Date:
20120517
Docket:
IMM-8771-11
Citation:
2012 FC 603
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Montréal, Quebec, May 17, 2012
PRESENT: The Honourable Justice Lemieux
BETWEEN:
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LUIS ALBERTO BAEZ
BAEZ
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Applicant
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and
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THE MINISTER OR
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
applicant was born in 1983 and is a citizen of Mexico. On October 27, 2008, he
fled his country of birth to claim refugee protection in Canada. On November 2,
2011, his claim was denied. The tribunal found his testimony was [translation] "clear, direct, coherent,
without contradictions; his answers were not exaggerated."
[2]
The
family's agent of persecution is the Gulf Cartel, a criminal organization that
is active in drug trafficking, extortion and ransom demands.
[3]
At
the beginning of October 2007, the Cartel targeted the applicant's
father, the owner of a jewellery store; he became the victim of extortions, in
particular, monthly cash payment demands; if he did not comply, his children would
suffer the consequences. His father was warned to not complain to the police.
[4]
The
father complained to the police, who responded that it could not control
everything and that the Cartel members were unknown.
[5]
The
following events took place: refusal to pay, threats, vandalism to jewellery
store, payment demands by the Cartel, more complaints to the police, kidnapping
of the applicant's sister on March 23, 2008, and in April 2008, release after
ransom payment, meeting between the applicant's father and many other targeted
merchants and the Deputy Attorney General in Mexico D.F., confirmation that the
police was unable to control all this violence and an alleged promise to speak
about it with the director responsible for the State.
[6]
On
August 2, 2008, the applicant was allegedly the victim of a physical assault as
a reminder to his father that he had not paid the $1500 for August. After the
applicant left for Canada, his brother, Victor, was kidnapped on November 5;
his father paid the ransom for his release.
[7]
The
applicant's sister, who accompanied her brother to Canada and had claimed
refugee status withdrew her claim and returned to Mexico in December 2009 to
join her parents in Madero. The family left that city to live in Tampico to
operate another jewellery store. The Cartel found them again, and the
applicant's sister and parents moved to the state of Mexico to open a jewellery
store and his brother moved to the capital where he ran a business.
II. The tribunal's
decision
[8]
The
key points in the tribunal's decision are:
·
The
tribunal recognizes that the applicant and his father went to the police many
times and the police admitted it could not control everything.
·
It
is highly likely that certain members of the Cartel were in contact with the
police and it is likely that corrupt elements worked among the police.
·
Following
this admission that it could not control everything, private protection had to
be found, personal security measures taken, and there was even the suggestion
that the amounts demanded be paid to buy peace until things calmed down.
[9]
Notwithstanding
the tribunal's observations on the weakness of state protection, the tribunal
wrote:
[translation]
1.
It
remains that Mexico is not a bankrupt state. It is a democratic country that functions
and is operational. The police and the army are operational and they compensate
for the weaknesses of the institutions. Today, drug cartels spread terror by
kidnapping, extorting, and creating widespread violence in certain
municipalities and certain states. It remains that, in many Mexican states and
cities, the police and the army take measures to protect the community.
2.
This
situation of widespread violence caused by drug dealers is experienced by the
entire Mexican population, to varying levels and degrees.
3.
It
is clear that the Mexican state is struggling with an all-out war with drug
dealers. The state takes actions and the results seem more or less successful.
First, because the cartels are at war amongst themselves for territories, and
the state employed a dual attack with its army and its police on one hand, and
also by removing corrupt elements from the police force, or removing police
officers working for the drug dealers. The documentary evidence describes the
legislative measures the Mexican government took to fight kidnappings for
ransom, including the types of kidnapping, protection available to victims, the
effectiveness of anti-kidnapping measures, and the complicity of some police
officers (2007-April 2009).
4.
The
evidence shows that the applicant's parents were targeted by the kidnappers and
extorted; they have moved twice since June 2011, while maintaining their
livelihood. They are now in Mexico D.F. to try and open the jewellery store again.
5.
The
tribunal feels that the applicant's parents, also targeted, considered Mexico
D.F. to be an internal flight alternative. It would therefore not be
unreasonable or unduly harsh for the applicant to go or move to Mexico D.F.
6.
The
applicant who faces generalized violence could go back to live with his parents
in Mexico D.F. and work with his parents in the jewellery store. And if the
applicant felt it would be dangerous to work in the jewellery store because
this type of activity would draw the attention of extortionists, he could find
another job. The applicant is an electrical engineer, with a specialty in
operations. He could find another job in the industry he is skilled in to work
in Mexico D.F., among others.
7.
Considering
all the evidence, the panel considers that the applicant faces generalized
violence caused by drug dealers and he did not meet his burden of proof to
justify the exception required at sub-paragraph 97(1)(b)(ii) of the Act.
[reproduced in whole]
Conclusion
[10]
Although
in this case, the tribunal has serious doubts as to the validity of the panel's
decision in its finding that the violence the applicant experienced was
generalized violence within the meaning of section 97 and despite the
authorities' admission that in this specific case they could not protect the
applicant and his family, the panel's finding that the applicant had an
internal flight alternative possibility is decisive.
[11]
In
Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1994] 1 FC 589, Linden J.A., on behalf of the Federal Court of Appeal,
explained that the internal flight alternative is simply a convenient way of
describing a fact situation in which a person may be in danger of persecution
in one part of the country but not another. The refugee claimant must seek
refuge in another part of the same country, if it is not unreasonable to do so,
in the circumstances of the individual claimant. This is an objective criterion
and the burden of proof is on the applicant.
JUDGMENT
THE
COURT ORDERS that this application
for judicial review is dismissed. There is no matter for certification.
"François
Lemieux"
Certified
true translation
Elizabeth
Tan, Translator
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