Date: 20081113
Docket: IMM-2265-08
Citation: 2008 FC 1259
Toronto, Ontario, November 13,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
KARLA
DEL CARMEN
HERNANDEZ GONZALEZ
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult woman, a citizen of Mexico. She
entered Canada from Mexico on January
20, 2007 and made a claim for refugee protection status two days later. A
hearing respecting her claim was held on January 9, 2008, the Applicant gave
her evidence with the assistance of a Spanish/English interpreter. By a
written decision dated April 30, 2008, the Applicant’s claim for refugee
protection status was rejected. This is a judicial review of that decision.
[2]
For
the reasons that follow, I find that the application is dismissed.
[3]
The
Applicant submits and I agree that while many issues have been raised, the only
determinative issue is whether there was an internal flight alternative (IFA)
and, in particular, whether the Applicant, who had been residing in San Rafael,
Veracruz and later in Xalapa could remove herself to the Federal District of
Mexico City and live safely there.
[4]
The
Applicant’s evidence was that she lived in a common-law relationship with a man
in San
Rafael
and that he beat her and caused a miscarriage. The Applicant alleges that she
denounced this man to the police but they did nothing and harassment continued including
an attempt by this man to run her over with his truck, an event which required her
to be hospitalized. The Applicant alleges that she again denounced this man to
the police who, again, did nothing. The Applicant moved to Xalapa and sought
the assistance of a psychologist. Her common-law partner continued to place
threatening phone calls. The Applicant therefore came to Canada. The Board
Member accepted this evidence without comment. It must be taken as credible.
[5]
The
Board Member determined that the Applicant’s claim for refugee status should be
rejected because there was an internal flight alternative, Mexico City. At page 9
of his Reasons, the Member said:
In assessing all of the
evidence, the panel recognizes that there may be areas of Mexico where serious
efforts to provide adequate protection as a result of criminality and corruption
are not being made but chooses to rely on the evidence that indicates that
Mexico, particularly in the Federal District, which includes Mexico City is
making serious efforts to address these issues.
Given the above analysis, the
panel determines that there is not a serious possibility that the claimant
would be persecuted should she return to Mexico and live in Mexico City. This satisfies the first
prong of the test of an IFA.
[6]
It
is well understood that, in considering an internal flight alternative, the
Board is to consider whether there is a safe haven for claimants in their own
country, where they would be free from persecution, in which case they are to
avail themselves of it unless they can show, objectively that is unreasonable
to do so (Sanchez v. Canada (Minister of Citizenship and Immigration)
2007 FCA 99 at para 16).
[7]
The
Federal Court of Appeal in Carillo v. Canada (Minister of Citizenship and
Immigration, 2008 FCA 94, in considering the issue of state protection
wrote at paragraphs 17 to 19 that the Applicant bears the burden of adducing
evidence of inadequate state protection and the burden of persuading the trier
of fact that such evidence demonstrates that state protection is inadequate. At
paragraphs 20 to 26 the Court wrote that the trier of fact is to consider the
evidence on a standard of proof which is not higher than that established by
the normal standard of balance of probabilities.
[8]
In
the present matter the Member set out in detail the basis upon the evidence was
considered both as to the situation in Mexico City and the Applicant’s concerns
as to the responses that the police made in respect of her denunciations and
the influence that her former common law partner may have had over the police.
[9]
The
Member’s reasons specify with reasonable particularity the documentary evidence
taken into consideration sufficient to indicate that the Member considered the
Applicant’s evidence and the other evidence in the case so as to arrive at a
considered conclusion giving weight to all the evidence.
[10]
It
is clear that the Member was alert to the necessity of looking not only at what
laws and institutions may have been put in place but also whether they are
adequately effective in providing protection. At page 7 of the Reasons percentage
statistics are set out as to where persons in the Federal District sought
assistance not only from the Prosecutor’s offices but other agencies as well.
The reasons of the Federal Court of Appeal at paragraph 34 of Carillo, supra,
indicate that not only is protection to be offered by police agencies to be
considered but other agencies as well. This was done by the Member.
[11]
In
view of the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick
2008 SCC 8 I find that it was reasonable for the Member to conclude that there
is not a serious possibility that the Applicant would be persecuted should she
return to Mexico and live in Mexico City.
[12]
Applicant’s
Counsel raised a further issue based on the second branch of the considerations
to be given in respect of an IFA namely, was it reasonable to require the
Applicant to seek an IFA in Mexico City. The report of a
psychologist, Dr. Pilowsky, who examined the Applicant, opines that if the
Applicant were to be returned to Mexico (presumably anywhere in Mexico
including Mexico City) the Applicant would be led to full-blown anxiety attacks
along with severe inability to cope with the debilitating fear she will
experience once returned to Mexico. The Member stated that there was no
persuasive evidence that treatment would be lacking in Mexico, noting that
the Applicant had already availed herself of such treatment in Mexico earlier.
The Member concluded that the Applicant, a reasonably well-educated person,
could secure employment in Mexico City and that there was
evidence that her parents would support her financially. The Member concluded
that it would not be unduly harsh to require the Applicant to live alone in Mexico City.
[13]
Again,
given the Dunsmuir standard; the Member’s conclusions are within the acceptable
range of reasonable conclusions and should not be set aside.
[14]
The
application is dismissed. The matter is fact specific, there is no question for
certification. There are no special reasons to award costs.
JUDGMENT
For the
Reasons provided:
THIS COURT
ADJUDGES that:
1.
The
application is dismissed;
2.
There
is no question for certification;
3.
No
costs are awarded.
“Roger T. Hughes”
Email this Content