Date: 20101005
Docket: IMM-921-10
Citation: 2010 FC 990
[UNREVISED CERTIFIED
TRANSLATION]
Ottawa, Ontario, October 5, 2010
PRESENT:
The Honourable Madam Justice Bédard
BETWEEN:
HIGHLANDER
GUZMAN LOPEZ
Applicant
and
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 dated January 20, 2010, by the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the Board), which determined that Guzman Lopez
was neither a refugee nor a person in need of protection under sections 96 and
97 of the Act.
[2]
The
Board rejected the applicant’s refugee claim on the grounds that his story was
not credible, that he had not rebutted the presumption of state protection and
that there was an internal flight alternative (IFA).
Background of claim
[3]
The
applicant is a Mexican citizen. When he lived in Mexico, he worked
for the Mexican government in the Agriculture, Farming and Rural Development
Secretariat. In 2002, he was sent to Chiapas to assist with
eradicating the Mediterranean fly. There were conflicts in that area of Mexico because of
the presence of the Zapatistes who, according to the applicant, manipulated and
intimidated the local population into not assisting employees of the Mexican
government. The applicant claims that the Zapatistes, inter alia, banned
the citizens from having contact with him.
[4]
The
applicant alleges that he encouraged the citizens to not let the Zapatistes intimidate
them and that, beginning in June 2006, they threatened and attacked him. He
also claims that he received death threats. The final attack occurred on
August 30, 2006, which prompted the applicant to flee Mexico for Canada and to apply
for refugee protection here.
[5]
The
applicant contends that he did not alert the authorities or file a complaint
because Mr. Juan, the representative of the Zapatistes, had ties with the
local police.
Board’s
decision
[6]
The
Board rejected the applicant’s refugee claim for three reasons. First, it found
that the applicant’s story was not credible based, in particular, on
numerous inconsistencies between the information in his Personal Information
Form (PIF) and his testimony. In addition, the Board pointed out that the
applicant made statements at the hearing about important elements of his
refugee claim that he had not mentioned in his PIF, including the death threats
he claimed to have received and the alleged ties between Mr. Juan and the
local police. With respect to the ties between Mr. Juan and the police,
the Board determined that “the alleged ties between
Juan and the police chief, the fact that Juan was paying off the police and
that the police are corrupt were additions made by the claimant at the end of
his testimony to embellish his story.” In short, the Board did not believe the
applicant’s story.
[7]
Second,
the Board found that “even if the claimant were credible”, he had not rebutted
the presumption of state protection because he did not provide convincing
explanations as to why he had not sought protection from the Mexican
authorities. The Board concluded that the applicant’s evidence in this regard
was not clear or convincing.
[8]
Last,
after raising this issue at the hearing, the Board determined that the
applicant had an IFA. The Board did not accept the applicant’s allegation that
Mr. Juan would look for him elsewhere in the country because “of how angry he was with [him], because [he] was responsible for the
fact that the aboriginal population was no longer ignorant of its rights.”
[9]
In
the Board’s view, the situation described by the applicant was a “local
problem” and concluded that it did not believe that the
Zapatistas, and specifically Mr. Juan, would be interested in the claimant
to the point of searching the entire country for him.
[10]
The
Board identified three cities as IFAs and found that the applicant would not face
a fear of persecution by the Zapatistas in those
locations
and that it was not unreasonable to suggest that the applicant move to one of
those cities. In the Board’s view, the applicant’s relocation to one of the identified
cities was a realistic and affordable option. The Board therefore concluded
that the applicant had not discharged his burden of proof to establish that there
was no IFA for him.
Issues
[11]
The
applicant submits that the Board’s findings about his credibility and the
existence of state protection were unreasonable. However, he did not challenge
the Board’s finding that there was an IFA.
[12]
In
his initial memorandum, the respondent dealt only with the IFA issue and argued
that the applicant’s failure to dispute this determinative finding of the Board
was sufficient to dismiss the application for judicial review. Nonetheless, in
his supplementary memorandum filed on September 9, 2010, the respondent set
out his position on the applicant’s submissions concerning the Board’s findings
about the applicant’s credibility and state protection.
Analysis
[13]
With
respect, I believe that, in this case, the existence of an IFA was a
determinative finding in the Board’s decision and that the failure to dispute
this finding is sufficient to dismiss this application for judicial review.
[14]
In
Olivares Vargas v. Canada (Citizenship and
Immigration), 2008 FC 1347, [2008] F.C.J. No. 1706,
as in this case, the applicant had not disputed the Board’s finding concerning an
IFA. Our Court recognized that the Board’s finding about an IFA was sufficient
on its own to reject the claim for refugee protection because an internal
flight alternative is inherent to the very concept of refugee and person in
need of protection.
[15]
In
Julien v. Canada (Minister of Citizenship and Immigration), 2005 FC 313,
[2005] F.C.J. No. 428, the Court also reviewed the
concept of an IFA and cited the Federal Court of Appeal decision in Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C.
706, [1991] F.C.J. No. 1256:
[9] For a refugee claim to be
approved under sections 96 or 97 of the Act, there must be an internal flight
alternative in the applicant's country of nationality:
As to the third proposition, since by
definition a Convention refugee must be a refugee from a country, not from some
subdivision or region of a country, a claimant cannot be a Convention refugee
if there is an IFA. It follows that the determination of whether or not
there is an IFA is integral to the determination whether or not a claimant is a
Convention refugee. I see no justification for departing from the norms
established by the legislation and jurisprudence and treating an IFA question
as though it were a cessation of or exclusion from Convention refugee status.
For that reason, I would reject the appellant's third proposition. (Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C.
706 (C.A.),
at paragraph 8.) [Emphasis added.]
[16]
Moreover,
there is nothing before me to suggest that the Board’s assessment as to the
availability of an IFA was an error that would justify the Court’s intervention.
I have reached the same conclusion regarding the Board’s findings on the
applicant’s credibility and the existence of state protection.
[17]
For
all these reasons, the application for judicial review is dismissed. No
question of general importance was proposed for certification, and none
warrants certification.
JUDGMENT
THE COURT ORDERS that the application for judicial review is
dismissed. No question is certified.
“Marie-Josée
Bédard”
Certified
true translation
Mary
Jo Egan, LLB
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