Date: 20080626
Docket: IMM-5305-07
Citation: 2008 FC 809
Montréal, Quebec, June 26, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
JORGE CESAR GUTIERREZ OLMOS
ELIZABETH BARRERA OCHOA
BRANDON GUTIERREZ BARRERA
BRENDA SOFIA GUTIERREZ BARRERA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
As the
trier of fact, the tribunal at first instance has the advantage of its
experience. The more carefully and meticulously a specialized tribunal analyzes
a reality based on the conditions in a particular country, the more clearly it
can see through the narrative and match it with the reality of life in the
given country without twisting it. In fact, it must examine, analyze and consider
the dividing line between what is plausible and what is not.
[2]
The Court
understands that a specialized tribunal does not necessarily understand country
conditions in the same way as the general public, which has no specialized
in-depth knowledge. Nevertheless, the specialized tribunal must demonstrate
clearly and precisely the logic of its own findings.
II. Judicial procedure
[3]
On
November 22, 2007, the Immigration and Refugee Board (the Board) rejected the
applicants’ refugee claim on the grounds that an internal flight alternative
existed for them in Mexico and that the allegations of
Jorge Cesar Gutierrez Olmos lacked credibility. The applicants are challenging
that decision by means of an application for leave filed under section 72
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA). They are raising only questions of fact.
III. Facts
(a) The
basis of the refugee claim
[4]
The
applicants, who are citizens of Mexico,
all based their claim on the facts alleged by Jorge Cesar Gutierrez Olmos, who
is claiming a fear of persecution by reason of his membership in a particular
social group. They are also claiming to be “person[s] in need of protection” in
that they would be personally subjected to a
danger of torture and to a risk to their lives or to a risk of cruel and
unusual treatment or punishment in Mexico.
[5]
Mr.
Gutierrez Olmos was also appointed representative for the minor children,
Brandon and Brenda Sofia Gutierrez Barrera, for the purposes of their refugee
protection claim.
[6]
Elizabeth
Barrera Ochoa is the spouse of Mr. Gutierrez Olmos and has based her refugee
claim on his narrative.
[7]
On October 21, 2004,
Mr. Gutierrez Olmos’s store was apparently robbed. The alleged value of the
stolen goods was $11,000.
[8]
On
October 21, 2004, Mr. Gutierrez Olmos allegedly reported the theft to
the ministry of public affairs, but never heard back from it.
[9]
In
February 2006, Mr. Gutierrez Olmos apparently received five telephone
calls threatening to kidnap his son, Brandon, unless he paid a ransom of
50,000 pesos.
[10]
In March
2006, Mr. Gutierrez Olmos and his spouse allegedly transferred their children
to a new school.
[11]
In
July 2006, the applicants apparently moved.
[12]
On
November 15, 2006, Mr. Gutierrez Olmos allegedly reported his aggressors,
including one Rafael Arzate, his former employee, who was now a police officer.
Mr. Gutierrez Olmos stated to the police authorities that he might have been
the person responsible.
[13]
Mr.
Gutierrez Olmos is alleging that, after he had reported him, Mr. Arzate told
him over the telephone that he would pay the consequences for having reported
him.
[14]
Fearing
for their lives, the applicants left Mexico
for Canada on
January 10, 2007. They claimed refugee protection two days later.
(b) The Board’s decision
[15]
The Board
rejected the refugee claim, finding that the applicants were not “Convention
refugee[s]” or “person[s] in need of protection” on the grounds that an
internal flight alternative existed for them elsewhere in Mexico and that Mr. Gutierrez
Olmos’s allegations lacked credibility.
[16]
The
Board’s decision is based on the evidence
adduced, draws reasonable inferences from it and respects the relevant legal
principles.
IV. Issue
[17]
Does the
Board’s decision contain an error of fact warranting this Court’s
intervention?
V. Analysis
(i) Internal flight alternative
[18]
Concerning
internal flight alternatives, in Isufi v. Canada (Minister of Citizenship and
Immigration),
2003 FC 880, 237 F.T.R. 161, at paragraph 23, the Court acknowledged that a refugee
claimant had to demonstrate that the risk to his life or the risk of cruel and
unusual punishment existed throughout the country.
[19]
It is
recognized in subparagraph 97(1)(b)(ii) of the IRPA that a person must
be subjected to a risk to his or her life or to a risk of cruel and unusual
treatment or punishment in every part of his or her country. Thus, the internal
flight alternative is a component of the concept of “person in need of
protection” set out in subparagraph 97(1)(b)(ii) of the IRPA.
[20]
Subparagraph 97(1)(b)(ii)
of the IRPA is worded as follows:
|
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
…
(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
…
(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,
…
|
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 :
[...]
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
[...]
(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,
[...]
|
[21]
In this
case, the applicants did not exactly challenge the validity of the part of the
decision that concerns the internal flight alternative, although it is a
component of the refugee claim.
[22]
Mr.
Justice Yvon Pinard thus commented on this matter in Fedonin v. Canada (Minister of Citizenship and
Immigration),
[1997] F.C.J. No. 1684 (QL):
[2] When she began her
argument, counsel for the applicants stated that she was unable to invalidate
the portion of the panel"s decision finding that the applicants had an
internal flight alternative in the north of Kazakhstan. As I told her at the hearing, she thereby eliminated any chance that
the application for judicial review had of succeeding. ...
(See also Singh v. Canada (Minister of Citizenship and
Immigration),
2006 FC 709, 295 F.T.R. 108 at para. 18.)
[23]
The fact
that the internal flight alternative is a component of refugee claims and that
it is not being challenged in this case is sufficient to dismiss this
application.
[24]
Concerning
the possibility of moving to another part of Mexico, Mr. Gutierrez Olmos told
the Board that his first thought was to leave Mexico because of its insecurity. The problems
that he has allegedly lived through caused by drugs and kidnappings of children
are of great concern to him. Moreover, one of his aggressors, Mr. Arzate, is
allegedly a police officer and hence could find him anywhere in Mexico. (Reasons at p. 4, last
para.)
[25]
Considering
that the Board had doubts about the credibility of several of
Mr. Gutierrez Olmos’s allegations, that Mr. Gutierrez Olmos had not
proved that Mr. Arzate was a police officer and that no evidence was submitted regarding the other people allegedly
involved in the wrongful acts against the applicants, it was open to the Board
to determine that the applicants had not established on a balance of
probabilities that they were at risk throughout their country. (Reasons at
p. 5, para. 4.)
[26]
That
finding is a finding of fact for which the Board is in the best position to
assess the evidence and the facts of the case. (Singh v. Canada (Secretary
of State), [1995] F.C.J. No. 1673 (QL); Gilgorri v. Canada (Minister of
Citizenship and Immigration), 2006 FC 559, [2006] F.C.J. No. 701 (QL).)
[27]
Thus, the
applicants did not demonstrate with actual and concrete evidence that there was
a risk to their lives and safety in another part of Mexico. (Ranganathan v. Canada (Minister of Citizenship and
Immigration),
[2001] 2 F.C. 164, 266 N.R. 380 at para. 15 (C.A.).)
(ii) Lack of credibility
and corroboration
[29]
The
applicants are claiming that they moved in July 2006 after telephone calls
threatening to kidnap their son that they allegedly received in
February 2006. However, in their Personal Information Form (PIF), they did
not mention a different place of residence for that period. The Board did not
find reasonable Mr. Gutierrez Olmos’s explanation concerning that
contradiction. The Board also did not find it credible that the applicants
changed houses in June and July 2006 because of their fear.
(Reasons at p. 2.)
[30]
In
addition, the fact that Mr. Gutierrez Olmos gave contradictory answers about
when he found out that his employee, Mr. Arzate, was working for the federal
police affected his credibility. (Reasons at p. 3, para. 1.)
[31]
Mr.
Gutierrez Olmos’s credibility was also undermined by the fact that he had not
provided any satisfactory explanation as to the contradiction between the
pieces of evidence concerning whether Mr. Gutierrez Olmos knew Mr. Arzate and
Mr. Arzate’s work as a police officer. (Reasons at p. 3, para. 1.)
[32]
In Mostajelin
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 28
(QL) (C.A.), Mr. Justice Robert Décary of the Federal Court of Appeal reminded
us that the issue of credibility should be left to the Board to assess,
especially where contradictions among the claimant’s statements are concerned:
The
Board's conclusion that the appellant's evidence was not credible or
trustworthy is based upon the appellant's demeanour, the conflict between the Personal Information Form and
his oral testimony and a series of inconsistencies and implausibilities in
his oral testimony. Such credibility findings are beyond the review of this
Court. (Emphasis added.)
[33]
Therefore,
the Board was justified in making a negative finding concerning
Mr. Gutierrez Olmos’s credibility.
[34]
Since Mr.
Gutierrez Olmos’s credibility was undermined, it was open to the Board to take
into consideration the fact that he had no documents respecting Mr. Arzate’s
being a police officer or being one of his kidnappers in November 2006.
(Reasons at p. 3, para. 2; Amarapala v. Canada (Minister of Citizenship and
Immigration), 2004 FC 12, [2004] F.C.J. No. 62 at para. 9 (QL).)
[35]
Given that
the decision is based on findings of fact, mere disagreement with the reasons
or an inference that is different from that made by the Board would not be
sufficient to question the merits of the decision rendered.
[36]
Only the
test set out in paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F‑7 would enable this Court to intervene. See also Oduro
v. Canada (Minister of Employment and
Immigration)
(1993), 66 F.T.R. 106, 41 A.C.W.S. (3d) 384 (F.C.).
[37]
Case law
has clearly established that the Board has sole jurisdiction over the facts and
that its findings on the facts, such as Mr. Gutierrez Olmos’s lack of
credibility, must stand unless they are entirely unreasonable, which is not the
case here. (Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315.)
[38]
Considering
the case law mentioned above and the evidence on the record, the Board was able
to make the findings that it made, and they were certainly not unreasonable.
VI. Conclusion
[39]
For all of
these reasons, the applicants failed to give substantial grounds warranting the
Court’s intervention.
[40]
The
application for judicial review is therefore dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, Reviser
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