Date: 20110525
Docket: IMM-5454-10
Citation: 2011 FC 612
Montréal, Quebec, May 25,
2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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PATRICIA ROMO GOMEZ
MAURICIO SANTIAGO ORTIZ ROMO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of
the Immigration and Refugee Board of Canada – Refugee Protection Division (the
Board), dated August 18, 2010, whereby the Board determined that the applicants
were neither Convention refugees pursuant to section 96 of the IRPA nor
persons in need of protection pursuant to subsection 97(1) of the IRPA.
I. Background
[2]
The
principal applicant Patricia Romo Gomez (the applicant) and her son Mauricio
Santiago Ortiz Romo are citizens of Mexico. They lived in Tampico, Tamaulipas.
They arrived in Canada on June 20, 2008 on board a direct flight from
Mexico City to Edmonton. They sought refugee protection upon arrival.
[3]
The
applicant alleged that her husband began to receive threatening phone calls to
his mobile phone in July 2007. The callers were unidentified and indicated to
the applicant’s husband that he would pay for what he had done. The calls
became more frequent and at one point, the caller told the applicant’s husband
that nobody could help him and that he should not ask for help because his
situation would only get worse. The applicant and her husband also noticed that
“strange cars” parked in front of their house.
[4]
The
applicants left the family home and decided to stay with the applicant’s
parents who lived in Tampico.
[5]
The
applicant’s husband left the home as well and went to live with a friend in Villahermosa,
Tabasco. The
applicant’s husband allegedly received another threatening call on his mobile
(despite having changed his mobile phone number) while in Villahermosa where
the caller indicated that he could not hide and that he was a “dead man”. The
applicant’s husband eventually left Mexico and entered Canada on a valid
work permit.
[6]
The
applicants came twice to Canada to visit family and the applicant’s
husband. On June 5, 2008, the applicants travelled back to Mexico so that the
applicant could complete the requirements for the professional certification
that she had been working towards.
[7]
The
applicant alleged that two incidents occurred upon their return to Mexico which led
them to leave the country and claim asylum in Canada. First, a
few days after arriving in Mexico, the applicant began to receive
threatening phone calls inquiring about her husband. The callers indicated that
the applicants would be kidnapped and that they would pay.
[8]
Second,
on June 15, 2008, the applicant was driving with her son to meet her family for
lunch in Tampico. A black
truck approached them while they were stopped at a traffic light. Three people
got out of the truck and attempted to get into the applicant’s vehicle. They
shouted for her to unlock the doors. The applicant accelerated away and sought
refuge in her parents’ garage.
[9]
On
June 20, 2008, the applicant fled with her son to Canada.
[10]
The
applicant indicated that she was not sure who was targeting her family.
However, she outlined two possibilities. First, it could be her husband’s former
employer, Mr. Ruiz Willis. In 2006, her husband was successful in a wrongful
dismissal claim against Mr. Ruiz Willis. Mr. Ruiz Willis had allegedly
indicated that one day the applicant’s husband “would pay” for bringing the
claim.
[11]
Second,
it was also possible that the brothers Mario and Jose Aladro (the Aladro
brothers) were her family’s persecutors. In 2004, her husband had testified
against the two brothers regarding an incident where he witnessed the Aladro
brothers attacking the applicant’s brother. The applicant alleged that the
Aladro brothers had become key persons involved in the Gulf Cartel in Tampico and, as a
result, had significant influence there.
[12]
Just
prior to her hearing before the Board, the applicant submitted an update to her
Personal Information Form (PIF) wherein she indicated that the latter theory
had been “confirmed”. She alleged that one month after her arrival in Canada, her brother
was told that he would have to pay 25,000 pesos a month if he wished to
continue to operate the family business without interference. He accepted. On
October 19, 2009, he was allegedly arrested by Mexican federal agents and
accused of false charges of kidnapping and “organized delinquency”. The applicant
believed that the incidents are linked to the 2004 incident involving the
Aladro brothers.
II. Decision under review
[13]
The
Board found that the availability of a viable Internal Flight Alternative (IFA)
was the determinative issue in the applicants’ case. It found that there was no
serious possibility of the applicants being persecuted or facing a risk to
their lives or a risk of cruel and unusual treatment or punishment if they
returned to another part of Mexico, away from the state of Tamaulipas. The
Board specifically considered Mexico City, Guadalajara and Monterrey as potential
IFAs.
[14]
The
Board indicated that the evidence suggested that the applicants’ most likely persecutors
were localized in the Tampico or at least in the state of Tamaulipas and that
they probably did not have the motive or the ability to locate and pursue the
applicants in another part of Mexico. The Board based its conclusion on the
following findings:
- The alleged agents
of persecution have not been identified but the applicant advanced two
theories; the theory involving her former husband’s employer and the one
involving the Aladro brothers. The evidence remained unclear as to whether
any of these individuals were actually involved in any of the incidents
described in the claimant’s evidence.
- Of the three most
probable individuals identified as agents of persecution, one of them was
based in Tampico while
the other two had influence in Tamaulipas state;
a) both
incidents of actual contact - the parked cars and the June 15, 2008 incident –
had occurred in Tampico;
b) the
threatening phone calls were initially received in Tampico;
c) all calls,
including the call received by the applicant’s husband in Villahermosa, were
received on mobile phones.
d) the applicant
did not encounter problems during the time she spent in Mexico City in 2007 and
2008;
e)
the
applicant, in her PIF, indicated that:
The reason which brought us to Canada is
the unsafety which personally and directly we lived at our country, specially
at the state of Tamaulipas, where the organized delinquency have us with
fear and the incompetence of our authorities to protect the physical integrity
of my family and myself” [Emphasis added].
·
The
evidence suggested that the agents of persecution were mostly interested in the
applicant’s husband.
·
There
was no evidence of actual efforts by the alleged agents of persecution to
actually harm the applicant’s husband or to attempt to harm him.
·
There
was no evidence connecting the unknown agents of persecution with the Gulf
Cartel.
[15]
During
the hearing, the Board member suggested Mexico City,
Guadalajara, or Monterrey as Internal Flight Alternatives. The applicant
stated that she and her son, would not be safe in any of these cities considering
the experience of her husband in Villahermosa and the possibility of the agents
of persecution, if they were the Aladro brothers, to locate them anywhere in
the country since they had connections with the Gulf Cartel and connections with
corrupt police and judges.
[16]
The
Board found that the applicant’s suggestion that her family could be located anywhere
in Mexico via the use
of “databases” for credit cards, utilities and taxes was not compelling. It found
that these concerns were largely speculative, given the absence of past efforts
to locate and harm the applicants in areas outside Tampico, and given
the absence of evidence regarding the actual identity of the persecutor and
their ability to access public information to locate the applicants. The Board
also concluded that there was no evidence connecting the agents of persecution
with the Gulf Cartel.
[17]
The
Board also found that an IFA in Mexico City, Guadalajara, or Monterrey would be
objectively reasonable in all the circumstances. It noted that the applicant
was very well educated and had extensive, varied work experience. It pointed
out that the applicant, herself, had agreed that were it not for the alleged
persecution, she could live and work in any of these urban centres.
[18]
On
the whole, the Board concluded that an IFA in Mexico was not only
viable and reasonable in all the circumstances, but it was also accessible. As
such, it concluded that the applicants were not entitled to refugee protection
pursuant to section 96 or subsection 97(1) of the IRPA.
III. Issues
[19]
Only
one issue arises for determination on this application:
a) Did the Board
err in finding that an IFA was available to the applicants in Mexico?
IV. Standard of
review
[20]
Determinations
as to the availability of an IFA warrant deference because they involve the
evaluation of both the applicants’ circumstances, as reported by them in their
testimony, and expert understanding of country conditions (Sivasamboo v
Canada (Minister of Citizenship and Immigration), [1995] 1 FC 741 at para
26, 52 ACWS (3d) 136 (TD)). As such, the appropriate standard of review to
apply is the reasonableness standard (Rodriguez Diaz v Canada (Minister of
Citizenship and Immigration), 2008 FC 1243 at para 24, [2009] 3 FCR
395).
[21]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 at para
47, [2008] 1 S.C.R. 190 described the reasonableness standard as being “concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process”, as well as also being “concerned with
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
V. Analysis
a) Did the Board
err in finding that an IFA was available to the applicants in Mexico?
[22]
When
the prospect of an IFA is raised, the burden falls to the individual claimant
to show either: a) that there is a serious possibility of being persecuted or
of being subjected to a risk to their life or of cruel and unusual treatment or
punishment in the proposed IFA area, or b) that in all the circumstances, it
would be objectively unreasonable for them to seek refuge in the proposed IFA
area (Rasaratnam v Canada (Minister of Employment and Immigration),
[1992] 1 FC 706 at para 9-10, 140 NR 138 (CA); Thirunavukkarasu v Canada
(Minister of Employment and Immigration), [1994] 1 FC 589 at para 9-12 ,
109 DLR (4th) 682 (CA); Lugo v Canada (Minister of Citizenship and
Immigration), 2010 FC 170 at para 35, 364 FTR 188).
[23]
The
applicants claim that the Board erred in its consideration of the first prong
of the IFA test. In particular, they allege that the Board conducted its
analysis without regard to the totality of the evidence. In particular, the
applicants claimed that the Board made the following errors.
[24]
First,
they claim that the Board disregarded the information contained in the
applicant’s updated PIF and did not understand the heart of the allegation,
namely that the applicant now knew that the agents of persecution were the
Aladro brothers. They point to the fact that the Board indicated that there
were still two “theories” as to who was targeting the applicants in Mexico and that the
applicants did “not know who the alleged agents of persecution” were. In fact,
the applicant submits that she had “confirmed” in her updated PIF, based on
the incidents involving her brother, that the Aladro brothers were the agents
of persecution. This error, they say, undermined the Board’s IFA analysis.
[25]
The
remainder of the alleged errors the Board made are all based on the premises
that the evidence established that the agents of persecution were in fact the
Aladro brothers and that these individuals were connected with the Gulf Cartel.
[26]
The
applicants allege that the Board erred by concluding that the agents of
persecution were localized and had influence only in the areas of Tampico or
Tamaulipas. They claim that the Board ignored the evidence regarding the
threats that the applicant’s husband received when he was in Villahermosa. They further
allege that the Board also erred when it concluded that the persecutors did not
have the motive or ability to locate and pursue the applicants anywhere in Mexico. They
further contend that the Board erred by not considering that evidence regarding
the influence and power of the Gulf Cartel.
[27]
Upon
reviewing the record and upon reading the transcript of the hearing before the
Board, I am satisfied that the applicant’s arguments are without merit.
[28]
First,
it is true that the applicant submitted an updated version of her PIF narrative
shortly before the Board hearing. It is also true that in that updated version,
the applicant added a number of paragraphs explaining the troubles that the
applicant’s brother had experienced in Mexico since the
applicants had arrived in Canada. Indeed, the update began with the
following paragraph:
Being already in Canada, our worst fears became reality. In fact
the theory that Mario and Jose Aladro are behind our problems is confirmed
with the illegal detention of my brother, Lino Romo Gomez.
[Emphasis added]
[29]
However,
in reality, none of the detail added in the PIF, and none of what was said
before the Board, served to confirm the identity of the applicants’ alleged
agents of persecution. No link was demonstrated between the incidents involving
Lino, the applicant’s brother – who was allegedly required to pay a monthly fee
for protection and was later arrested by federal agents – and the applicants’
situation. The applicants speculate that the Gulf Cartel was responsible for the
applicant’s brother mistreatment for the same reason that they believe the Gulf
Cartel was behind their mistreatment, because both the applicant’s brother and her
husband had testified against the Aladro brothers in 2004. However, no evidence
was provided to support this theory.
[30]
At
the Board hearing, counsel for the applicants admitted that the additional
evidence regarding the incidents involving the applicant’s brother did not
truly act to “confirm” that the Aladro brothers were the applicants’ agents of
persecution. Indeed, counsel indicated that there was no certainty in this
regard and that it was very difficult to prove the connection (Tribunal Record
at p. 381):
Yeah, yeah, but I mean we are not 100
percent sure but what I think is that the second theory is the most likely why, because only – until the
moment, only the brother and only the husband and his family have been
attacked, not any other member. Of course that the other family members,
because they are wealthy and everything, they are at risk but we are talking of
general risk. They are at risk of kidnapping. In fact when the brother was
disappear, they immediately think he was kidnapped. Why? Because they are
wealthy. So if some person of the family disappear like this, it’s the most
immediately thought to think that he was kidnapped. But what -- according to
all the testimony what we can see in this case is that it’s not because they
are wealthy that they are targeted in this case, according to me. It
could be, but it’s not – I don’t think it’s the case. It’s because these
two brothers who belong to the Gulf Cartel who are crazy people who wants to
take revenge because there was some problem in the past, so they attacked the
husband, they attacked the family and they attack the brother.
Of course it’s very difficult and I confess that it’s very difficult -- it’s
very difficult to prove all the links. We don’t have all the documents to
prove that link. It’s very difficult, but I think that the facts are pointing
out –
(sic)
[Emphasis added]
[31]
The
applicant, for her part, was quite clear in her testimony that, in her mind,
there were still two possible theories as to the identity of her persecutors –
not just one. When the Board asked about her persecutors, the applicant
responded as follows (Tribunal Record at p. 328-329):
Q: Okay. I’m going through your PIF and
reading through it, it appears that you actually don’t even know who the people
are that are after you, is that true?
A: Correct.
…
A: We have --- these are the people that
we’re afraid of, the people that would harm us. We have three possibilities of
people that would harm us. Three persons –
…
Q: Who are these three people?
A: Who are three people? They are two
brothers. It’s Mario and Jose Aladro (phonetic) and the other person is Consalo
Luis Will (phonetic)
[32]
As
such, it is clear from the record that the Board did not err by indicating that
the applicants were uncertain as to who was targeting them in Mexico. It is also
clear that the Board did not err when it indicated that the applicants had two
“theories” about who was involved. Both statements accurately reflected the
evidence before the Board. It should also be pointed out that, contrary to the
applicants’ assertion, the Board did go on to note the additional evidence
regarding the applicant’s brother. It noted that he had “experienced a series
of incidents, in which he was extorted for protection money, kidnapped, and
held by authorities on the basis of false charges.”
[33]
Second,
regarding the threat that the applicant’s husband received while in
Villahermosa, the evidence indicates that he only received one threatening
phone call while he was in Villahermosa. The Board addressed
this evidence at paragraph 24 of its decision where it indicated that the call
was received on the applicant’s husband’s cell phone, “making the caller’s
knowledge of his location at best questionable.” The Board went on to note that
there was no evidence that anyone had attempted to harm him while he was in Villahermosa. The Board’s
treatment of this evidence was reasonable. I see no reviewable error in the
Board’s finding.
[34]
Third,
the Board did not canvass the evidence with respect to the power of the Gulf Cartel,
because it did not accept that the Gulf Cartel was in any way involved in the
applicants’ alleged past persecution. At paragraph 26, the Board rejected the
applicants’ theory that the Gulf Cartel was responsible for their mistreatment
by pointing to an “absence of evidence connecting the unknown agents of
persecution with the Gulf Cartel.” Indeed, the only evidence linking the Gulf Cartel
with the incidents of 2007 and 2008 was the evidence that in 2004, three years
before the first threatening phone call, the applicant’s husband and brother
had testified against two alleged Gulf Cartel members. Given this tenuous
evidentiary basis, it was reasonable for the Board to conclude that the
applicants had not demonstrated that the Gulf Cartel was involved in their
persecution and, in turn, it was reasonable for the Board not to consider
evidence related to the Gulf Cartel’s ability to locate and pursue individuals
throughout Mexico.
[35]
Ultimately,
given the lack of evidence as to the identity of the applicants’ alleged
persecutors, given the evidence suggesting that the alleged persecutors were
localized in the Tampico and Tamaulipas areas, and given the fact that the
suggested IFAs are all large centres located at a considerable distance from
Tamaulipas, I find that it was reasonable for the Board to conclude that there
was no serious possibility of the applicants being persecuted or facing a risk
to their lives or a risk of cruel and unusual treatment or punishment in Mexico
City, Guadalajara, or Monterrey.
[36]
The
applicants do not take issue with the Board’s determination on the second prong
of the IFA test, as to the objective reasonableness of the proposed IFAs.
[37]
As
such, I am unable to conclude that the Board erred in deciding that an IFA was
reasonably available to the applicants in Mexico City,
Guadalajara, or Monterrey. Since the finding of an IFA is determinative
of a claim for refugee protection, this application for judicial review is
dismissed.
[38]
No
questions of general importance were proposed for certification and none arose.
JUDGMENT
THIS COURT’S JUDGMENT
is that the
judicial review is dismissed. No questions are certified.
“Marie-Josée
Bédard”
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