Date: 20090130
Docket: IMM-2982-08
Citation: 2009 FC 106
Ottawa, Ontario, January 30,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
RICARDA ROSARIO HERNANDEZ
CLAUDIA
GABRIELA VELASCO HERNANDEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of a decision determining that two Mexican citizens were
neither refugees nor persons in need of protection because they had an internal
flight alternative (IFA) in Mexico City or in Guadalajara,
Mexico.
II. BACKGROUND
[2]
Ms.
Hernandez and Ms. Velasco Hernandez are mother and daughter, and were residents
of Xalapa,
Mexico. The mother
is in her mid-fifties and the daughter is in her mid-twenties. They ran a business
selling gold and silver.
[3]
The
Applicants base their refugee claim on fear of persecution by a man named
“Victor” who had kidnapped the daughter for ransom and was threatening to do so
again. The Applicants also fear the mother’s estranged partner.
[4]
When
the daughter was kidnapped in 2003, the mother reported the kidnapping to the
police. The kidnappers, having learned of the contact with the police, warned
the mother not to approach the police again. Eventually, upon payment of a
ransom, the daughter was released.
[5]
One
year after the kidnapping, the police contacted the mother who lied as to the
daughter’s location because the daughter did not want to be involved with the
police.
[6]
In
October 2007, Victor began to make new threats of kidnapping. These newer
threats were the cause of the Applicants’ flight from Mexico.
[7]
In
addition to the fear of kidnapping by Victor, the Applicants feared harm from
the mother’s former partner. The Applicants cited one incident, after the
mother had left the abusive relationship, where Ms. Velasco Hernandez saw the
estranged partner’s friend and believed that that person had been sent to watch
her.
[8]
The
Refugee Protection Division Member (Member), in conducting the hearing of this
matter, declared the Applicants to be vulnerable persons in accordance with the
Chairperson’s Guideline on Procedures with Respect to Vulnerable Persons
Appearing Before the Immigration and Refugee Board of Canada (Guideline
on Vulnerable Persons). Accordingly, he permitted the Applicants’ counsel
to begin the questioning. The Member also noted that the evidence was to be
considered in light of the Chairperson’s Women Refugee Claimants Fearing
Gender-Related Persecution guideline (Gender Guidelines). The
Applicants’ story of the threats to them was considered credible.
[9]
Having
found the Applicants to be credible, the Member went on to consider the issues
of IFA and state protection. The Member, having considered the populations, the
distances from familiar territory, and the natures of both Mexico City and
Guadalajara, concluded that the Applicants were likely to be safe in either of
those cities. The Member then went on to consider that even if there happened
to be problems in the proposed IFAs, there was adequate state protection
available to them in either location.
While the
Member recognized that the evidence with respect to an IFA in Mexico City and Guadalajara was not
universally in favour of such a conclusion, he found the favourable, objective,
documentary evidence outweighed the Applicants’ testimony as to their fears of
relocating to either city and other evidence.
III. ANALYSIS
A. Standard
of Review
[10]
The
standard of review in respect of an IFA and state protection is reasonableness (Salazar-Sanchez v. Canada
(Minister of Citizenship and Immigration), 2008 FC 684)).
[11]
Although
the Gender Guidelines and Guideline on Vulnerable Persons have
been raised, this is not a case involving the standard of review of those
Guidelines, if such an issue could arise in respect of them in any event.
[12]
The
Guidelines are directed towards the conduct of a fair hearing and a departure
from the Guidelines which does not result in a breach of natural justice or a
breach of fairness would not necessarily give rise to independent grounds for
judicial review. If there was a breach of natural justice or fairness, it would
be subject to the correctness of standard of review. As the Applicants have
raised natural justice in regard to the hearing, those issues must be addressed
on the standard of correctness.
[13]
Where
the Guidelines are used as part of the assessment of credibility, they become
subsumed in the standard of review of reasonableness as applied to credibility
findings.
B. Natural
Justice
[14]
The
Applicants take issue with a number of aspects of the conduct of their hearing.
The first aspect of complaint is that the Member was not sensitive to issues
surrounding domestic violence and battered wife syndrome and that the hearing
was not conducted in accordance with the relevant Guidelines. The second aspect
of the Applicants’ complaint regards the conduct of the Member during the
hearing.
[15]
Regarding
the first point, the Member declared the Applicants to be “vulnerable persons”,
and acted in accordance with the Guidelines by permitting the Applicants’
counsel to lead evidence and by attempting to reduce stress on the daughter by
not requiring her to outline the details of her kidnapping. Finally, the Member
accepted their evidence on these points as credible.
[16]
It
is difficult to understand what more the Applicants seek in this regard. The
Guidelines do not shield an applicant from having their evidence tested nor
does it entitle them to have their evidence accepted without inquiry. There is
nothing in the approach of the Member to these areas of sensitivity which calls
the fairness of the hearing into question. The fact that the Member, the
interpreter, and the RPO were males is not in and of itself grounds for
complaint.
[17]
As
to the second point, the Applicants complain that the hearing was interrupted
by someone looking for a person not in the hearing room and by a telephone call
which came to the Member’s telephone located in the hearing room. The
Applicants also submit that the fact that, before their hearing began, they had
to move to allow a previously scheduled matter to proceed interfered with their
right to a fair hearing. Lastly, the Applicants complain that the Member, the
RPO, and the interpreter joked at a few of the incidents that occurred in the
hearing.
[18]
These
facts must be put in context. The interruptions were no fault of the Member and
had no real effect on the fairness of the hearing or of the decision. The
Member took pains to explain to the Applicants that the laughter, which had to
do with the incidents, had nothing to do with the Applicants or with their
testimony.
[19]
I
can find nothing objectionable in the manner in which the Member conducted the
hearing. Even the Applicants’ complaint that the RPO nodded off to sleep (a
fact which is in some doubt) is irrelevant to the conduct of the Member and
cannot form a basis for substantiation of a denial of natural justice.
[20]
To
allege that these incidents and the responses to them resulted in a denial of
natural justice is to trivialize the right to a fair hearing. No reasonable
person could conclude that there was any unfairness. While the Applicants may
be particularly sensitive to these incidents and may attribute an unwarranted
degree of significance to them, objectively there is no basis for their
concern.
C. Internal
Flight Alternative/State Protection
[21]
The
Applicants argue that the Member failed to consider the two Guidelines in
suggesting IFAs existed in Mexico City and in Guadalajara. In
addition, the Applicants contend that the Member ignored relevant documents and
took account of irrelevant information in reaching this conclusion.
[22]
The
record of conditions in Mexico is quite voluminous and it was not
reasonable or possible for the Member to discuss each and every fact or
document contained in the package.
[23]
What
is particularly relevant is that the Member noted problems and difficulties in
both cities but in the end, weighing all of the circumstances, accepted the
preponderance of evidence that Mexico City, in particular, and Guadalajara were
reasonable IFAs.
[24]
The
Member’s conclusion that neither Victor nor the estranged former partner would
travel to either city to find the Applicants or, if they did so, were not likely
to locate the Applicants, is reasonable given all the facts before the Member.
The Member took account of the size and nature of the two cities, as well as
their diverse and cosmopolitan nature, which addresses in part the likelihood
of the Applicants being pursued or found in either location.
[25]
The
Member also took account of the abilities of the claimants to cope in such
large cities and gave due recognition to their entrepreneurial abilities to
earn a living.
[26]
As
noted earlier, the Member took account of some inconsistencies among various
sources about country conditions in Mexico and found, on balance, that both Mexico City and Guadalajara were
potential IFAs. The Member conducted the very type of analysis and reached the
very type of reasonable conclusions which he was required to.
[27]
The
Applicants suggest that the Member found that as Mexico City and Guadalajara were tourist
destinations, they were somehow more secure cities. That description does not
do justice to the consideration given by the Member. The thrust of the Member’s
comment is that both cities were international destinations for tourists which
created a diverse atmosphere where many different lifestyles exist. The Member
noted that the cities were relatively more western in their profiles than other
rural areas of Mexico, presumably including Xalapa.
[28]
The
Member’s conclusion with respect to state protection is reasonable, particularly
in respect of Mexico
City.
It is true that the conclusion that foreign influences have assisted in
fostering the need for a safe and secure city is not immediately obvious from
the documentary records, and the Member does not explain the source from which
he drew that conclusion. However, these last comments are tangential to the
important analysis of state protection, the existence of organizations (both
government and non) available to protect and assist the Applicants, and other
factors which support both an IFA and state protection finding.
[29]
The
Applicants have not met their burden of proof to show that there is no IFA.
[30]
Therefore,
I find that the decision, in all of its important constituent parts and read as
a whole, is reasonable.
IV. CONCLUSION
[31]
This
application for judicial review will be dismissed. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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