship and Immigration),
2009 FC 600, [2009] F.C.J. No. 785).
[18]
State protection issues are questions of mixed fact and law that
must also be reviewed on the standard of reasonableness (Sosa v. Canada
(Minister of Citizenship and Immigration), 2009 FC
275,
[2009] F.C.J. No. 343, at
paragraph 15).
[19]
Finally,
this Court found that the standard of review applicable to internal flight
alternative (IFA) issues is that of reasonableness (see Guerilus
v. Canada (Minister of Citizenship and Immigration), 2010 FC 394, [2010] F.C.J. No. 438, at paragraph
10; and Krasniqi v. Canada (Minister of Citizenship
and Immigration), 2010 FC 350, [2010] F.C.J. No.
410, at paragraph 25).
Analysis
a.
Did
the panel err in finding that the applicant was not credible?
[20]
Regarding
the lack of credibility, the applicant submits that the panel’s decision is
arbitrary and unreasonable insofar as the administrative tribunal is falsely claiming
that there was a contradiction between the testimony of Mr. Soto at the hearing
and the content of paragraph 13 of his answer to question 31 in his PIF.
[21]
With
respect to the difference between the terms “dangerous dirty business” and
“drug trafficking”, the applicant maintains that his two explanations, far from
contradicting each other, are mutually exclusive facts. The term “drug
trafficking” was a clarification made at the hearing in relation to his PIF. In
that sense, the applicant submits that the panel’s decision was so blatantly
arbitrary and illogical that it vitiated its reasoning (Applicant’s Record,
detailed affidavit of the applicant at paragraphs 17-18 and Certified Tribunal
Record, decision of the panel at paragraphs 10‑11). According to the
applicant, the reasons advanced by the panel for rejecting his testimony are
not supported by the evidence.
[22]
Furthermore,
the applicant claims that, regarding the other aspects discussed by the panel, paragraphs
12 to 16 of the decision are actually a microscopic analysis focussing on minor
and peripheral details.
[23]
However,
the respondent emphasizes that the applicant, when questioned during his
testimony, merely replied that he did not know why there were omissions in his
PIF and contradictions with respect to it. The respondent submits that the omissions
and contradictions raised by the panel were at the very essence of the claim;
in that sense the panel’s decision is well‑founded.
[24]
The
case law has consistently held that the panel may deem the omission of
important facts in a claimant’s PIF as undermining the claimant’s credibility (Cienfuegos
v. Canada (Minister of Citizenship and Immigration), 2009 FC 1262, [2009] F.C.J. No. 1591; Bernal v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1007, [2009] F.C.J.
No. 1217). In fact, the applicant is asking this Court to re-assess the
evidence that was submitted before the panel and to substitute its own
interpretation of it in the context of a judicial review, which is not the role
of this Court. Instead, this Court must determine whether the panel’s decision
falls within the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law”
(Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] S.C.J. No. 9).
[25]
The
Court also agrees with the respondent’s argument that the panel could have drawn
a negative inference with respect to the applicant’s credibility based on the
fact that he did not give a reasonable explanation for his failure to submit
evidence corroborating his allegations (Sinnathamby v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 473, [2001] F.C.J. No. 742, at paragraph 24). The Court already
relied on this principle in Sosa, above,
at paragraph 19, a case that contains facts similar to those in this case:
[19] Last, this Court has also repeatedly confirmed that the RPD
can draw an adverse inference from the lack of evidence corroborating a
claimant’s testimony where the panel has concerns about his or her credibility.
The applicants had to properly document their alleged fear of persecution. In
this case, the applicant did not provide any evidence to corroborate her place
of residence during the period of alleged risk and did not even specify in her
PIF where she lived during that period. It was therefore not unreasonable for
the RPD to expect the applicants to provide credible evidence to corroborate
the allegations that were at the heart of their claim and were the very
foundation of their fear of persecution, given that the onus was on them to
credibly establish their allegations in support of that fear, which they failed
to do in this case.
[26]
During
the hearing before this Court, the applicant’s counsel emphasized the fact that
the applicant mentioned in his background information form that he feared
returning to his country of origin because of [translation] “José de Jesus Claudio—drug dealer and those
police accomplices” (Certified Tribunal Record at page 161). The applicant’s
counsel also noted that the panel does not address this information in its
decision and, consequently, this omission vitiates its reasoning and amounts to
an error.
[27]
Even
though this Court is of the opinion that it would have been preferable for the
panel to have addressed this information in its decision, the applicant’s
arguments did not convince this Court that this omission, given the contradictions
and omissions in the evidence as a whole, is fatal in and of itself and renders
the decision unreasonable. In fact, this omission is not determinative when the
decision is analyzed as a whole.
[28]
The
applicant also notes that there was a breach of the rules of natural justice. However,
the Court is of the opinion that the applicant’s argument has no merit and is
based on a single passage. After reading the transcript, it is apparent that
the panel was listening to the applicant and made comments in conformity with
the rules of natural justice (Certified Tribunal Record at pages 171, 172
and 185).
b. Did the panel err in finding that the applicant had failed to rebut the
presumption of Mexican state protection?
[29]
The
applicant alleges that the panel erred in determining that Mexican state
protection was available and that the applicant had not availed himself of it
because he had not made any effort to ensure that the office of the public
prosecutor was moving forward with his complaint. He alleges that the panel
erred in finding that Mexico was actually capable of protecting its
citizens. To support his submissions, he cites Velasco v. Canada (Minister of Citizenship and Immigration), 2007 FC 133, [2007] F.C.J.
No. 211, at paragraph 21, in which the Court held that, citing Avila v. Canada (Minister of
Citizenship and Immigration), 2006 FC 359,
[2006] F.C.J.
No. 439, “[t]he Board must consider not only
whether the state is actually capable of providing protection but also whether
it is willing to act.” The applicant added that
it is unreasonable to require him to put his life in danger when seeking
protection that has little chance of materializing.
[30]
The
applicant also alleges that the panel did not apply the correct jurisprudential
tests for state protection matters because it did not consider the content of
the applicable documentation package on Mexico, which would have permitted the
applicant to rebut the presumption of state protection.
[31]
The
respondent emphasizes that the applicant had to clearly and convincingly
establish that Mexico was not capable of ensuring his protection (see
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th)
1); Carrillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636). The
respondent contends that, in this case, the applicant failed to discharge his onus
of proof by not submitting any evidence to corroborate his allegation that he
had filed a complaint.
[32]
To
this end, the evidence demonstrates that the applicant in no way followed up on
his complaint, did not ask to speak with a supervisor and did not approach the
federal authorities. The applicant simply did not demonstrate that his life
would have been in danger if he had requested a copy of his complaint. Moreover,
as noted by the panel, if he had approached the Mexican consulate in Canada, he
would have been able to obtain it free of charge within four (4) to six (6)
weeks. Therefore, the panel was correct in finding that he had made no effort
to obtain this document to establish that he had apparently sought protection
from the Mexican state, but without success.
[33]
Regarding
the allegations that the panel failed to address certain documentary evidence
demonstrating that Mexico is corrupt to the point that it would be
unreasonable to seek protection from the authorities, the Court is of the
opinion that they are without merit. As the respondent noted, there is no
evidence in support of the applicant’s allegations because he did not submit the
documents relied upon for his argument.
[34]
The
Court reminds us that the panel is entitled to prefer one piece of documentary
evidence over another and to choose the documentary evidence that, according to
it, is most consistent with reality (see Singh v. Canada
(Minister of Citizenship and Immigration), 2008 FC 408,
[2008] F.C.J. No. 547). Furthermore, it is well
established that the general situation in a country cannot, in itself,
establish the merits of a claim (see Munoz v. Canada
(Minister of Citizenship and Immigration), 2009 FC 478, [2009] F.C.J. No. 590).
[35]
In
Kadenko v. Canada (Minister of
Citizenship and Immigration), [1996]
F.C.J. No. 1376, 206 N.R. 272, at paragraph 5, this
Court decided that with a democratic state, it is up to the applicant to make
sufficient efforts to attempt to seek state protection. The applicant must
demonstrate that he or she has exhausted all the courses of action open to him
or her with respect to seeking the necessary protection:
[5] When the state in question is a
democratic state, as in the case at bar, the claimant must do more than simply
show that he or she went to see some members of the police force and that his
or her efforts were unsuccessful. The burden of proof that rests on the
claimant is, in a way, directly proportional to the level of democracy in the
state in question: the more democratic the state's institutions, the more the
claimant must have done to exhaust all the courses of action open to him or
her.
[36]
In this case, the Court finds that the panel’s
analysis is reasonable and its decision on this aspect is also well-founded.
c.
Did the panel err in finding that there was an
internal flight alternative?
[37]
In
Thirunavukkarasu v. Canada (Minister of
Employment and Immigration) (C.A.), [1994] 1 FC 589, 163 N.R. 232, the Court found that, in order to establish whether an internal flight
alternative (IFA) exists, two tests must be
considered. The first test is to determine whether there is another part of the
country where the applicant’s life would not be in jeopardy. If so, the second
test is to establish whether it would be objectively unreasonable to expect the
applicant to move to another less hostile part of the country before seeking
protection abroad, and whether this would cause the applicant undue hardship.
[38]
In
this case, the panel did not find that the applicant would face a serious
possibility of persecution in a large city in Mexico. The panel listed,
for instance, the Federal District of Mexico City, Guadalajara, Monterrey,
Acapulco and Cancun (Certified Tribunal Record, decision of the panel, at paragraph 30).
[39]
The
applicant argues that his alleged persecutor would find him anywhere in Mexico. The panel
properly noted that the applicant himself admitted that he stayed with family
members for more than two (2) months without being harassed by his persecutors.
The applicant’s argument that his voting card would help his persecutors find
him is not supported by the evidence and must also be rejected.
[40]
The
Court is of the opinion that the cities suggested are reasonable. Moreover, it
is reasonable for the panel to have noted that the applicant would not have had
difficulty finding work by reason of his education level and occupation.
[41]
For
all of these reasons, the Court finds that the panel’s decision is reasonable
and the intervention of the Court is not warranted. The application for judicial
review will therefore be dismissed.
[42]
This application does not give rise to any
question of general importance.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that this application for
judicial review be dismissed. No question is certified.
“Richard Boivin”
Certified
true translation
Janine
Anderson, Translator