Docket: IMM-261-11
Citation: 2011 FC 1267
Ottawa, Ontario, November
7, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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MARTIN ROCHA CASTOR
MARIA GUADALUPE PINA CRUZ
DAYANE PAOLA ROCHA PINA
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Applicants
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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 by Martin Rocha Castor (Mr. Castor), the principal applicant,
Mrs. Maria Guadalupe Pina Cruz (Mrs. Cruz), the associate applicant, and Miss Dayane
Paola Rocha Pina (Miss Pina), the minor applicants’ daughter (all together the
Applicants), made pursuant to section 72(1) of the Immigration and Refugee
Protection Act, SC 2001 [IRPA], for judicial review of the decision
of the Immigration and refugee Board (the Board) rendered on December 14, 2010.
[2]
The
Board concluded that the Applicants were neither Convention Refugees nor
Persons in need of protection under sections 96 and 97 of the IRPA.
[3]
For
the reasons that follow, this application for judicial review is denied.
I. Facts
[4]
On
March 10, 2005, Mr. Castor was returning home from work at 2:00 am when he saw
three men on the roof of the neighbour’s house and business. They ran away
quickly but Mr. Castor recognized the three robbers. He then woke up his
parents and went to the neighbour. The next day, he reported the robbery to the
police with his neighbour. He identified the three men as Carlos Cobarrubias,
Jesus Sabala Cruz and Pedro Ruiz.
[5]
On
March 12, 2005, at about 8:00 pm, the three men involved in the attempted
robbery two days earlier dropped by Mr. Castor’s house. They pointed weapons and
shouted death threats at him from outside his house. Mr. Castor went to the
police the next day to report the death threats.
[6]
The
same day, Mr. Castor and his parents visited the homes of the three men in
order to negotiate a truce. They were successful with Carlos Cobarrubias and
Jesus Cruz. However, no agreement was reached with Pedro Ruiz. The latter had a
criminal record and there was an outstanding warrant for his arrest. After the
filing of the second police report, Pedro Ruiz was arrested and sentenced to
five years in jail. A few months thereafter, Pedro Ruiz sent Mr. Castor
threatening messages from jail.
[7]
Mr.
Castor ran into Pedro’s brother Rojelio Ruiz on a few occasions. Each time,
Rojelio shouted insults and threats at him.
[8]
On
April 14, 2005, the threats escalated into a fight. Rojelio knocked Mr. Castor
unconscious with a bat. Mr. Castor alleges to have awakened in a hospital where
he was admitted for two days. The hospital reported the beating to the police,
but when the police came to interview Mr. Castor, he claimed to have been hit by
a falling rock. At the hearing, Mr. Castor explained that he did not want to say
anything to the police for fear it would worsen his situation.
[9]
Thereafter,
Mr. Castor moved his family to a new home about a ten minute drive from their
former residence.
[10]
On
March 5, 2006, the Applicants left Mexico for Canada further to
an invitation from Mrs. Cruz’s brother, a Canadian resident.
[11]
In
September 2006, Rojelio Ruiz was murdered in Mexico and his
brother Alberto Ruiz swore revenge against all the family’s enemies, including
Mr. Castor.
[12]
Mr.
Castor was working in Canada as a temporary foreign worker, he applied
to extend his work permit, but his application was denied. The Applicants
returned to Mexico in February of
2007.
[13]
The
Applicants spent the next four months in Torreon. Mr. Castor learned
that Alberto Ruiz joined the Zetas, a drug trafficking group.
[14]
In
May 2007, while driving to his parents’ home, Mr. Castor’s truck was shot at
several times by Alberto Ruiz who was standing in the street and pointing a
weapon at him. He filed a complaint identifying Alberto Ruiz as responsible.
Mr. Castor claims that the police failed to intervene.
[15]
In
June 2007, Mr. Castor returned to Canada as a tourist and in December 2007,
Mrs. Cruz and Miss Pina joined Mr. Castor in Canada. The
Applicants tried to obtain legal status in Canada, and in
January 2009, Mrs. Cruz and Miss Pina traveled to Mexico for four
months, while the Mrs. Cruz waited for her live-in caregiver application to be
processed. While there Mrs. Cruz gave birth to their second child.
[16]
Mrs.
Cruz testified that members of the Zetas entered school to demand money from
the students. The incident frightened her and she withdrew her daughter from
school fearing she was a target of the Zetas.
[17]
On
April 25, 2009, Mrs. Cruz and Miss Pina entered Canada. The
Applicants made their refugee claims on April 27, 2009.
[18]
The
Board found that the Applicants were not Convention refugees. It also found
that there was no risk to their lives or risk of cruel and unusual treatment or
punishment, and no danger of torture, should they return to Mexico.
[19]
Furthermore,
the Board determined that there was a reasonable Internal Flight Alternative
[IFA] to Guadalajara and Monterrey. In its assessment of
the evidence, the Board considered the fact that Mr. Castor is a high school
graduate and has experience as an industrial electronics technician. The Board
also concluded that the Applicants have a generalized fear related to the Zetas,
one that is shared with the population at large.
[20]
The
Board rejected their claims.
II. Legislation
[21]
Sections
96 and 97 to the IRPA:
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded
fear of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of protection
97. (1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or punishment
if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate health
or medical care.
Person in need of protection
(2) A person in Canada
who is a member of a class of persons prescribed by the regulations as being in
need of protection is also a person in need of protection.
III. Issues and standard of review
A. Issues
·
Did
the Board err in failing to consider relevant documents when it determined that
state protection was available to the Applicants?
·
Did
the Board err when it determined that the Applicants were not persons in need
of protection pursuant to section 97 of the IRPA?
·
Did
the Board err in finding that there existed a viable IFA in Guadalajara and Monterey for the
Applicants?
B. Standard of review
[22]
Questions
related to the adequacy of state protection are questions of mixed fact and law
and are reviewable on the standard of reasonableness.
[23]
The
interpretation of an exclusion in section 97(1)(b) of the IRPA is
an issue of application of law to the facts of a case. It is subject to review on
the standard of reasonableness (see M.A.C.P v Canada (Minister of
Citizenship and Immigration), 2011 FC 81, [2011] FCJ No 92 at paras 27
and 28 [MACP]).
[24]
The
Board’s determination regarding the viability of a proposed IFA is a question
of mixed fact and law to be determined on the standard of reasonableness (see M.A.C.P.
cited above at para 29).
[25]
The
jurisprudence of this Court has established that the Board’s findings of fact,
and more specifically its assessment of the evidence, are also subject to the
reasonableness standard. It is not for the Court to substitute its assessment
of the evidence for the Board’s or to reweigh the evidence that was adduced
before the Board. The Court will intervene only if the Board’s findings are
made in a perverse or capricious manner or without regard to the evidence (see Martinez
v Canada (Minister of
Citizenship and Immigration), 2009 FC 798, [2009] FCJ No 933).
IV. Parties’
submissions
A. Applicants’
submissions
[26]
The
Applicants submit that the Board erred in determining that state protection
exists in Mexico.
[27]
The
Applicants also claim that the Board committed a breach of procedural fairness
and natural justice by failing to consider evidence showing the inadequacy of
state protection in Mexico. The Applicants argue that the Board ignored
relevant evidence presented and considered outdated documentation from the
National Documentation Package [NDP] on Mexico.
[28]
The
Board erred in applying the wrong test to determine if state protection was
available to them in Mexico according to the Applicants. They allege
that the Board considered what the state of Mexico is
endeavouring to correct and not what is actually happening. As a result, they
claim that the Board failed to take into consideration the effectiveness of the
protection available to the Applicants and arbitrarily disregarded relevant evidence
that supported the Applicants’ position.
[29]
Moreover,
the Applicants submit that the Board committed a reviewable error in failing to
analyse the risk they were facing and determining that they were not persons in
need of protection pursuant to section 97 of the IRPA.
[30]
According
to the Applicants, they are not victims of indiscriminate or random acts. They
specifically fear Pedro and Alberto Ruiz, who are associated with the Zetas.
[31]
The
Applicants allege that the Board erred since it did not conduct an
individualised analysis of the present or prospective risk they are facing as
acknowledged by the jurisprudence of this Court (see Prophète v Canada (Minister of
Citizenship and Immigration), 2009 FCA 31, [2009] FCJ No 143 [Prophète]).
B. Respondent’s submissions
[32]
The
Respondent submits that the conclusion of the Board regarding state protection
was reasonable.
[33]
According
to the Respondent, in claiming refugee status in Canada, claimants
have the obligation of providing “clear and convincing confirmation” of their own
country’s inability to provide them with adequate protection (see Canada (Attorney
General)
v Ward, [1993] 2 S.C.R. 689, [1993] SCJ No 74 at para 50 [Ward]).
[34]
In
the case at bar, the Board concluded that the Applicants had not exhausted all
the recourses available to them in Mexico. Consequently, their
failure to do so seriously undermined the clear and convincing confirmation of Mexico’s inability
to protect the Applicants.
[35]
The
Respondent also claims that the Board is not obligated to comment in its
decision on all the evidence that was adduced. The Board was entitled to choose
the evidence it preferred in arriving at its conclusion as long as it is
reasonable and properly supported. The Respondent alleges that all documents
cited by the Board were disclosed to the Applicants in due time.
[36]
As
for section 97 of the IRPA, the Respondent underlines in his memorandum
that “the rules of procedural fairness demand that the board expressly raise
the matter of an IFA […] It then belongs to the claimant to show that it would
be unreasonable for him to seek refuge in his own country” (see para 16 of
Respondent’s memorandum of argument).
[37]
The
Respondent argues that the Federal Court of Appeal has set a very high
threshold for the unreasonableness test in regards to an IFA (see Thirunavukkarasu
v Canada (Minister of
Employment and Immigration), [1994] 1 FC 589, [1993] FCJ No 1172 at paras
12 and 13 [Thirunavukkarasu]). In Thirunavukkarasu, the Court of
Appeal writes that “given the persecution in the claimant’s part of the
country, it is objectively reasonable to expect him or her to seek safety in a
different part of the country before seeking a haven in Canada or
elsewhere”. According to the Respondent, the Board’s findings in regards to an
IFA were reasonable.
[38]
The
Respondent alleges that this conclusion alone suffices to deny the present application
pursuant to section 97 of the IRPA.
[39]
In
its further memorandum, Respondent underlines that Applicants failed to provide
actual and concrete evidence of the existence of conditions preventing them
from moving elsewhere within their country.
V. Analysis
[40]
The
Court finds that the Board’s decision in determining that state protection was
available to the Applicants is reasonable.
[41]
At
paragraph 50 of Ward cited above, the Supreme Court of Canada states
that “nations should be presumed capable of protecting their citizens”.
[42]
This
presumption can only be rebutted where the Applicants provide “clear and
convincing” evidence of the inability of state to provide them with effective
protection (see Ward at para 50).
[43]
The
Board had to consider the general situation in Mexico, the Applicants’ efforts
to seek protection and their relationship with the authorities (see Leon v Canada (Minister of
Citizenship and Immigration), 2011 FC 34, [2011] FCJ No 57 at para 25).
[44]
This
Court finds the Board’s assessment of the evidence to be reasonable. The Board
concluded that Mexico is a democratic country that provided “an
official apparatus sufficient to provide a measure of protection to its
citizens” (see para 27 of the Board’s decision).
[45]
The
Board considered that Mr. Castor went three times to the police to file
reports. He also had a fourth opportunity but chose not to inform the police of
the reason for his injuries because he feared Rojelio Ruiz (see para 32 of the
Board’s decision).
[46]
The
Board underlined that if Mr. Castor was unsatisfied with the police efforts, he
could have sought alternatives such as the witness protection program which
exists in Mexico.
[47]
The
Court acknowledges that the Board‘s decision contains clerical errors with
respect to references to documents that were in the NDP country package at time
of hearing that is on November 9th. But this error does not void the
Board’s decision (see Miranda v Canada (Minister of Employment and
Immigration), 63 FTR 81, [1993] FCJ No 437; Earl v Canada (Minister of
Citizenship and Immigration), 2011 FC 312, [2011] FCJ No 392 at paras
26-27). The assessment of the situation in Mexico found in the
NDP does not relieve the Applicants from adducing clear and convincing evidence
of Mexico’s inability
to provide them with adequate protection.
[48]
As
for section 97(1) of the IRPA and the issue of a viable IFA, it is
recognized that “the Board's conclusions on objective fear and the existence of an
IFA are each determinative of the refugee claim. Thus, in order for this Court
to quash the decision [and] to reject the claim this Court must find [that] the
Board committed a reviewable error in respect of both issues” (see Butt v Canada
(Minister of Citizenship and Immigration), 2010 FC 28, [2010] FCJ No 77 at
para 9 [Butt]); Guzman Lopez v Canada (Minister of Citizenship and
Immigration), 2010 FC 990, [2010] FCJ No 1352 at para.14.
[49]
The
Court finds that the Board failed to conduct an individualized analysis into
the nature of the risk facing the Applicants. The jurisprudence of the Court of
Appeal is clear on the matter; section 97(1) claims require such an
individualized analysis of the nature of the risk confronting the Applicants
(see Prophète at para 7). As the Court reviews the Board’s decision, it
is apparent that such an analysis has not been conducted. The Applicants fear reprisals
at the hand of the remaining Ruiz brothers, who they claim are now associated
with the Zetas, if they are to return to Mexico.
[50]
The
Board failed to conduct the required analysis (see Prophète at para 7
and Munoz v Canada (Minister of
Citizenship and Immigration), 2010 FC 238, [2010] FCJ No 268 at paras
29-34). The evidence adduced by the Applicants was to the effect that as a
result of Mr. Castor witnessing a robbery and having denounced Pedro Ruiz and
subsequently his brother, Alberto Ruiz, for reprisals against him, he faced a
personalized risk, one that was not shared with the Mexican population at large.
The Board should have addressed this important issue.
[51]
Nonetheless,
this Court concludes that the Board’s decision will stand since its finding in
respect of a viable IFA is reasonable.
[52]
The
Applicants have not established, on a balance of probabilities, that their
lives would be at risk or that they would be subject to cruel and unusual
punishment in Guadalajara or Monterrey. The Applicants’ fear
of living in Guadalajara or Monterrey is speculative.
Their fear of the Zetas is a generalized one that is similar to that of the population
at large since no evidence was presented to the Board to establish clearly that
the Ruiz brothers would pursue them in Guadalajara or Monterrey and that
they are associated with the Zetas.
[53]
The
Board also determined that Mr. Castor is a high school graduate and has
experience as an industrial electronics technician. The education and
employment history of Mr. Castor would not create a harsh situation for the
Applicants if they move to Guadalajara or Monterrey.
[54]
The Board did not commit any error in respect of its determination
of a viable IFA in Guadalajara or Monterey.
VI.
Conclusion
[55]
This
application for judicial review is denied.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
This
application for judicial review is denied.
2.
There
is no question of general interest to certify.
"André
F.J. Scott"
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