Date: 20041018
Docket: IMM-592-04
Citation: 2004 FC 1431
Ottawa, Ontario, October 18, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
ABRAHAM GARIBAY AGUILAR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel) dated January 5, 2004, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). In that decision, the panel determined that the applicant did not qualify as a "Convention refugee" under section 96 or as a "person in need of protection" under section 97.
[2] The applicant is a 19-year-old Mexican citizen alleging a well-founded fear of persecution in his country based on his homosexuality. He contends that he would be exposed to cruel and unusual punishment if he were to return to his country. The applicant states that he even fears for his life.
ISSUE
[3] Did the panel make a patently unreasonable error by dismissing the applicant's refugee claim?
[4] For the following reasons, I answer that question in the negative and I would therefore dismiss this application for judicial review.
IMPUGNED DECISION
[5] The panel determined that the applicant had not established on a balance of probabilities that he had a well-founded fear of persecution in Mexico and/or that he was in danger of torture, or a risk to his life, or a risk of cruel and unusual punishment.
[6] The panel pointed out many credibility problems, including those related to a complaint that the applicant had allegedly filed with the police. Nothing of the sort was mentioned in his Personal Information Form (PIF).
[7] Also, the Board did not believe the applicant's alleged subjective fear of persecution. It noted in its decision that the applicant did not take any steps to go live elsewhere in Mexico.
ANALYSIS
[8] The standard of review regarding internal flight alternatives (IFA) is that of patent unreasonableness (Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No. 1263 (F.C.T.D.)(QL), paragraph 9).
[9] The Federal Court of Appeal in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) set out two criteria for establishing an IFA. First, the Board must be persuaded on a balance of probabilities that the applicant is not at risk of persecution at the place proposed as an IFA and second, considering all the circumstances, including those personal to the applicant, the situation at the place proposed as an IFA must be such that it is not unreasonable for the applicant to seek refuge there.
[10] The documentary evidence establishes that the conditions in Mexico are not the conditions existing in Canada in terms of tolerance toward homosexuals. However, the situation is improving, as the following document shows:
In most other cases, the improving climate towards homosexuals in many big cities means that gays, lesbians, and bisexuals who live in the more intolerant rural areas and smaller urban areas do have internal relocation options. Mexico City has an increasingly vocal and visible gay subculture, which for the first time has gained representation in both the Legislative Assembly of the DF and the federal Chamber of Deputies. As reported by Carrier, conditions for homosexuals in Guadalajara have also improved markedly. The same is true of other cities that have had a high degree of exposure to foreign (especially American) tourists and influences, such as Tijuana (Baja California Norte), Cuernavaca (Morelos), Acapulco (Guerrero), Puerto Vallarta (Jalisco), and San Miguel Allende (Guanajuato). (p. 37 of the Dominique Toillon's supplementary affidavit) [emphasis added]
[11] In this case, the applicant claims to fear for his life for two reasons. He says that he fears Luz Maria Maldonado and her father who already threatened him and beat him and he says that he fears Mexican society in general because of the very prevalent macho culture. But he never attempted to move to another place despite the evidence establishing the many changes and great improvement in terms of homosexual rights in some areas of Mexico. The applicant only sought to leave his country. When he was asked if he could have moved and gone to live elsewhere in Mexico, the applicant simply alleged that the macho culture is prevalent and that his life is in danger everywhere in Mexico.
[12] The Board was correct to consider that there was an internal flight alternative. Further, the applicant "must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful" (Kadenko v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1376 (F.C.A.)(QL), paragraph 5).
[13] There is no reason for the Court to intervene in this case.
[14] The parties declined to submit serious questions of general importance. No question will be certified.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-592-04
STYLE OF CAUSE: ABRAHAM GARIBAY AGUILAR
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 30, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE
MR. JUSTICE BEAUDRY
DATE OF REASONS: October 18, 2004
APPEARANCES:
Lenya Kalepdjian FOR THE APPLICANT
Marie-Claude Paquette FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elena Munõz-Bertrand FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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