Date: 20100624
Docket: IMM-4781-09
Citation: 2010 FC 691
Ottawa, Ontario, June 24,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SVIET
LUBOV MENESES GONZALEZ
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division (the Panel), dated August 19, 2009, where Sviet
Lubov Meneses Gonzalez (the Applicant) was found not to be a Convention refugee
nor a person in need of protection..
Factual Background
[2]
The
Applicant is a citizen of Mexico, resident in the district of Azcapotzalco, in
the Federal District of Mexico City. In Azcapotzalco, she was threatened
repeatedly by local politician Ricardo Betancourt Linares (Betancourt). In
December 2005, Betancourt asked the Applicant to give him information about the
social equity programme participants that she worked with. He offered her a job
and money, should he win the election that was being held, in exchange for the
information. He also threatened her and told her that he would force her to
give him the information.
[3]
Shortly
thereafter, in February 2006, the Applicant changed jobs and began working for
the Federal Electoral Institution as a coordinator of the workers for the
voting stations for the upcoming election. Betancourt contacted her again and
this time wanted her to manipulate ballots and give him the names of the voting
station workers but she refused. He sent people to follow the Applicant and she
was beaten on one occasion. The Applicant reported the incident to police on
June 21, 2006. Despite the police report, Betancourt continued to send people
to follow the Applicant and threaten her.
[4]
Also,
a few days after she filed the police report, the Applicant was picked up by
police, driven around in a police car for about an hour. During this time, the
police threatened her, they told her she should not have made the report and
she should just give Betancourt the information that he wanted.
[5]
Betancourt
lost the election and the Applicant moved on to another job. She began working
for the Public Property Registration Office and continued to receive calls for
information. She still refused and received death threats. She quit her job in
March 2007 because of the threats. The Applicant arrived in Canada on May 31,
2007 and filed a claim for refugee protection on September 13, 2007. Betancourt
and his accomplices continued to call her home in Azcapotzalco, even after she
left and her mother changed her telephone number as a result of the calls.
[6]
Based
on the evidence, the Panel concluded that a viable internal flight alternative
(IFA) was available and it was satisfied that it would not be unreasonable to
the Applicant to seek refuge in Guadalajara.
[7]
The
Applicant raises issues with regard to the assessment of the evidence and the
application of the test of the IFA. These determinations are questions of fact
and mixed fact and law and are reviewable on a standard of reasonableness. This
presupposes that the Panel has correctly set out the test for the IFA which is
a question of law and the Panel is not entitled to deference if it fails to do
so (Lugo v. Canada (Minister of Citizenship and Immigration), 2010 FC
170, [2010] F.C.J. No. 203 at paragraph 30 and 31).
[8]
In
applying the standard of reasonableness, the Court will consider "the
existence of justification, transparency and intelligibility within the
decision-making process" and "whether the decision falls within a
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 paragraph 47).
[9]
I
note that the Applicant does not take issue with the Panel’s statement
of the test for an IFA and rightly so as the Panel did correctly state the two
prong test for an IFA. The test to be applied in determining whether there is
an IFA is two-pronged: (i) there is no serious possibility of the claimant
being persecuted or subjected, on a balance of probabilities, to persecution or
to a danger of torture or to a risk to life or of cruel and unusual treatment
or punishment in the proposed IFA area, and (ii) conditions in the IFA area
must be such that it would not be unreasonable, in all the circumstances, for
the claimant to seek refuge there Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.) (QL)..
The burden is on the individual making a claim for refugee protection to defeat
either or both prongs of the test (Thirunavukkarasu at paragraph 9).
[10]
Turning
to the facts in the case at bar, I am not convinced that the Panel did actually
misapply the test, despite making an incorrect preface. The Panel’s reasons
show that the two prong test was correctly applied and there is no further
mention of the fact that the Applicant did not seek an IFA before coming to
Canada. There is no indication that the Panel considered the failure to try to
live in the IFA to be a factor in denying the claim for refugee protection or
that it was a factor in assessing the IFA. In light of this, the decision still
falls within the realm of reasonableness and it would not be appropriate to
send the matter back for determination on this ground.
[11]
As
to the findings regarding the availability of state protection in Guadalajara, the Panel
does center its analysis on the Applicant’s particular circumstances, for
example it is satisfied that there was no evidence that Betancourt’s influence
reaches outside of the Federal District and that there would also be police
corruption in Guadalajara. The Panel
also relies on documentary evidence that shows that there are state agencies in
place that address police corruption and that there have been some positive
effects resulting from these efforts.
[12]
I
also do not agree with the Applicant's argument that the Panel ignored
evidence. She argues that her reasons recorded in the transcripts of the
proceedings before the Panel (see Certified Tribunal Record at pages 188,
192-193 and 195) to explain why she does not believe that Guadalajara is a
viable IFA was not considered.
[13]
In
the passages of the transcript referred to by the Applicant, she testifies that
she believes that police in Mexico are corrupt and based on her past
experiences, she believes that Betancourt’s influence is far reaching and that
she will not be safe anywhere in Mexico. The Panel does acknowledge these as
reasons that the Applicant does not feel she can relocate to the IFA but was
not convinced on the basis of the evidence before it. There is no reviewable
error here.
[14]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review be dismissed. No question is certified.
“Michel
Beadry”
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