Date: 20080609
Docket: IMM-4703-07
Citation: 2008 FC 716
Montréal, Quebec, June 9, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
EMMANUEL REYES MONTALVO
LIZBETH HERNANDEZ CARMONA
LIZBETH HERNANDEZ CARMONA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated October 22, 2007, wherein the Board determined that the
applicants were not Convention refugees according to section 96 of the Act, nor
"persons in need of protection" according to section 97 of the Act.
[2]
The
applicants are all citizens of Mexico who allege to fear a risk to their lives
on the grounds of political opinion.
[3]
The
male applicant worked in a pawn shop owned by his uncle until rumours began to
circulate that his uncle was a narcotics dealer with links to organized crime,
at which point the applicant started working at a different pawn shop. He was
also informed that his uncle was bribing corrupt police officers to further his
operations.
[4]
On
March 14, 2005, the male applicant was kidnapped, blindfolded, assaulted and
tortured by members of the Ministerial Police in Veracruz. He was
forced to sign a false confession and his captors threatened to murder him on
his uncle’s behalf. He was taken to the city of Veracruz and held captive in
the presence of the Commander of the Ministerial Police of Alvarado, in the
state of Veracruz. He was blindfolded
and tortured again and forced to sign a confession for a crime that he had not
committed. He was warned not to tell anyone about his captivity and was released
in front of his house. He was taken to a doctor by his family.
[5]
On
October 19, 2005, the male applicant left for Canada and made his
claim for protection the next day.
[6]
The
female applicant alleges that after the male applicant fled the country, she
began to receive threatening telephone calls from the Ministerial Police
Officers who had kidnapped and tortured the male applicant. The caller
threatened her and her daughter with death in revenge for her spouse fleeing
the country.
[7]
The
female applicant and her daughter fled to Canada on August 7,
2006 and made their claims for protection on the same day.
[8]
In
a decision dated October 22, 2007 the Board determined that the applicants had
an internal flight alternative (IFA) available in Mexico City and that
state protection in Mexico City was adequate.
STANDARD OF REVIEW
[9]
In the
case of Dunsmuir v. New
Brunswick,
2008 SCC 9, at para. 62, the Supreme Court of Canada emphasized that in
determining the standard of review courts should first “ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
defence to be accorded with regard to a particular category of question.”
[10]
With respect to the IFA analysis, the
Court’s jurisprudence reveals that based on the factual nature of an IFA
determination, the appropriate standard of review is that of patent
unreasonableness (Hattou c. Canada (Ministre de la Cityonneté et de
l’Immigration), 2008 CF 230, [2008] A.C.F. no 275 (QL), at para. 12; Chorny
v. Canada (Minister of Citizenship and Immigration), 2003 FC 999,
[2003] F.C.J. No. 1263 (QL), at para. 11). Given Dunsmuir, above, the
standard applicable to this question will also be that of reasonableness.
[11]
Recent decisions of
this Court have also examined the standard of review applicable to the issue of
state protection in light of the guidance in Dunsmuir, above, and
concluded that the appropriate standard is that of reasonableness (Flores
Zepeda v. Canada (Citizenship and Immigration) 2008 FC 491, at para. 10; Eler
v. Canada (Minister of Citizenship and Immigration), 2008 FC 334, at para.
6).
[12]
Thus,
pursuant to the reasonableness standard, the analysis of the Board’s decision
will be concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] […] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at para.
47).
ANALYSIS
Did the Board err in its
IFA analysis?
[13]
The
applicants submit that the panel ignored the explicit evidence provided as to
the ease with which the corrupt police offers could locate them in Mexico City. Specifically, at the
hearing the male applicant noted “[…] I thought about it [going to another
location in Mexico] but I couldn’t go to another city or another state because
when I wanted to get a job or work it’ll – it’ll show up my name because the
authorities they have access to all the names and all my papers in the files”.
He also indicated that the authorities would still be looking for him in order
to fulfill the threat that they made of killing him. Further, the female
applicant stated she had talked with the male applicant about leaving the state
of Veracruz, but “it was impossible because the state authorities […] were
involved in this” and that because she is a school teacher in Mexico, the state government pays
her and therefore she would be found in any place she fled to.
[14]
The
applicants refer to the country condition evidence summarized by the Board
indicating that police involvement in kidnappings and association with
organized crime and drug cartels is prevalent throughout Mexico. Thus, the alleged fear
faced by the applicants exists throughout the country.
[15]
The
determination of the existence of an IFA is “integral to the determination [of] whether
or not a claimant is a Convention refugee” (Rasaratnam v. Canada (Minister of Employment
and Immigration),
[1992] 1 F.C. 706, [1991] F.C.J. No. 1256 (QL). In determining the existence of an IFA,
the Federal Court of Appeal stated in Thirunavukkarasu v. Canada (Minister of Employment and
Immigration),
[1994] 1 F.C. 589, [1993] F.C.J. No. 1172 (QL), at para. 12, that an IFA must
be sought unless it can be demonstrated that it is objectively unreasonable to
do so.
[16]
The Court
articulated the considerations involved in determining the reasonableness of an
IFA. First, an IFA must be a realistic and attainable option; “[…] the claimant
cannot be required to encounter greater physical danger or to undergo undue
hardship in travelling there or in staying there.” (Thirunavukkarasu,
above, at para. 14). Moreover, individuals should not be forced to hide out in
isolated areas of the country, but “[…] neither is it enough for refugee
claimants to say that they do not like the weather in a safe area, or that they
have no friends or relatives there, or that they may not be able to find
suitable work” (Thirunavukkarasu, above, at para. 14).
[17]
Further,
as the Federal Court of Appeal stated in Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164, [2000] F.C.J. No. 2118
(QL), the threshold for the unreasonableness of an IFA is a very high one which
“requires nothing less than the existence of conditions which would jeopardize
the life and safety of a claimant in travelling or temporarily relocating to a
safe area” and “actual and concrete evidence of such conditions” (at para. 15).
[18]
In
its analysis of the IFA, the Board indicated that there were no social,
economic or legal barriers preventing the applicants from relocating to Mexico City and
highlighted the health status, level of education, and work experience
possessed by the adult applicants. There was no evidence submitted indicating
that any of the persecutors in Veracruz state still had an interest in pursuing
the applicants if they were to relocate within Mexico. The Board emphasized the
fact that twenty-two million people live in the urban areas of the state of Mexico and in
Mexico City, and every year the population of the state of Mexico increases by
350,000 people. The Board found that on a balance of probabilities, none of
the persecutors in Veracruz state would still have an interest in pursuing
the applicants if they were to relocate to Mexico City, and would
have no knowledge that the applicants were residing there.
[19]
Intertwined
with the issue of the IFA is that of the existence of adequate state protection
in Mexico
City.
The Board found that the presumption of state protection applied to Mexico. It went on
to analyze the documentary evidence before it and acknowledged that “the police
and judicial system in Mexico is weak and subjected to corruption in
some areas, and not as effective as they could be.” However, the Board was of
the view that the police and government authorities in Mexico are making
serious efforts, though not always successful ones, to curb and eliminate
criminal gang activities in the country, including those of illegal drug
traffickers and cartels as well as illegal and corrupt activities by police
authorities, the military and other state officials.
[20]
The
applicants submit that the presumption of state protection is limited to cases
where the agents of persecution are non-state actors. In the alternative they
argue that the applicants did all they could to seek state protection, to no
avail.
[21]
A state is
to be presumed capable of protecting its citizens absent “clear and convincing
confirmation” to the contrary put forth by an applicant (Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, at pages 724-725, [1993] S.C.J. No.
74 (QL), at para. 50). I note that contrary to the applicants’ argument, the
Federal Court of Appeal has affirmed that “[t]he presumption of state
protection described in Ward, therefore, applies equally to cases where
an individual claims to fear persecution by non-state entities and to cases
where the state is alleged to be a persecutor”. (Hinzman v. Canada (Minister of Citizenship and
Immigration),
2007 FCA 171, [2007] F.C.J. No. 584 (QL), at para. 54).
[22]
Given the
above, and in light of the IFA analysis, it was reasonable for the Board to
conclude that the applicants would be afforded state protection in Mexico City as they did not provide clear
and convincing evidence that it would not be forthcoming in this location.
[23]
Based
on the above, I am unable to find that the Board’s determination with respect
to the existence of an IFA was unreasonable. Accordingly, this application for
judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS that:
The present application for judicial review is dismissed.
“Danièle
Tremblay-Lamer”
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