Date: 20080328
Docket: IMM-2966-07
Citation: 2008 FC 399
Ottawa, Ontario, March 28, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
OMAR GEOVANI CRUZ MARTINEZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] In the present
case, the Refugee Protection Division of the Immigration and Refugee Board
(RPD) rejected the claim for protection of Omar Geovani Cruz Martinez on a
single ground: the existence of an internal flight alternative in Mexico City.
Counsel for the Minister has candidly acknowledged that the RPD's finding of an
internal flight alternative in Mexico City is flawed. I agree and, as a result,
this application for judicial review will be allowed.
[2] At
the hearing before the RPD, the presiding member indicated that "at this
particular time, I'm not raising credibility concerns." Thus, Mr. Cruz
Martinez's testimony before the RPD is to be accepted as being true.
[3] He
testified that, in 2005, his father began being pressured by members of the
federal police to sell illegal drugs in his variety store. Mr. Cruz Martinez
helped to manage the store and, when his father refused to comply with the
demands, Mr. Cruz Martinez began to be threatened.
[4] On
April 18, 2006, Mr. Cruz Martinez was abducted by members of the federal police
and kept for three days.
[5] His
mother reported the abduction to the Public Ministry. After his release, Mr.
Cruz Martinez filed a report with the Public Ministry.
[6] The
family began receiving threats and Mr. Cruz Martinez was sent to live with his
uncle. After moving to his uncle’s home in Veracruz – a distance of
approximately four and one half hours by car – Mr. Cruz Martinez was contacted,
threatened, and told that he would not be safe anywhere in Mexico.
[7] Mr.
Cruz Martinez was then sent to live with his aunt. After moving to his aunt’s
home in Toluca – a distance of approximately fourteen or fifteen hours by car –
a person told the applicant’s father that they knew where the applicant was
living.
[8] When
asked if he would be safe in Mexico City, Mr. Cruz Martinez testified that the
police officers would eventually find him because of their ability to access
information, such as voting cards and records of persons returning to Mexico.
[9] The
central finding of the RPD with respect to an internal flight alternative was
as follows:
I agree with counsel that there
are many identified problems in the enforcement of the laws that have
implemented to combat corruption in the security forces. However, I do not
agree that these efforts of the government have not had an impact in urban
areas of Mexico such as Mexico City.
[…]
On a balance of probabilities, I
am satisfied that should the claimant suffer further harm or threat of harm from
officers of the Federal Police, that the legal recourses available to him in
Mexico City will provide him with adequate protection.
[10] However,
in reaching this conclusion, the RPD failed to cite any evidence that
established that the situation existing in Mexico City was qualitatively
different from that prevailing elsewhere in Mexico.
[11] In
addition to Mr. Cruz Martinez's unchallenged testimony, the following evidence
was before the RPD:
·
corruption is widespread in the police and criminal justice
systems;
·
although a number of efforts have been initiated to combat
corruption, monitoring organizations have reported that acts of public and
private corruption still occur on a regular basis;
·
secret drug trafficking networks exist in the police and the armed
forces;
·
the extensive use of the voter’s registration card makes it
easy for the police to find a person by accessing the database;
·
kidnapping for extortion is prevalent across the country,
especially in major urban areas such as Mexico City; and
·
police involvement in kidnappings was reported in numerous
media articles.
[12] As
explained above, the finding of an internal flight alternative in Mexico was
made without any evidentiary basis to establish why things were different in Mexico
City. The finding of an internal fight alternative was also made without apparent
regard to the above evidence, which contradicted the finding of the RPD. For
these reasons, the decision of the RPD cannot be justified. It is therefore
unreasonable.
[13] Counsel
for the Minister did attempt to argue that the decision could be upheld on the
basis that it constituted a finding of adequate state protection. However, it
is clear from the entirety of the RPD’s reasons that it was only considering
the situation in Mexico City and whether that situation constituted a viable
internal fight alternative. The decision cannot be upheld on a ground not
specifically considered by the RPD.
[14] For
these reasons, the application for judicial review is allowed. No question is
certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division dated July 3, 2007, is hereby set
aside.
2. The matter is remitted to the Refugee Protection Division for
redetermination by a differently constituted panel.
“Eleanor
R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2966-07
STYLE OF
CAUSE: OMAR
GEOVANI CRUZ MARTINEZ, Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 19, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: MARCH 28, 2008
APPEARANCES:
SELF-REPRESENTED FOR
THE APPLICANT
MS. J. MICHAELY FOR
THE RESPONDENT
SOLICITORS OF RECORD:
SELF-REPRESENTED FOR
THE APPLICANT
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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