Date: 20080123
Docket: IMM-1624-07
Citation: 2008 FC 83
Ottawa, Ontario, January 23,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LUIS
FRANCISCO FLORES DE LA ROSA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant asks for judicial review of the Immigration and Refugee Board’s
rejection of his claim for protection wherein it found that: (1) part of his
story was not credible, (2) he had an internal flight alternative (IFA) in Mexico City, and (3)
state protection was available.
II. BACKGROUND
[2]
Mr.
Flores de la Rosa is a gay man originally from Guadalajara, Mexico. He claimed
that his lover, Bernardo, beat and stabbed him and that one of Bernardo’s
friends offered to put him “out of the way”. He also alleged that Bernardo and his
friends tried to find him when he tried to hide in another city.
[3]
The
Applicant also claimed that Bernardo prevented him from obtaining immediate
medical assistance. He also said that when he filed a police report against
Bernardo, the police laughed at him and took no action.
[4]
Lastly,
he alleged that his former boyfriend had friends in the federal judicial police
who would assist Bernardo in finding him. The Applicant is also HIV-positive
and allegedly at risk of persecution on that ground alone in addition to being
unable to secure the anti-retroviral drugs.
[5]
The
Board found that on a balance of probabilities, the Applicant was not subject
to the alleged abuse and that both state protection and an IFA were available.
III. ANALYSIS
[6]
Whatever
the alleged infirmities may be on the credibility finding, the existence of
state protection and IFA are a complete answer to the Applicant’s claim.
[7]
On
the facts underpinning the IFA and on the findings of fact and credibility,
this Court has held the standard of review to be patent unreasonableness (Sarker
v. Canada (Minister of Citizenship and Immigration), 2005 FC 353; Aguebor
v. (Canada) Minister of
Employment and Immigration (F.C.A.), [1993] F.C.J. No. 732
(QL)). As to state protection, the standard has been held to be reasonableness
(Robinson v. Canada (Minister of
Citizenship and Immigration), 2006 FC 402). Even if credibility and IFA
were measured against a standard of reasonableness, the result would be the
same.
[8]
Even
if the Board’s credibility finding as to an incident related to reports of
police was suspect (a finding that I do not make), the adverse credibility
conclusion which flowed in part from the credibility finding did not affect (as
in “taint”) the findings of IFA and state protection. Therefore, the decision
in Martinez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1617 is distinguishable on that
ground alone.
[9]
With
respect to the IFA finding, there have been numerous decisions of this Court
upholding as reasonable or not patently unreasonable Board findings that Mexico
City is an IFA for most gays and lesbians in Mexico (see, for example, Ortiz
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1365).
[10]
The
Applicant has not identified any evidence related to the IFA which runs
contrary to the Board’s finding. The burden of proof rested on the Applicant to
overcome this presumption.
[11]
On
the finding of state protection, it was open to the Board to conclude that the
Applicant had provided insufficient evidence to rebut the presumption of state
protection. Mexico was found to
be a democratic state with a functioning government. On a general level, there
was nothing to suggest that Mexico could not provide protection.
[12]
On
a personal level, it was open to the Board to conclude that the Applicant had
not sufficiently attempted to engage state protection to be able to sustain the
argument that it was not available to him personally.
IV. CONCLUSION
[13]
Therefore,
this application for judicial review will be denied. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be denied.
“Michael
L. Phelan”
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