Date: 20120201
Docket: IMM-2725-11
Citation: 2012 FC 129
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, February 1, 2012
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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ROY FLORES VARGAS
MARIA ELENA RIVERA TAPIA
MAYRA FLORES 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
I. Introduction
[1]
This is an
application for judicial review, submitted in accordance with subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), of
the decision by the Immigration and Refugee Board (panel), dated March 25,
2011, that Roy Flores Vargas, Maria Elena Rivera Tapia and their
minor daughter, Mayra Flores Rivera, (the applicants) are not Convention refugees or persons
in need of protection under section 96 and paragraph 97(1)(b) of the
IRPA.
[2]
For
the following reasons, this application for judicial
review is allowed.
II. Facts
[3]
The
applicants are Mexican citizens.
[4]
On
August 5, 2007, Ms. Tapia found torn ballots in a plastic bag following the
municipal elections of Calvillo, Aguascalientes. She decided
to take the bag home to show it to her husband, Mr. Vargas, and to his brother.
Thus, the two men suggested that she bring the ballots to the mayor, Humberto
Gallegos.
[5]
She
took their suggestion and went to the office of Mr. Gallegos. Upon seeing the
torn ballots, Mr. Gallegos became very aggressive. He told Ms. Tapia not to say
anything or he would kill her and her family.
[6]
Six
weeks later, the applicants decided to go and see the municipal candidate of
the Party of the Democratic Revolution [PRD], Mr. Martinez, to report
the election fraud. However, Mr. Martinez told them there was
nothing he could do for them.
[7]
On
October 18, 2007, officers of the Federal Investigative Agency [FIA] went to the applicants’ house and
questioned Ms. Tapia, while pointing out that they were sent by Mr. Gallegos.
[8]
On
December 15, 2007, and January 5, 2008, the applicants participated in demonstrations
against election fraud in Mexico.
[9]
On
January 10, 2008, the officers of the FIA forced Mr. Vargas and his brother
into a van. Once inside, the officers physically assaulted them.
[10]
However,
the applicants participated in a third demonstration, on January 25, 2008. The
officers of the FIA went to the applicants’ house a second time and physically
assaulted Mr. Vargas.
[11]
That
same day, the applicants decided to leave their residence and fled to the house
of Mr. Vargas’s sister, Rocio Flores, in Colonia Estrella,
Aguascalientes. On March 3, 2008, the applicants noticed an FIA van with
the same persecutors inside.
[12]
Mr.
Vargas’s sister asked them to leave her house as she did not want to endanger
her own family. Therefore, the applicants went back to their home.
[13]
On
March 23, 2008, the FIA officers arrived unexpectedly at the applicants’ home and
tried to break open their entrance door. The female applicant fled through the
back door and cried for help. She noticed people in a nearby park and asked
them for help. The neighbours’ intervention caused the FIA officers to flee.
[14]
The
applicants left Mexico on June 6, 2008, for Canada. They arrived
in Montréal and filed a claim for refugee protection on June 7, 2008.
III. Legislation
[15]
Section 96
and subsection 97(1) of the IRPA read as follows:
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Convention
refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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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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
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Personne à protéger
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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
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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 :
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(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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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;
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(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
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b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et inusités
dans le cas suivant :
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(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not
inherent or incidental to lawful sanctions, unless imposed in disregard of
accepted international standards, and
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(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,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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IV. Issues
and standard of review
A.
Issues
[16]
This
application for judicial review raises two issues:
1. Did
the panel err by finding that the applicants’ factual story was not credible?
2. Did
the panel err by finding that an internal flight alternative (IFA) existed for the
applicants?
B. Standard of
review
[17]
The
Court notes, in Mejia v Canada (Minister of Citizenship and
Immigration), 2009 FC 354, [2009] FCJ No 438, at para 26, the standard of review applicable, when assessing a claimant’s
credibility, is reasonableness (see also Zarza
v Canada (Minister of
Citizenship and Immigration), 2011 FC 139, [2011] FCJ No 196, at para
16).
[18]
As
for the existence of an IFA, in Diaz v Canada (Minister of
Citizenship and Immigration), [2008] ACE No 1543, at paragraph 24, the
Court states as follows:
Ortiz v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 1716, summarizes the features of IFA
determinations in judicial review, "[Justice Richard] held at paragraph 26
that Board determinations with respect to an IFA deserve deference because the
question falls squarely within the special expertise of the Board. The
determination involves both an evaluation of the circumstances of the
applicants, as related by them in their testimony, and an expert understanding
of the country conditions" from Sivasamboo v. Canada (Minister of Citizenship and
Immigration), [1994] F.C.J. No. 2018. In light of these issues, this Court has
found the standard of review to be patent unreasonableness pre-Dunsmuir [v New Brunswick, 2008 SCC 9] . . . .
Thus, the standard
of review applicable to the issues of an IFA is reasonableness.
V. Position of
the parties
A. Position of
the applicants
[19]
The
applicants submit that the panel’s findings on their lack of credibility and
the IFA are unreasonable, arbitrary and capricious as they are
a breach of procedural fairness. The panel drew a negative
credibility inference based on an apparent
contradiction between the notes taken by the immigration officer and the
applicants’ Personal Information Form [PIF]. The panel did not question the applicants about
the contradiction at the hearing. They therefore claim that they were not given
an opportunity to be heard on this important issue.
[20]
The
panel states, at paragraph 26 of its decision: “[a]lthough [Ms. Tapia] was not confronted about it, the panel draws a negative
inference from the fact that the immigration officer’s notes from the interview
with the female claimant, [translation]
‘on March 3, 2008, the officers came again and broke down the door. I went
to find help in a baseball park;’ however, in her PIF, she alleged that this
incident happened on March 23 and that, on March 3, she was at her
sister‑in‑law’s home in Mexico City.” The applicants maintain that the findings are
contrary to the principles of natural justice and procedural fairness. Accordingly,
the panel’s finding, as to their credibility, is unreasonable
as a whole.
[21]
The
applicants note that the panel dwells on peripheral and minor details to
conclude that they are not credible. At paragraphs 13 to 27 of its decision, the
panel conducted a microscopic analysis of their
refugee claim. The applicants submit that it is not implausible they
waited 6 weeks before denouncing the mayor to his mayoral opponent, Mr.
Martinez. They also state that it is not absurd that members of certain Mexican
political parties be engaged in underhanded schemes.
[22]
The
applicants submit that when a panel assesses the credibility of a claimant, it
must presume that the allegations made under oath are true, unless there are
serious grounds to doubt their truthfulness (see
Moldano v Canada (Minister of
Citizenship and Immigration), [1979] FCJ No 248; Miral v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 254). It is therefore only with
great caution that
a panel like the Refugee Protection Division of the
Immigration and Refugee Board may find a narrative to be implausible.
[23]
Such
caution is to be exercised especially when a claimant is of Mexican origin and
the culture and customs are different from ours (see Gunes v Canada (Minister
of Citizenship and Immigration), 2008 FC 664).
[24]
Finally,
according to the applicants, the panel found, without valid grounds, that they could
avail themselves of an IFA. In its decision,
the panel does not take into account FIA persecutors who have the means and the
motivation to find the applicants anywhere in Mexico. According
to the applicants, the documentary evidence presented as regards Mexico indicates
that the FIA can access the government system of the Federal Electoral Institute. That system
allows the FIA to find the applicants based on their electoral card.
[25]
Moreover,
the applicants maintain that their potential employer may unintentionally reveal their haven as all employers
must register in the computer system Clave Unica de Registro de Poblacion
[CURP].
[26]
The
applicants allege that an IFA cannot be speculative or theoretical but rather it must be
a realistic and attainable option (Huerta v Canada (Minister of
Citizenship and Immigration), 2008 FC 586 [Huerta]). They also mention
that they cannot undergo undue hardship in travelling
to another location in Mexico or hide out in
an isolated region of the country (see Thirunavukkarasu v Canada (Minister of
Citizenship and Immigration) (CA), [1994] 1 FC 589 [Thirunavukkarasu]).
There is no doubt, according to the applicants, that the IFA is not a realistic
and attainable option.
B. Position of
the respondent
[27]
For
his part, the respondent submits that the assessment of the credibility of a refugee
claimant
is for the panel who specializes in such matters (see Bunema v Canada
(Minister of Citizenship and Immigration), 2007 FC 774, at para 1 [Bunema];
Singh v Canada (Minister of Citizenship and Immigration), 2007 FC
62; Encinas v Canada (Minister of Citizenship and Immigration),
2006 FC 61; and Kengkarasa v Canada (Minister of Citizenship and
Immigration), 2007 FC 714). The Court’s intervention must be limited to
cases where serious errors are made in weighing facts or testimonies (see Bunema,
supra, at para 17; and Navarro v Canada (Minister of
Citizenship and Immigration), 2008 FC 358, at paras 12-14).
[28]
In
the case at bar, the panel did not believe central points of the applicants’ narrative
as it is vague, unclear and has many implausibilities and contradictions
which undermine their credibility.
[29]
First,
the respondent notes that the applicants’ testimony, as to the reporting of
election fraud, is implausible. The panel found it curious that Ms. Tapia took the
ballots home instead of giving them to the responsible authorities. She also
did not know how many ballots were in the bag.
[30]
Second,
the panel considered it implausible that Mr. Martinez would be in collusion
with his defeated opponent and informed him of the fraud committed against him.
[31]
Third,
the panel wondered why Ms. Tapia reported the ballots to the incumbent candidate.
[32]
Fourth,
the respondent notes that the panel found implausible that the fraudsters would
be so careless as to leave a bag containing ballots abandoned on the ground.
[33]
Finally,
the applicants did not explain why they waited six weeks before
reporting Mr. Gallegos.
[34]
The
respondent maintains that the panel correctly identified contradictions in the applicants’
testimony. Moreover, the applicants submit that the FIA officers went to their
home to search the house for the ballots. However, the applicant had already given
the ballots to Mr. Gallegos.
[35]
Moreover,
when the panel questioned the applicants as to the motivations of Mr. Gallegos and
the possibility of an IFA, they stated that the FIA persecutors were watching
them. When asked by the panel to explain why two years went by between the
FIA’s numerous visits and their visit to her mother’s house, Ms. Tapia adjusted
her testimony by stating that she often saw the officers in front of the house
and she was under constant surveillance.
[36]
The
respondent submits that the elements raised by the panel, when it assessed the
truthfulness of the applicants’ testimony, are vital elements
of their claim and greatly undermine their credibility.
[37]
As
to the existence of an error of procedural fairness, the respondent submits
that the lack of credibility suffices to deny the applicants’ claim for refugee
protection.
[38]
The
panel concludes that the applicants could seek refuge in Mexico by settling in
Mexico City, Federal District, or in Guadalajara. Indeed, the applicants
recognize that one of the male applicant’s brothers went back to live in Puebla without undergoing any undue hardship (see panel’s decision,
paras 30-33). The respondent submits that it is, therefore, a reasonable
finding.
[39]
Finally,
the applicants argue, in their memorandum, that their personal information available
through CURP would allow the FIA officers to locate them. They also fear that the
officers would use their electoral cards to find them. However, the respondent states
that no documentary evidence was provided to support those submissions.
VI. Analysis
1. Did
the panel err by finding that the applicants’ factual story was not credible?
[40]
The
Court would like to note that the “credibility is
central to most, if not all, of the findings that the [IRB] makes when
assessing asylum claims” (see Umubyeyi v Canada
(Minister
of Citizenship and Immigration),
2011 FC 69, [2011] FCJ No 76, at para 11). The IRB may draw a negative finding on the claimant’s
credibility where inconsistencies are found between the claimant’s testimony
and the evidence provided (see Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 [Aguebor]).
[41]
However, “[t]he Court should
not interfere with the findings of fact and the conclusions drawn by the [IRB]
unless the Court is satisfied that the [IRB] based its conclusion on irrelevant
considerations or that it ignored evidence” (see Kengkarasa v
Canada (Minister of Citizenship and Immigration), 2007 CF 714, [2007]
FCJ No 970, at para 7; see also Miranda v Canada (Minister of
Citizenship and Immigration), [1993] FCJ No 437). The case law is
consistent that assessing evidence and testimony, as well as attaching
probative value to them, is up to the IRB (see Aguebor, supra,
and Romhaine v Canada (Minister of Citizenship and
Immigration),
2011 FC 534, [2011] FCJ No 693 at para 21).
[42]
The
panel found many implausibilities in the applicants’ narrative. It mentioned
that it found curious that Ms. Tapia brought the torn ballots home and that she
no longer remembered how many ballots were in the bag. The panel also notes
that it is implausible that there could be collusion between opposing political
parties. However, the panel found it unlikely that the fraudsters would be so
careless in their attempt to alter the result of the vote. Finally, the panel
does not understand why the applicants waited six weeks to denounce Mr.
Gallegos.
[43]
The
panel’s findings are based on irrelevant considerations. It dwells on minor
details that cannot undermine the applicants’ credibility to the point where
their refugee claim would be denied. The panel’s findings cannot withstand a more probing examination with the result that
if its decision was only based on these points, the Court would not have
any difficulty in allowing this application for judicial review.
[44]
However,
the Court must also consider the panel’s finding that there is an IFA in Mexico City or in Guadalajara.
2. Did
the panel err by finding that an internal flight alternative (IFA) existed for the
applicants?
[45]
The
panel did not reasonably find that an IFA exists in Mexico City or in Guadalajara for the
applicants.
[46]
In
Rasaratnam v Canada (Minister of
Employment and Immigration) (CA), [1992] 1 FC 706, the
Federal Court of Appeal sets out the criteria which applies to determine
whether an IFA exists. The criteria is also applied in Thirunavukkarasu,
supra, at paragraph 12:
In my opinion, in finding the
IFA, the Board was required to be satisfied, on a balance of probabilities,
that there was no serious possibility of the appellant being persecuted in
[place of IFA] and that, in all the circumstances including circumstances
particular to him, conditions in [place of IFA] were such that it would not be
unreasonable for the appellant to seek refuge there.
[47]
It
is also important to note that “…[Thirunavukkaras] clearly states that it is not sufficient for a
refugee applicant to allege that he/she has no friends or family in the more
secure part of the country or that he/she risks not finding suitable employment
(Thirunavukkarasu, supra, at paragraphs 13
and 14)” (see Ramirez v Canada (Minister of
Citizenship and Immigration), 2007 FC 1191, [2007] FCJ No 1536, at para 8).
[48]
The
applicants are attempting to reverse the panel’s finding that they could move
to Mexico
City,
Federal District, or Guadalajara. The applicants
presented their testimony as their sole evidence to establish that the FIA
officers would try to find them elsewhere in Mexico. While they
state, furthermore, that the FIA has the resources and means necessary to find
them and that they would not feel safe as they would have to go out and work,
no documentary evidence was adduced before the panel in support of their
allegation.
[49]
Nevertheless,
the evidence established that Mr. Vargas’s brother is in a similar situation.
The applicants admit that he found refuge in Puebla and that he
has been living there “quietly.” The case law is clear: a person who seeks refuge
elsewhere in the country must be able to live there safely and free from the
threat he or she initially faced. Thus, the existence of an IFA appears
unreasonable and unrealistic in this case.
[50]
The
panel’s decision, respecting the IFA, falls outside
the range of possible acceptable outcomes which are defensible in respect of
the facts and law in the particular
circumstances of this case.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that
1.
The
application for judicial review is allowed; and
2.
There is
no question of general importance to certify.
“André F.J. Scott”
Certified
true translation
Daniela
Possamai, Translator
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