Date: 20081117
Docket: IMM-2113-08
Citation: 2008 FC 1282
Ottawa, Ontario, November 17, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JUAN
DAVID RUIZ CASTRO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated April 16, 2008, in which the Board determined that Mr.
Juan David Ruiz Castro (the Applicant), is not a Convention refugee nor a
person in need of protection.
I. Issues
[2]
The
Applicant raises the following issues:
1.
Did
the Board err in its interpretation of section 96 of the Act in finding the
Applicant’s case is not linked to race, nationality, religion, real or imputed
political opinion or any other Convention ground and therefore he is not a
Convention refugee?
2.
Did
the Board err in its determination that the Applicant has an internal flight
alternative?
[3]
For
the reasons that follow, the application for judicial review shall be
dismissed.
II. Factual
Background
[4]
The
Applicant, Juan David Ruiz Castro, is a 29 year old male from Mexico who claimed
refugee status in Canada after fleeing from a criminal gang involved in
money laundering.
[5]
The
Applicant is a self-employed contractor who was hired by a company called Mr. Money,
which owns a chain of pawn shops across Mexico, to carry
out an audit of their business in order to analyse suspected fraudulent loans.
While auditing the accounting practices of Mr. Money, the Applicant
accidentally came across documents which indicated that employees of the
company were engaged in illegal money laundering where consumer products
brought to the pawn shop in exchange for currency were being overvalued and
sold at auctions and the excess profits were diverted to members of a criminal
gang.
[6]
In
August 2005, the Applicant alerted Mr. Hugh Salazar, who was the head of the
Senior Management staff of Mr. Money. Mr. Salazar promised to look into
the situation but never did.
[7]
The
Applicant then started to receive anonymous phone calls at home and at work
where he was told to hand over all the information he had regarding the scam he
discovered or he and his family would be killed. The Applicant received
over 50 calls of this nature between August and September of 2005. The
Applicant subsequently reported the matter to the police, who promised to
further investigate the situation.
[8]
Mr.
Salazar was called upon to testify to the police but he never appeared. The
Applicant complained again to the police because the threatening telephone
calls were continuing, but no concrete action was taken. One day, a senior
police officer advised the Applicant to discontinue his complaints because the
people he was dealing with were too powerful and dangerous for him to take on.
[9]
The
Applicant decided to relocate to San Andres, Tuxtla, where he and his family
could be safe. However, he was traced to Tuxtla and continued to receive
death threats while there. One day, he was held to a ransom at gunpoint
and the man demanded the records of his investigation. The Applicant had his secretary
bring the information on compact discs which were given to the gunman.
[10]
The
Applicant came to Canada in November 2006 but was told he could not stay
because he would be detained for a long time before his case would be heard
if he made a refugee claim, so he travelled back to Mexico without
applying for refugee status.
[11]
When
he returned to Mexico, he went to the Attorney General’s office and
handed over all documents and information in his possession. Subsequently, he
was again confronted by a gunman, but this time, the criminal gang demanded
that he use his business to take part in the money laundering operations since
he was aware of their secrets.
[12]
Following
this incident, the Applicant felt he had no choice but to leave Mexico. He arranged
to make it look like he was separating from his wife. His daughters went to
live with his mother and his wife returned to live with her parents. The
Applicant travelled to Canada on January 26, 2007 and made a
refugee claim on the same day.
III. Decision
Under Review
[13]
Regarding
the first issue, the Board found that the Applicant’s fear is not linked to
race, nationality, religion, real or imputed political opinion or any other
Convention ground.
[14]
The
Applicant alleged that he fears persecution by a group of individuals who are in
an organized criminal gang because he discovered their money laundering
operation. The Board concluded that the Applicant is a target as a victim of
crime and this does not provide him with a link to a Convention ground.
[15]
As
for the second issue, the Board found that, on the balance of probabilities,
the Applicant could safely live in Mexico City or Guadalajara without
being persecuted. The Applicant bears the burden of proof to show that
persecution will occur in the entire country and specifically in the internal
flight alternative (IFA) named.
[16]
The
Board found that there is an IFA for the Applicant in Guadalajara, a city with
a population of 1.8 million citizens which is an international destination for
tourists, hence creating an atmosphere where criminality is combated to ensure
tourism flourishes. As well, it found that it is unlikely that the Applicant
will be pursued in Guadalajara and even if he was discovered, police protection
would be reasonably forthcoming; also, there was no evidence that in Guadalajara a Mr. Money
store was present.
[17]
The
Board found that, on the balance of probabilities, the Applicant would
not be subjected to a risk to life or a risk of cruel and unusual treatment or
punishment if he were to return to Mexico and the claim for refugee protection
was rejected.
IV. Analysis
A. Standard of Review
[18]
Regarding
the first question, the Applicant submits that the standard of review in
determining whether the Board misinterpreted section 96 of the Act in coming to
his conclusion is that of correctness (Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at paragraph
37). The appropriate standard of review when a decision-maker is interpreting a
statute is correctness (Conkova v. Canada (Minister of
Citizenship and Immigration), 95 A.C.W.S. (3d) 719 (F.C.T.D.), [2000]
F.C.J. No. 300 (QL)).
[19]
Before
the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the appropriate standard of review in an
application for judicial review which raises the issue of an IFA, based on the
jurisprudence and the pragmatic and functional analysis, was patent
unreasonableness (Khan v. Canada (Minister of Citizenship and Immigration),
2005 FC 44, 136 A.C.W.S. (3d) 912 and Chorny v. Canada (Minister of
Citizenship and Immigration), 2003 FC 999, 238 F.T.R. 289).
[20]
Following
Dunsmuir, the determination of an IFA should continue to be subject to
deference by the Court and this decision is reviewable on the newly articulated
standard of reasonableness. As a result, this Court will only intervene to
review a Board’s decision if it does not fall “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47). For a decision to be reasonable there must be
justification, transparency and intelligibility within the decision making
process.
1.
Did the Board err in its interpretation of section 96 of the Act in finding the
Applicant’s case is not linked to race, nationality, religion, real or imputed
political opinion or any other Convention ground and therefore he is not a
Convention refugee?
[21]
In
its written submissions, the Applicant alleges that in order to support
a finding that he is a Convention refugee, as per section 96 of the Act, the
standard of proof required is less than the balance of probabilities but more
than a mere possibility of persecution upon return to his home country (Chan
v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at
paragraph 120, Adjei v. Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 680 (F.C.A.). The evidence must not necessarily show that he has
suffered or would suffer persecution; the evidence must show that the Applicant
has good grounds for fearing persecution (Seifu v. Canada (Immigration
Appeal Board), [1983] F.C.J. No. 34 (F.C.A.) (QL)). The Applicant believes
he has more than a reasonable apprehension of fear of imminent risk if he
returns to Mexico.
[22]
According
to the Applicant, the interpretation given to section 96 of the Act to exclude him
on the basis of his fear not being linked to a Convention ground effectively
shuts out applicants who fear persecution or are at risk of torture or cruel
and unusual treatment because there is a lack of nexus between their claims and
one of the Convention grounds. The decision of the Board is therefore based on
an erroneous and misleading interpretation of facts which was made in a
perverse and capricious manner without regard to the evidence before it.
[23]
The
Respondent submits that the determination of the existence of a nexus between
an alleged harm and the Convention refugee definition is a question of fact
which is within the expertise of the Board. Nothing shows that the Board’s
determination was made in a perverse or capricious manner or without regard to
the material before it, therefore requiring the intervention of this Court (Mia
v. Canada (Minister of Citizenship and Immigration), 94 A.C.W.S. (3d) 970,
[2000] F.C.J. No. 120 (F.C.T.D.) (QL); Lara v. Canada (Minister of
Citizenship and Immigration), 86 A.C.W.S. (3d) 950, [1999] F.C.J. No. 264 (F.C.T.D.)
(QL) at paragraph 16).
[24]
The
Respondent states that the Court has held that victims of crime do not necessarily
have a nexus to one of the Convention grounds (Rawji v. Canada (Minister of
Employment and Immigration), 87 F.T.R. 166, 51 A.C.W.S. (3d) 1143
(F.C.T.D.); Mousavi-Samani v. Canada (Minister of Citizenship and
Immigration), 74 A.C.W.S. (3d) 655, [1997] F.C.J. No. 1267 (F.C.T.D.) (QL))
and the principle that fearing criminal reprisal or personal vengeance does not
constitute persecution on the grounds of race, religion, nationality,
membership in a particular social group or political opinion is
well-established (Suarez v. Canada (Minister of Citizenship and Immigration),
64 A.C.W.S. (3d) 1196, [1996] F.C.J. No. 1036 (F.C.T.D.) (QL); Marincas v.
Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1254 (F.C.T.D.)
(QL)).
[25]
It
is trite law that for an applicant to succeed on a refugee claim under section
96 of IRPA, the claimant cannot only show that they have suffered or
will suffer persecution in their country of origin. This persecution must also
be linked to one of the Convention grounds set out in the definition of refugee
pursuant to subsection 2(1) of the Act. As explained in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 61:
… the drafters of the Convention limited
the included bases for a well-founded fear of persecution to “race, religion,
nationality, membership in a particular social group or political opinion”.
Although the delegates inserted the social group category in order to cover any
possible lacuna left by the other four groups, this does not necessarily lead
to the conclusion that any association bound by some common thread is included.
If this were the case, the enumeration of these bases would have been
superfluous; the definition of “refugee” could have been limited to individuals
who have a well-founded fear or persecution without more. The drafters’
decision to list these bases was intended to function as another built-in
limitation to the obligations of signatory states. …
[26]
The
Applicant claims he has a well-founded fear of a group of individuals involved
in money laundering on the basis of being a victim of crime. This does not fall
under one of the enumerated categories of the Convention refugee definition and
as such, the Board’s decision in this regard is reasonable.
2.
Did the Board err in its determination that the Applicant has an internal
flight alternative?
[27]
The
Applicant sustains that the Board’s conclusion that state protection is available
to him if he travels to Guadalajara is patently
unreasonable. The fact that the chosen IFA is a tourist attraction, which
implies a greater focus by the police on this city, is a faulty conclusion that
cannot be supported, especially given the present situation in Mexico where
tourists have been victims of crime and some have disappeared.
[28]
According
to the Respondent, the Applicant is asking the Court to take judicial notice
that there has been an increase in crimes in Mexico, therefore
rendering it a dangerous place for anyone. Judicial notice may be taken of any
fact of matter which is so generally known and accepted that it cannot
reasonably be questioned, or any fact of matter which can readily be determined
or verified by resort to sources whose accuracy cannot be reasonably questioned
(R. v. Potts (1982), 36 O.R. (2d) 195, 66 C.C.C. (2d) 219 (Ont. C.A.).
[29]
The
Respondent asserts that it is inappropriate, within the context of this
judicial review application, for the Applicant to be supplementing the record
or giving evidence as to prevailing country conditions in Mexico (Lemiecha (Litigation
guardian of) v. Canada (Minister of Employment and Immigration), 72 F.T.R.
49 (F.C.T.D.). The Applicant has failed to show that the information he is
alluding to regarding general country conditions in Mexico meets the criteria
required for the Court to take judicial notice of it in the case at bar.
[30]
The
judicial review of a decision of an administrative tribunal should proceed on
the basis of the evidence that was before the decision-maker. The information
provided in the Applicant’s memorandum concerning an increase of violence in Mexico in the past
few years was not evidence before the decision-maker.
[31]
The
Applicant believes the Board placed an unreasonable burden on him by expecting
him to seek state protection under a corrupt police force that has failed him
twice. The Applicant cites Franklyn v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1249, 142 A.C.W.S. (3d) 308, in
stating that it is unreasonable for the Board to expect him to seek further
state protection after having been rebuffed or ignored.
[32]
The
Respondent contends that in order to rebut the presumption of state protection
in a democratic country such as Mexico, the Applicant cannot
only show that he approached the local police or one particular police officer
for protection and that no meaningful or effective assistance was provided. In
democratic states, local failures of policing are insufficient to establish a
failure of state protection. The Applicant must show that he has exhausted all
reasonable avenues available to him and that none are forthcoming (N.K. v. Canada (Minister of
Citizenship and Immigration), 206 N.R. 272, 143 D.L.R. (4th)
532) (F.C.A.). The Respondent cites also Hinzman v. Canada (Minister
of Citizenship and Immigration; Hughey v. Canada (Minister of Citizenship and
Immigration, 2007 FCA 171, [2007] F.C.J. No. 584, where at paragraph 44 the
Federal Court of Appeal wrote:
To rebut the presumption, the
Court stated that “clear and convincing confirmation of a state's inability to
protect must be provided”: Ward at page 724.
[33]
The
Board correctly noted that the Applicant did not provide any persuasive
evidence to confirm his allegation that the police are corrupt everywhere in Mexico. The
Applicant has not shown that he has exhausted all reasonable options available
to him.
[34]
The
Applicant also argues that the Board did not sufficiently address his particular
fear concerning his link to the criminal gang in Mexico and the danger
or consequences ensuing from this connection because they are a sophisticated
gang who will not desist until they find the Applicant since he has information
which is very valuable to them. The Applicant cites Jawaid v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 220, 122 A.C.W.S. (3d) 753, and
submits that this kind of error warrants the intervention of the Court.
[35]
The
Respondent alleges that since the Applicant knew that Mr. Money did not
have any stores in Guadalajara city, it was reasonable for the Board to infer,
based on the Applicant’s testimony, that this meant that there were limitations
on the scope and influence which the criminal gang exercised through the
network of Mr. Money business operations across Mexico.
[36]
Finally,
the Applicant submits that the Board erred in failing to consider the
particular circumstances of this case and in concluding that because his
family is in Mexico and has not been threatened, it is reasonable to assume
that he could safely stay in Mexico City or in Guadalajara.
[37]
The
Respondent maintains that in its assessment of the attainability and overall
viability of an IFA in Guadalajara, the Board was entitled, after considering
and weighing all the evidence, to give preference to reliable, objective
evidence on country conditions in the city of Guadalajara over the speculative
and unsupported testimony of the Applicant (Zvonov v. Canada (Minister of
Employment and Immigration), 83 F.T.R. 138, 49 A.C.W.S. (3d) 573 (F.C.T.D.);
Pacasum v. Canada (Minister of Citizenship and Immigration), 2008 FC 822,
[2008] F.C.J. No. 1024 (QL) at paragraph 29).
[38]
The
Respondent explains that the test to show that the IFA is unreasonable is a
very high one which requires nothing less than the existence of conditions
which would jeopardize the life and safety of the Applicant in relocating to a
safe area (Ranganathan v. Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 164 (F.C.A.)). Actual and concrete evidence of adverse conditions
is required of the Applicant who, in the case at bar, has not discharged the
onus of proof and has failed to show that the Board ignored or misconstrued any
evidence, misapplied the legal test in its IFA analysis or made any perverse or
capricious findings.
[39]
The
Board noted that the Applicant could not provide any evidence as to the
alleged group that had targeted him. Although he speculated that the group had
influence everywhere in Mexico, there is no persuasive evidence to
confirm this contention. Also, the Applicant’s family is still in Mexico and
there is no evidence that they have been bothered by the group of money
launderers since the Applicant left Mexico.
[40]
I
find that the Board did not err. It was open to the Board to make a finding of
fact that the Applicant would not be at risk if he relocated with his family to
Guadalajara. This
determination is supported and justified by the reasons.
[41]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Email this Content