Date: 20070125
Docket: IMM-2766-06
Citation: 2007 FC 63
Ottawa, Ontario, January 25,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Sergio
Enrique RAMIREZ TENORIO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
In
Voice Construction & General Workers’ Union, Local 92, [2004] S.C.R.
609, it was held that:
[31] In Ryan, supra, at para. 55, Iacobucci J. explained
that a decision will be unreasonable
... only if there is no line of analysis within the given reasons that
could reasonably lead the tribunal from the evidence before it to the
conclusion at which it arrived. If any of the reasons that are sufficient to
support the conclusion are tenable in the sense that they can stand up to a
somewhat probing examination, then the decision will not be unreasonable and a
reviewing court must not interfere (see Southam, at para. 56). This
means that a decision may satisfy the reasonableness standard if it is
supported by a tenable explanation even if this explanation is not one that the
reviewing court finds compelling (see Southam, at para. 79).
It is not necessary for every
element of the tribunal's reasoning to pass the reasonableness test. The
question is whether the reasons as a whole support the decision: Ryan, supra,
at para. 56.
JUDICIAL PROCEDURE
[2]
The
Applicant filed an Application for Leave pursuant to Section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), against a decision of
the Refugee Protection Division (Board), rendered on April 20, 2006, concluding
that he is not a Convention Refugee nor a person in need of protection.
FACTS
[3]
The
Applicant, Mr. Sergio Enrique Ramirez Tenorio, is a citizen of Mexico. He alleges
that because of death threats he received, he had to leave his country in order
to save his life.
[4]
The
Board dismissed his claim because there was no credible evidence to contradict
the reasonableness of an internal flight alternative (IFA) in a major
metropolitan area like Mexico D.F. and Monterrey.
[5]
The
Board also concluded that the Applicant did not present credible evidence that
his country of origin, Mexico, was unable or unwilling to protect him.
ISSUE
[6]
Is
the decision of the Board patently unreasonable?
ANALYSIS
[7]
The
Board’s reasons are relatively short. (see Nguyen v. Canada (Minister of
Citizenship and Immigration), 2005 FC 349, [2005] F.C.J. No. 432 (QL));
however, the reasons as a whole support the decision. In Voice Construction,
above, it was held that:
[31] In Ryan, supra, at para. 55, Iacobucci J. explained
that a decision will be unreasonable
... only if there is no line of analysis within the given reasons that
could reasonably lead the tribunal from the evidence before it to the
conclusion at which it arrived. If any of the reasons that are sufficient to
support the conclusion are tenable in the sense that they can stand up to a
somewhat probing examination, then the decision will not be unreasonable and a
reviewing court must not interfere (see Southam, at para. 56). This
means that a decision may satisfy the reasonableness standard if it is
supported by a tenable explanation even if this explanation is not one that the
reviewing court finds compelling (see Southam, at para. 79).
It is not necessary for every
element of the tribunal's reasoning to pass the reasonableness test. The
question is whether the reasons as a whole support the decision: Ryan, supra,
at para. 56.
[8]
Indeed,
the following reasons were sufficient to dismiss Mr. Tenorio’s claim:
The claimant was asked if he would seek
internal refuge in a large city such as Mexico D.F. or Monterrey.
Confronted, he testified that he could
not because he had no family in these cities and no money.
(Reasons at p. 2)
[9]
In
order to be qualified as a Convention refugee, Mr. Tenorio had to demonstrate
that he had no IFA in his country of origin, Mexico, since by
definition a Convention refugee must be a refugee from a country, not from some
subdivision or region of a country, a claimant cannot be a Convention refugee
if there is an IFA. (Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589 (C.A.), [1993]
F.C.J. No. 1171 (QL))
[10]
Consequently,
the onus is on Mr. Tenorio to prove, on a balance of probabilities, that he
seriously risks being persecuted throughout his country. (Thirunavukkarasu,
above)
[11]
The
Board was also required to be satisfied, on a balance of probabilities, that in
all the circumstances, including the circumstances particular to Mr. Tenorio,
that the conditions in that part of the country were such that it would not be
unreasonable for Mr. Tenorio to seek refugee there. (Rasaratnam v. Canada (Minister of
Citizenship and Immigration), [1992] 1 F.C. 706, [1991] F.C.J. No. 1256
(F.C.A.) (QL))
[12]
This
Court has set a very high threshold for the unreasonableness test in that “it
requires nothing less than the existence of conditions which would jeopardize
the life and safety of a claimant in travelling or temporarily relocating to a
safe area…”
(Fernandez v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1094, [2004] F.C.J. No. 1325 (QL) at para. 11)
[13]
In
the case at bar, when asked about a possibility of safe venues in the cities of
Mexico D.F. or Monterrey, it was clear from Mr. Tenorio’s answers that
the reasons he could not go there, were primarily based upon economic and
family considerations.
[14]
The
mere fact of not wanting to move, or experiencing difficulties settling in a
new city, or not having relatives in that area are not factors which could
justify Mr. Tenorio not seeking an IFA in his country of origin. The Federal
Court of Appeal in Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164, elaborated on this
issue and concluded:
[14] …This is not, however, the kind of undue hardship that this
Court was considering in Thirunavukkarasu.
[15] We read the decision of
Linden J.A. for this Court as setting up a very high threshold for the
unreasonableness test. It requires nothing less than the existence of
conditions which would jeopardize the life and safety of a claimant in
travelling or temporarily relocating to a safe area. In addition, it requires
actual and concrete evidence of such conditions. The absence of relatives in a
safe place, whether taken alone or in conjunction with other factors, can only
amount to such condition if it meets that threshold, that is to say if it
establishes that, as a result, a claimant's life or safety would be
jeopardized. This is in sharp contrast with undue hardship resulting from loss
of employment, loss of status, reduction in quality of life, loss of
aspirations, loss of beloved ones and frustration of one's wishes and
expectations.
(See also Julien v. Canada (Minister of
Citizenship and Immigration), 2005 FC 313, [2005] F.C.J. No. 428(QL) at
para. 12 and Garcia v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1699, [2004] F.C.J. No. 2058 (QL)
at para. 18)
[15]
Clearly,
Mr. Tenorio did not fulfill his onus of demonstrating to the Board that there
exist conditions in Mexico D.F. and/or Monterrey that would
jeopardize his life and safety in travelling or temporarily relocating to a
safe area.
[16]
By
his allegations (para. 16 of Applicant’s Affidavit at page 10 of the
Applicant’s Record) Mr. Tenorio is attempting to explain ex-post facto
what he could have explained during the hearing; however, as stated by this
Court in Majerby v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 878, [2002] F.C.J. No. 1145 at
paragraph 15 “…At the judicial review stage, it is no longer the proper
forum for such matters.” More recently this Court held in Sinan v. Canada (Minister of
Citizenship and Immigration), 2004 FC 87, [2004] F.C.J. No. 188 (QL):
[15] The Applicants have put forward alternative explanations for
many of the Board's findings. When the standard of review is, as here, one of
patent unreasonableness, it is not sufficient to present an alternative line of
reasoning - even where that may present a reasonable explanation. What the
Applicants must do is to point to a conclusion of the Board that is not
supportable in any way on the evidence. The Applicants have failed to persuade
me that any of the most significant findings were patently unreasonable. I
cannot conclude that the decision as a whole is patently unreasonable.
[17]
It is well established that it is Mr. Tenorio’s
onus to demonstrate that he risks persecution everywhere in his country. In
this case, Mr. Tenorio has failed to discharge his onus of proof. The Board’s
decision in this regard was not unreasonable.
[18]
This Court, in Rodriguez v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1539, [2005] F.C.J. No. 223
(QL) at para. 36, “…the availability of state protection or IFA is fatal
to a claimant's claim…” and “…In the event that one of these two options is
available to the claimant, there is no need to proceed with the analysis of the
second option.”
[19]
This Court has also stated that where an IFA
exists for someone who is claiming refugee status, it is not necessary to
examine the question of credibility:
[28] …Irrespective of
whether or not the applicant is credible, the fact that there is an IFA means
there is no justification for the applicant's unwillingness or inability to
avail herself of this protection.
(Urgel v. Canada (Minister of Citizenship and
Immigration), 2004 FC 177[2004] F.C.J. No. 2171
(QL))
[20]
Credibility, in this case, is mostly linked with
the concept of state protection. Indeed, the Board concluded that Mr. Tenorio
did not present credible evidence that his country of origin, Mexico, was unable or unwilling to protect
him. (Reasons – p. 2, para. 5)
[21]
This conclusion was reasonable.
[22]
Mexico is known to be a
democratic state. In N.K. v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1376 (QL) (F.C.A.), the Federal Court of Appeal
stated that:
[5] When the state in
question is a democratic state, as in the case at bar, the claimant must do
more than simply show that he or she went to see some members of the police
force and that his or her efforts were unsuccessful. The burden of proof that
rests on the claimant is, in a way, directly proportional to the level of
democracy in the state in question: the more democratic the state's
institutions, the more the claimant must have done to exhaust all the courses
of action open to him or her.
[23]
In regard to the death threats, Mr. Tenorio
presented reports he had submitted to the Human Rights Procurator’s office and
to the Justice General Prosecutor’s office.
[24]
As indicated in the Board’s Reasons, Mr. Tenorio
did not identify the agent of persecution to the officials. As was asked by the
Respondent, “What could have done the Human Rights Procurator’s office and the
Justice General Prosecutor’s office?” Reference is made in this regard to Garmash
v. Canada
(Minister of Employment and Immigration), 93 F.T.R.
242, [1994] F.C.J. No. 1304 (QL).
[25]
Indeed, unsigned correspondence without
identification of its source and random unidentified telephone communications
are examples which are very difficult to effectively investigate and protect
against. Reference is made to the decision in Smirnov v. Canada (Secretary of State) (T.D.), [1995] 1 F.C. 780, [1994] F.C.J. No. 1922 (QL):
[11] …Random assaults, such
as those suffered by the applicants, where the assailants are unknown to the
victim and there are no independent witnesses are also difficult to effectively
investigate and protect against. In all such circumstances, even the most
effective, well-resourced and highly motivated police forces will have
difficulty providing effective protection. This Court should not impose on other
states a standard of "effective" protection that police forces in our
own country, regrettably, sometimes only aspire to.
[26]
Moreover, there is nothing to support Mr.
Tenorio’s allegations to the effect that the threats came from the father of
Dana, a police officer who works for the Judicial Police (and in the context of
his duties).
[27]
Further, the authorities only had vague and
imprecise information regarding the identity of Mr. Tenorio’s aggressor. Mr.
Tenorio did not provide any evidence that the police or other officials in his
country of origin were unable to protect him. See Villanueva v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1320, [2004] F.C.J. No. 1619
(QL):
[5] …However, there is
nothing to support the applicant's allegations to the effect that the threats
came from members of the PCP; further, the authorities only had vague and
imprecise information regarding the identity of the applicant's aggressor. The
applicant did not provide any evidence that the police are unable to protect
citizens against the PCP. As Gibson J. stated in Smirnov v. Canada
(Secretary of State), [1995] 1 F.C. 780, at page 786…
(See also: Obi
v. Canada
(Minister of Citizenship and Immigration), 2005 FC
319, [2005] F.C.J. No. 4000 (QL) at paras. 13-14; Mejia v. Canada (Minister
of Citizenship and Immigration), 2003 FC 1180, [2003] F.C.J. No. 1493 (QL);
Gutkovski v. Canada (Secretary of State), 94 F.T.R. 119, [1995] F.C.J.
No. 566 (QL))
[28]
When asked why, Mr. Tenorio omitted to mention
the identity of the agent of persecution, he simply said that he was afraid to
do so. The Court refers to the comments made in Ferguson v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1212, [2002] F.C.J. No. 1636 (QL):
[10] Also, the applicant
made the decision not to press criminal charges against her husband because she
was afraid of his reaction. This behaviour is understandable considering the
circumstances but it does not make the state protection insufficient. A
decision was made by the applicant not to use the system established by
governmental authorities. If all victims of violent domestic abuse do not use
the service offered, that system will never improve.
[29]
In Singh v. Canada (Minister of Citizenship
and Immigration), 2006 FC 136, [2007] F.C.J. No. 153 (QL), Justice Simon
Noël has stated that it would be exaggerated to say that as soon as someone
alleges that the agent of persecution is the police, he or she has no
obligation to seek state protection.
[23] …it would be an
overstatement to say that, as soon as a person alleges that the agent of
persecution is the police, he is not required to seek protection from his
country of origin.
(See also Saini
v. Canada
(Minister of Employment and Immigration) (1993),
151 N.R. 239, [1993] F.C.J. No. 280 (QL) at paras. 3-4 (F.C.A.))
CONCLUSION
[30]
As this case is based solely on an evaluation of
the facts and Mr. Tenorio has not demonstrated the existence of any error, therefore,
the intervention of this Court is unjustified.
JUDGMENT
THIS
COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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