Date: 20110106
Docket: IMM-2202-10
Citation: 2011 FC 5
Ottawa, Ontario, this 6th
day of January 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
JOSE GUADALUPE VELAZQUEZ
HERNANDEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an
application for judicial review of a decision of a member 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 Jose Guadalupe
Velazquez Hernandez (the “applicant”). The Board determined that the applicant
was neither a Convention refugee nor a person in need of protection under sections
96 and 97 of the Act.
[2]
The
applicant
is a Mexican citizen from Ocultzapotlan, in the state of Tabasco. He alleges that on
April 7, 2006, he was the victim of a home robbery while he was away. Upon his
return, neighbours informed him that the perpetrator was a local criminal known
only as “El Pollero”. The applicant allegedly attempted to register a complaint
with the local office of the Public Prosecutor, but states that they refused to
receive the complaint for lack of evidence and witnesses. He says that his
neighbours refused to act as witnesses for fear of reprisals from the local
criminal elements. The police allegedly told the applicant that surveillance
would be increased.
[3]
Nevertheless,
the applicant alleges that El Pollero somehow found out that the applicant had
attempted to make this complaint. The applicant says that he received threats
from El Pollero and his accomplices between April 2006 and August 2006.
[4]
The
applicant alleges that he changed cities several times within the region and
that, on June 22, 2007, he was in Villa Hermosa, approximately 55 km
from Ocultzapotlan, when he and a colleague were attacked in the street and
robbed. The applicant says that they filed a police complaint with the help of
a company lawyer, and that the complaint was registered. The applicant adds
that he did not mention El Pollero’s name in this complaint, though he alleges
that the attackers told him that they were accomplices of El Pollero, acting in
reprisal.
[5]
The
applicant later returned to live in Ocultzapotlan, the location of the original
robbery, where his family lived. He alleges that he continued to fear for his
life. He arrived in Canada on May 3, 2008, and
claimed refugee status the same day.
[6]
The
Board rejected the applicant’s request for refugee status based on a lack of
credibility, the existence of state protection, and the existence of a viable
internal flight alternative.
[7]
This
matter raises three issues:
a.
Was it unreasonable
of the Board to conclude that the applicant’s story was fabricated and lacked
credibility?
b.
Did the Board err in
concluding that state protection was available to the applicant?
c.
Did the Board err in
concluding that an internal flight alternative was available to the applicant?
[8]
Dealing
first with the question of state protection, which is a mixed question of fact
and law, according to Justice Yves de Montigny in Paguada v. The Minister of
Citizenship and Immigration, 2009 FC 351, paragraph 19, and is therefore
subject to the standard of reasonableness, the Board found that there was
adequate state protection available to the applicant in Tabasco. The Board
noted that when the applicant was duly diligent following the June 2007 attack,
the complaint was registered by the police. It also noted that the applicant
was allegedly told in April 2006 that surveillance would be increased following
the robbery. The Board concluded that this demonstrated that the state
institutions were functioning normally, and that the applicant had not
demonstrated any clear and compelling evidence that these institutions were in
disarray.
[9]
The
applicant submits essentially that the Board did not respect the criteria set
out by the Supreme Court of Canada in Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, pp. 724-726, regarding the absence of state protection. He
argues that it is well-known in Mexico that the government is unable to protect its
citizens from criminal groups, who terrorize citizens without repercussions;
however, the applicant does not point to any serious evidence before the Board
to support this allegation.
[10]
Ward places the burden on
the applicant to provide “clear and compelling evidence” that the state was
unable or unwilling to protect him. In Canada (Minister of Employment and Immigration)
v. Villafranca
(1992), 18 Imm. L.R. (2d) 130 (F.C.A.), it is acknowledged that no government
can guarantee protection all the time, and that it is, therefore, not enough to
show that the government is not always effective at protecting persons in that
particular situation. In Kadenko et al. v. Canada (Solliciteur général) (1996),
206 N.R. 272 (F.C.A.), it is further noted that the failure of a local police
department to provide protection does not necessarily mean that state
protection as a whole is inadequate, especially where there is difficulty
investigating because of a lack of witnesses or where the assailant’s identity
is unknown (as in the present case).
[11]
Finally,
I find it significant that the applicant did not provide any evidence that
state protection would not be forthcoming where, as in the case of the
applicant’s June 2007 complaint, there were witnesses and an identifiable
assailant.
[12]
I
find, therefore, that it was reasonable for the Board to conclude that the
applicant did not meet the burden of showing that the state was unable or
unwilling to protect him in the circumstances.
[13]
Turning
to the internal flight alternative issue, the Board noted that the applicant
was asked whether he could move to Mexico City, and that the applicant had indicated that
he could find a job and an apartment there without difficulty. The Board noted
that the applicant mentioned in his Canada Border Services Agency (“CBSA”) interview
that he did not wish to move to Mexico City because he feared losing his job, though
he did have family there. The Board found that the applicant had made no
reasonable efforts to seek an internal flight alternative, and that there was
no evidence that he would be personally and actually at risk throughout Mexico.
[14]
The applicant
argues that the Board erroneously concluded that he had made no effort to find an
internal flight alternative, and notes that he moved from his hometown to both
Cardenas and Comalcalco, but that he was allegedly traced there by El Pollero.
[15]
The
respondent argues that the applicant failed to show that he would be personally
and currently at risk if he were to move to Mexico City. The respondent notes that the applicant
admitted that he would be able to find an apartment and a job there (even if,
as the applicant alleges, he did not qualify this as a “normal life”), and,
according to the Board, stated in his CBSA interview that he merely did not
want to move to Mexico City for fear of losing his job. The respondent submits
that the Board duly considered the applicant’s submission that he feared that
El Pollero could trace him throughout Mexico, but did not accept this submission. The
respondent argues that the applicant is merely disagreeing with the Board’s
assessment of the evidence as a whole.
[16]
I
agree with the respondent on this point. The standard of review applicable to
the Board’s finding of the existence of an internal flight alternative, which
is a fact-based question, is also reasonableness, according to Navarro v.
The Minister of Citizenship and Immigration, 2008 FC 358, at paragraphs 12
to 14. In my opinion, the Board acted reasonably in concluding that an internal
flight alternative exists for the applicant in Mexico City. The applicant has not shown any significant
evidence which was before the Board to refute this conclusion.
[17]
As
the above findings are determinative of this application for judicial review,
it will not be necessary to deal with the question of credibility.
[18]
For
the above-mentioned reasons, this application for judicial review is dismissed.
[19]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of a decision of a member of the Immigration and Refugee Board
determining that the applicant was neither a Convention refugee nor a person 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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