Date: 20110106
Docket: IMM-2418-10
Citation: 2011 FC 8
Ottawa, Ontario, this 6th
day of January 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
TEODORO PEREZ
LILIANA AIDE TORRES VERGARA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1] This is an
application for judicial review of the decision of a member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”) pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, (the “Act”) by Teodoro Perez and Liliana Aide Torres Vergara (the
“applicants”). The Board determined that the applicants were neither “Convention
refugees” nor “persons in need of protection” under sections 96 and 97 of the
Act.
* * * * * * *
*
[2] The applicants are
citizens of Mexico and are a married
couple. Prior to their departure, they lived in Acapulco, where the male applicant ran a business
and the female applicant was a police officer.
[3] In September 2006, the
male applicant’s motorcycle was stolen. He was informed by his neighbours that
the perpetrators were local firefighters. The applicants allege that it is
well-known in Acapulco that firefighters have
links with organized crime and drug traffickers. The male applicant complained
at the local police station and denounced the firefighters to their commanding
officer. In late November 2006, he was interviewed on local television and made
a public appeal for the return of his motorcycle. The applicants were not able
to obtain an original copy of this interview, but were provided with a synopsis
of the interview signed by the reporter; the synopsis does not indicate that
the applicant specifically mentioned the firefighters in the televised
interview.
[4] The male applicant
alleges that he subsequently received threatening phone calls from unknown
individuals who told him that they knew his whereabouts and the location of his
business. He alleges that suspicious-looking vehicles were occasionally seen
around his home. In May 2007 he was followed home from work by unknown
individuals.
[5] The applicants moved
briefly to the female applicant’s mother’s home in Acapulco, and then sold the
business and moved in with the female applicant’s father in Conchero, a
three-hour drive from Acapulco. They allege that they
continued to feel unsafe there.
[6] The female applicant
allegedly fears being killed by organized criminal gangs in Acapulco, who she says have been
responsible for a number of murders of police officers since November 2006,
including that of her partner, who was killed in a grenade attack.
* * * * * * * *
[7] The Board found that
there was no nexus to a Convention ground, and that therefore section 96
did not apply. The Board found that with the exception of some slight
exaggerations, the applicants were credible. The determinative issue was the
existence of an internal flight alternative (“IFA”) in Durango. The Board found that
on the balance of probabilities, there was no serious possibility of
persecution and/or risk to life or risk of torture or cruel and unusual
punishment in Durango, and it would be
objectively reasonable for the applicants to build a life there.
* * * * * * * *
[8] There are two issues in
this application, as argued orally by counsel for the parties who also referred
the Court to their written submissions:
a.
Did the Board err in
its characterization of the central element of the applicants’ claim?
b.
Did the Board err in
concluding that an internal flight alternative was available to the applicants?
[9] The applicants raise
procedural fairness questions with the first issue, alleging that the Board
committed a breach of natural justice by misunderstanding or mischaracterizing
the central elements of their claim, thereby leading to erroneous conclusions.
According to Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339,
at paragraph 43, issues of procedural fairness attract a standard of review of
correctness.
[10]
The
standard of review applicable to the Board’s finding of the existence of an IFA,
which is a fact-based question, is reasonableness, according to Navarro v. The
Minister of Citizenship and Immigration, 2008 FC 358, at paragraphs 12 to 14.
* * * * * * * *
A. Mischaracterization of the basis
of the applicants’ claim
[11]
The
applicants allege that the Board misunderstood the central basis of their
claim. They allege that their main fear was not simply harassment related to
the denunciation of the motorcycle theft, but rather that they believe that
this harassment was a way for the drug cartels to harass the family of a police
officer in order to later blackmail the officer for favours. They allege that
the Board did not understand this, due to the complexity of their claim, and
argue that it was the responsibility of the Board and of the Refugee Protection
Officer present at the hearing to ensure that all necessary clarifications were
obtained and the central basis of their claim was understood.
[12]
In
my view, if the applicants felt that the Board did not fully understand the
nature of their claim, they should have raised this issue at the hearing
itself. In Ayub v. The Minister of Citizenship and Immigration, 2004 FC
1411, Justice Luc Martineau held at paragraph 21 that the “failure to object at
the hearing amounts to an implied waiver of any breach that might have
occurred”. In Ayub, the applicant was also alleging that the Board had
not properly understood her testimony, but Justice Martineau found that “the
applicant had every opportunity to explain her side of the story and to respond
to the tribunal’s questions”. Moreover, in my opinion, the hearing transcript
and the applicants’ Personal Information Form (“PIF”) do not bear out their
argument. There is nothing at all to suggest that the basis of their claim was
anything other than the motorcycle story. The PIF and the submissions by the
applicants’ counsel at the tribunal hearing focus solely on this incident
without raising any connection to the female claimant’s job. Moreover, the
female applicant was specifically asked if there was a connection between what
happened to her husband and her fear of her job, to which she replied that
there was not (Certified Tribunal Record, at page 527). I find that there is no
evidence that the Board erred in its characterization of the claim, and that
the applicants could have raised this objection at the hearing had they chosen
to do so. Furthermore, this would not overcome the issue of the existence of an
internal flight alternative.
B. Internal flight alternative
[13]
The
applicants argue that it was unreasonable of the Board to find an internal
flight alternative in Durango, as there was no
evidence in support of this finding. The applicants cite Barajas v. The Minister
of Citizenship and Immigration, 2010 FC 21, in which Justice James Russell
found that the Board had committed a reviewable error in identifying certain
cities as IFAs “without citing any evidence that might have established that
the situation existing in the metropolitan areas identified was qualitatively
different from that prevailing in Guadalajara” (paragraph 72). The applicants
also contend that the Board demonstrated a lack of knowledge of the conditions
and modus operandi of Mexican drug organizations, which they allege are
well-known by most Mexicans. The applicants appear to be arguing that the Board
ignored evidence of corruption and drug trafficking in Durango, while failing to cite
any evidence showing that the applicants would be safe there.
[14]
I
note that in the Barajas case, there was ample evidence that the
applicant, having been beaten by police on several occasions for denouncing
police corruption, was still being pursued even while he was in Canada, and his remaining
family members in Mexico were being threatened
in his absence. In my opinion, the facts are therefore distinguishable from the
present case.
[15]
The
threshold for disproving an IFA is high, and the applicants must demonstrate
conditions that would jeopardize their life and safety, according to Ranganathan
v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.). International
protection is provided only if the applicants’ country of origin cannot provide
them with adequate protection throughout its territory, as per Rasaratnam v.
Canada (Minister of Employment
and Immigration),
[1992] 1 F.C. 706 (C.A.), at page 711. Here, the Board explicitly acknowledged
that criminality and impunity problems exist in Durango, and yet still found it to be a viable
IFA. It appears from the Board’s reasons that the Board relied on common sense
and rationality regarding the passage of time since the incident as well as the
perpetrators’ apparent lack of real interest in the male applicant while he was
still in Mexico. The Board did not
ignore any evidence, but rather took into account the applicants’ fears, while
finding them insufficient to displace the Board’s findings.
[16]
The
respondent submits that the applicants mischaracterize the decision when they
argue that the Board did not provide any evidence supporting its finding of an
IFA. The respondent points to paragraphs 16 to 24 of the decision, which
outline the Board’s finding that the agents of persecution are unlikely to
pursue the applicants in the future. I agree with the respondent that it was
this conclusion that formed the basis of the Board’s conclusion that Durango constituted a
reasonable IFA, despite the acknowledged presence of drug traffickers and
organized crime. I find the Board’s reasoning to be sound: the applicants were
not likely to be pursued by anyone once they left Acapulco, and therefore there
would be no danger to them in Durango arising from the relevant incidents. A generalized fear of
drug traffickers is not enough to ground a finding of persecution under section
97.
[17]
In
my opinion, the applicants have not identified any reviewable error in the
Board’s reasoning in this regard, nor have they identified any evidence which
the Board failed to take into account.
* * * * * * * *
[18]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[19]
I
agree with counsel for the parties that this not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of a member of the Immigration and Refugee Board,
determining that the applicants were neither Convention refugees nor persons in
need of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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