Date: 20081114
Docket: IMM-1883-08
Citation: 2008 FC 1267
Ottawa, Ontario, November 14,
2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
VICTOR
FERNANDO MEDINA MORALES
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (“the Board”) dated December 10,
2007 concluding that the applicant, a Mexican citizen, is not a Convention
refugee or a person in need of protection because of the availability of an
internal flight alternative (“IFA”) in Mexico City.
FACTS
[2]
The
applicant is 29 years old. He arrived in Canada on January
10, 2007 seeking refugee protection on the basis of his fear of persecution as
a homosexual in Mexico.
[3]
In
September 2006, the applicant began a relationship with Jose Gonzalez Jiminez,
a student at the university where the applicant was employed. Mr. Jiminez’s
father, Alberto Jiminez, is a lawyer at the Procuraduria General de la
Republica (“PGR”), or the Office of the Attorney General. The applicant states
that as a result of this position, the elder Mr. Jiminez is in charge of police
patrols.
[4]
The
applicant states that when Mr. Jiminez found out about the applicant’s
relationship with Jose, he was infuriated. The applicant states that Mr. Jiminez
went to the university where the applicant was employed and spoke with the dean
of the university. The applicant was called to the dean’s office and told that
a serious complaint had been made against him. In mid December, the applicant
was told that his contract with the university would not be renewed.
[5]
In
early December, while walking home from the bus stop, the applicant was
assaulted by two police officers who verbally abused him, struck him, and told
him to “stay away from Jose.” The applicant states that he attempted to file a
complaint with the police, but left the police station after observing one of
his assailants there.
[6]
The
applicant subsequently left his home in Villahermosa and went to stay with
relatives in Oaxaca. He states
that his family received threatening notes and drawings after he left, and that
his “macho” cousins voiced their anger at his homosexuality. The applicant
travelled to Canada on January
10, 2007.
[7]
The
applicant states that he fears he will be killed by Jose Jimenez’s father, the
police, or homophobic members of his community, including his own cousins, if
he returns to Mexico.
[8]
Since
coming to Canada, the applicant
has become involved in a common-law relationship with a Canadian citizen. The
applicant states that he and his Canadian partner wish to start a family and
have children together. The applicant argues that he would not be able to
parent a child in the context of a homosexual relationship in Mexico, and that
this fact itself constitutes persecution and cruel and unusual treatment.
Decision under review
[9]
The
Board heard the applicant’s claim on December 10, 2007. The Board denied the
applicant’s claim on the basis that the applicant had an internal flight
alternative (“IFA”) in Mexico City. The applicant has
not challenged this finding in his application for judicial review.
ISSUE
[10]
The
issue to be considered in this application is whether the Board erred in
failing to consider the question of whether the restriction on the applicant’s
ability to adopt and parent a child in Mexico on the basis
of his sexual orientation constitutes persecution and/or cruel and unusual
treatment.
STANDARD OF REVIEW
[11]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of [deference] to be accorded
with regard to a particular category of question.”
[12]
In
Allahi v. Canada (MCI) 2004 FC 271, 129
A.C.W.S. (3d), Mr. Justice Von Finckenstein held at paragraph 8, citing Ward
v.
Canada (Attorney General), [1993] 2 S.C.R. 689
and Hartley v. Canada (2000), 189 F.T.R. 296,
that “the Board is obliged to consider all of the arguments advanced by the
applicant and all of the possible grounds upon which he might face persecution
in his country of origin.” In Sampu v. Canada,
2001 FCT 756, 107 A.C.W.S. (3d) 107, Justice Tremblay-Lamer held at paragraph
10 that the failure of the Board to “consider the totality of the evidence
tendered in support of the applicant’s claim” was an error of law. The
appropriate standard of review for an error of law is correctness.
[13]
At
issue in this application is whether the Board erred in law by failing to
consider an argument raised by the appellant. Accordingly, the decision will
be reviewed on a standard of correctness.
ANALYSIS
[14]
The
applicant states that one of the grounds that he raised at the hearing was that
he and his partner would not be allowed to marry or to adopt a child in Mexico, due to
their sexual orientation. The applicant argues that this was a serious issue
that was not mentioned in the Board’s decision.
[15]
The
Court must conclude that the Board did not err in failing to deal with this
issue as a substantive issue for the refugee claim. First, the applicant did
not raise this specific issue as a basis for his refugee claim prior to the
hearing in either his personal information form before the Board, or at the
time he entered into Canada and said that he wanted to make a refugee claim.
Second, at the outset of the hearing, the presiding member identified the
substantive issues and invited the applicant’s counsel to comment on them.
Again, this specific issue was not identified by the applicant or the applicant’s
counsel. Third, the applicant presented extensive evidence at the hearing over
the course of 57 pages of the transcript. However, the applicant only made a short
passing reference to this issue at the end of his evidence. Fourth, the applicant
did not adduce any documentary evidence that same-sex couples in Mexico cannot
legally adopt, which evidence would be necessary to present such a claim. Fifth
and finally, the claim is entirely speculative in that the applicant has never
tried to adopt in Mexico and has only considered this issue with his new
same-sex partner in Canada. It is speculative in that if the same-sex partnership
in Canada is serious,
his Canadian partner may decide to sponsor the applicant for permanent
residence in Canada as his
spouse where they then could adopt. For these five reasons this adoption issue was
not properly presented to the Board in order for the Board to be expected to
have made a specific finding on the issue.
[16]
Under
these circumstances, it is not unreasonable or erroneous that the Board’s
decision did not discuss the issue of adoption.
[17]
For
these reasons, the application must be dismissed.
[18]
Neither
party proposed a question for certification. There will be no question
certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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