Docket: IMM-2221-04
Toronto, Ontario, April 12th, 2005
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
AVILA SALDIVAR, Maribel
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] The Applicant, Maribel Avila Saldivar, is a 32 year old citizen of Mexico. She fears persecution at the hands of her ex-fiancé and her female lover's husband. In 1998 she became engaged to Enrique Hernandez but after several months he became controlling and abusive and she told him she wanted to break up. In June of 2001, she began a lesbian relationship with Leticia Valdivia, wife of Rene Bejarano, the Private Secretary of the Mayor of Mexico City. When he found out about the relationship, he threatened the Applicant, told her to leave the city and put her under surveillance. This surveillance was accompanied by threats of harm to her and her family should she not leave the country.
[2] She fled to Canada, arriving here on February 28, 2002. She contacted immigration in May of 2002 and filed her refugee claim on June 7, 2002. The Applicant claims she will be pursued anywhere in the country as Mr. Bejarano feels his public and political image are at risk.
[3] On February 24, 2004, the Board rejected her claim finding her claim lacked credibility by reason of:
- confusing testimony as to her sexual orientation;
- conflict between her testimony that she fears her lover's husband and her application in which she claims to fear abuse at the hands of her fiancé; and
- lack of full disclosure in a police report.
[4] The reasons of the Board state that the Applicant took six months to make her claim, when in actual fact she only took four months to contact the Board.. Finally, the Board found that the Applicant has an Internal Flight Alternative ("IFA") available to her and that her lover's husband's reach would not extend to Monterrey and Guadalajara.
[5] As the credibility findings here are the key issue, both sides agree that the applicable standard of review is patent unreasonableness (see Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17.)
[6] While the Board's finding regarding delay was clearly wrong, (as conceded by counsel for the Crown,) this is really an immaterial finding. All other findings regarding credibility were well substantiated and I cannot find anything patently unreasonable in the conclusions the Board reached.
[7] Finally, the Board's conclusion about the availability of an IFA is conclusive. It is eminently reasonable to assume that an aide to the Mayor of Mexico City would not have any reach outside Mexico City, however powerful he may be in the city and however corrupt the Mexican administration of police and justice may be. The Applicant produced no evidence to negate that assumption.
[8] Accordingly, having an IFA available to her, the Applicant cannot succeed with her claim.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2221-04
STYLE OF CAUSE: AVILA SALDIVAR, Maribel
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 11 , 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
APPEARANCES BY:
Paticia Wells For the Applicant
John Provart For the Respondent
SOLICITORS OF RECORD:
Patricia Wells
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent