Date: 20060529
Docket: IMM-3392-05
Citation: 2006 FC 645
Ottawa, Ontario, May 29, 2006
PRESENT: THE CHIEF JUSTICE
BETWEEN:
MARCO ANTONIO AGUIRRE GARCIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, a citizen of Mexico, was a well-known matador and professional bullfighting promoter in the state of Zacatecas. He attributes his business success to his support for the candidates of the Partido Revolucionario Institutcional (PRI) in municipal and state elections.
[2] In 1998, the Partido Revolucionario Democratico (PRD) won control of the state and municipal governments in Zacatecas. The PRI was reduced to a negligible political force in the state.
[3] The applicant's public profile was that of a supporter of PRI candidates and an opponent of the PRD.
[4] As a result of the change of governing parties in Zacatecas, according to the applicant, he was over time "shut out of the bull-fighting business completely".
[5] For some seven months between December 2002 and June 2003, the applicant received threatening phone calls from unidentified persons he assumed to be working on behalf of the PRD. The art gallery which he opened in 2002 was vandalized and the works of art were destroyed. There is no evidence that these incidents were brought to the attention of the police authorities by the applicant or someone on his behalf.
[6] In dismissing the applicant's refugee claim, the Refugee Protection Division concluded that there was no nexus between the applicant's allegations and any of the five grounds enumerated in the Convention refugee definition so as to support a well-founded fear of persecution in accordance with that definition.
[7] In this application for judicial review, the applicant challenges the tribunal's conclusion with respect to the nexus issue and its analysis of the availability of state protection for the purposes of section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[8] The decision concerning the absence of any nexus to Convention grounds is stated in these terms:
· I find that the decline in the claimant's bullfighting business was the result of a failure to secure promotion contracts on which it depended. This, in my view, was not the result of an expression of a political opinion but rather a natural result of a decline in the volume of business that depended on favours from his political friends. The claimant was not a member of PRI. His support for PRI was based on the objective of securing contracts to promote the party at his business venues that attracted crowds.
· I find that the trashing of the claimant's business whether done by people associated with PRD or not is an act of criminals and not persecution. The claimant did not report the crime to the authorities and did not provide any credible and trustworthy evidence to link the perpetrators with his political activities as a supporter of PRI. ... According to the evidence before me I find that the harm feared by the claimant in this case does not fall within one of the five grounds enumerated in the Convention refugee definition.
[9] On my review of the applicant's personal information form and the transcript of his refugee hearing, I am satisfied that no reviewable error has been demonstrated concerning the absence of a nexus finding. The applicant's allegiance was to his friends who were candidates for the PRI and not to the party itself. By his own admission, the applicant was not a member of the PRI. While keeping in mind that there was no negative credibility finding, I am satisfied that it was open to the tribunal to conclude that the applicant's evidence, coupled with his failure to file any complaint with the police, did not establish that the perpetrators of the threats and vandalism were linked to the PRD.
[10] Similarly, the applicant did not rebut, with clear and convincing evidence, the presumption of the availability of state protection. This case is about the loss of political favours when the governing party changed. The applicant did not seek the assistance of the police authorities after the threatening phone calls and the vandalism. In the circumstances of this case, it is not sufficient to make the bald assertion that the police are controlled by the municipal PRD government or to rely simply on general documentary evidence of corruption and imperfect police enforcement. As noted in Canada(Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.), at page 3: "... it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation."
[11] Concerning both the nexus and the state protection issues, the decision of the Refugee Protection Division was not "clearly wrong" and, for these reasons, the application for judicial review will be dismissed.
[12] Finally, the applicant raised the issue of the Chairperson's Guideline 7 in his further memorandum of argument on the basis of the decision in Thamotharem v. Canada(Minister of Citizenship and Immigration), 2006 FC 16. The applicant concedes that the order of questioning was not raised during the refugee hearing. The first reference to the issue was in the applicant's further memorandum of argument which was filed on April 3, 2006. There is no other suggestion that the refugee hearing was unfair.
[13] In four cases since Thamotharem, applicants have been allowed to raise Guideline 7 for the first time in their further memoranda. In each instance, the applicant was found to have waived the right to challenge the order of questioning during the refugee hearing. However, the following serious question was certified in the four proceedings: when must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review? (See Romero v. Canada (Minister of Citizenship and Immigration), 2006 FC 506; de la Cruz v. Canada(Minister of Citizenship and Immigration), 2006 FC 512; Wu v. Canada (Minister of Citizenship and Immigration), 2006 FC 513; and Mulliqi v. Canada(Minister of Citizenship and Immigration), 2006 FC 563.)
[14] In my view, it was not appropriate for the applicant to raise this issue for the first time in his further memorandum of argument. Here, I adopt the statement of Justice Frederick E. Gibson in Arora v. Canada(Minister of Citizenship and Immigration), [2001] F.C.J. No. 24 (QL) (T.D.) at paragraph 9:
...the principle that the Court will deal only with the grounds of review invoked by the applicant in the originating notice of motion and in the supporting affidavit must, I am satisfied, govern. If, as here, the applicant were able to invoke new grounds of review in his memorandum of argument, the respondent would conceivably be prejudice[d] through failure to have an opportunity to address the new ground in her affidavit or, once again as here, to at least consider filing an affidavit to address the new issue. In the result, I determine that the second issue raised on behalf of the applicant is not properly before the Court.
[15] The applicant submits that the Court should deal with Guideline 7 on the basis of his further memorandum of argument. He also urges that a serious question be certified regarding this issue. To do so, in my view, would be unfair to the respondent. There would be no opportunity for the respondent to file affidavit evidence in this Court. In the event of an appeal, the record before the Federal Court of Appeal, as in this Court, would be incomplete.
[16] In this proceeding, leave was granted on issues unrelated to Guideline 7. It is only because of this circumstance that the applicant can attempt to raise Guideline 7 in his further memorandum of argument. The same opportunity is not available to other failed refugee claimants who have not been granted leave in their applications for judicial review filed since the decision in Thamotharem.
[17] In my view, it would be inappropriate, in the circumstances of this case, to allow the applicant to raise Guideline 7 in his further memorandum of argument.
[18] Neither counsel sought the certification of a serious question on the refugee issues in this application. The applicant requested that a question be certified with respect to his raising the Guideline 7 issue in his further memorandum of argument. In declining to do so, I rely on the statement of Justice Denis Pelletier in Zazai v. Canada(Minister of Citizenship and Immigration), 2004 FCA 89 at paragraph 12:
...If a question arises on the facts of a case before an applications judge, it is the judge's duty to deal with it. If it does not arise, or if the judge decides that it need not be dealt with, it is not an appropriate question for certification. [Emphasis added.]
ORDER
THIS COURT ORDERS that:
- This application for judicial review is dismissed.
- No question is certified.
"Allan Lutfy"
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