Date: 20081117
Docket:
IMM-1880-08
Citation:
2008 FC 1280
Ottawa, Ontario,
November 17, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
RAFAEL GONZALEZ LARA
FLOR LILIAN PENA MARQUEZ
IVANNA GONZALEZ PENA
ROLANDO GONZALEZ PENA
ROBERTO GONZALEZ LARA
MONICA ULIBARRI HERNANDEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ramon
Gonzalez Lara was kidnapped in Mexico by a gang of seven in January 2003. His
brothers Rafael and Roberto complained to the authorities. Five of the seven
were captured, tried, convicted and jailed. The other two are apparently still on
the loose. Starting in November 2003 and over the next two and a half years,
both brothers received a handful of telephone calls on their cell phones. Death
threats, believed to be from the kidnappers at large, were uttered.
[2]
Rafael,
his wife and two children fled to Canada, followed shortly
thereafter by Roberto and his wife. Their claim for refugee status, or that
they were otherwise in need of Canada’s protection, was rejected by the Refugee
Division of the Immigration and Refugee Board. This is a judicial review of
that decision which turned on state protection and, to a lesser extent, on the
internal flight alternative. The Board member found that Mexico is a democracy
with functioning police forces that makes serious efforts to protect its
citizens although not, of course, always successful.
[3]
The
applicants make much of those portions of the reports on general country
conditions which suggest that the police are ineffective and usually complicit
in kidnapping. However, in this case, the police acted very promptly and were
successful in capturing most of the kidnappers and freeing Ramon.
[4]
As
regards the threatening phone calls, the Board member had this to say:
The claimants allege that they contacted
the PGR in Veracruz when the claimants were
receiving threatening calls but that they were told there that unless there was
some more concrete evidence the police could do nothing. Given that the calls
were so far apart; November and December 2003, May and September 2004, December
2005 and May 2006 I find that this reaction was not unreasonable. It is unclear
what response the claimants could reasonably have expected in such circumstances.
[5]
There
is nothing unreasonable in the finding that state protection was available.
This was not a template analysis. The presumption that state protection was
available was not rebutted (Canada (Attorney General) v. Ward, [1993]
2 S.C.R. 691).
[6]
Subsidiarily,
the Board member also found that if the claimants did not want to return to Mexico City or Veracruz
“there are many other locations in Mexico for them to choose
from.” The applicants referred to the decisions of Rabbani v. Canada (Minister
of Citizenship and Immigration) (1997), 125 F.T.R. 141 and Valdez
Mendoza v. Canada (Minister of Citizenship and Immigration) 2008 FC 387, in
support of the proposition that it is not sufficient to find applicants could
go elsewhere for there to be a viable internal flight alternative. Amongst
other things, a specific geographic location must be identified where the
conditions are appropriate.
[7]
I
certainly subscribe to that view. However, the applicants were on notice that
the internal flight alternative was in issue. The claimants rejected La Paz in Baja
California
on the grounds that there was a lot of drug trafficking there. The whole of
Northern Mexico was also rejected for drug trafficking and as the band of
kidnappers, which they could not identify, was allegedly everywhere. In Merida there was no
work and in Acapulco they would
be decapitated. “Q: O.K. how about San Luis Petisi? Nice, quiet little place.
A: I have nothing against San Luis Petisi but it’s like I would not feel safe
anywhere.”
[8]
This
“feeling” was generated by a lack of confidence in the police and the belief
that the kidnappers were both omnipresent and omniscient. The applicants may
well “feel” safer in Canada. However, there is an objective element to
the test. Even Ramon, the brother who was kidnapped, shuttles back and forth
between the United States and Mexico. In context, the Board member actually
identified a number of viable internal flight alternatives.
[9]
The
decision was reasonable on both findings and is not to be disturbed.
ORDER
THIS COURT
ORDERS that the application for
judicial review is dismissed. There is no question of general importance to
certify.
“Sean Harrington”
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