Date:
20130131
Docket:
IMM-3389-12
Citation:
2013 FC 107
Ottawa, Ontario,
January 31, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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MARIANO MENDEZ HERNANDEZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, a 28 year old citizen of Mexico, claimed that the drug gang Los
Zetas threatened him and he was stabbed for his refusal to sell drugs. His
refugee protection claim was denied and he sought judicial review of that
decision.
II. FACTS
[2]
The
Immigration and Refugee Board [IRB] decision sets out the crucial facts and
conclusions reached. The salient features of the decision are:
•
the
Applicant’s fear of Los Zetas means that he does not fall within one of the
Convention grounds for refugee status;
•
the
Applicant was approached by Los Zetas in December 2007 to sell drugs. He was
threatened and told not to go to the police. When the Applicant refused, he was
stabbed;
•
he
was taken to hospital and allegedly a police report was filed, though the
report was not submitted in evidence;
•
following
the stabbing incident, he moved to Mexico City in February 2008 where the cycle
of violence continued. After hiding at a relative’s house, he fled to Canada;
•
the
Applicant never reported the incidents to the Mexican authorities;
•
there
were no witnesses’ reports, and the IRB was not satisfied that the assaults
occurred;
•
the
perception of the Applicant being rich was not sufficient to ground a claim;
•
the
IRB concluded that Los Zetas wanted the Applicant to work for them due to his
popularity;
•
the
IRB rejected the claim that police corruption meant that there was no state
protection;
•
three
statements concerning threats posed were rejected for vagueness. The same
applied to a letter from the Applicant’s brother;
•
the
Applicant did not have a subjective fear as he took no steps to learn what was
necessary to file a claim;
•
the
refugee claim was only made in April 2011 (three years after entry into Canada) at the urging of a girlfriend; and
•
there
was no personalized risk only evidence that crime is a serious problem common
to many Mexicans.
[3]
The
only issue is whether the IRB decision is reasonable. The standard of review
for the components of this decision (subjective fear, state protection, nexus)
and the decision as a whole is reasonableness.
III. ANALYSIS
[4]
On
the issue of state protection, there is contradictory evidence that state
protection is not available in certain parts of Mexico. However, it was within
the scope of the IRB’s mandate to express concern about the absence of any
police reports, even the one filed by the hospital where the Applicant was
treated following the stabbing.
[5]
The
IRB was entitled to rely on the presumption of state protection and it was
reasonable in the context of this case to find that the Applicant failed to
rebut the presumption.
[6]
The
failure to rebut the presumption of state protection is a complete answer to
the Applicant’s claim and on this ground alone, the claim would fail.
[7]
It
was not unreasonable to find that the Applicant had not established a nexus
between a Convention grounds and the fear alleged. The fear of criminal gangs
(except where such fear is based on one of the five Convention grounds) is not
itself a valid basis for refugee status.
[8]
The
finding of only a generalized risk is reasonable given the evidence (see Prophète
v Canada (Minister of Citizenship and Immigration), 2009 FCA 31, 78 Imm LR
(3d) 163).
[9]
Lastly,
it was reasonable to conclude that there was insufficient evidence of
subjective fear. The IRB did not accept the Applicant’s explanation that his
employer advised him that if he went to immigration authorities, he would be
deported. A three-year delay in seeking refugee protection is inconsistent with
a real subjective fear of being returned to Mexico.
IV. CONCLUSION
[10]
This
decision viewed as a whole is reasonable and therefore this judicial review
will be denied.
[11]
There
is no issue for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
denied.
“Michael L. Phelan”
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