Date: 20110620
Docket: IMM-6162-10
Citation: 2011 FC 726
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, June 20, 2011
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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MARCO ANTONIO MARTINEZ ORTIZ
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Applicant
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and
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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 submitted in accordance with subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision by the Refugee Protection Division of the Immigration and Refugee Board (Board), dated September
24, 2010, rejecting the applicant’s refugee claim and finding that he is not a
refugee under section 96 of the IRPA or a person in need of protection under
section 97 of the IRPA.
I. Background
[2]
Marco
Antonio Martinez Ortiz (applicant) is a native of Mexico. He is alleging that
he was a victim of threats by the criminal group “the Familia” in the following
context. While he was working at a grocery store located near a school, he
apparently saw individuals selling drugs to youths. When he appeared at the
local police station to file a complaint, he saw these same individuals in a
friendly discussion with police officers. The applicant got scared and decided
to not sign the complaint. A few days later, masked individuals purportedly entered
the grocery store and threatened him with a gun, telling him that they knew
that he had gone to the police and warning him that he should not get involved in
family business. At the hearing, the applicant specified that that was a reference
to the “Familia”.
[3]
The
applicant purportedly then went to stay with his parents in the State of Morales
for around 15 days. He was then informed that some individuals had allegedly
been found dead in the State of Morales with the words “No one should get
involved with the family” written on their bodies.
II. Board’s decision
[4]
The Board
rejected the applicant’s refugee claim for three reasons. First, it did not
believe the applicant’s account. The Board’s finding in this regard is based on
several omissions and contradictions between the applicant’s interview with the
immigration officer, his Personal Information Form (PIF) and his testimony at the
hearing. The omissions and contradictions were related mainly to the identification
of the agent of persecution. During his interview with the immigration officer
and in his PIF, the applicant consistently referred to “the family”, but his story
changed during the hearing and he referred to “the Familia”, a criminal group. Counsel
for the applicant explained that the change resulted from mistakes in how the
applicant’s PIF and interview notes were translated. The Board also noted
omissions and contradictions with respect to when the applicant tried to file a
complaint, when he saw the individuals talking with police officers and how
many police officers were talking with the individuals. The Board also found
that the applicant had invented his visit with his parents and the information
on the individuals purportedly found dead with words written on their bodies to
embellish his account.
[5]
The Board
also found that the applicant had not succeeded in rebutting the presumption of
the state because, aside from an anonymous complaint that he in no way followed
up on, he did not try to seek state protection. The Board found the applicant’s
explanation that he had not sought state protection because he was scared
insufficient. The Board found that the evidence submitted by the applicant was
not sufficient to find that police officers were in collusion with these
individuals and that, even if this were the case, the fact that a few police
officers were laughing with the two individuals did not prevent the applicant from
taking other steps with the authorities to seek protection.
[6]
The Board
also found that the applicant had an internal flight alternative (IFA). One fact
the Board relied on was that the applicant himself admitted that he had no
problems while staying with his parents in the State of Morales for 15 days.
III. Issues
[7]
The
applicant is challenging all of the Board’s findings. The criticisms made raise
the following issues: did the Board err in finding that the applicant was not
credible, that he had not rebutted the presumption of state protection and that
an IFA existed?
IV. Standards of review
[8]
The
credibility issue requires a very high degree of deference from the Court as it
is at the core of the Board’s expertise. This issue is subject to the standard
of reasonableness (Auguste v. Canada (Minister of Citizenship and Immigration),
2009 FC 1099, at paragraph 17 (available on CanLII); Lin v. Canada (Minister
of Citizenship and Immigration), 2008 FC 698, at paragraph 11 (available on
CanLII)).
[9]
Reviewing
a state protection finding is a question of mixed fact and law that is also
reviewable on the standard of reasonableness (Chaves v. Canada Minister of
Citizenship and Immigration), 2005 FC 193, at paragraph 38, 137 A.C.W.S.
(3d) 392; Nunez v. Canada (Minister of Citizenship and Immigration),
2005 FC 1661, at paragraph 10 (available on QL)).
[10]
Finally, the
IFA finding is also subject to the standard of reasonableness (Guerilus v.
Canada (Minister of Citizenship and Immigration), 2010 FC 394, at paragraph
10 (available on CanLII)).
V. Analysis
[11]
I will begin
with the issue of the applicant’s credibility.
[12]
The applicant
contends that the panel was overzealous in indicating omissions and
contradictions that were groundless. I consider that the analysis of the evidence
as a whole, including the discrepancies between the information given by the
applicant during his interview with the immigration officer, the information
contained in his PIF and his testimony, could reasonably lead the Board to find
that the applicant’s account was not credible and that he had embellished it
over time. However, even if I were to find the Board’s decision unreasonable in
this respect, I believe that the Board’s state protection and IFA findings are
reasonable and that each of these issues is sufficient to reject the refugee
claim.
[13]
The
evidence clearly shows that the applicant did not actually try to seek state
protection.
[14]
In Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, 709 (available on QL) (Ward),
Justice La Forest explained the principle underlying the
refugee protection regime and the crucial importance of the presumption that
the home state offers protection to its citizens as follows:
18 At
the outset, it is useful to explore the rationale underlying the international
refugee protection regime, for this permeates the interpretation of the various
terms requiring examination. International refugee law was formulated to
serve as a back-up to the protection one expects from the state of which an
individual is a national. It was meant to come into play only in
situations when that protection is unavailable, and then only in certain
situations. The international community intended that persecuted
individuals be required to approach their home state for protection before the
responsibility of other states becomes engaged. For this reason,
James Hathaway refers to the refugee scheme as "surrogate or substitute
protection", activated only upon failure of national protection; see The
Law of Refugee Status (1991), at p. 135. With this in mind, I shall
now turn to the particular elements of the definition of "Convention
refugee" that we are called upon to interpret.
[Emphasis
added.]
[15]
Generally, a person must seek the help of the
authorities before finding that the state is unable to offer adequate
protection, but this is not necessary in all cases. Justice La Forest, still in
Ward, specified that the applicant is not required to risk his or her
life seeking state protection:
This is not true in all cases. Most
states would be willing to attempt to protect when an objective assessment
established that they are not able to do this effectively. Moreover, it
would seem to defeat the purpose of international protection if a claimant
would be required to risk his or her life seeking ineffective protection of a
state, merely to demonstrate that ineffectiveness.
(page 724)
[16]
In Kadenko v. Canada (Minister of
Citizenship and Immigration), (1996), 143 D.L.R. (4th) 532, 68 A.C.W.S.
(3d) 334 (FCA), Justice Décary indicated that the burden of proof was on the
applicant and that it was proportional to the level of democracy of the country
in question.
[17]
The presumption that state protection is
available can be rebutted only if the applicant submits “clear and convincing” evidence of his or her home country’s inability to offer effective
protection (Ward). In Carillo v.
Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R.
636, the Federal Court of Appeal addressed the
quality of the evidence that was required, and specified the following at
paragraph 30:
. . . In other words, a claimant
seeking to rebut the presumption of state protection must adduce relevant,
reliable and convincing evidence which satisfies the trier of fact on a balance
of probabilities that the state protection is inadequate.
[18]
In Castillo v. Canada (Minister of
Citizenship and Immigration), 2011 FC 134 (available on CanLII), at paragraph
31, Justice de Montigny indicated that the subjective belief that the
authorities would have acted in collusion with the agent of persecution is not
sufficient to rebut the presumption of state protection when this belief is not
based on any objective evidence. I share this opinion.
[19]
In this case, the
Board very clearly stated the applicable principles and the onus on the
applicant to succeed in rebutting the presumption of state protection.
[20]
Mexico is
a democratic state and the applicant did not show that it would have been
unreasonable for him to seek protection from the authorities.
[21]
The
evidence also shows that, after the incident in which he was purportedly
threatened by masked individuals, the applicant made no attempt, other than an
anonymous complaint that he in no way followed up on. The evidence shows that
he spent 15 days with his parents and another period of three weeks at his
house before leaving for Canada and that no incident occurred. The evidence also does not show that agents
of persecution have tried to find the applicant since he left Mexico. It was
therefore reasonable for the Board to find that the applicant’s fear alone was
insufficient to justify his failure
to seek protection from the authorities or to rebut the presumption of state
protection. Furthermore, it was equally reasonable for the Board to find that
the applicant could have taken other steps if he had thought that the few
police officers at the local police station were in collusion with the drug
dealers.
[22]
I also
consider the Board’s finding that an IFA existed reasonable.
[23]
In Julien
v. Canada (Minister of Citizenship and Immigration), 2005 FC 313, 145 A.C.W.S.
(3d) 137, the
Court noted the concept of the IFA and cited the Federal Court of Appeal’s
decision in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992]
1 F.C. 706 (available on QL):
9 For a refugee claim to be
approved under sections 96 or 97 of the Act, there must be an internal flight
alternative in the applicant's country of nationality:
As to the third proposition, 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. It follows that the determination of whether or not
there is an IFA is integral to the determination whether or not a claimant is a
Convention refugee. I see no justification for departing from the norms
established by the legislation and jurisprudence and treating an IFA question
as though it were a cessation of or exclusion from Convention refugee status.
For that reason, I would reject the appellant's third proposition. (Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992]
1
F.C.
706 (C.A.), at paragraph 8.) [Emphasis added.].
[24]
It
is up to the applicant to prove that it is objectively unreasonable for him to seek
an IFA in another region of the country. He is also responsible for
demonstrating that he is at risk of persecution throughout the country, as
indicated in Guerilus, above, at paragraph 14:
It is well established that
refugee claimants must provide the evidence that they consider to be necessary
to show that their refugee protection claim is well founded (Rahmatizadeh v.
Canada (Minister of Employment and Immigration), 48 A.C.W.S. (3d) 1427,
[1994] F.C.J. No. 578 (QL) at paragraph 9). Refugee protection claimants have
the burden of proof to demonstrate that it would be unreasonable for them to
seek refuge in another part of the country or to prove that there are in fact
conditions which would prevent them from relocating elsewhere (Ramirez v.
Canada (Minister of Citizenship and Immigration), 2008 FC 1214, [2008]
F.C.J. No. 1533 (QL); Palacios v. Canada (Minister of Citizenship and
Immigration), 2008 FC 816, 169 A.C.W.S. (3d) 619 at paragraph 9). . . .
[25]
In Perez
v. Canada (Minister of Citizenship and Immigration), 2011 FC 8, at paragraph
15 (available on CanLII), the Federal Court recalled that the threshold for disproving
an IFA is high. In this case, the Board member asked the applicant why he could
not live in one of the big cities like Mexico City, Guadalajara, Monterrey,
Cancun or Acapulco, and the applicant replied the following: [translation] “Because all of the States
that you mentioned are full of those people”.
[26]
Considering the
absence of evidence that the agents of persecution wanted to find the applicant
and the evidence that the applicant had no problem while visiting his parents
in the State of Morales, I consider that it was reasonable for the Board to
find that an IFA existed.
[27]
The Board
also found that it would be reasonable to expect the applicant to move to one
of the proposed IFAs. This
finding, which was also not challenged in the applicant’s memorandum or claim,
was equally reasonable.
[28]
The
Court’s intervention is unwarranted and this application for judicial review is
dismissed.
[29]
Neither
party proposed a question for certification and this matter does not give rise
to any.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the application for judicial review is dismissed. No
question is certified.
“Marie-Josée Bédard”
Certified
true translation
Janine
Anderson, Translator
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