Date: 20110711
Docket: IMM-6457-10
Citation: 2011 FC 864
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario,
July 11, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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CHRISTIAN ESTEBAN ROMERO
QUIROZ CLAUDIA ELIZABETH HERRERA CALDERON
CLAUDIA ESTEPHANIA ROMERO
HERRERA
BRUNO ALEJANDRO ROMERO
HERRERA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicants are challenging the lawfulness of a decision by a member of the
Refugee Protection Division of the Immigration and Refugee Board (panel), dated
October 6, 2010, rejecting their refugee claim on the basis that they are not Convention
refugees or persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act).
[2]
The
applicants are Mexican citizens. The principal applicant, Christian Esteban
Romero Quiroz, is alleging that Rafael Herrera Ascencio and his brother, Carlos
Herrera Ascencio, an officer with the Office of the Public Prosecutor of
Cuautitlan, Mexico State (Herrera Ascencio brothers), want to kill him because
he told the authorities that they were trafficking drugs with youths in the
neighbourhood where the applicants previously lived.
[3]
Having excluded the application
of section 96 of the Act, and even though questions were raised about the
principal applicant’s credibility and the efforts he made to seek state
protection, the panel rejected the refugee claim in accordance with section 97 of
the Act, first and foremost because of an internal flight alternative (IFA) in
Mexico City, Puebla and Guadalajara.
[4]
On the one hand, the
panel found that the applicants had not established that the Herrera Ascencio brothers
were willing to look for them throughout Mexico and, in particular, in Mexico City,
Puebla and Guadalajara. According to the panel, the fact that one of the Herrera
Ascencio brothers is an officer with the Office of the Public Prosecutor of
Cuautitlan does not make it possible to determine that this official has the capacity
to find the applicants anywhere in Mexico. In this respect, the panel noted
that, under Mexican law, the public does not have access to the voter registry
database of the Instituto Federal Electoral (Federal Electoral
Institute) and that federal officers can consult it only if they present a
court order and written permission from the Office of the Public Prosecutor.
[5]
On the other hand, the
panel noted that it asked the principal applicant if there was any reason why
it would be too harsh or unreasonable to expect him and his family to go to
Mexico City, Puebla or Guadalajara. The principal applicant’s reply was “I
don’t know” and “They’re no place to give my children a future”. The panel therefore found that the
principal applicant indicated nothing other than his fear of the Herrera
Ascencio brothers as to why it would be objectively unreasonable for him and
his family to live in Mexico City, Puebla or Guadalajara.
[6]
The applicants are
not challenging the lawfulness of the panel’s finding that there is no nexus
between their refugee claim and any of the five Convention grounds set out in
section 96 of the Act. However,
they submit that the rest of the panel’s decision is reviewable. Given that the
issues are credibility and the determination of an IFA, the standard of
reasonableness applies here. The respondent agrees that if the panel’s IFA
finding is not an acceptable outcome, the overall finding must suffer the same
fate given the determinative nature of the existence of an IFA in the case
under review.
[7]
It must be
remembered that assessing an IFA in the country of origin has two components: first,
the panel must assess whether there is no serious possibility of the refugee
claimant being persecuted in the proposed IFA locations and second, the panel
must determine whether, given the circumstances, it would not be unreasonable
for the applicant to seek refuge there (Thirunavukkarasu v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C. 589; Navarro v. Canada (Minister
of Citizenship and Immigration), 2008 FC 358 au paragraph 19).
[8]
At first glance, the
reasons provided by the panel seem to support the finding of an IFA in the
cities mentioned in the decision. However, those reasons do not withstand scrutiny.
[9]
First, according to
the uncontradicted evidence in the tribunal record, the applicants had already
moved to another state in Mexico (Monterrey) and, despite everything, were
found by their agents of persecution. The credibility of the applicants’
account on these crucial elements does not seem to be directly challenged in
the reasons of the impugned decision. These facts therefore undo the panel’s
finding, for which no other reasons were given, with respect to the existence of
an IFA in other states in Mexico.
[10]
Second, it was up to
the panel to verify whether Mexican law, which restricts access to the voter
registry database, is actually complied with, especially in cases where an
agent of persecution is, as in this case, an officer of the Mexican state involved
in drug trafficking. It follows that the issue of Mexican state protection
became a determinative factual element, especially since there is no clear and
articulated finding that the applicants are not credible.
[11]
Third, the lack of a
proper analysis of the questions of fact with respect to, namely, state
protection in situations similar to that of the applicants means that the
panel’s overall finding—that the applicants failed to discharge the burden of
demonstrating that they would likely be subject to a risk to their life or a
risk of cruel and unusual treatment or punishment or a danger of torture if
they were to return to their country—cannot constitute one of the possible,
acceptable outcomes which are defensible in respect of the facts and law (Flores
Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA
94 at paragraphs 14-15; Cobian Flores v. Canada (Minister of Citizenship and
Immigration), 2010 FC 503 at paragraph 49; Pikulin v. Canada (Minister
of Citizenship and Immigration), 2010 FC 979 at paragraphs 27-29; Cho v.
Canada (Minister of Citizenship and Immigration), 2010 FC 1299 at paragraph
30).
[12]
For these
reasons, the application for judicial review will be allowed. Counsel agree that this application
raises no serious question of general importance.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
1. The application for judicial
review is allowed;
2.
The panel’s decision
dated October 6, 2010, is set aside and the matter is referred back for investigation
and examination by another panel;
3. No question is certified.
“Luc Martineau”
Certified true
translation
Janine Anderson,
Translator
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