Date: 20100518
Docket: IMM-5568-09
Citation: 2010 FC 539
Ottawa, Ontario, May 18, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
Alejandro de Jesus ARECHIGA
PIERRES
Hilda Margarita LONGORIA LUNA
Wendy Georgette ARECHIGA LONGORIA
Kevin Alejandro ARECHIGA LONGORIA
Applicants
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
rendered on August 27, 2009 by the Refugee Protection Division of the
Immigration and Refugee Board (the Board) which found that the Applicants are
not Convention refugees or persons in need of protection.
[2]
The
Applicants allege that they were attacked and threatened by a criminal named
Alfonso Capetillo, after the wife of Alejandro De Jesus Pierres (principal
applicant) reported some of his illegal activities. The wife’s complaint against
Capetillo to the police on September 16, 2007 was supposed to be anonymous, but
she was still required to give personal information and it seems that the
information was relayed to him. The applicants arrived in Canada on October
1, 2007 and made a claim for refugee protection on the same day.
[3]
The
judicial review application shall be dismissed for the reasons that follow.
[4]
The
Board begins its decision by determining that the Applicants have been found to
be credible as to the alleged events at the basis of their claim. However, it
determines that the claim cannot succeed as the Applicants did not rebut
the presumption of state protection and an internal flight alternative (IFA)
exists in Mexico
City.
[5]
In
Perea v. Canada (Minister of Citizenship and Immigration), 2009 FC
1173, [2009] F.C.J. No. 1472 (QL), the Court asserted that questions with
regard to state protection is to be held to the standard of reasonableness. The
determination with regard to the existence of an internal flight alternative is
also held to the same standard of review (Singh v. Canada (Minister of
Citizenship and Immigration), 2009 FC 158, [2009] F.C.J. No. 202 (QL)).
[6]
In
applying that standard, 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).
[7]
The
Applicants argue that they provided evidence of police connivance which goes to
show that state protection is not available to them and that this evidence was
ignored by the Board. The Applicants point to a translation of a newspaper
article dated April 30, 2004 (Certified Tribunal Record, pages 247, 298 and
299) which they claim establishes connivance between their persecutor, Capetillo,
and the authorities. They submit that the Board’s failure to mention this piece
of evidence is a reviewable error.
[8]
The
Respondent highlights that the burden of rebutting the presumption of state
protection is placed on the Applicants and that, in this case, they did not
rebut that presumption as they did not exhaust all of the domestic avenues
available to them before claiming refugee status in Canada. The
Respondent argues that in light of the fact that the Applicants left Mexico before
waiting for the results of the police report, it was reasonable to conclude
that they had not rebutted the presumption of state protection. The Respondent
also urges that this conclusion of the Board was sufficient to reject the
Applicants’ claim.
[9]
I
note that the Board actually does refer to the article in question in two
footnotes of the decision (see footnotes 5 and 6 and paragraph 13). At
paragraph 13, where the Board cites the article, it finds the following: “The
documentary evidence showed that Mr. Capetillo was a notorious criminal but it
did not indicate, despite his alleged connections to the father of a city mayor
in the region, that he was under police protection or that because of his
crimes, he had police protection or impunity.” This is an accurate summary of the
information contained in the articles referred to in the footnotes. The April
30, 2004 article pertains to a search of a home which led to the finding of an
arsenal of weapons believed to belong to Capetillo. It also underlines that the
situation was being investigated and relates to other crimes committed by
Capetillo.
[10]
In
light of this, the Applicants’ argument that the Board ignored evidence cannot
succeed.
[11]
The
Applicants emphasize that the Board failed to see the collusion between
Capetillo and the public authorities. They reason that since Capetillo is
protected by the authorities, he would be able to find them wherever they
relocate in their country through their social security card information and
their voter registration card information. They also point to a decision of the
Refugee Protection Division adduced before the Board, where it was found that drug
dealers would be able to track down their victims using social security and
voter information contained in government databases (Certified Tribunal Record,
pages 232 to 240). Accordingly, the Applicants argue that the Board failed to
comprehend the key reasons why an IFA is not available to them.
[12]
The
Respondent submits that the Applicants did not demonstrate that they have a
well-founded fear of persecution throughout the country. The Respondent relies
on the Board’s findings with regard to the documentary evidence in response to
the principal applicant’s testimony on his fear of being tracked and argues
that the Board’s conclusion is reasonable. The Respondent also urges that if
the Court finds this conclusion to be reasonable, any other errors would be of
no consequence.
[13]
Firstly,
as already explained above, I cannot find that the Board ignored the piece of
evidence relied on by the Applicants. Secondly, with regard to the decision
adduced before the Board, that decision did not involve any of the same parties
and there was evidence in that case of police and government corruption which was
the basis of the decision. In the case at bar, the Board was satisfied that, on
a balance of probabilities, that there is no serious possibility of the
claimants being persecuted in the part of the country in which it found the IFA
to exist and the decision adduced by the Applicants is not sufficient to render
that decision unreasonable. In view of the documentary evidence relied on by
the Board and the facts in the present case, I am satisfied that the decision
with regard to the IFA falls within an acceptable range of outcomes.
[14]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-5568-09
STYLE
OF CAUSE: ALEJANDRO DE JESUS ARECHIGA
PIERRES
HILDA
MARGARITA LONGORIA LUNA
WENDY
GEORGETTE ARECHIGA LONGORIA
KEVIN
ALEJANDRO ARECHIGA LONGORIA
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: May 12,
2010
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: May
18, 2010
APPEARANCES:
Cristina Marinelli FOR
APPLICANTS
Lisa Maziade FOR
RESPONDENT
SOLICITORS OF RECORD:
Cristina Marinelli
Montreal, Quebec FOR
APPLICANTS
Myles J. Kirvan, Q.C. FOR
RESPONDENT
Deputy Attorney General of Canada
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