Date: 20101220
Docket: IMM-5911-09
Citation: 2010 FC 1276
Ottawa, Ontario, December 20, 2010
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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FRANCISCO JOSÉ CADENA
RAMIREZ
(a.k.a. Francisco Jose Cadena Ramirez)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
A. Background
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial
review of the decision dated October 29, 2009, of the Refugee
Protection Division (RPD) of the Immigration and Refugee Board (IRB). The RPD
rejected the applicant’s claim for Convention refugee protection under
section 96 of the IRPA, as well as his claim under section 97 of the IRPA.
[2]
The
applicant’s claim for status under the Convention was based on fear of
persecution in Mexico because of his
political opinion as a member of the Party of the Democratic Revolution (PRD)
at the hand of his cousin and the President of the municipality who was a
member of the Institutional Revolutionary Party (PRI). For the reasons that
follow, this application for judicial review of that decision is dismissed.
B. Facts
[3]
The
applicant is a 28 year old citizen of Mexico. Since 2005, he worked as a legal
advisor in the municipality of San Andres, Tuxtla, Mexico. In August, 2006,
there was a robbery at the municipality’s Treasury Department. A formal
investigation was commenced, statements were taken, and the President of the
municipality and the applicant's cousin were implicated.
[4]
In
December, 2006, some five months after the robbery, the applicant’s cousin
asked the applicant for all statements made to the Public Ministry with respect
to the robbery. The applicant refused. The next day, the President of the
municipality accused the applicant of providing confidential information in the
Mayor’s office to the PRD and requested his resignation. The applicant refused
to resign. On January 5, 2007, the applicant was arrested by the municipal
police, detained for several hours and beaten. The police told him to resign.
[5]
The
applicant approached the Public Ministry in San Andres to make a denunciation
against the President of the municipality and his cousin. The Ministry advised
against this at which point the applicant then decided to move to Mexico City. While in Mexico City, individuals went to
the applicant’s parents’ home in San Andres looking for him and beat his
father. This incident was not reported to the police. The applicant left
Mexico City on March 25, 2007 and entered Canada on a visitor’s visa. He made a request for
asylum nine days thereafter.
[6]
The
applicant subsequently received a subpoena from the Public Ministry to testify
in the robbery prosecution.
C. Issues
[7]
While
the applicant raises nine issues in his memorandum of argument they, in
essence, can be collapsed into the following:
a. Whether the
Refugee Protection Division (RPD) failed in finding that there was no nexus between
the persecution suffered by the applicant and a recognized ground under the Convention
in the applicant’s claim;
b. Whether the
RPD erred in its analysis of the components of state protection;
c. Whether the
RPD erred in finding that there was an available Internal Flight Alternative
(IFA) in Mexico
City;
and
d. Whether the
reasons meet the requisite standards of justification, transparency and
intelligibility.
D. Analysis
a. Absence of
Nexus
[8]
Questions
as to whether there is a nexus between a fear of persecution and a Convention
ground is a question of mixed fact and law, reviewable on a standard of
reasonableness: Ariyathurai v Canada (Citizenship and Immigration), 2009
FC 716 at para. 6.
[9]
To
be considered a Convention Refugee a claimant must have a well founded
fear of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion. The claim is to be assessed from
the perspective of the applicant: Canada (Attorney General) v
Ward,
[1993] 2 S.C.R. 689, 103 DLR (4th) 1. Victims of personal vendettas or local
criminality do not fall within the definition of a Convention Refugee: Vargas
v Canada (Minister of
Citizenship and Immigration), 2002 FCT 1019, at para. 6.
[10]
In
this case, there was no evidence before the RPD that the applicant’s cousin or
the President of the municipality had imputed any political opinion to the
applicant or threatened him on the basis of any Convention ground.
Indeed, the applicant had been working as a legal advisor to the municipality
for some eighteen months prior to the events in question. The RPD, having
looked at the evidence, came to the conclusion that the applicant was pursued
by his cousin and the President of the municipality because he would not
cooperate with their request to disclose the statements given to the police,
and not because he was a member of the PRD. I note as well that while not
mentioned by the RPD in its reasons, the respondent highlights in its
submissions the fact that there was testimony before the RPD that the applicant
was in a relationship with his cousin’s former girlfriend. The applicant
testified that: “The person I lived with was a person who had a previous
relationship with my cousin even when he was married to someone else. That was
one of the main reasons why he was so upset. And I believe that it is one of
the reasons why he acted in that manner. He said that he was never going to
forget about that and I was going to be sorry.”
[11]
On
the evidence before it, the RPD concluded that there was no nexus between
the Convention ground and the motivation of the persecutors. This
conclusion was fully open to the RPD and is reasonable.
b. State Protection
[12]
The
question whether the RPD erred in finding that the applicant had failed to
rebut the presumption of adequate state protection is reviewable on a standard
of reasonableness. In short, the RPD decision will stand unless it does not
fall within the range of possible acceptable outcomes which are defensible in
respect of the facts and law: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at para. 47.
[13]
The
applicant made only one effort to approach local police in Tuxtla, which
generally would not be enough to rebut the presumption of state protection.
Applicants are obliged to make “determined efforts” to access state protection
and “additional efforts” may be required to rebut the presumption: Canada (MCI) v Carrillo,
2008
FCA 94, [2008] 4 FCR 636. In this case, however, the RPD conceded that
the President of the municipality and the applicant’s cousin may have had some
influence locally and therefore did not make a determination regarding the
applicant’s efforts to obtain state protection in Tuxtla, but rather proceeded
to the question of whether Mexico City was a viable IFA.
c. Internal Flight Alternative
[14]
The
applicant contends that the RPD erred in holding that the legal system in Mexico is effective, in
finding that Mexico is addressing corruption and that the applicant would
be able to get assistance from other political parties in Mexico. It asserts that in
arriving at its findings, the RPD failed to address evidence by both the
Human Rights Watch and the United States Department of State found in the
country condition reports that contradicted its findings, as required by
the case law. The applicant relies on the decisions of this Court
in Sanchez v Canada (MCI), 2008 FC 1336 for the proposition that the RPD
must engage with evidence that contradicts its own conclusions. It further
relies on the decisions of Cruz Martinez v Canada (Citizenship and Immigration),
2008 FC 399 and Barajas v Canada (Citizenship and Immigration), 2010 FC 21, in
support of the argument that the RPD failed to give special
consideration to the applicant’s unique circumstances.
[15]
In my view, these
cases are distinguishable from the facts as found by the RPD. Sanchez,
for example, involved the failure of the RPD to address specific evidence
directly relevant to the claim in that case, namely that the police had
extensive linkages with kidnapping groups and would not intervene to protect
the applicant, the victim of a kidnapping. In Martinez, the applicant had been kidnapped and
held hostage by the police for three days for refusing to sell drugs on their
behalf. The
finding of an IFA in that case was made without any evidentiary basis to
establish why the applicant’s situation would be different in Mexico City than it had been in his
home province. In Barajas,
the applicant was beaten by three policemen who told him that he should not
have taken his complaint to the police, and there were clear indications from
the police in large cities that he would receive no protection from them. In Barajas,
as well as Martinez, the persecutors were the police
themselves and there was evidence of harassment in various parts of Mexico. In
these circumstances, the Court found it was entirely unreasonable to expect the
applicant to have either gone to the police in other cities or to have sought
recourse in alternative institutions.
[16]
Applicant’s
counsel also relied on the decision of this Court in Favela v Canada (Minister of
Citizenship and Immigration) (FC No IMM-174-09), Gibson, August 28, 2009. In that
case, the conclusion of the RPD that other large metropolitan areas, such as Mexico City, were viable
flight alternatives was set aside. The applicants had previously suffered
intimidation and extortion at the hands of a drug cartel which had continued
when they fled to another large city. No evidence was cited as to why moving
to another large city would be qualitatively different. The distinction
between the facts of Favela, and the case at bar are evident, and the
case cannot stand as support for the argument that the RPD erred in its
analysis of Mexico
City
as an IFA in this instance.
[17]
In
this case, the RPD acted in accordance with the direction of the
jurisprudence by situating the applicant’s particular claim in the broader
context of the availability of state protection in Mexico as a whole. It found
the agent of persecution here was local and individual, and the motives were
personal to the parties. The RPD noted that there was no serious
possibility that the applicant would be sought out in Mexico City. Indeed, he had not
been sought out, nor had his family been approached in over two years.
Even if the police at the local level could not provide state
protection, this does not amount to inadequate state-wide protection. As
Pelletier J. stated in Zhuravlvev v Canada (MCI), [2000] 4 FC 3 (TD):
The
question of refusal to provide protection should be addressed on the same basis
as the inability to provide protection. A local refusal to provide protection
is not a state refusal in the absence of evidence of a broader state policy to
not extend state protection to the target group.
[18]
In
this regard, the RPD noted that the applicant had been subpoenaed to testify
with respect to the robbery of the Treasury Department, which would suggest
that certain aspects of the police and judicial machinery of government are
functioning.
[19]
The
RPD noted that the applicant’s evidence as to why Mexico City is not an IFA was
weak. The applicant simply asserted that Mexico City would not be “suitable”. The burden of
proving that an IFA does not exist or is unreasonable in the circumstances,
rests with the applicant: Thirunavukkarasu v Canada (Minister of Employment
and Immigration),
[1994] 1 FC 589, 109 DLR (4th) 682 (FCA), at para. 12, and an
applicant does not rebut the presumption of state protection by asserting a
subjective concern about the ability of the state to protect: Kim v Canada (Minister of
Citizenship and Immigration), 2005 FC 1126. The applicant’s evidence before
the RPD fell short of the standard of proof required, namely providing some
actual and concrete evidence of conditions in Mexico City which would discharge
the burden: Morales v Canada (Minister of Citizenship and Immigration),
2009 FC 216.
[20]
The
applicant asked the RPD to extrapolate the threat faced in San Andres to Mexico City, something which the
Board reasonably refused to do. Failures by local authorities to provide
protection does not mean that the state as a whole fails to protect its
citizens: Zhuravlvev. In addition, there was no evidence before the Board that the
applicant faced any threat while in Mexico City, and he made no requests to the police for
protection during the time he lived there. In sum, I am satisfied that it was
reasonably open to the RPD to conclude that the applicant had not established,
with clear evidence, that adequate state protection would not be available in Mexico City. This conclusion was
within the range of possible, acceptable outcomes which were defensible on the
law and facts.
d. Adequacy of Reasons
[21]
The
adequacy of reasons must be evaluated in the light of the purposes
for which they are written, and they must meet the standard of justification,
transparency and intelligibility: VIA Rail Canada Inc. v National
Transportation Agency, [2001] 2 FC 25 (FCA), 26 Admin LR (3d) 1 at para.
21. The applicant argues that the reasons of the RPD are inadequate because of
the speculation as to what would happen if the applicant were to seek state
protection in Mexico
City, and
the failure to refer to contradictory evidence.
[22]
The
argument before this Court, when distilled to its essence, was that the absence
of state protection in Mexico
City
should be presumed from the applicant’s experience in a local personal
vendetta. The RPD necessarily addressed the applicant’s concerns with the IFA
hypothetically, as there was in fact no other basis on which the matter could
be addressed. The applicant provided scant evidence which would suggest that
any of the scenarios he proposed would move from the realm of the speculative
to the actual. It is, therefore, difficult to criticize the reasons on this
basis. Nonetheless, abstract reasoning on the part of RPD which theorizes that
should the applicant be persecuted in Mexico City and should the
police fail to assist, he could then rely on political support because he was a
member of the governing party, does little to advance the analysis.
[23]
The
RPD’s conclusion that Mexico
City was a
viable IFA because it was “far away” from his home province, would not, without
more, constitute reasoning that met the requisite standard described in VIA
Rail. Having said this, however, the reasons must be read as a whole,
including the finding that, to the extent the applicant’s persecutors had
influence on the apparatus of state, it was confined to the local area. I am
therefore, satisfied that the RPD gave sufficient reasons to support its
finding that the applicant had not established why Mexico City would be an untenable
IFA, notwithstanding its unadvisable hypothetical theorizing.
[24]
No
question for certification has been advanced by counsel and none arises on the
record.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application
for judicial review is dismissed. There is no question of general importance
to be certified.
“Donald
J. Rennie”
ANNEX “A”
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Immigration
and Refugee Protection Act (2001, c. 27)
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Loi
sur l’immigration et la protection des réfugiés (2001, ch. 27)
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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.
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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.
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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.
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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.
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