Date: 20071204
Docket: IMM-1456-07
Citation: 2007 FC 1270
Ottawa, Ontario, the 4th day of December 2007
PRESENT:
The Honourable Mr. Justice Blanchard
BETWEEN:
JUAN PABLO II
CARRASCO
BALDOMINO
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This is an application
for judicial review of a decision of the Immigration and Refugee Board (the
panel) dated February 27, 2007, that the applicant was neither a
“Convention refugee” nor a “person in need of protection” pursuant to
section 96 and subsection 97(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the IRPA).
II. Factual background
[2]
The applicant was born
in Apizaco, Tlaxcala State, Mexico on December 14, 1978. He is a
citizen of that country and is single.
[3]
In December 2004, the
applicant was employed as a labourer with a fabric manufacturer. Six months
after he arrived, the applicant noted small concealed packages when rolls of
fabric were loaded into the company truck. On June 30, 2005, he
informed his superior, Hugo Sanchez (Sanchez), that he suspected there was
[TRANSLATION] “something funny” going on. He was reprimanded by Sanchez, who
told the applicant to look after his work and not ask questions.
[4]
On August 2, 2005,
Sanchez approached the applicant and offered him the position of a truck
driver. In his new duties, he would be [TRANSLATION] “responsible for driving a
truck and paying close attention to his small packages”. After a few days
thinking it over, the applicant rejected Sanchez’s offer. The applicant was
convinced that drug trafficking was going on and thought of informing the
police, but changed his mind as he knew that the municipal police commander,
César Montiel, was a good friend of Sanchez.
[5]
On December 16, 2005,
Sanchez ordered the applicant to go with him in the company truck to deliver a
load of fabric to Chiahutempan. At about 12:20 pm, Sanchez took a road
going to a village the applicant did not know. Sanchez then delivered small
packages concealed under the rolls of fabric. The packages were taken into a
warehouse and, a few minutes later, they both left the premises.
[6]
On the journey, Sanchez
threatened the applicant, telling him that he [TRANSLATION] “was not to tell
anyone what he had just seen or he would regret it”. Fearing reprisals, the
applicant decided to keep silent. In January 2006, police officers came to
the company to question several employees. According to rumour, the police had
been informed by someone that the company was involved in “shady dealings”.
[7]
At about 8 p.m. on
January 20, 2006, the applicant was stopped by Sanchez and an unknown
individual. Sanchez began insulting and threatening the applicant, telling him
that he [TRANSLATION] “was going to pay dearly for what he had done”. Despite
his explanations that he had said nothing, he was hit by the unknown individual
and Sanchez told him that he [TRANSLATION] “had better watch out and if the
police came back to the company, he was going to look for [the applicant] and
kill him”. The applicant, having suffered bruises and scratches, went home.
[8]
Fearing for his safety,
the applicant decided not to go back to work and left his family home on
January 21, 2006. Five days later, on January 26, 2006, the
applicant noticed Sanchez’s car cruising by the apartment he had rented to hide
in.
[9]
At about 7 p.m. on
February 2, 2006, a car stopped near the applicant and two individuals got out:
Sanchez and an unknown individual. Sanchez insulted the applicant and
threatened to kill him. He noticed that the unknown man had a gun in his
jacket. The applicant then fled and was not followed. Following the incident,
he hid with Veronica Gomez, a friend.
[10]
The applicant decided
to leave the country in fear of his life. He left Mexico on
March 25, 2006, and arrived in Canada the same day. He sought
Canada’s protection on June 13, 2006.
III. Impugned decision
[11]
In its decision dated
February 27, 2007, the panel found that the applicant had not discharged his
burden of proof and consequently was neither a “Convention refugee” nor a
“person in need of protection”.
Persecution – Section 96 IRPA
[12]
The panel stated that
it found that the applicant was a victim of criminal acts, not persecution. It
relied on Karpounin v. Canada (Minister of Employment and Immigration),
[1995] F.C.J. No. 371 (QL) in concluding that [TRANSLATION]
“victims of criminal acts are not part of a particular social group”. The
panel accordingly considered the application only under subsection 97(1)
of the IRPA.
His country’s protection
[13]
The panel explained
that it is a well-settled principle that a refugee claimant must have sought
his country’s assistance before seeking international protection. The only
evidence to this effect was a letter from a Mexican lawyer whose services were
retained when the applicant was already in Canada. The letter sets out the
facts as described by the applicant and explains that, in its writer’s opinion,
the applicant had to leave Mexico since the change of address was not
sufficient, given that [TRANSLATION] “Hugo Sanchez Palafox has power and
influence at the national level and in part of Central America”.
[14]
The explanation given
by the applicant that he never filed a complaint with the police, because
[TRANSLATION] “he did not want to have problems and the said Sanchez is a very
financially influential person and a friend of the municipal police chief”, was
not accepted by the panel.
[15]
Accordingly, in the
panel’s opinion, [TRANSLATION] “as the applicant did not seek protection from
the authorities of his country, he was unable to discharge the burden on him to
establish by ‘clear and persuasive’ evidence that the State could not or did
not wish to protect him”.
Internal flight alternative
(IFA)
[17]
The panel further
considered that the applicant had not established that the IFA was unreasonable
and unavailable, and that he would personally have been subject to a threat to
his life or a risk of cruel or unusual punishment in other cities. Accordingly,
it concluded that the applicant had a reasonable internal flight alternative to
another Mexican city.
Delay in seeking refugee status
[18]
Finally, the panel
noted that the applicant’s two-month delay in filing his refugee claim
[TRANSLATION] “undermines the subjective fear element and the credibility of
the application”. It dismissed the explanation that the applicant feared being
sent back to his country and was not aware that there was a Hispanic community
in Montréal.
IV. Issues
[19]
Did the panel err in
finding that the applicant did not show with clear and persuasive evidence that
he could not obtain protection from the Mexican government and that he had an
internal flight alternative in Mexico? I consider that the latter question is
determinative in the case at bar for the reasons that follow.
V. Standard of review
[20]
The standard of review
applicable to the question of whether an internal flight alternative exists is
that of patent unreasonableness (Zia v. Canada (Minister of Citizenship and
Immigration), 2007 FC 131; Ortiz v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1365, at paras. 34 and 35; Ako
v. Canada (Minister of Citizenship and Immigration), 2006 FC 647,
at para. 20; Nakhuda v. Canada (Minister of Citizenship and
Immigration), 2006 FC 698, at para. 8; Camargo v. Canada
(Minister of Citizenship and Immigration), 2006 FC 472, at
para. 7; Chorny v. Canada (Minister of Citizenship and Immigration),
2003 FC 999).
VI. Analysis
Internal flight alternative
[21]
The applicant
maintained that he did not have an internal flight alternative, did not feel
safe in Mexico and could not find another place to settle in his country in
view of Sanchez’s contacts. He stated that Sanchez could find him anywhere in
the country. He noted that he had taken reasonable steps to protect his life
and health by trying to move to another place in Mexico, but objective
difficulties relating to this possibility prevented him from pursuing his
attempts.
[22]
The respondent
maintained that the applicant was unable to discharge his burden regarding the
absence of an internal flight alternative. Further, he noted that the applicant
had not shown how in his situation the internal flight alternative was
unreasonable.
[23]
It should be noted that
a Convention refugee has to be a refugee from a country, not from a certain
part or region of a country. Accordingly, if an internal flight alternative to
another part of the same country exists, the claimant cannot be a refugee.
[24]
Since the existence of
an IFA is an inherent part of the decision regarding Convention refugee status,
the applicant has the burden of proving that a serious risk of persecution
exists throughout the country.
[25]
The Federal Court of
Appeal has developed a two-part test to determine whether someone making a
refugee claim has an IFA elsewhere in his or her country. First, the Board must
be satisfied on a balance of probabilities that no serious possibility of the
claimant being persecuted at the location proposed as an IFA exists, and,
second, in view of all the circumstances, including those specific to the
claimant, the situation at the proposed location is such that it would not be
unreasonable for the applicant to seek shelter there (Dillon v. Canada
(Minister of Citizenship and Immigration), 2005 FC 381, [2005] F.C.J. No. 463, at paragraph 11).
[26]
The panel considered
the documentary evidence showing that Mexico has a population of over
110 million people scattered over a large area and that there are several
large cities with over one million people. Additionally, the panel
considered the circumstances specific to the applicant: his age, his education
and the particular circumstances of his alleged persecutor. It did not believe
that Sanchez and his associates had influence throughout Mexico and would seek
the applicant to kill him, when they had nothing against him. On the evidence,
this finding is not patently unreasonable.
[27]
Further, the letter
prepared by the Mexican lawyer was given only limited evidentiary weight by the
panel as it was written five months after the applicant arrived in Canada and
three months after he had filed his refugee claim. The applicant submitted no
evidence apart from the lawyer’s letter to show that Sanchez had such wide
influence in Mexico that he could prevent him from finding refuge in other
Mexican cities with more than one million inhabitants, such as Guadalajara,
Baja California, Merida or Monterey. The panel was not satisfied on a balance
of probabilities that the applicant risked being persecuted in those cities. In
my opinion, this finding was reasonably available to the panel on the evidence
as a whole.
[28]
It should be noted that
the existence of an internal flight alternative is in itself sufficient to
dispose of the refugee claim. In Shimokawa v. Canada (Minister of
Citizenship and Immigration), 2006 FC 445, Madam Justice Tremblay‑Lamer
explained that “the existence of a valid IFA is determinative of a refugee
claim and, consequently, the other issues raised by the applicant upon judicial
review need not be considered” (see also Rasaratnam v. Canada (Minister of Employment and Immigration),
[1991] F.C.J. No. 1256 (QL)).
[29]
In the case at bar, I
consider that, in finding that there was an internal flight alternative, the
panel made no error that would warrant this Court’s intervention.
VII. Conclusion
[30]
For these reasons, the
application will be dismissed.
[31]
The parties did not suggest certification of a
serious question of general importance as contemplated by paragraph 74(d)
of the IRPA. I am satisfied that no such question arises in the case at bar.
Accordingly, no question will be certified.
JUDGMENT
THE COURT
ORDERS AND DECLARES that:
1. The application for judicial
review is dismissed.
2. No
question is certified.
“Edmond P. Blanchard”
Certified true
translation
Susan Deichert,
Reviser
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