Date: 20080317
Docket: IMM-3158-07
Citation: 2008 FC 358
Ottawa,
Ontario, March 17, 2008
Present:
The Honourable Mr. Justice De Montigny
BETWEEN:
OCTAVIO
CAMPOS NAVARRO
LUZ ADRIANA
GAYTAN HERNANDEZ
MARIA ANDREA
GAYTAN HERNANDEZ
ROBERTO
FRAUSTO PARRA
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
application for judicial review arises from a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), resulting
in the four applicants being refused status as refugees or persons in need of
protection. The Board came to this conclusion because they had not demonstrated
that their country of origin, Mexico, could not protect them and that they had
no internal flight alternative.
[2]
After
having reviewed the record as well as the parties’ written and oral
submissions, I came to the conclusion that the Board’s decision was reasonable
and should consequently be upheld.
I. Background
[3]
The
applicants are citizens of Mexico and come from the city of León, in the state
of Guanajuato. The applicants are Octavio Campos Navarro, the principal
applicant, aged 35; his wife, Luz Adriana Gaytan Hernandez, aged 27; Roberto
Frausto Parra, aged 30; and his wife, Maria Andrea Gaytan Hernandez, aged 26.
Their story is intimately related to that of their brother-in-law, Jose De
Jesus Gaytan Hernandez, who was allegedly targeted by a police officer by the
name of Carlos Torres after he refused him a loan.
[4]
Even
though this cannot be determinative for the purposes of this application for
judicial review, it is interesting to note that Jose De Jesus Gaytan Hernandez,
who arrived in Canada on April 1, 2006, was denied refugee protection by
the Board on October 17, 2006. The refusal was confirmed by the Federal
Court, which dismissed the application for leave on March 1, 2007
(docket IMM-6156-07).
[5]
The
applicants’ problems allegedly began following their brother-in-law’s departure
to Canada. In May 2006, the principal applicant received a visit from
police officer Torres, who asked him where he could find his brother-in-law.
Between May and July 2006, Mr. Campos Navarro and his family received
a number of telephone threats. On July 17, he was attacked by strangers
who told him that this was only the beginning. He went to a clinic to be
treated on the same day and reported the attack to the public prosecutor’s
office. He was told that nothing could be done for him and was advised to flee
the city. Applicant Frausto Parra and his wife also received threats as of
May 2006.
[6]
The four
applicants therefore decided to flee Mexico and arrived in Canada on
August 6, 2006. Jose De Jesus Gaytan Hernandez was apparently deported to
Mexico following the Federal Court’s dismissal of his application for leave.
II. Impugned decision
[7]
The Board
rejected the applicants’ application for projection because they had not
rebutted the presumption that the state of Mexico could protect them and
because they could have found refuge elsewhere in their country.
[8]
With
respect to state protection, the Board was of the opinion that applicant Campos
Navarro’s single attempt to contact the public prosecutor’s office on
July 17, 2006, was not enough to demonstrate the state’s inability to
protect them. The Board stated that the applicants had made no further attempt
to contact the police, had not requested help from the National Human Rights
Commission and had not even tried to consult a lawyer because this was too
expensive. Based on the documentary evidence, the Board was of the opinion that
there was not a complete breakdown of state apparatus, despite some problems
with corruption. In addition, the Board noted that Mexican authorities had made
serious efforts to curb police corruption and that various federal
organizations tasked with law enforcement offer avenues of recourse to
individuals who are dissatisfied with the response they have obtained.
[9]
The Board
also found that the applicants had an internal flight alternative because the
events referred to occurred solely in León, in the state of Guanajuato. As
Mexico is a large country with more than 120 million inhabitants, the
Board was of the opinion that it was not unreasonable to believe that the
applicants could move to one of the country’s big cities without fear of being
found by police officer Cortes. The applicants are young, articulate and
resourceful; in addition, the Board did not believe that a simple municipal
police officer would leave his position and invest human and financial
resources to search for the applicants across Mexico. Moreover, the applicants
obtained their passports in León, which shows that the police officer was not
interested in them. Lastly, based on the documentary evidence, the Board noted
that co-ordination between Mexican police forces is virtually non-existent, and
the applicants could therefore have moved to another big Mexican city without
fear of being harassed by the officer.
III. Issues
[10]
This
application for judicial review raises two main questions: did the Board err in
concluding, first, that state protection was available to the applicants and,
second, that they had an internal flight alternative within Mexico?
[12]
With
regard to internal flight alternative, it has been common practice to apply the
standard of patent unreasonableness given the highly fact-driven nature of such
decisions: see, for example, Ali v. Canada (Minister of Citizenship and
Immigration), 2001 F.C.T. 193; Ezemba v. Canada (Minister of Citizenship
and Immigration), 2005 F.C. 1023. However, the Supreme Court of Canada
recently determined in Dunsmuir v. New Brunswick, 2008 S.C.C. 9 [Dunsmuir]
that the two reasonableness standards should be merged into a single standard,
given the problems that arise in trying to apply the two standards and the
incongruity of parties being required to accept an irrational decision simply
because, on a deferential standard, the irrationality of the decision is not
clear enough.
[13]
Does this
mean that the application of a single standard of reasonableness invites
greater judicial intervention? I do not think that this is the intended meaning
and scope of the Dunsmuir judgment. On the contrary, Bastarache and
LeBel JJ. emphasize the deference courts must show when lawmakers decide to
entrust an administrative body with the responsibility of making certain
decisions when enforcing its enabling legislation. Here is what they have to
say about the matter.
[48] The move towards a single
reasonableness standard does not pave the way for a more intrusive review by
courts and does not represent a return to pre-Southam formalism. In this
respect, the concept of deference, so central to judicial review in
administrative law, has perhaps been insufficiently explored in the case law.
What does deference mean in this context? Deference is both an attitude of the
court and a requirement of the law of judicial review. It does not mean that
courts are subservient to the determinations of decision makers, or that courts
must show blind reverence to their interpretations, or that they may be content
to pay lip service to the concept of reasonableness review while in fact
imposing their own view. Rather, deference imports respect for the
decision-making process of adjudicative bodies with regard to both the facts
and the law. The notion of deference “is rooted in part in a respect for
governmental decisions to create administrative bodies with delegated powers” (Mossop,
at p. 596, per L’Heureux-Dubé J., dissenting).…
[49] … In short, deference requires
respect for the legislative choices to leave some matters in the hands of
administrative decision makers, for the processes and determinations that draw
on particular expertise and experiences, and for the different roles of the
courts and administrative bodies within the Canadian constitutional system.
[14]
What can
be learnt from these considerations? It would seem that courts of law will have
to continue to show a high degree of deference when there is more than one
right answer to issues decided by administrative tribunals. This would be the
case, for example, where a question is essentially one of fact or involves the
discretion of the administrative body or policy it is tasked with enforcing (Dunsmuir,
supra, paragraph 53). In such cases, courts must ask whether the
decision under review is reasonable in terms of its “justification,
transparency and intelligibility within the decision-making process” and in
terms of “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
supra, paragraph 47).
[15]
Given this
standard of review, can one conclude that the Board erred in concluding that
state protection was available to the applicants and that they had an internal
flight alternative within Mexico? I do not think so.
[17]
The Board
was correct in finding these explanations insufficient to rebut the presumption
of state protection. The documentary evidence shows that Mexican authorities
are making serious efforts to protect victims that find themselves in
situations such as that of the applicants. Even though the situation is still
far from being perfect, we are not dealing here with a situation where the
state apparatus is no longer carrying out its responsibilities. In these
circumstances, the state must at least be offered a real opportunity to
intervene before one can conclude that it is unable to provide the protection
required by one of its citizens. As I wrote in Villasenor v. Canada
(Minister of Citizenship and Immigration), 2006 F.C. 1080:
[15] . . . it will not suffice if a state
has such ability and has created the legislative, administrative and judicial
means for ensuring that its citizens’ rights are observed. It will still have
to have the intention to do so and that intention must be reflected in specific
actions and tangible results. On the other hand, it will not suffice for a
refugee status claimant to offer evidence that one or more police officers
refused to act on his complaint, or that an investigation led nowhere in
similar circumstances. If that were the test, not many countries might be able
to pass it. . . .
See also to the same effect Aldana v.
Canada (Minister of Citizenship and Immigration), 2007 F.C. 423; Martinez
v. Canada (Minister of Citizenship and Immigration), 2005 F.C. 1328.
[18]
It is not
this Court’s role to take the place of the Board in the assessment that it must
make as to the effectiveness of the protection a citizen is able to obtain in
his or her country of origin. As a specialized administrative tribunal, the Board
has greater expertise than this Court in this respect. In this instance, a
careful reading of the Board’s reasons leads me to conclude that the prevailing
situation in Mexico was carefully weighed in the light of the documentary
evidence. Without negating the problems with corruption that still afflict the
country, the Board was of the view that an individual who finds himself or
herself in the situation of the applicants is not completely disadvantaged and
can appeal to various law enforcement organizations. That is a conclusion that
the Board could draw on the basis of the documentary evidence before it.
[20]
The very
definition of a Convention refugee or a person in need of protection
necessarily implies that it is impossible for an applicant to claim the
protection of his or her country anywhere in his or her country. The internal
flight alternative is inherent in the very notion of refugee and person in need
of protection. As has been noted by the Federal Court of Appeal, the threshold
should be set very high in determining what would be unreasonable: “It requires
nothing less than the existence of conditions which would jeopardize the life
and safety of a claimant in travelling or temporarily relocating to a safe
area. In addition, it requires actual and concrete evidence of such
conditions.” (Ranganathan v. Canada (Minister of Citizenship and
Immigration), [2001] 2 F.C. 164, paragraph 15). And it is up to
claimants to show that they do not have an internal flight alternative within
their country (Thirunavukkarasu v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 589.
[22]
For all
these reasons, the application for judicial review is dismissed. No questions
were submitted for certification, and I agree that this case raises no question
of general importance.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed.
“Yves
de Montigny”
Certified
true translation
Johanna
Kratz
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