PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated May 30, 2005 and finding that the applicant was neither a Convention refugee nor a person in need of protection.
ISSUES
[2] The applicant raises the following two issues:
- Did the Board commit a reviewable error in its assessment of the applicant's credibility?
- Did the Board improperly allow its findings regarding credibility to improperly color its analysis of state protection and the possibility of an internal flight alternative (IFA)?
[3] For the following reasons, the answer to these issues is negative and the present application for judicial review shall be dismissed.
FACTS
[4] The applicant is a citizen of Mexico. He was born on May 7, 1975 in Celaya, in Guanajuato state.
[5] The applicant arrived in Canada on April 9, 2002, and claimed refugee status on October 28, 2002.
[6] In May 2001, the applicant was a passenger in an automobile, with two other men. The driver was named Carlos Alberto.
[7] Carlos Alberto had told the applicant that he was a member of a gang involved in drugs and car thefts, but the applicant thought he was bluffing.
[8] The car was stopped by police, who claimed it was stolen.
[9] The applicant did not know that the car had been stolen, but he was arrested and detained along with the two other men.
[10] During detention, the applicant told the police what Carlos Alberto had told him about his illegal activities. The police released the defendant, and Carlos Alberto swore that the applicant would pay for having denounced him.
[11] The applicant believes that Carlos Alberto's desire for revenge stems from the fact that he was beaten by police officers during his detention.
[12] In June 2001, the applicant was approached by Carlos Alberto and two federal judicial police officers, who threatened him.
[13] In September 2001, the applicant was beaten near his home by Carlos Alberto and two federal judicial police officers. The applicant attempted to file a complaint, but received no assistance from the police.
[14] In December 2001, he was threatened by them again.
[15] In March 2002, he was kidnapped and beaten. His attacker threatened to kill him if he did not join his criminal gang.
[16] In order to save his life, the applicant said that he would join the gang, but he obtained a passport on April 3 and fled to Canada a few days later.
[17] The applicant claims that federal judicial police officers are in league with criminals like Carlos Alberto, who offer them bribes and kickbacks.
[18] The applicant alleges that he would not be safe anywhere in Mexico because Carlos Alberto and the federal police officers could follow him anywhere.
[19] He also states that police are corrupt all over Mexico, and that he cannot turn to the state for protection.
DECISION UNDER REVIEW
[20] The Board rejected the applicant's claim, finding that he had provided insufficient evidence to support the following elements of his allegations:
· a medical report attests that he was beaten in September 2001, but there is no evidence indicating who had beaten him;
· there is no evidence of his denunciation of Carlos Alberto to the police. The applicant claims that it was an oral denunciation and that no written record exists.
· the applicant submitted no evidence of his complaint to police after he had been beaten in March 2002, even though he said that he had filed his complaint in writing. The applicant stated that his written copy of the complaint is in a box of important documents that he had left in Mexico, but that a friend of his had been unable to locate it. Considering that the applicant had already been in Canada for three years at the time of the hearing, the Board did not find this explanation credible.
· the applicant claimed to have been studying law at the time these events occurred, and to have written a petition to the law department asking for assistance. However, he did not provide the Board with a copy of this petition.
[21] The Board also found that the applicant had failed to rebut the presumption of state protection in Mexico, or to demonstrate that he had no internal flight alternative.
[22] The Board stated that if the applicant's allegations are true, the corrupt police officers who protect Carlos Alberto operate only in the area of Celaya, and that the applicant had provided no evidence that these officers would follow him all over Mexico or that he could not turn to the police elsewhere in Mexico for protection.
[23] The applicant's counsel made submissions regarding the corruption of Mexican police officers, but the Board referred to documentary evidence detailing that while some areas of Mexico face real problems of police corruption, the problem is not so widespread as to prevent Mexican citizens from turning to the police for protection.
[24] The applicant had stated that he did not want to go to Mexico City because of the level of criminality and the corruption of its police force. The Board found, relying on documentary evidence, that the Mexican authorities had made serious efforts to curb crime and abuses of power by the Mexico City police.
[25] Despite the applicant's counsel's submissions regarding widespread police corruption across Mexico, the Board determined that the applicant had an internal flight alternative to the Federal District of Mexico City, where the applicant has no personal knowledge regarding the availability of state protection.
ANALYSIS
1. Did the Board commit a reviewable error in its assessment of the applicant's credibility?
[26] The applicant contends that he Board committed a reviewable error in finding that he had provided insufficient evidence to support his allegations.
[27] The applicant submits that the Board failed to give reasons as to why it questioned the applicant's credibility in "clear and unmistakeable terms" (Wilanowski v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 371 (F.C.A.) (QL)). The applicant states that it is insufficient for the Board to simply state that the evidence is insufficient.
[28] The applicant urges that the Board approached his testimony with an improper mindset, since it did not appear to believe it as truthful in the absence of evidence to the contrary.
[29] The applicant also submits that the Board erred in failing to consider the newspaper article he submitted supporting his account of his arrest by the police in May 2001. While the Board did acknowledge the existence of this article in its summary of the facts, it did not refer to it in its analysis.
[30] This document corroborates the applicant's story, and he submits that it is so fundamental to his claim that the Board's failure to explicitly address it falls outside the general principle stating it need not refer to every single piece of evidence in its reasons. In this case, a general statement to the effect that the Board has considered all the evidence before it would therefore be insufficient (Cepada-Gutierrez v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL)).
[31] The respondent affirms that the Board provided "clear and unmistakeable" reasons justifying its adverse credibility finding.
[32] While there exists a presumption regarding the truthfulness of a claimant's testimony, the respondent points out that this presumption can be rebutted if there is a reason to doubt its truthfulness.
[33] The respondent cites subsection 100(4) of the Act and rule 7 of the Rules in support of the argument that in light of the applicant's lack of plausible and credible explanations for his failure to produce relevant documents, it was not unreasonable for the Board to draw an adverse credibility finding.
[34] The respondent submits that the Board provided numerous reasons as to why it doubted the applicant's allegations.
Standard of review
[35] The Board's credibility findings are findings of fact, and as such are entitled to a high degree of deference upon judicial review. The applicable standard of review is therefore that of patent unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
[36] After having carefully considered the Board's reasons, and in light of subsection 100(4) and rule 7 of the Rules, I do not believe that the Board committed a reviewable error in its assessment of the applicant's credibility.
[37] It was open to the Board to conclude that the applicant had not produced sufficient evidence to support his allegations, since the applicant did not provide reasonable explanations as to why he had been unable to obtain the written documents which he claimed existed.
[38] Considering the existence of reasonable grounds to doubt the credibility of the applicant's allegations, I do not believe that the Board approached his testimony with the wrong mindset.
[39] Furthermore, while the newspaper article was not explicitly referred to in the Board's reasons, the Board did not question the truthfulness of the applicant's claim to have been arrested in May 2001.
[40] This article supports the applicant's claim to have been arrested for having been a passenger in a stolen car. If the Board had questioned the credibility of this specific allegation without referring to the newspaper article, it would have disregarded evidence. However, since this specific allegation was not questioned by the Board, I do not believe that this Court should intervene simply because it did not explicitly mention it in its analysis of the applicant's credibility.
2. Did the Board improperly allow its findings regarding credibility to improperly color its analysis of state protection and the possibility of an internal flight alternative (IFA)?
[41] The applicant submits that the Board's credibility findings tainted his assessment of the possibility of an IFA and its analysis of state protection in Mexico. He argues that if this Court comes to the conclusion that the Board's credibility findings were patently unreasonable, its findings regarding state protection and the possibility of an IFA cannot stand.
State Protection
[42] Since he was being persecuted by agents of the state (in this case, federal judicial police officers of Celaya), it was unreasonable for the Board to expect him to turn to the state for protection.
[43] The applicant had testified that he had filed a complaint against the police officers who had beaten him in March 2002, and that he had sought the law department's assistance. The applicant contends that if the Board had believed that these events had occurred, they would have constituted sufficient proof that state protection was unavailable to him.
[44] The respondent submits that it was open to the Board to conclude that the applicant had not rebutted the presumption of state protection in Mexico, in light of the fact that Mexico is a democracy and that it is presumed to be able to protect its citizens (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Soto v. Canada (Minister of Citizenship and Immigration), 2005 FC 1654, [2005] F.C.J. No. 2107 (T.D.) (QL)).
Internal Flight Alternative
[45] The applicant further urges that the IRB also erred when it dismissed or disregarded the evidence he submitted regarding conditions in Mexico City to support his argument that he did not have an IFA there.
[46] The applicant's counsel made extensive submissions regarding the corruption of police officers in Mexico City. The applicant submits that in this context, the Board's conclusion that "One area where the police function relatively well is the Federal District - Mexico City" is patently unreasonable.
[47] The respondent submits that the Board committed no error in its analysis of the possibility of an IFA, and that the applicant simply did not meet his onus to show that he would be in danger anywhere in Mexico (Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.), Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.)).
Standard of review
[48] The issue of whether an applicant has rebutted the presumption of state protection or the possibility of an IFA is an issue of mixed fact and law. The applicable standard of review is that of reasonableness simpliciter (Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[49] After having carefully read the Board's decision, I do not think that its adverse credibility findings tainted its analysis of the issues of state protection and the possibility of an IFA. Its analysis of these issues is a subsidiary set of reasons for dismissing the applicant's claim. Considering this Court's assessment of the Board's finding on the issue of credibility, it may not be necessary to probe its findings on the second issue too extensively.
[50] However, regardless of this Court's assessment of the Board's findings on the first issue, I do not believe that the Board's findings on the second issue were unreasonable.
[51] The applicant's testimony and his counsel's submissions regarding the situation in Mexico City and the level of corruption among Mexican police officers across the country may have contradicted the documentary evidence before the Board, but it did not have a superior probative value than the reports the Board referred to in its reasons.
[52] The Board is free to consider all of the evidence before it and can conclude that the documentary evidence it relied upon in its reasons depicted a more accurate picture of the situation in Mexico City. It was not unreasonable to decide that the applicant could have sought state protection and have an IFA there.
[53] The parties did not wish to propose a question for certification.
JUDGMENT
THIS COURT ORDERS that the present application for judicial review is dismissed. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4225-05
STYLE OF CAUSE: BERNARDO DIAZ MARTINEZ
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Margherita Braccio FOR RESPONDENT
SOLICITORS OF RECORD:
Patricia Wells FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario