Date: 20100505
Docket: IMM-3527-09
Citation: 2010 FC 499
Ottawa, Ontario, May 5, 2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CECILIA
JIMENEZ HERRERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, a citizen of Mexico, claimed that she had to flee Mexico because a
drug dealer (Lopez) drugged her, sexually assaulted her and continued to extort
sexual relations until she left. The Immigration and Refugee Board (Board)
denied her claim for refugee status and for protection. A central feature of
this judicial review is the finding of state protection in Mexico.
II. FACTS
[2]
The
Applicant lived in Tampico, 550 miles from Mexico City. She met
Lopez in 2005 at the bar at which she worked and in June 2007 she went to
dinner with him. She claimed that she was drugged and raped. Later in that same
month Lopez picked up the Applicant and took her to a hotel where she had sex
with him.
[3]
The
sexual liaison continued for several months; the Applicant alleging that she
participated out of fear. After the second sexual incident, the Applicant
reported the matter to some unspecified police unit. The police said that they
would call her but never did. This is the sole incident of seeking police
involvement and there is no record of it.
[4]
The
Applicant was living with her parents at this time. She delayed leaving Mexico for three
months because of family reasons and the need to obtain money. Lopez never
approached her family either before or after the Applicant left.
[5]
The
Applicant arrived in Canada in August 2007 as a visitor. In May 2008
she went to New
York
to see her sister. She also thought that upon her return to Canada, her
visitor’s status would be extended for a further six months. Instead she was
told that she had five days to leave Canada. The Applicant then
filed her refugee claim.
[6]
The
Board found that (a) her delay, both in Mexico and in Canada, while not
determinative showed no subjective fear, (b) there was no nexus to a Convention
ground as she was a victim of crime generally, (c) she had not sought out state
protection sufficiently when state protection was available, and (d) she had an
Internal Flight Alternative (IFA) in Mexico City.
III. ANALYSIS
[7]
The
Board’s findings on nexus, well founded fear, state protection and IFA are all
questions of mixed law and fact in this decision (see Suvorova v. Canada (Minister of
Citizenship and Immigration), 2009 FC 373, and Espinosa v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1324). There was no debate on the
issue of standard of review.
[8]
On
the issue of delay, it was not unreasonable for the Board to find that delay,
both in Mexico and in Canada, was inconsistent with subjective fear.
The Applicant suggests that delay should be measured from the point at which
the Applicant realized that she had to leave Canada. However,
the Applicant knew or ought to have known that she had no right to stay in Canada other than
as a visitor. Indeed she went to the U.S. in the expectation that
upon return, her visitor status would be renewed. She had some appreciation of
the immigration regime. It was not unreasonable to find against her on this
issue.
[9]
The
Board’s finding on nexus was likewise reasonable. The Board had regard to the Gender
Guidelines. However, in this case, the Applicant was not part of a group who
were targeted because of gender. She was the victim of an apparently obsessed
individual and not of some more systemic persecution. In any event, the
findings on state protection and IFA address any criticism of the Board’s
conclusion in this regard.
[10]
The
presumption of the existence of state protection in Mexico has become a
troublesome principle; however, it remains just that – a presumption rebuttable
on the evidence. There is evidence of significant problems in certain areas and
with certain governmental authorities. However, it was not unreasonable to find
that the presumption of state protection applies to Mexico; it is a
democracy in control of its territory with functioning government
organizations. It depends on the facts in each case whether that presumption is
rebutted in respect of that individual or group or in respect of the offending
actions alleged.
[11]
In
this instance, the Board recognized that there were problems with some police
forces in Mexico. Other than
one instance of approaching the police, the Applicant did not express fear of
the police nor did she show that her assailant had some connection with police
that would make further inquiry impossible or unreasonable. She did not flee
because there were no other organizations who would or could have assisted her.
[12]
In
the context of this case, it was not unreasonable for the Board to find that
one instance of a complaint to police was insufficient to rebut the presumption
of state protection. It was unnecessary for the Board to engage in a detailed
analysis of all the organizations, state and others, potentially available to
the Applicant as that subject matter was not in issue.
[13]
As
to the Board’s finding of an IFA in Mexico City, some measure of
deference is owed to the Board in this regard. In any event, the unspecified
concerns expressed about computer security and the possibility that certain
databases could be used to locate the Applicant was speculative and not well
established. The premise is that Lopez would attempt to track the Applicant,
yet he has never done so either since she left Canada or even when
she was in Mexico. Her family
has never been approached by Lopez. Therefore, it was not unreasonable to find
that the Applicant had an IFA in Mexico City.
IV. CONCLUSION
[14]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application
for judicial review is dismissed.
“Michael
L. Phelan”
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