Docket: IMM-3606-11
Citation: 2012 FC 243
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, February 22, 2012
PRESENT: The Honourable
Mr. Justice Boivin
BETWEEN:
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GIBRAN ALI OLVERA CORREA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act), for judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (the panel) dated May 9, 2011. The panel found that the applicant
was neither a refugee nor a person in need of protection under sections 96
and 97 of the Act and, therefore, rejected his refugee claim.
I.
Background
A. Facts
[2]
Gibran
Ali Olvera Correa (the applicant) is a Mexican citizen. He had been living in Querétaro
but left in 2008 to go to work for his grandfather in Coatzcoalcos, Veracruz. His
grandfather owned a construction company and a number of parcels of land. The
applicant had to trace and manage these lands and properties. In doing so, he
noted that someone else was registered as the owner of one of the parcels of
land. Consequently, in June 2008, the applicant filed a lawsuit against that
person.
[3]
The
applicant claims that, after he filed the lawsuit, he and his family were
threatened. In July 2008, the applicant received a call from the Los Zetas cartel,
demanding 500,000 pesos in exchange for their protection. The applicant refused,
saying that he did not have that much money. The Los Zetas cartel told him that
he had better hide. The applicant believed that these threats were related to
the parcels of land and the work he was doing for his grandfather. Nonetheless,
he continued to work but changed his routine to protect himself.
[4]
On
July 25, 2008, the applicant alleges that he was kidnapped by men in cars.
They held him in a garage, struck him repeatedly and forcibly confined him for
five days without food. On July 30, 2008, the applicant was released: his
family had a paid a ransom of 300,000 pesos. The applicant subsequently stopped
going out and stopped working for his grandfather in December 2008.
[5]
In
March 2009, the applicant received a call asking him what price he would put on
his own life. Because of this call, the applicant left Mexico and arrived in
Canada on April 11, 2009. He applied for refugee protection under
sections 96 and 97 of the Act. The panel heard his refugee claim on March 11,
2011.
B. Impugned
decision
[6]
Although
the panel found the applicant credible, it rejected the refugee claim: the
applicant had not sought Mexico’s protection. The applicant testified that it
would have been useless to seek protection from the Mexican police because the
municipal police were corrupt. However, the panel noted that the applicant had
asked the police to pass by the house often so that he would feel safe, which
the police did. Although the panel acknowledged that police corruption exists,
the documentary evidence indicates that Mexico is trying to resolve this
problem and to establish a more professional police force.
[7]
The
panel also found that an internal flight alternative was available since the
applicant could relocate to Querétaro, a place he was familiar with. The
applicant conceded that he could relocate elsewhere with his family but that
certain areas, such as Mexico City, were too dangerous. However, for the panel,
this did not prevent the applicant from relocating to Querétaro or elsewhere in
Mexico.
[8]
The
panel noted that the applicant appeared to have suffered a great deal as a
result of his kidnapping and that he feared that criminal groups would kidnap
him again. Los Zetas’ criminal activities are documented in the documentation
package on Mexico, and the documentary evidence demonstrates that their crimes
are widespread. However, the documentary evidence indicates that Mexico is taking
steps to combat this criminality and the drug cartels. Based on that evidence,
the panel found that the applicant had not discharged his burden of proof
because he had not sought state protection and there were internal flight
alternatives available.
[9]
On
May 25, 2011, the applicant brought this application for judicial review.
II.
Issue
[10]
This
application for judicial review raises the following issue:
Did the panel
err by finding that the applicant had an internal flight alternative?
III.
Relevant
statutory provisions
[11]
The
relevant sections of the Immigration and Refugee Protection Act are as
follows:
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Refugee
Protection, Convention Refugees and Persons in Need of Protection
Convention refugee
96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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Notions
d’asile, de réfugié et de personne à protéger
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention
– le réfugié – la personne qui, craignant avec raison d’être persécutée du
fait de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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Person in need of protection
97. (1) A person in need of protection is a person
in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that
risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in
every part of that country and is not faced generally by other individuals in
or from that country,
(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability
of that country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of
persons prescribed by the regulations as being in need of protection is also
a person in need of protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se
réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce
pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent
ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de
sanctions légitimes – sauf celles infligées au mépris des normes
internationales – et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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IV.
Standard
of review
[12]
The
appropriate standard of review in this case is reasonableness (Avila v
Canada (Minister of Citizenship and Immigration), 2006 FC 359 at paragraph
23, [2006] FCJ No 439; Williams v Canada (Minister of Citizenship and
Immigration), 2011 FC 1004 at paragraph 7, [2011] FCJ No 1239, [Williams];
Pinon v Canada (Minister of Citizenship and Immigration), 2010 FC 413 at
paragraph 11, [2010] FCJ No 500 [Pinon]; Lopez v Canada (Minister of
Citizenship and Immigration), 2007 FC 198 at paragraph 15, [2007] FCJ No
278 [Lopez]; Dunsmuir v New Brunswick, 2008 SCC9, [2008] 1 S.C.R. 190 [Dunsmuir].
[13]
Consequently,
this Court must determine whether the panel’s findings are justified,
transparent and intelligible and fall within “a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47). As Mr. Justice de Montigny noted,
“it
is only where none of the arguments put forward by [the panel] in support of
its decision can stand up to somewhat probing examination that judicial review
can be allowed”
(Lopez,
above, at paragraph 15).
V.
Analysis
[14]
The
applicant states that the panel erred by finding that Querétaro was an internal
flight alternative. The applicant alleges that the panel did not correctly
apply the test for an internal flight alternative established in Thirunavukkarasu
v Canada (Minister of Employment and Immigration) (CA), [1993] FCJ No 1172,
[1994] 1 FC 589 [Thirunavukkarasu] because it disregarded evidence in
the record.
[15]
In
this case, the Court cannot agree with the applicant’s arguments. Rather, the
evidence in the record demonstrates that the applicant did not discharge his
burden of proof. The applicant had to demonstrate that he faced a risk of
persecution throughout Mexico and that it was, therefore, unreasonable for him
to relocate elsewhere in the country, notably in Querétaro where he had
studied, lived and worked for a number of years. Although the Los Zetas
organization poses a risk for the entire Mexican population, as the panel noted,
the documentary evidence shows that the applicant failed to establish that this
situation prevented him from relocating to Querétaro.
[16]
An
internal flight alternative is defined as “a fact situation in
which a person may be in danger of persecution in one part of a country but not
in another” (Thirunavukkarasu,
above, at paragraph 2). Given that an internal flight alternative in
another part of the same country is determinative of refugee status, the onus
was on the applicant to prove that he was at serious risk of being persecuted
throughout Mexico (Thirunavukkarasu, above, at paragraphs 2 and
6; Pinon, above, at paragraph 23; Rasaratnam v Canada (Minister
of Employment and Immigration) (FCA), [1991] FCJ No 1256 at paragraph 8,
[1992] 1 FC 706 [Rasaratnam]) ; Vallejos v Canada (Minister of
Citizenship and Immigration), 2009 FC 289 at paragraph 20, [2009] FCJ No
349). Since the panel identified Querétaro as an internal flight alternative,
the onus was on the applicant to demonstrate, on a balance of probabilities,
that he was nonetheless at risk of being persecuted there (Thirunavukkarasu,
above, at paragraph 9). In Thirunavukkarasu, at paragraph 13,
Mr. Justice Linden of the Federal Court of Appeal wrote as follows:
[13] . . . Rather, the question is whether,
given the persecution in the claimant's part of the country, it is objectively
reasonable to expect him or her to seek safety in a different part of that
country before seeking a haven in Canada or elsewhere. Stated another way for
clarity, the question to be answered is, would it be unduly harsh to expect
this person, who is being persecuted in one part of his country, to move to
another less hostile part of the country before seeking refugee status abroad?
[17]
More
specifically, actual and concrete evidence of such conditions that would jeopardize
the applicant’s life and safety in relocating was required (Pinon, above,
at paragraph 24; Ranganathan v Canada (Minister of Citizenship and Immigration)
(CA), [2000] FCJ No 2118 at paragraph 15, [2001] 2 FC 164).
[18]
The
Court notes that when the panel suggested Querétaro as an internal flight
alternative, the applicant said that the memories he experienced would prevent
him from living anywhere in Mexico (Tribunal Record, page 154).
[19]
The
Court finds that, based on this evidence, the panel had regard to the situation
in Mexico and to the applicant’s personal situation (see Williams, above,
at paragraph 8; Pinon, above, at paragraph 25) and it was
objectively reasonable for the applicant to relocate to Querétaro.
[20]
The
panel’s findings are justified, transparent and intelligible and fall within “a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, above, paragraph 47). Accordingly,
the Court’s intervention is not warranted.
[21]
There is no question to certify.
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