Date: 20110615
Docket: IMM-6374-10
Citation: 2011 FC 699
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, June 15, 2011
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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CLAUDIA ALICIA RAMOS
VILLEGAS
and
LUIS VILLEGAS RIVERA
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Applicants
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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
submitted in accordance with subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA),
of a decision by the Immigration and Refugee Board (Board), dated September 22,
2010 (reasons signed on October 12, 2010), that the applicants are
not Convention refugees or persons in need of protection.
I. Background
[2] Claudia Alicia Ramos Villegas (female applicant) and
her spouse, Luis Villegas Rivera (male applicant), are Mexican citizens. The
male applicant has based his entire refugee protection claim on that of the
female applicant.
[3] The female applicant is alleging that she was a
victim of verbal and physical abuse on July 2, 2006, while working as a deputy
returning officer at a voting office. She was purportedly assaulted by her
supervisor, a member of Mexico’s Federal Electoral Institute (Mexico’s IFE) and
the National Action Party (PAN), for apparently letting people over sixty years
of age vote, contrary to his instructions. He allegedly threatened to kill her
and accused her of being in collusion with the Party of the Democratic
Revolution (PRD). She alleges that, after this incident, she went to the Office
of the Public Prosecutor on two occasions, on July 4 and 7, 2006, to file a
complaint, but with no results.
[4] Subsequently, from July 7, 2006, to April 1, 2008,
the female applicant was purportedly a victim of verbal and physical abuse and
felt like she was being watched. During the last incident, a ministerial police
officer driving a ministerial police vehicle apparently stopped her, telling
her that she should stay calm if she did not want to have a little accident.
II. Board’s decision
[5] The Board raised concerns
as to the female applicant’s credibility because of contradictions between the
information in her Personal Information Form and her testimony at the hearing,
but it found that the determinative issue was an internal flight alternative (IFA).
[6] The Board found that the applicants had not
discharged the burden of demonstrating, on a balance of probabilities, that
they would be in danger throughout Mexico. The Board believed that the female
applicant’s answers and explanations were insufficient to demonstrate that her aggressors
were willing or able to find her throughout Mexico.
[7] First, the Board did not accept the explanations
the female applicant gave for not moving to another location in Mexico. The
Board summarized the female applicant’s explanations as follows:
[13] . . . The panel then asked her
why she did not move within her country the moment she felt unsafe. She stated,
[translation] “It would be the same thing”. Asked what she meant when she
stated “It would be the same thing”, the principal claimant answered,
[translation] “Regardless of where I go, I will have to identify myself in the
system, and it is easy to find someone”. She added, [translation] “A person has
to provide their contact information, their CURP, their driver’s licence and
their voter’s card.” . . .
[8] The Board rejected these explanations and
specified that it was referring “ . . . to the documentation on Mexico, which
indicates that a court order is required in order to obtain personal
information on a Mexican citizen and that not even federal officers can access
this data without a court order and written permission from the office of the
public prosecutor.”
[9] The Board also found that the female applicant’s
other explanations that referred to a generalized risk caused by the existence
of conflicts with regard to killings, violence, drug trafficking and corrupt
politicians were insufficient.
III. Issue
[10] The applicants maintain that the Board erred in
finding that an IFA existed because its finding was based on an unreasonable
assessment of the evidence. The applicants specifically criticize the Board for
failing to consider the credible and trustworthy documentary evidence that was
contrary to its findings.
IV. Standard of review
[11] It has been established that IFA findings are
subject to the standard of reasonableness (Kumar v. Canada (Minister of
Citizenship and Immigration), 2011 FC 45, at paragraph 6 (available on
CanLII); Ramirez v. Canada (Minister of Citizenship and Immigration),
2011 FC 227, at paragraph 13 (available on CanLII); Guerilus v. Canada (Minister
of Citizenship and Immigration), 2010 FC 394, at paragraph 10 (available on
CanLII); Krasniqi v. Canada (Minister of Citizenship and Immigration),
2010 FC 350, at paragraph 25 (available on CanLII)).
[12] It has also been well established that the Board’s
findings of fact, more specifically its assessment of the evidence, are also
subject to the standard of reasonableness. It is not up to the Court to
substitute its assessment of the evidence for that of the Board’s, or to
reassess the weight given by the Board to certain evidence. It will intervene
only if the Board made its findings in a perverse or capricious manner or
without regard for the material before it (Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
V. Analysis
Did the Board unreasonably assess the
evidence and fail to consider relevant documentary evidence?
[13] The applicants allege that the Board analyzed the
documentary evidence in a superficial and selective manner. In particular, they
argue that the Board failed to consider the documentary evidence that contradicted
its finding that a court order is required to obtain personal information on a
citizen. The applicants submit that excerpts from the National Documentation Package
on Mexico (Exhibit B in the Applicant’s Record) demonstrate that there are, in
fact, other ways to obtain personal information in Mexico. This documentary
evidence, in the applicants’ opinion, corroborates their claims that they would
have been found easily by the female applicant’s aggressors. The excerpt on which
the applicants rely is dated October 2005. It refers to the opinion of the secretary
of the United Church of Canada for the Caribbean and Latin America, who says
that it is easy to find someone in Mexico because of the widespread use of
voting cards as identity cards and the general failure to protect information
in public institution databases. The excerpt also refers to an article in the Latin
Americana dated June 18, 2003, which indicated that information in Mexico’s IFE
registry had been illegally sold to American public authorities.
[14] The respondent claims that the Board’s decision relied
on the evidence. He also submits that the Board is presumed to have considered
all of the evidence whether it refers to it in its reasons or not, and that it
is not required to mention and comment on specific passages of the documentary
evidence. The respondent also contends that this is not a situation where
documentary evidence goes directly against the Board’s finding, and that the
documentation on which the Board relied is more recent (2007) than that raised
by the applicants. Furthermore, the respondent maintains that, even if the
Court believed that the Board had erred in assessing the agent of persecution’s
ability to find them, the Board also reasonably found that the evidence did not
demonstrate that the agent of persecution was willing to find them.
[15] With respect, I do not share the applicants’
opinion.
[16] The Board is presumed to have considered all of
the evidence and is not required to mention all of the documentary evidence
before it (Florea v. Canada (Minister of Employment and Immigration), (F.C.A.),
[1993] F.C.J. No. 598 (available on QL)).
[17] I consider that, in this case, this was not a situation
where the Board had to specifically address the evidence submitted by the
applicants; the case law requires that this be done when evidence submitted by
a party directly contradicts the decision-maker’s findings (Cepeda‑Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.
1425, 157 FTR 35).
[18] First, the documentary evidence relied on by the
applicants is dated 2005, whereas the documentary evidence relied on and cited
by the Board is dated 2007 and is therefore more recent. Furthermore, the paper
from which the excerpt cited by the Board is taken contains information that
contradicts the opinions issued in the document raised by the applicants.
[19] This paper contains the following information,
among other things:
. . . Of all the interlocutors interviewed,
none was aware of incidents in which witnesses to crime and corruption were
located by their aggressors through the use of government databases or registries
. . . .
[20] The documentary evidence raised by the applicants
is based on the opinion of two persons and is contradicted by the more recent
documentary evidence. Although it is true that the evidence submitted by the
applicants contradicts the Board’s finding, the Board’s finding is nevertheless
consistent with the more recent documentary evidence that is part of and serves
to support the excerpt cited by the Board. I therefore consider that the Board
was not required to specifically mention the documentary evidence submitted by
the applicants. The Board was entitled to sort through the elements favourable
to, or not so favourable to, the applicants and it was its responsibility to
weigh this evidence. The Board’s assessment of the evidence was reasonable and
consequently the Court’s intervention is unwarranted.
[21] The application for judicial review is therefore
dismissed.
[22] Neither party proposed a
question for me to certify
and this application does not give rise to any.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the application for judicial review is dismissed.
“Marie-Josée Bédard”
Certified
true translation
Janine
Anderson, Translator
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