Date: 20090209
Docket: IMM-3029-08
Citation: 2009 FC 128
Ottawa, Ontario, February 9,
2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
MARIA DE LOURDES FLORES ARGOTE
MYRIAM GRISEL HERNANDEZ FLORES
MELISSA IVAN HERNANDEZ FLORES
DANIELA MARIBEL HERNANDEZ FLOREZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Refugee Protection Division of the Immigration and Refugee Board (“the Board”)
dismissed the applicants’ claims for protection, after determining that they
had not availed themselves of domestic state protection in Mexico, and that
there were internal flight alternatives (IFA’s) open to them in Mexico itself.
For the reasons that follow, the Court concludes that there is no basis to
interfere with the Board’s decision.
Background
[2]
Ms.
Flores Argote and her three children, aged 15, 17, and 19, fled their home in Leon,
Guanajuato province, Mexico, to escape the reach of
Ms. Flores Argote’s ex-husband, whom she divorced in 2000. Both Ms. Flores Argote
and her eldest daughter Myriam testified at the hearing before the Board. Although
Ms. Flores Argote was married to David Ruben Hernandez Frausto for 13 years,
only six of them were spent together because he was sentenced to a prison term
of 10 years in the mid-1990’s. He was an abusive husband, but his incarceration
was unrelated to domestic violence; rather, it was owing to his involvement
with a criminal gang that had carried out robberies. He apparently believes
that it was Ms. Flores Argote who denounced him to the police, and blames her
for his 10-year incarceration.
[3]
Ms.
Flores Argote had no contact with her former spouse from 2000 until 2006 when
he attempted to abduct the oldest child, Myriam, outside of her college. She
escaped on foot. Ms. Flores Argote filed a report with the Public Ministry in
relation to this incident on March 18, 2006, but it was treated as a “family
problem” and no charges were laid. Ms. Flores Argote thinks her
ex-husband may have bribed public ministry officials, and describes him as an
influential man with money and power. Four months later, fearing for Myriam’s
safety, she sent her to Canada to study English while
things “cooled down.”
[4]
Sadly,
they did not cool down. On July 12, 2007, Mr. Hernandez Frausto allegedly attacked Ms.
Flores Argote while she was out shopping. He assaulted her and threatened to
kill her daughters. She consulted a lawyer after this incident, but did not go
to the police. Two weeks later, she came to Canada.
[5]
In
its decision, the Board accepted that the applicants’ account of harassment,
violent incidents, and threats made by Mr. Hernandez Frausto was truthful. It
did not, however, find any nexus between the persecution and a Convention
ground. Nor did it find that the acts recounted amounted to persecution. The
Board nonetheless went on to analyze the merits of the claim, presumably as a
claim for complementary protection under s. 97 (1) of the Immigration and
Refugee Protection Act although better wording might have made this
clearer.
[6]
The
Board determined that there are several cities in Mexico which the applicants might
have used as an IFA. The applicants’ contention that it would be possible for
Hernandez Frausto to locate his ex-wife and daughters anywhere in Mexico was rejected. The
Board also noted that there was no evidence that the psychological problems
alleged to affect one of the daughters, Melissa, could not be addressed in Mexico. With respect to the
availability of state protection, the Board referenced its own documentation
regarding efforts that have been undertaken to combat violence against women
(e.g., the passage of the General Law on Women’s Access to a Life Free from
Violence), to support its conclusion that state protection, though it might
not be perfect, would likely be forthcoming if the applicants were to seek it.
Issues
[7]
In
this proceeding, the applicant makes the following submissions:
(a) The Board erred in
rejecting the evidence of the applicant that her former spouse had money and
thus could bribe public officials;
(b) The Board erred in its analysis
of an internal flight alternative; and
(c) The Board erred in its
determination of the availability of state protection.
Analysis
Credibility finding
[8]
The
applicant alleges that the Board made “credibility findings” which are either
contradictory or unclear. The Board noted that Hernandez Frausto reportedly
had no money when he was arrested in 1993, as related in the contemporary report
from the El Heraldo newspaper that was part of the record. With
regard to the robbery money, the article stated that “[the robbers] all said
that they had spent it all.” The Board concluded from this, and from the fact
that there is no evidence that he is currently engaged in crime, that he is not
now a wealthy person.
[9]
Admittedly
that conclusion does not flow from the fact that he had no money when arrested,
more than a decade ago. On the other hand, there is no evidence at all, other
than the statement of Ms. Flores Argote, that Hernandez Fausto is now a man of
means. Further, as respondent counsel noted, the description of the former
spouse given by Ms. Flores Argote at page 354 of the certified tribunal record,
when she last saw him, does not suggest that he is a man of means. Her claim
at page 342 of the certified tribunal record that “the man had money, he has
power and he has acquaintances” is simply not supported by any objective
evidence. While the Board may have erred in the passage questioned by the
applicant, there is no reason to think that this error had any impact on the
result.
[10] Counsel for the
applicants acknowledged that the applicants concede and do not question the Board’s
finding that there is no serious possibility of them being persecuted in the
parts of Mexico identified as an IFA,
that is, they do not dispute the Board’s findings that the former spouse and
father would be unlikely to trace them there. If he cannot find them, then his
ability to bribe or influence authorities becomes irrelevant. In any event, as
noted, there was no objective evidence to support the claims of Ms. Flores
Argote in this regard and the Board’s assessment cannot be said to be
unreasonable.
IFA
[11] As noted, the applicants
do not question the Board’s findings with respect to the first prong of the
two-pronged IFA test described in Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.). They submit,
however, that the Board failed to properly consider the second part of that
test. The second prong, as enunciated by the Court of Appeal in Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589
(C.A.) provides that after there has been a finding that there is no serious
possibility of the applicant being persecuted in the IFA, one asks whether it would
be unreasonable, in the particular circumstances of the individuals concerned,
to relocate to that IFA.
[12] The
applicants submit that the Board erred in its analysis because it failed to
consider their unique circumstances and whether it was reasonable that they
relocate. In my view, the applicants’ submission is entirely misguided.
Whether the relocation to the IFA is unreasonable is an objective test and the
onus is on the applicants to establish on objective evidence that the
relocation to the IFA is unreasonable. It is not for the Board to prove that
it is reasonable, as the applicants suggest. In this case, there was only one
factor raised, the psychological counselling received by one daughter in Canada, as a
possible reason why they could not relocate to the IFA. That concern was
answered fully by the Board’s determination that the child had previously
received psychological counselling in Mexico and thus could do so again
if she was relocated back to her country of birth.
State
Protection
[13] The applicants
submit that the Board erred in that it selected only portions of the
documentary evidence to justify and support its conclusion that the applicants
would receive protection if they sought it. While the Board recites only parts
of the documentary evidence, there is no evidence that it ignored relevant
evidence or based its conclusion on irrelevant evidence.
[14] The evidence
is that Ms. Flores Argote never sought protection for the abuse she suffered.
The only time that protection was sought related to the attempted abduction of
the daughter. The police took the statements but admittedly did not act on
them. On the evidence in the record, I concur with the view of the Board that
Ms. Flores Argote has exaggerated the risk to herself and her children.
[15] It also bears
mention that the documents the applicants rely upon and claim were ignored are
dated and do not reflect the current situation in Mexico. Further,
the agent of persecution in this case is one man, whom the applicants concede is
unlikely to trace them to any of the numerous IFA cities that were identified.
The Board was not persuaded, based on the evidence before it, that Ms. Flores
Argote would not have received protection if she had sought it. Based on the
documentary evidence and the personal circumstances of the applicants as well
as that of the agent of persecution, a convicted criminal, that was not an
unreasonable finding of fact. I agree entirely with the respondent’s
submissions on this issue in its memorandum at paragraphs 20 to 34,
particularly the observation that it is incumbent on claimants to adduce clear
and convincing evidence that their state is unable to protect them if they wish
to effectively rebut the presumption that such protection is available. No such
evidence was before the Board.
[16] For all of
these reasons, the Court concludes that the Board’s decision was reasonable,
and should not be set aside.
[17] Neither party
proposed any question for certification and on the facts, there is no question
certified.
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