Date: 20110126
Docket: IMM-4031-10
Citation: 2011
FC 95
Vancouver, British
Columbia, January 26, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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KARLA BERENICE GARCIA RAMIREZ
CESAR ERNESTO CASSO RAMIREZ
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
present Reasons for Judgment and Judgment pertain to the Immigration and
Refugee Board’s (“IRB”) decision to refuse to grant the Applicants (wife and
husband) status as Convention refugees or persons in need of protection under
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (“IRPA”). Leave was granted by Justice Phelan on October 27, 2010.
[2]
The
principal Applicant, Karla Berenice Garcia Ramirez, was an employee at
CONACULTA, a federal cultural institution in Mexico. During the
course of her employment, she uncovered evidence of fraud and also went through
a labour dispute. She allegedly received threats in regards to her wish to make
this fraud public, which she did by means of a denunciation to a senator. Over
the span of six years, she alleges having received various threats and having
her car’s taillights broken.
[3]
In
its decision, the IRB refused status to the Applicants for the following
reasons:
- The
principal Applicant did not satisfy the requirements to establish the existence
of well-founded fear.
- The
principal Applicant’s delay in leaving Mexico and some
lack of documentary evidence to sustain the subjective fear.
- The
Applicants failed to rebut the presumption of state protection and did not
present any evidence to establish that such protection was actively sought.
[4]
Essentially,
this Court is asked to review factual questions, as the Applicants’
argumentation pertains to the IRB’s analysis of the evidence before it. The
applicable standard of review is that of reasonableness, as is instructed by
the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9.
The reviewing Court must assess the impugned decision in order to address if
the decision falls within the range of acceptable outcomes in fact and law (Dunsmuir,
at para. 47). The Court must not reassess the evidence and substitute its
decision for that of the IRB. Hence, the Court will proceed to analyze the
grounds by which the IRB denied the Applicants asylum in Canada.
Subjective and
Well-Founded Fear of Persecution
[5]
The
IRB’s decision in this respect is detailed and addressed the relevant evidence.
The Court has noted that the IRB did not make a clear credibility finding, but
that it had made selected findings which, as a result, questioned some part of
the version of the events given by the principal Applicant or the
interpretation given to them. All things considered, her story did not obtain
the seal of credibility from the IRB and this was reflected in the reasons
given.
[6]
Also,
the IRB qualified the alleged threats suffered by the principal Applicant as
not having the importance and scope that the principal Applicant alleges. These
threats and their impact are essential to establish a well-founded fear of
persecution. As the IRB noted, these threats were allegedly suffered months
after the relevant events. It was reasonable for the IRB to conclude that
if these threats were connected with her wish to expose the corruption,
these would have occurred much sooner.
[7]
The
IRB also took note of the fact that at no time, despite having had the
opportunity to do so, did the principal Applicant submit evidence in her
possession that was of such importance that persons would be brought down from
their high positions. This Court did inquire about this situation and counsel
for the Applicants was not able to show that such critical information was
available. This can only impact seriously on the well-founded fear of
persecution.
[8]
Furthermore,
the corruption at CONACULTA was made public by other journalists, as the
Applicants themselves submitted. It is also important to note, as the IRB did,
that the principal Applicant did not publish any article in regards to the
corruption, whether in Canada or in Mexico. The IRB’s findings in regards to
the Applicant’s journalistic activities and the threats received are reasonable
and supported by the evidence.
[9]
In
regards to the principal Applicant’s subjective fear, the IRB’s finding that
she had been able to stay and work in Mexico for six years is
sufficient to support a conclusion that her alleged subjective fear was
inconsistent with her history and behaviour in Mexico. As the IRB
noted, the evidence does not support the fact that her alleged threats came
from her former employers. In any event, the argument pertaining to state
protection is in and of itself sufficient to resolve the present application
for judicial review.
Sufficiency of State
Protection
[10]
The
IRB’s analysis of the sufficiency of state protection is wholly reasonable. Put
simply, the Applicants did not approach police authorities at any given time to
complain about threats, or even about the damage to their car. It was reasonable
for the IRB to cite this Court’s conclusion in Rio Ramirez v. Canada
(Citizenship and Immigration), 2008 FC 1214 in order to establish that
“doubting the effectiveness of protection offered by the state when she has not
really tested it does not rebut the existence of presumption of state
protection”. Furthermore, the IRB complemented this finding by counting on case
law submitted by the Applicants where even journalists that had taken a more
active role in denouncing crime were required to approach the state before
seeking asylum in Canada. It also made some distinguishing as to the
role of journalists and how the activities of the principal Applicant were not
of the type of an investigative journalist. As the IRB noted, no clear and
convincing evidence was submitted to rebut this presumption, other than general
statements that powerful people were involved.
[11]
The
IRB’s decision falls within the range of acceptable outcomes defensible in fact
and law: it is clear, reasoned and finds its basis in the evidence before it.
This Court cannot substitute its decision for that of the IRB in the case of
factual findings, unless these are unreasonable. In the case at bar, the IRB’s
findings were reasonable.
[12]
No
question for certification has been submitted, and none arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial review is dismissed.
No question is certified.
“Simon Noël”
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