Date:
20130215
Docket:
IMM-7429-12
Citation:
2013 FC 165
Vancouver, British Columbia,
February 15, 2013
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
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JESUS ROGELIO GUTIERREZ TORRES
LAURA LORENA PORTILLO DE
GUTIERREZ
KENIA VALERIA GUTIERREZ PORTILLO
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Applicants
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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
ORDER AND ORDER
[1]
The
Applicants, Jesus Rogelio Gutierrez Torres (the Principal Applicant), his wife
Laura Lorena Gutierrez de Portillo, and their daughter Kenia Valeria Gutierrez
Portillo, are a family of Mexican citizens from the northern state of Chihuahua.
[2]
The
Applicants seek judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision by the
Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated
July 4, 2012, wherein the RPD determined that the Principal Applicant, Jesus
Rogelio Gutierrez Torres, is excluded from refugee protection pursuant to
Article 1F(b) of the Schedule to the Convention Relating to Status of Refugees
(the “Convention”) and that the Principal Applicant’s wife, Laura Lorena
Gutierrez De Portillo and their daughter, Kenia Valeria Gutierrez Portillo are
neither Convention refugees nor persons in need of protection.
[3]
The
Applicants ask that the decision as it applies to Ms. Gutierrez de Portillo and
Kenia, the Principal Applicant’s wife and daughter, be quashed or set aside and
referred back for re-determination. The finding excluding the Principal
Applicant is not contested.
OVERVIEW
[4]
The
Applicants allege a well-founded fear of persecution by the Juarez cartel,
which operates in their home state of Chihuahua.
[5]
At
the hearing of their claim before the RPD, the Applicants abandoned their
section 96 claim and seek protection under subsection 97(1) because they claim
to face a risk to their lives or a risk of cruel and unusual treatment or
punishment if they return to Mexico.
[6]
The
RPD found that the Applicants had an Internal Flight Alternative (IFA) and that
they had not rebutted the presumption of state protection.
FACTS
[7]
The
Applicants rely on the Principal Applicant’s narrative in support of their
claim.
[8]
Mr.
Gutierrez left Mexico for work in the United States in January 2002. Shortly
after his arrival in Denver, Colorado he agreed to transport drugs for a man nicknamed
“El Toro”. He was apprehended while attempting to deliver 2 kilograms of
cocaine.
[9]
“El Toro” was arrested with Mr. Gutierrez. While they were being processed, “El Toro” warned
him to be careful what he said about the drugs because they belonged to a man
named Geraldo Balderrama, a representative of the Juarez drug cartel (also
known as the Vicente Corrillo Fuentes Organization) based in Chihuahua State.
[10]
“El
Toro” allegedly threatened Mr. Gutierrez and his family if he shared
information about the Juarez cartel with United States authorities. Mr.
Gutierrez kept silent.
[11]
In
November 2002, Mr. Gutierrez was sentenced to 16 years in prison. His wife and
daughter moved to the United States in December 2002 to be closer to Mr.
Gutierrez. They stayed at his wife’s uncle’s house, and his wife visited him
every two weeks until she was detained by United States immigration
authorities.
[12]
Mr.
Gutierrez’s wife and daughter returned to Chihuahua by a voluntary deportation
order in October 2006. On his release from jail, Mr. Gutierrez was deported to Mexico in April 2009 and rejoined his family in Chihuahua.
[13]
On
April 15, 2009, two weeks after his return to Mexico, Mr. Gutierrez was
allegedly intercepted by “El Toro” and two armed men and forced into an SUV. He
was told to pay the value of the cocaine he lost ($30,000) when arrested in
2002 or “do favours” for the Juarez cartel. One of the armed men said that the
“enforcers” for the cartel called “La Linea” would be watching the Applicants.
[14]
Mr.
Gutierrez was released, and for the first time told his wife about the threats
from the drug cartel dating back to 2002. A few days later, Mr. Gutierrez was
again abducted at his mother’s house and forced into an SUV, where he met Mr.
Geraldo Balderrama. Mr. Gutierrez refused to work for the cartel, but he was
released when he told his abductors he needed time to get the money.
[15]
The
Applicants decided to leave Mexico. They explain that they discussed moving
elsewhere in Mexico, but they feared that the cartel would find them no matter
where they went. They also claim that they feared going to the police because
many officers had been corrupted by gangs, and they did not want to take the risk
of reporting to a corrupt police officer.
[16]
The
Applicants arrived in Canada on April 27, 2009 and made a claim for refugee
protection the next day.
DECISION
[17]
Since
the exclusion finding is not contested on this review, I will turn to the RPD’s
findings relating to the remaining claims of Ms. Portillo de Gutierrez and
Kenia, the Principal Applicant’s wife and daughter.
[18]
The
RPD found there to be an IFA for the remaining Applicants in Queretaro located
in central Mexico.
[19]
The
RPD found that the remaining Applicants would be of limited interest to the
Juarez Cartel in the IFA on the basis of the following findings:
a. They
are not members of a criminal organization or cartel and do not pose a threat
to their criminal business;
b. They
are not high-profile community leaders known throughout Mexico;
c. The
Principal Applicant did as he was told when arrested;
d. No
member of Principal Applicant’s family was approached, threatened or hurt by
the cartel during his incarceration;
e. The
only contact with the Applicants were inquiries in December 2010 when
“suspicious” persons made inquiries of their neighbours and Ms. Portillo de
Gutierrez’s mother;
f. The
Principal Applicant’s case was different from that of his wife’s brother-in-law
who was allegedly murdered by the cartel. He had refused to take the fall for
Mr. Balderrama who, as a result, spent two years in prison;
g. With
respect to the alleged threat, the RPD found that given the other major
existential threats facing the Juarez cartel from competitors and government
security forces, it was unlikely that the pursuit of these claimants has a
high, if any, priority. The RPD concludes that the power of the Juarez cartel, according to the documentary evidence, is significantly diminished and only
influential in the north, where it is fighting for its existence with the
Sinaloa cartel.
[20]
In
making the above findings, the RPD considers the country reports on drug
cartels as well as the expert evidence of Steven Dudley. Given the numerous
reports contradicting certain aspects of Mr. Dudley’s opinions relating to the
Juarez cartel’s activities in Queretaro, the RPD prefers the evidence of the
reports.
[21]
The
RPD finds that the Applicants did not rebut the presumption of state
protection, particularly in Queretaro. While the RPD accepts that there is
police corruption in Mexico, it also accepts the evidence that the police “have
maintained their bitter battle with the cartels over recent years” and “the
claimants have offered no probative evidence that it is likely that the Juarez
cartel would have the police at their beck and call in Queretaro.”
ISSUES
[22]
The
following issues are raised in this application:
a. Was
the RPD’s finding that the Applicants have an internal flight alternative in Queretaro reasonable?
b. Was
the RPD’s finding that the Applicants failed to rebut the presumption of state
protection reasonable?
ANALYSIS
[23]
The
parties do not dispute the applicable standard of review. On both issues, the
decision is to be reviewed on the reasonableness standard.
[24]
The
Applicants challenge the internal flight alternative and state protection findings
of the RPD’s decision. They argue that several findings by the RPD are
unreasonable.
Internal Flight
Alternative
[25]
When
an IFA is raised, a two-prong test must be applied: the onus is on applicants
to demonstrate, on a balance of probabilities, that there is a serious
possibility they will be persecuted in the proposed IFA location and that in
all the circumstances, it would be objectively unreasonable for them to seek
refuge there. See: Rasaratnam
v. Canada (Minister of Employment & Immigration), [1992] 1 F.C.
706 at para. 13 (C.A.); Berber v. Canada (Minister of Citizenship and Immigration), 2012 FC 497 at para. 37.
[26]
The
Applicants contend that the RPD erred in finding that Mr. Gutierrez was not a
member of the Juarez cartel. I accept the Applicant’s argument that membership
must be defined broadly in accordance with Poshteh v. Canada (Minister of Citizenship and Immigration),
2005 FCA 85 at paragraph 27. In my view, Mr. Gutierrez may satisfy the “institutional
link” requirement of Sinnaiah v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1576
at paragraph 6 because the RPD found that he knowingly participated in organized
crime.
[27]
However,
whether or not Mr. Gutierrez was a member of the Juarez cartel would likely not
change the cartel’s desire to take revenge on him for “losing” $30,000 worth of
cocaine if they were so inclined. If he was indeed a member, he was not a
particularly active or high-profile member as there is no evidence of him
working for the cartel or associating with it beyond his involvement in two “drug-runs”
in Colorado. His situation is not analogous to the involvement and personal relationship
Ms. Portillo de Gutierrez’s brother-in-law had with Geraldo Balderrama. Consequently,
his membership status would be of no moment to the IFA finding.
[28]
The
second finding challenged by the Applicants is that the Juarez cartel does not
have a significant interest in the family because there were a few inquiries into
the family’s whereabouts in December 2010. The RPD found that these inquiries
were made many months after they left Mexico for Canada in late April 2009. The
Applicants contend that this is not so because the evidence points to an
inquiry that would have occurred in early 2009. I agree with the Applicants
that since an incident involving a suspicious person inquiring at the house of
Mr. Gutierrez’s mother was reported in the June 16, 2009 PIF, it could not have
been one of the incidents noted by the RPD, which happened in December 2010.
[29]
I
agree with the Applicants that the RPD failed to mention this early 2009 in its
reasons. I also agree that there is evidence these suspicious persons may have
been from the Juarez cartel, in that Mr. Gutierrez testified that they used the
nickname he had at the time of his drug trafficking in the United States, “Coque.”
[30]
However,
even taking into account the early 2009 inquiry and the possibility that the
persons making the inquiries came from the Juarez cartel, it was still open to
the RPD to find on the evidence that there was no “sustained interest” in Mr.
Gutierrez and the Applicants. There is no evidence of threats or violence
against the family since April 2009. On the evidence, the RPD’s finding was
reasonably open to it.
[31]
The
Applicants also challenge the RPD’s finding that the Juarez cartel is not
active in Queretaro. They argue that the finding is unreasonable because it
does not take into account the most recent country condition reports relating
to the cartel’s alliances, particularly with the Los Zetas cartel. The
Applicants point in particular to a National Documentation Package on Mexico released on June 8, 2012. It is argued the RPD has a duty to rely on the most
current relevant evidence on country conditions. In support of their contention
they rely the jurisprudence of this Court, including Sivapathasuntharam v. Canada (Minister of Citizenship and Immigration), 2012 FC 486.
[32]
A
review of the information in the June 8, 2012 package discloses no new facts
that contradict the RPD’s findings, which distinguishes this case from Sivapathasuntharam.
Evidence of the influence of an allied cartel is not evidence of the influence
of the Juarez cartel. There is no evidence to suggest that Los Zetas would
carry out revenge on a perceived enemy of the Juarez cartel. Further, the RPD
references Los Zetas at length in the decision (paragraphs 51-55), relying on
the evidence that described Los Zetas as an ally of the Juarez cartel mainly in
its fight against the stronger Sinaloa cartel. In the circumstances, failure to
consider the information in the June 8, 2012 package does not constitute a
reviewable error. The RPD’s finding was reasonably open to it on the evidence.
[33]
The
Applicants also argue that the RPD erred by giving little weight to Steven
Dudley’s report on the basis that his expertise is not particularly strong with
respect to Mexico. A review of Mr. Dudley’s report shows that he has
significant Mexican experience, but his CV is clearly focused on Colombia.
[34]
The
more important consideration is that Mr. Dudley’s opinion against the proposed
IFAs runs against the rest of the documentary evidence. There was significant
evidence on the record to the effect that the Juarez cartel was diminished by
its rivalry with the Sinaloa cartel and was focused on Chihuahua and the
corridor from Juarez to the United States. Mr. Dudley does not disagree with
this, but he is the only one to speak of a “corridor” including Puebla and Queretaro over which Juarez still has influence. Mr. Dudley also claims the Juarez cartel is a “national cartel,” but the National Documentation Packages, even the
June 8, 2012 Package, indicate that it is not
[35]
The
Applicants take issue with how the RPD weighed the evidence. In my view, the
RPD with its expertise in this area is best placed to weigh such evidence. In
light of the contradictory evidence on the record, it was reasonably open to
the RPD to weigh Mr. Dudley’s evidence as it did. It was entitled to prefer the
other evidence.
[36]
I
find that it was open to the RPD to conclude that the Applicants have failed to
establish that there is a serious possibility they will be persecuted in the
proposed IFA location and that, in all the circumstances, it would be
objectively unreasonable for them to seek refuge there.
State Protection
[37]
The
Applicants take issue with the RPD’s finding on state protection. They argue
that its analysis of state protection “is perfunctory at best” and “is
predicated on the fact that the Applicants can safely relocate to Queretaro.”
[38]
“…
[A] claimant seeking to rebut the presumption of state protection must adduce
relevant, reliable and convincing evidence which satisfies the trier of fact on
a balance of probabilities that the state protection is inadequate.” See: Flores
Carrillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94
at paragraph 30.
[39]
The
RPD at paragraph 68 of its reasons concludes “[e]ven if I accept that some
Federal Police may have been involved in Chihuahua, the claimants have offered
no probative evidence that it is likely that the Juarez cartel would have
similar police at their beck and call in Queretaro.” The record supports this
finding. The RPD cites numerous documents adduced to show that Mexico has made significant efforts at reform, targeting cartels and police corruption.
[40]
Further,
the Applicants did not seek protection from the police at any time when they
were in Mexico, and there is no evidence on the record of the Juarez cartel’s
involvement with the police in Queretaro. The Applicants have failed to adduce
relevant, reliable, convincing evidence to establish on a balance of
probabilities that state protection was not available.
[41]
It
was therefore reasonable for the RPD to conclude that the Applicants failed to
discharge their onus to rebut the presumption of state protection.
CONCLUSION
[42]
For
the above reasons, I find the July 4, 2012 decision rendered by the RPD to be
reasonable. As a result, the application will be dismissed.
[43]
The
parties have had the opportunity to raise a serious question of general importance
as contemplated by paragraph 74(d) of the Immigration and Refugee
Protection Act, SC 2001, c 27, and have not done so. I am satisfied
that no serious question of general importance arises on this record. I do not
propose to certify a question.
ORDER
THIS
COURT ORDERS that:
- The
application for judicial review is dismissed.
- No question
of general importance is certified.
“Edmond P. Blanchard”
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