Date: 20060410
Docket: IMM-5397-05
Citation: 2006 FC 460
Ottawa, Ontario, April 10, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
YANEZ ALFARO OSVALDO
LOPEZ HUERTA ISIS MARINA
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under 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 (the panel) of the Immigration and Refugee
Board (the IRB) dated September 21, 2005. The panel concluded that the
applicants were not Convention refugees or persons in need of protection.
I. Issues
[2]
The
applicants invoked the following issues:
a) Did the panel
commit an error warranting the intervention of this Court in deciding that the
applicants could have had state protection in Mexico?
b) Did the panel
commit an error warranting the intervention of this Court in deciding that the
applicants could have found refuge elsewhere in Mexico?
[3]
For the
reasons that follow, the answer to these two questions is negative, and this
application for review is dismissed.
II. Facts
[4]
The
applicants, who are husband and wife, are citizens of Mexico.
[5]
In 2003,
Osvaldo Yanez Alfaro (the principal applicant) decided to open a car
wash in Morelia, in the state of Michoacán.
[6]
He signed
a three-year lease for a building to use in the operation of his business with
Leodoro Vega Almonte (the landlord), who was the chief medical examiner at the Office
of the Attorney General of the State of Michoacán, as well as being a personal
friend of that state’s Attorney General, the state Governor, and the Attorney
General of the Federal District.
[7]
The
landlord had promised to make some repairs which had to be made to adapt the
building in question for the main applicant’s purposes, but he did not keep
this promise.
[8]
The
principal applicant protested to the landlord and was the victim of harassment
and intimidation on several occasions, particularly at the hands of the police.
[9]
The
applicants left the premises in October 2004, and the applicant contacted the
landlord to advise him of his intent to terminate the lease. The landlord
threatened the principal applicant, and the applicants continued to be victims
of harassment and intimidation.
[10]
The
applicants filed complaints with the authorities but received no support.
[11]
On March
16, 2005, the applicants left Mexico and applied for refugee status when they
arrived at Dorval airport.
III. Impugned Decision
[12]
In its
reasons, the panel concluded that the applicants had not exhausted all the
possible avenues to redress the conflict they had with the landlord. Although
the applicants tried to complain to the Human Rights Commissions, they never
consulted or retained the services of a lawyer, who could have contested the
decisions rendered by the Commissions or instituted civil or criminal
proceedings against the landlord.
[13]
The panel
rendered its decision on the basis of the decisions in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, Canada (Minister of Employment
and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.J.)
(QL), Kadenko v. Canada (Solicitor General),
[1995] F.C.J. No. 889 (F.C.T.D.) (QL), De Baez v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1020
(F.C.T.D.) (QL), and Szorenyi v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1382, [2003] F.C.J. No. 1761 (F.C.T.D.)(QL), to
reiterate the following principles:
·
Countries
are presumed to be able to protect their citizens. In the absence of a complete
breakdown of state apparatus, the state is presumed to be able to protect an
applicant (Ward);
·
No
government can guarantee perfect protection to all its nationals at all times.
It is not sufficient for an applicant to show that the state did not succeed in
protecting persons in his or her situation (Villafranca);
·
When the
state from which a refugee protection claimant originates is a democratic one,
the claimant must show that he or she has done more than just complain
fruitlessly to certain individual police officers. The more democratic the
state in question is, the heavier the applicant’s burden of proof will be (Kadenko).
In this case, the panel stated it was of the opinion that the words “police
officers” could be replaced by the word “commissions” and that the principle
remained the same;
·
The acts
of individual police officers do not in themselves prove that the state is
unwilling to protect its nationals or that state protection is not available to
them (De Baez);
·
It is not
unreasonable for the panel to require that an applicant show that he or she has
exhausted all possible avenues of protection and redress (Szorenyi).
[14]
The panel
concluded that the applicants did not meet their burden of proof and did not
exhaust all possible avenues for obtaining protection from the Mexican state.
[15]
Moreover,
noting the size of Mexico, the panel stated it seemed unlikely that the
landlord would have influence to such an extent it would be impossible for the
applicants to feel safe anywhere in their native country. Therefore, the panel
concluded that the applicants had an internal flight alternative.
IV. Analysis
A. Did the panel commit an error
warranting the intervention of this Court in deciding that the applicants could
have availed themselves of state protection in Mexico?
[16]
The
applicants submit that the conclusions of the panel as to the possibility of
availing themselves of state protection in Mexico are contrary to the
documentary evidence it had. The applicants submit that the panel did not take
into consideration an IRB report concerning state protection in Mexico (Exhibit
C of the principal applicant’s affidavit), which established that Mexican
courts did not offer any protection to its nationals.
[17]
The
excerpt from this report cited by the applicants in support of this argument
concerns corruption in the judicial system. However, it must be noted that the
same document mentions the determination of President Vicente Fox to carry out
the reforms undertaken at the beginning of his administration. It is therefore
not possible to conclude that the state apparatus has totally broken down as
far as the protection of its nationals is concerned.
[18]
The
principles of case law noted by the panel and which guided its analysis are
relevant. This Court has concluded on several occasions that Mexico is a free
and democratic society (Balderas v. Canada (Minister of Citizenship and
Immigration), 2005 FC 157, [2005] F.C.J. No. 225 (F.C.T.D.)
(QL), Velazquez v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 934 (F.C.T.D.), Urgel v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1777, [2004] F.C.J. No. 2171 (F.C.T.D.) (QL), Garcia
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1699, [2004] F.C.J.
No.2058 (F.C.T.D.)(QL)). Therefore, considering the political situation in
Mexico, I am of the opinion the panel did not commit any error that would
warrant the intervention of this Court in deciding that the applicants did not
discharge their burden of proof by not having consulted with a lawyer to
explore the possibilities of civil or criminal proceedings against their
landlord.
B. Did the panel commit an error
warranting the intervention of this Court in deciding that the applicants could
have found refuge elsewhere in Mexico?
[19]
The
applicants allege that the panel did not analyze their situation on the basis
of the criteria developed by case law in Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 FC 589 (C.A.), Kahlon
v. Canada (Immigration and Refugee Board),
[1993] F.C.J. No. 811 (F.C.T.D.) (QL), and Sran v. Canada
(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1047
(F.C.T.D.) (QL) concerning the existence of a reasonable internal flight
alternative.
[20]
They
submit that the decision of the panel should be quashed, as it is impossible to
determine what the basis of this conclusion was, and the panel did not seem to
take into consideration the applicant’s personal situation.
[21]
I cannot
agree with this argument.
[22]
The
applicants had the burden of proving that they did not have an internal flight
alternative in any other part of Mexico (Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 FC 164 (C.A.), Torres v. Canada
(Minister of Citizenship and Immigration), 2005 FC 284, [2005] F.C.J.
No. 343 (F.C.T.D.) (QL)). However, at the hearing, the principal applicant
admitted being able to move elsewhere in the country (panel record, pages 247
and 248). Faced with such an admission, the panel was entitled to conclude that
the applicants had an internal flight alternative in another part of Mexico,
and it was neither necessary nor warranted to perform a detailed analysis,
considering the panel had already determined that the applicants had not shown
that they could not have the benefit of state protection in Mexico.
[23]
However,
it must be pointed out that the principal applicant changed his mind and stated
that he would not have been safe elsewhere in Mexico, because of the influence
of Mr. Vega. In spite of this statement, the Court does not find that the
conclusion reached by the panel concerning the protection of the Mexican state
was unreasonable.
[24]
Although
it would have been preferable to mention in the decision a place in Mexico
where the applicants could have found a possible refuge, it appears from the
transcript (page 235) that the city of Monterrey was mentioned by the panel.
[25]
The
parties did not submit a question to be certified. This case raises no such
question.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be dismissed. There is no question to be certified.
“Michel
Beaudry”
Certified
true translation
Michael
Palles
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