2011 FC, 2011 FC 1438

Date: 20111208 Docket: IMM-3023-11 Citation: 2011 FC 1438 [UNREVISED CERTIFIED ENGLISH TRANSLATION] Montréal , Quebec, December 8, 2011 PRESENT: The Honourable Mr.

Justice Boivin BETWEEN: CARLOS ALBERTO VAQUERA GARZA ROCHEL ESMERALDA ORTEGA DAVILA ANGEL ALAN VAQUERA ORTEGA FERNANDO VAQUERA ORTEGA JUAN CARLOS VAQUERA ORTEGA Applicants and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 (the Act) for judicial review of a decision dated April 11, 2001, in which the Refugee Protection Division of the Immigration and Refugee Board (the panel) found that the applicants were neither refugees nor persons in need of protection under sections 96 and 97 of the Act.

I. Background A. Facts [ 2 ] Carlos Alberto Vaquera Garza (the principal applicant), his spouse Rochel Esmeralda Ortega Davila, and their three minor sons Angel Alan Vaquera Ortega, Fernando Vaquera Ortega and Juan Carlos Vaquera Ortega, are Mexican citizens who are seeking refugee protection under sections 96 and 97 of the Act . [ 3 ] The principal applicant alleges that in March 2008 a municipal police commander in Escobedo (Nuevo Leó

n) attempted to recruit him for an “intimidation operation”. The principal applicant refused this request and, as a result, was attacked, beaten and threatened by police officers.

[4] The principal applicant says that he moved his family to his mother-in-law’s home to hide from the police officers inquestion. [5] The applicants subsequently left Mexico and came to Canada on October 1, 2008. The family members claimed refugeeprotection upon arrival at the Montréal airport. [6] The family members base their refugee claim on the principal applicant’s narrative. The Court will therefore refer to theapplicant in its reasons. [7] The hearing before the panel took place on April 7, 2011. B.

Impugned decision [8] In its decision dated April 11, 2011, the panel did not consider the applicant’s testimony credible. The panel determined thatthe applicants were neither “Convention refugees” under

section 96 of the Act nor “persons in need of protection” under

section 97 of theAct. [9] With respect to the issue of state protection, the panel observed that the applicant had not filed a complaint at the state levelin Nuevo León or at the federal level. The panel therefore found that the applicant had failed in his duty to seek protection in his countryof nationality before seeking protection elsewhere.

The panel also stated that the applicant did not provide clear and convincing evidenceto rebut the presumption of the state’s ability to protect (Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR689, [1993] SCJ No 74). [10] Finally, in the absence of real, concrete and probative evidence to the contrary, the panel found that an internal flightalternative (IFA) was available to the family in this case, either in Mérida (Yucatan) or in La Paz (Baja California Sur). II.

Issue [11] The issue to be determined is as follows: Did the panel err in assessing the principal applicant’s credibility and the validity of his fear of persecution? III. Applicable statutory provisions [12] Sections 96 and 97 of the Act read as follows:

Refugee Protection, Convention Refugees and Persons in Need of Protection Convention refugee 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, (

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 (

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. Notions d’asile, de réfugié et de personne à protéger Définition de « réfugié » 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:

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;

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.

Person in need of protection 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 (

a) to a danger, believed on substantial grounds to exist, of torture within the meaning of

Article 1 of the Convention Against Torture; or (

b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (

i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (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, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection

(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Personne à protéger 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:

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;

b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (

i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (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, (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, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne à protéger

(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait

partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. IV. Appropriate standard of review

[13] The panel’s findings on credibility, state protection and the availability of an internal flight alternative are reviewable on areasonableness standard (see Barajas v Canada (Minister of Citizenship and Immigration), 2010 FC 21, [2010] FCJ No 8, and Khokharv Canada (Minister of Citizenship and Immigration), 2008 FC 449, [2008] FCJ No 571). Pursuant to Dunsmuir v New Brunswick, 2008SCC 9, [2008] 1 SCR 190, the Court will intervene only where it appears that the panel made findings in a capricious or unreasonablemanner or in a way that is not supported by the evidence in the record. V.

Analysis [14] The applicant maintains that the reasons for the panel’s decision are unfounded, arbitrary and based on an erroneousassessment of the evidence in the record. The applicant claims that the inconsistencies noted by the panel stem from the applicant’snervousness during the hearing before the panel. [15] In addition, the applicant says that the inconsistencies in his testimony pointed out by the panel are merely superficial,secondary details and do not call into question the validity of his statements.

Essentially, the applicant argues that the panel failed to dealwith the primary element of his claim: the fear of persecution alleged by the applicant.

Consequently, the applicant submits that thepanel’s decision is unreasonable under the principles set out in Attakora v Canada (Minister of Employment and Immigration) (1989), 99 NR 168 (FCA) [Attakora], Djama v Canada (Minister of Employment and Immigration), [1992] FCJ No 531 (FCA) [Djama], andGracielome v Canada (Minister of Employment and Immigration) (1989), 9 Imm LR (2d) 237 (FCA) [Gracielome]. [16] For his part, the respondent submits that the panel’s decision in this case is well-founded.

The respondent points out, interalia, the inconsistencies and omissions in the applicant’s testimony and maintains that the applicant did not discharge his onus ofestablishing that he and his family could not move to other areas in Mexico (Thabet v Canada (Minister of Citizenship and Immigration), (FCA), [1998] 4 FC 21, [1998] FCJ No 629, Pena v Canada (Minister of Citizenship and Immigration), 2009 FC 616,[2009] FCJ No 739, and Lopez v Canada (Minister of Citizenship and Immigration), 2010 FC 990, [2010] FCJ No 1352). [17] The applicant’s primary argument in this judicial review is that the panel did not develop its findings on the issue ofcredibility.

The Court notes that the applicant focused his arguments on the issue of the applicant’s credibility and his fear of persecutionin Mexico.

However, the panel’s findings on state protection and the IFA in Mexico were not challenged before this Court. [18] After examining the evidence in the record and hearing the parties, the Court is of the view that the panel did not err inassessing the applicant’s credibility and the validity of his fear of persecution. [19] Although the decision on the credibility issue is detailed and would probably have benefited from being developed, it wasaddressed by the panel, and its findings are supported by the evidence in the record. [20] In this case, the Court points out that the inconsistencies and omissions noted by the panel are well-founded in this case.

Theapplicant testified that he had been beaten twice whereas his PIF mentions only one incident (Tribunal Record, pp. 23 and 175); theapplicant was stopped and threatened by the police, but his narrative does not refer to this episode (Tribunal Record, pages 23 and 183-190); the applicant moved in with his mother-in-law in May 2008, but his PIF indicates August 2007 (Tribunal Record, pages 19 and195-196).

The Court also finds that these inconsistencies exist in the applicant’s testimony despite the fact that the panel gave theapplicant the opportunity to reread the documents and submissions and to make corrections prior to the hearing (Tribunal Record, pages165, 166). [21] More importantly, the decision also deals with the issues of the state’s ability to protect and the IFA in Mexico.

The Courtnotes that the applicant did not provide clear and convincing evidence to rebut state protection or the IFA in this case, and, as therespondent correctly points out, a finding on an IFA is determinative in itself and is sufficient to have a refugee claim rejected (Pena andLopez). [22] Under the appropriate standard of review in this case—reasonableness—the Court is of the view that the reasoning of theBoard’s decision falls within a range of reasonable outcomes, and accordingly the Court’s intervention is not warranted. For all thesereasons, the application for judicial review is dismissed.

[ 23 ] The parties did not submit any question for certification. JUDGMENT THE COURT RULES as follows : 1. This application for judicial review is dismissed. 2. No question will be certified. “Richard Boivin” Judge Certified true translation Mary Jo Egan, LLB FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3023-11 STYLE OF CAUSE: CARLOS ALBERTO VAQUERA GARZA ET AL. and MCI PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: December 5, 2011

REASONS FOR JUDGMENT AND JUDGMENT: BOIVIN J. DATED: December 8, 2011 APPEARANCES: Claude Brodeur FOR THE APPLICANT S Thi My Dung Tran FOR THE RESPONDENT SOLICITORS OF RECORD : Claude Brodeur Montréal , Quebec FOR THE APPLICANTS Myles J. Kirvan Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT