Date: 20100106
Docket: IMM-1906-09
Citation: 2010 FC 13
Ottawa, Ontario, January
6, 2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
GONZALO
DANIEL BOLANOS PORTILLO
MA TRINIDAD QUINTANAR
RESENDIZ
DANIEL BOLANOS QUINTANAR
ANA KAREN BOLANOS
QUINTANAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review
of a decision made by the Refugee Protection Division of the Immigration and
Refugee Board (the panel) on March 20, 2009, determining that the
applicants were not Convention refugees or persons in need of protection.
* * * * * * * *
[2]
The
principal applicant, Ma Trinidad Quintanar Resendiz, her husband, Gonzalo
Daniel Bolanos Portillo, and their two children, Daniel Bolanos Quintanar and
Ana Karen Bolanos Quintanar, are citizens of Mexico. Mr. Bolanos Portillo
and the children base their refugee protection claims on the claim by
Ms. Quintanar Resendiz.
[3]
The
principal applicant had worked for the Santander bank since 1995. She was the
head of investments. On January 19, 2007, General Rolando Hidalgo Eddy (General
Eddy) allegedly approached her and asked her for personal information about 20
of the bank’s biggest customers. He allegedly also wished to obtain information
concerning recent transactions and any insurance that may have been taken out
on mortgages that the bank might have in its records.
[4]
That
information can be provided only with a judicial warrant from the Attorney
General of the Republic. General Eddy allegedly offered the applicant
100,000 pesos for each individual about whom information was provided.
[5]
The
principal applicant stated that she had several days to consider this offer,
but refused it when General Eddy returned to the bank on February 5,
2007.
[6]
Two
weeks later, on February 23, the applicant’s husband was allegedly stopped by a
Federal Investigation Agency patrol, and was kidnapped and beaten, and
threatened that if his wife did not cooperate with the general’s offer, he and
the children would suffer the consequences.
[7]
The
physician whom the applicant’s husband went to see after the attack allegedly
decided to give him a medical certificate, but did not want to be involved in
the situation because he was afraid of reprisals by the assailants.
[8]
On
February 27,
2007, the applicant allegedly left her employment and the family moved to La Matanza,
Nopala de Villagran. They allegedly filed a report with the public prosecutor
in Tlanepantla, in Mexico state, and stayed in San Juan Del Rio for three
months.
[9]
On
May 23, 2007, the applicant allegedly received a call from General Eddy in
which he referred to the report she had filed, and warned her not to file
another report because that would give him reason to kill them and rape her
family members, including the children. The next day, the family went into
hiding in Mexico DF. They left Mexico on June 17, 2007.
* * * * * * *
*
[10] The panel did
not believe the applicants’ account, which it found not to be credible. It
further concluded that both state protection and an internal flight alternative
were available.
[11] In this case,
although I cannot unreservedly adopt the panel’s assessment of the applicants’
credibility, the panel nonetheless considered that the applicants had not met
their burden of proving that the state was unable to protect them.
[12] There must be
evidence proving that the state is unable to protect a claimant, and the
claimant “must do more than simply show that he or she went to see some members
of the police force and that his or her efforts were unsuccessful” (Villasenor
v. Minister of Citizenship and Immigration, 2006 FC 1080, at paragraph 15;
see also Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 and Canada
(Minister of Citizenship and Immigration) v. Kadenko, [1996] F.C.J. No. 1376
(F.C.A.) (QL)). In addition, there have been several judgments confirming that
state protection is available in Mexico (see Flores de la Rosa v. Minister
of Citizenship and Immigration, 2008 FC 83).
[13] In Navarro
v. Minister of Citizenship and Immigration, 2008 FC 358, at paragraph 16,
Justice Yves de Montigny considered it to be insufficient for the claimant to
have reported an assault to the public prosecutor and left Mexico shortly after
making the complaint. In this case, the applicant tried to pursue her
complaint. She contacted her lawyer. Three months went by and then she received
the call from General Eddy. However, if we consider as a whole the
evidence in the applicant’s testimony and the documents submitted, there is no
clear and convincing evidence to rebut the presumption of state protection. For
example, the applicant admitted that she doubted her lawyer’s competence; the
delay could thus have been a result of his dubious competence.
[14] The panel
also found that it was not unreasonable to conclude that the applicant and her
family could have had an internal flight alternative in Mexico. That conclusion
appears to me to be entirely reasonable. They moved to La Matanza and they had
no problems; there was no evidence before the panel that General Eddy could
have found the applicant and her family; the general’s call was made to the
applicant’s mobile telephone; there is no evidence that the general knew where
she was hiding; and after the applicant left her employment at the bank, the
general had no reason to try to find her.
* * * * * * *
*
[15] For all these
reasons, intervention by this Court is not warranted and the application for
judicial review is dismissed.
JUDGMENT
The application for judicial review of the decision made by
the Refugee Protection Division of the Immigration and Refugee Board on March
20, 2009, is dismissed.
“Yvon
Pinard”
Certified true translation
Brian McCordick, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1906-09
STYLE OF CAUSE: GONZALO DANIEL BOLANOS
PORTILLO, MA TRINIDAD QUINTANAR RESENDIZ, DANIEL BOLANOS QUINTANAR, ANA KAREN
BOLANOS QUINTANAR v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: Montréal, Quebec
DATE
OF HEARING: November 24, 2009
REASONS FOR JUDGMENT
AND
JUDGMENT: Pinard
J.
DATED: January 6, 2010
APPEARANCES:
Claudette Menghile FOR THE
APPLICANTS
Marjolaine Breton FOR THE
RESPONDENT
SOLICITORS
OF RECORD:
Claudette
Menghile FOR THE
APPLICANTS
Montréal,
Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
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