Date: 20101130
Docket: IMM-599-10
Citation: 2010 FC 1202
Ottawa, Ontario, November 30, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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OSCAR YASMANI GOMEZ NIETO
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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
I.
Overview
[1]
Mr.
Oscar Yasmani Gomez Nieto fled Mexico in 2008 and sought refugee protection in Canada. He claims
to be at risk of persecution in Mexico because of his sexual
orientation.
[2]
A
panel of the Immigration and Refugee Board dismissed Mr. Gomez Nieto’s claim
because it concluded that he would be able to live safely in Mexico City, even
if he might be at risk elsewhere in Mexico. Mr. Gomez Nieto argues
that the Board’s conclusion was unreasonable and asks me to order another panel
to reconsider his claim.
[3]
In
my view, the Board’s conclusion that Mr. Gomez Nieto could avoid persecution in
Mexico
City
was reasonable considering the evidence before it. Therefore, I must dismiss
this application for judicial review.
[4]
The
sole issue is whether the Board’s conclusion was unreasonable.
II. Factual
Background
[5]
Mr.
Gomez Nieto grew up in Puebla City. Between
September 2006 and May 2007, when he was in his mid-20s, he lived in Mexico City while caring
for an ill relative. After returning to Puebla City, he was
detained by police and forced to perform oral sex on a policeman. In March
2008, he was jailed overnight and raped by fellow prisoners. After his release,
he briefly moved back to Mexico City and then tried,
unsuccessfully, to leave Mexico. In May 2008, he returned to Puebla City and had
more problems there. He was attacked outside a supermarket. Soon thereafter, he
and a friend were abducted, robbed and sexually assaulted by police. As a
result, he spent two days in a hospital.
[6]
Mr.
Gomez Nieto went to the police but he was insulted and humiliated because of
his sexual orientation. The next day, he received threatening phone calls. He
decided to leave Mexico and seek refugee protection in Canada.
III. The Board’s
Decision
[7]
The
Board accepted Mr. Gomez Nieto’s account of events in Puebla City.
However, it found that he had a reasonable internal flight alternative (IFA) in
Mexico
City.
[8]
The
Board reviewed documentary evidence indicating that:
• The Federal
District (i.e. Mexico
City) protects
and promotes the rights of homosexuals, and permits same-sex domestic
partnerships.
• The National
Council Against Discrimination (CONAPRED) investigates complaints of
discrimination based on sexual orientation and enforces compliance with
applicable laws.
• Major political
parties in Mexico support gay rights.
• The Gay Pride
Parade in Mexico
City attracted
hundreds of thousands of participants and spectators.
• Tolerance of
homosexuality is growing, particularly in major urban centres and among young
people.
• Statistics do not
show an elevated rate of homicide against homosexuals.
[9]
In
addition, the panel noted that Mr. Gomez Nieto lived safely in Mexico City for about
eight months and did not have any problems, other than being jeered at. While
the police did not help him in Puebla City, documentary evidence showed that
police in Mexico
City
were more responsive and reliable.
[10]
The
Board also considered a psychiatric report submitted by Mr. Gomez Nieto. The psychiatrist
stated that Mr. Gomez Nieto experiences depression, post-traumatic stress, and
agoraphobia, and expressed concern that Mr. Gomez Nieto’s symptoms might worsen
if he were sent back to Mexico. The Board found that Mr. Gomez Nieto
could receive support and counselling in Mexico City from the
many homosexual advocacy groups there, as well as from government agencies.
[11]
Based
on this evidence, the Board concluded that Mr. Gomez Nieto could live safely in
Mexico
City.
Further, it found that it would be reasonable for him to take refuge there. He
had lived there before. The only reason he did not stay in Mexico City after May
2007 was because he could not transfer from his job at a drugstore in Puebla City to Mexico City without a
loss of seniority.
IV. Was the Board’s Decision
Unreasonable?
[12]
Mr.
Gomez Nieto submits that the Board’s decision was unreasonable because it did
not take adequate account of the psychiatric report he submitted. In
particular, he suggests that the Board failed to factor his mental state into
the analysis of the reasonableness of the proposed IFA in Mexico City. He relies
on Justice John Richard’s statement that a psychological report “may provide
objective evidence that it would be ‘unduly harsh’ to expect the applicants who
have been persecuted in the past in one part of the country to move to a less
hostile part of the country” (Singh v Canada (Minister of Citizenship and Immigration),
[1995] FCJ No. 1044 (FCTD), at para 8).
[13]
In
addition, Mr. Gomez Nieto argues that the Board overlooked important evidence
about the treatment of gays by the police in Mexico City, which
caused it to arrive at an unreasonable conclusion about his ability to live
safely there.
[14]
In
my view, the Board considered the psychiatric report and Mr. Gomez Nieto’s
mental state when analyzing whether it would be reasonable for him to live in Mexico City. It found,
relying on documentary evidence, that adequate resources would be available to
him there. I can find nothing unreasonable about that conclusion.
[15]
In
terms of the evidence the Board allegedly overlooked, the record clearly
contains documentary evidence the Board did not cite. Indeed, the record is
voluminous; the Board cannot be expected to refer to every piece of evidence
before it. The question is whether the Board failed to take account of
important evidence contradicting its conclusion: Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425.
[16]
The
Board reviewed an extensive array of documentary evidence supporting its
conclusion that Mr. Gomez Nieto would be able to live safely in Mexico City. The Board also
cited some of the contrary evidence and explained why it found it less
persuasive than the evidence on which it relied. In addition, of course, the
Board took into account Mr. Gomez Nieto’s own experiences of living safely in Mexico City for several
months on two separate occasions. As I read the Board’s decision, it contains a
fairly thorough review of the evidence and an adequate explanation for its
conclusion. None of the additional evidence cited by Mr. Gomez Nieto raises
issues that were not considered by the Board or directly contradicted its
conclusion. Therefore, I can find nothing unreasonable about the Board’s
decision.
V. Conclusion and
Disposition
[17]
The
Board considered the relevant evidence and determined what weight to assign it.
Its conclusion was reasonable in light of that evidence. Therefore, I must
dismiss this application for judicial review. Neither party proposed a question
of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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