Date: 20090423
Docket: IMM-4087-08
Citation:
2009 FC 398
Ottawa,
Ontario, April 23, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
ROCIO ALVAREZ CONTRERAS
LUIS FERNANDO GUADALAJARA ALVAREZ
CARLOS HUMBERTO GUADALAJARA ALVAREZ
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C., 2001, c. 27 (Act), of a decision by the
Refugee Protection Division of the Immigration and Refugee Board (the panel), dated
August 25, 2008, that the applicants are not Convention refugees or persons in
need of protection.
Issue
[2]
The
following question arises: did the panel err in finding that the applicant did
not have a reasonable fear of persecution?
[3]
For the
following reasons, the application for judicial review will be dismissed.
Factual background
[4]
The
principal applicant, Rocio Alvarez Contreras, 38 years of age, as well as her
sons Luis Fernando Guadalajara Alvarez, 16 years of age, and Carlos Humberto
Guadalajara Alvarez, 13 years of age, are all citizens of Mexico and they are claiming refugee
status in Canada in accordance with section 96
and paragraph 97(1)(b) of the Act. Ms. Contreras is the designated
representative of her minor children and the children’s story is based on that
of their mother.
[5]
The
principal applicant alleges being the target of the Ejército Zapatista de
Liberación Nacional (EZLN) (the Zapatista National Liberation Army).
Impugned decision
[6]
The panel found
that the principal applicant did not have a genuine fear of persecution. Furthermore,
she could avail herself of an internal flight alternative if she returned to
her country.
[7]
The
principal applicant testified that she left the EZLN in May 2003 and alleges
that her former colleagues called her with death threats starting in October
2003 which motivated her to leave the country in June 2006. According to the
panel, this shows that the threats were not serious.
[8]
When she was
questioned on the possibility of settling in Guadalajara and leading a normal life in a safe
place, the applicant answered that the children must have contact with their
father and that these actions could allow the EZLN to find them (see tribunal
record at page 187).
[9]
The panel
did not agree with this argument and considered that the applicant chose to
leave her country with her children and she cannot allege that the risk
stemming from contact between the children and their father challenges the
existence of an internal flight alternative (IFA).
[10]
The panel was
of the opinion that even if the applicants had a well-founded fear of
persecution, they have an internal flight alternative. The panel did not
believe that if the applicants settled in another city, members of the EZLN, an
organization the principal applicant left in 2003, would invest the time and
money to find them.
[11]
This finding
by the panel was also based on documentary evidence that indicates that Mexico
is a state of more than 100 million inhabitants, made up of 31 states, as well
as the Federal
District which
has more than 8 million inhabitants alone. Several large cities in Mexico surpass one million
inhabitants.
Analysis
[12]
According to
the applicants, the panel had a capricious grasp of the benefit of domestic
protection. They submit that the Court must intervene since the panel relied on
a false premise to establish that the principal applicant could avail herself
of an IFA.
[13]
The
respondent argues that the applicants’ record does not present any serious
argument that could warrant the intervention of this Court. The applicants do
not challenge the panel’s finding that their subjective fear is not genuine because
they waited more than three years after the beginning of their alleged
persecution before leaving Mexico. However, it is recognized
that the lack of subjective fear must result in the denial of a refugee claim because
it is a fundamental component of the concept of persecution (Hazara v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 1256, [2002] F.C.J.
No. 1728 (QL) at paragraph 12; Ahoua v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1239, [2007] F.C.J. No. 1620 (QL) at paragraph 16).
[14]
The courts
have consistently held that the genuineness of an applicant’s fear can be
undermined by reason of his or her conduct with regard to the persecution that
he or she alleges having suffered (Sainnéus v. Canada (Minister of
Citizenship and Immigration), 2007 FC 249, [2007] F.C.J. No. 321 (QL); Singh
v. Canada (Minister of Citizenship and Immigration), 2006 FC 181, [2006] F.C.J.
No. 228 (QL) at paragraph 33).
[15]
The
respondent submits that, given the applicants’ failure to challenge this finding,
the application should be dismissed (Molnar v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 343, [2002] F.C.J. No. 451 (QL) at
paragraph 8; Iracanye v. Canada (Minister of Citizenship and Immigration), 2002 FCT 562, [2002] F.C.J.
No. 739 (QL) at paragraph 22).
[16]
The
applicant has the burden of proving that he or she satisfies the definition of “Convention
refugee” under section 96 of the Act. In Hafeez v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1489, [2004] F.C.J. No. 1802 (QL), at paragraph 10, I made reference to
Ward to write this:
. . . In order to succeed,
the applicant needs to prove, on a balance of probabilities, that he has a
reasonable subjective fear of persecution and that this subjective fear is
objectively well-founded (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). A subjective fear of
persecution is solely based on the assessment of the applicant's credibility
while the objective fear is usually established by documentary evidence
regarding the country conditions
[17]
The Court
does not consider it unreasonable that the panel arrived at the conclusion of a
lack of subjective fear given that the applicants waited three years after the
threats began to leave the country.
[18]
Moreover,
in their memorandum, the applicants made no challenge whatsoever to the panel’s
finding of a lack of fear whether it be objective or subjective. In Hazara,
above, at paragraph 12, the Court ruled as follows:
This Court's
jurisprudence has held that the applicant's failure to establish a subjective
fear of persecution is a fatal flaw that warrants dismissing the claim (Tabet-Zatla
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1778; Anandasivam v.
Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1519).
[19]
It is not
sufficient to simply assert that the panel committed an error of fact or law;
it must be demonstrated by making reference to evidence (Chowdhury v. Canada (Minister of Citizenship and
Immigration)
(1995), 59 A.C.W.S. (3d) 949, 32 Imm. L.R. (2d) 250 (F.C.T.D.) at paragraph 8).
[20]
Since the
subjective element of the applicants’ claim has not been established, the Court
considers that it is not necessary to discuss the IFA.
[21]
No question for certification was proposed and
this application does not give rise to any.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that
the
application for judicial review is dismissed. No question is certified.
“Michel
Beaudry”
Certified true translation
Janine Anderson,
Translator
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