Federal Court Decisions

Date: 20060428

Docket: IMM-4159-05

Citation: 2006 FC 532

Ottawa, Ontario, April 28, 2006

PRESENT:      The Honourable Mr. Justice Phelan

BETWEEN:

CIRILO ISRAELSUAREZ VELAZQUEZ

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]                This application for judicial review turns on findings of credibility and the existence of state protection. The application also raises, for the first time in this case, the issue of reverse order questioning pursuant to Guideline 7 of the Immigration and Refugee Board (IRB).

[2]                The Applicant, a male citizen of Mexico, claimed fear of persecution in Mexico because of perceived opinion, specifically, his alleged support of or involvement with the Zapatistas. He states that he complained to the police about the treatment he had received from the Mexican military, but that they responded with lectures and threats.

[3]                The IRB dismissed the Applicant's refugee claim on the basis of his failure to corroborate his testimony with any documentary evidence, inconsistencies in his testimony, and the existence of state protection.

[4]                The standard of review of credibility findings is generally patent unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315). I see nothing in the circumstances and issues of this case to depart from that standard. On that basis, the Applicant has failed to establish that the IRB's conclusion on credibility is patently unreasonable.

[5]                On the issue of state protection, the onus is on the Applicant to rebut the presumption in favour of state protection. The standard of review on this issue has been held, depending on the particular aspect of state protection which may be in issue, to be patent unreasonableness or reasonableness simpliciter[1]. While it is not necessary in this case to resolve what may seem to be divergent standards, it appears that patent unreasonableness is the applicable standard where the question is the existence of state protection and that reasonableness simpliciter is applicable where the issue is whether an applicant adequately availed him or herself of state protection.

[6]                In this case, the Applicant has not refuted the presumption on either standard of review. Mexico is a functioning democracy, and a member of the NAFTA, with democratic institutions. Therefore, the presumption of state protection is a strong one.

[7]                The Applicant raised, in this judicial review, the argument that the IRB had fettered its discretion by the Operation of Guideline 7. At his hearing before the IRB, the Applicant did not object to the reverse order questioning procedure.

[8]                In light of Justice Mosley's decision in Benitez et al v. MCI, 2006 FC 461, the failure to object to the procedure at the earliest opportunity constitutes a waiver of the alleged procedural issue. Waiver is even more clear in this instance, as the Guideline 7 issue was not raised at the leave stage and only was put in play by the filing of a further memorandum.

[9]                Therefore, this application for judicial review will be dismissed. No question will be certified.

JUDGMENT

            IT IS ORDERED THAT this application for judicial review will be dismissed.

"Michael L. Phelan"

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-4159-05

STYLE OF CAUSE:                           CIRILO ISRAEL SUAREZ VELAZQUEZ

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       April 21, 2006

REASONS FOR ORDER:                Phelan J.

DATED:                                              April 28, 2006

APPEARANCES:

Mr. J. Byron M. Thomas	FOR THE APPLICANT
Ms. Margherita Braccio	FOR THE RESPONDENT

SOLICITORS OF RECORD:

J. BYRON M. THOMAS Barrister & Solicitor Toronto, Ontario	FOR THE APPLICANT
MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT