Date: 20101201
Docket: IMM-2681-10
Citation:
2010 FC 1214
Ottawa, Ontario, December 1, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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JESUS MANUEL NINO GARCIA,
SONIA BEATRIZ MATA HERNANDEZ
and JESUS ABRAHAM NINO MATA
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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 JUDGMENT AND JUDGMENT
[1]
The
Refugee Protection Division of the Immigration and Refugee Board found that the
applicants had an internal flight alternative in Mexico City and therefore denied their claim for
refugee protection under the Immigration
and Refugee Protection Act, S.C.
2001, c. 27. The
applicants submit that in so doing, the Board engaged in speculation and
ignored evidence. The applicants have not convinced me that the Board erred as
they allege and for the reasons that follow, this application is dismissed.
[2]
Jesus
Manuel Nino Garcia worked as a security officer for the port of Salina Cruz in the
state of Oaxaca, Mexico. The drug trafficking
gang Los Zetas attempted to move drugs through the port. On November 15, 2007,
he was approached by four men on the way to work, who identified themselves as
members of Los Zetas. Without him disclosing any personal information, the men
knew his name and information about the port. They asked Mr. Garcia questions
about the port, requested that he authorize certain loads to come through the
port illegally, and threatened him.
[3]
Mr.
Garcia did not report the incident to the authorities. He says that from his
experience the police and military were unable and unwilling to combat Los
Zetas, and that if a complaint became known to Los Zetas, they would kill him.
He said that the manager of the port, Mr. Bernstein, had been threatened and
did not receive protection from Los Zetas, although he admitted that Mr. Bernstein
was not subsequently harmed by Los Zetas.
[4]
Shortly
after he was first approached, Los Zetas contacted Mr. Garcia and attempted to
bribe him to allow them to move loads through the port. He refused and
subsequently received at least ten more threatening phone calls. Around March
or April of 2007, his wife, Ms. Hernandez, received a call on her private cell
phone demanding that she pressure her husband to comply with the demands,
threatening to kill her and the minor applicant, and stating the name of the
preschool the minor applicant attended. The minor applicant was subsequently moved
to a different school, but Ms. Hernandez received a second call stating that
the caller knew the minor applicant had changed schools and gave the name of
the new school.
[5]
The
applicants became scared and left Salina Cruz, staying in Villa de Tututepec
and Vera Cruz, moving around to avoid being located by Los Zetas and supporting
themselves by using their savings. The applicants say that they realized that
Los Zetas have a criminal network throughout Mexico and could pursue their enemies throughout
the country. Accordingly, the applicants fled to Canada and sought refugee
protection.
[6]
The
Board accepted the applicants’ identities and found that they were credible,
and generally believed their allegations in support of their claim. However,
the Board found that they had a viable internal flight alternative (IFA) in Mexico City.
[7]
The
applicants submit that the Board engaged in speculation when it found that it
was unlikely that Los Zetas would target the applicants in Mexico City. They ask that the
Board’s decision be overturned because it did not consider that Los Zetas may
want to kill Mr. Garcia to send a message to other port employees. However,
the applicants did not present evidence in this regard, and I accept the
submission of the respondent that absent evidence, the applicants are asking
the Court to engage in speculation as to the motivation of Los Zetas. Further,
the Board considered the fact that Mr. Bernstein, a senior port employee who
was also threatened, was never harmed and continued to serve in his position.
This is strong evidence that in a similar situation, Los Zetas did not kill an
uncooperative port employee in order to send a message.
[8]
I
also reject the applicants’ submission that the Board ignored evidence of Los
Zetas’ modus operandi of tracking down its enemies. Rather, it
determined that those targeted by Los Zetas are typically individuals who have
spoken out against them or reported on their activities. The evidence the
applicants point to as demonstrating Los Zetas’ pattern of threatening phone
calls leading up to concrete action refers to a journalist, and is accordingly
not inconsistent with the Board’s finding regarding the profile of individuals
killed by Los Zetas and the fact that Mr. Garcia did not fall within that
profile.
[9]
I do
not accept the applicants’ submission that the Board ignored the fact that they
lived in hiding after Mr. Garcia left his job or that this situation was not
sustainable. The Board did not suggest that they continue to remain in hiding
in Tututepec and Vera Cruz, as they had done before fleeing to Canada. The Board merely
noted that during this time they had not received further threats from Los
Zetas. This was a finding of fact, not challenged by the applicants. What the
Board did find was that the applicants could live sustainably in Mexico City given Mr. Garcia’s
prior residence and employment there, his family members living there and his
strong educational and employment credentials. The Board determined that the
applicants could sustain themselves in Mexico City and would not be at risk there. This
finding was not unreasonable.
[10]
The
applicants lastly submit that the Board’s finding that Los Zetas would not be
able to locate the applicants if they moved to Mexico City was unreasonable. They note that the
Board found that state protection would not have been forthcoming for them and
they say that given the close relationship between state protection and IFA,
the decision was unreasonable. The applicants say that there was evidence
before the Board that Los Zetas have corrupted the authorities throughout Mexico and that there is no
point in seeking state protection, an indication that Los Zetas would be able
to locate the applicants outside of Salina Cruz via connections with corrupt
law enforcement officials.
[11]
The
applicants note that they are legally obliged to keep their address up to date
with the government and that since the voters list is available on the black
market and would contain their address, it would be likely that Los Zetas would
be able to locate them. The applicants cite a passage from Cejudo Lopez v.
Canada (Minister of Citizenship and Immigration), 2007 FC 1341, regarding
addressing contradictory evidence, and submit that the Board failed to realize
the importance of the fact that the applicants’ current address would have to
appear on their Voter Registration Cards. The applicants also cite the case of
Cruz Martinez v. Canada (Minister of Citizenship and Immigration), 2008 FC 399, in which,
according to the applicants, the Court overturned a similar Board decision.
The applicants submit that the only reasonable interpretation of evidence
demonstrating that (a) the voters list may be available in bulk and (b) the
voters list contains the current address for all registrants, was that Los
Zetas would be able to locate the applicants anywhere in Mexico. The applicants say
the Board’s decision in this respect was lacking in justification and
transparency and was unreasonable. They also cite Silva Fuentes v. Canada
(Minister of Citizenship and Immigration), 2010 FC 1115, in which Justice
Pinard overturned a decision of the Board that found that the applicants had an
IFA in Mexico City from Los Zetas.
[12]
In
my view, in this case, the Board offered a reasonable analysis of why it did
not find Los Zetas were likely to track the applicants using the Voter
Registration Cards or Federal Electoral Institute database. As the Board
noted, there was no evidence presented by the applicants or included in the
Research Directorate documentation indicating that Los Zetas, or any other
criminal organization, had ever tracked an individual using this information.
[13]
The
facts in Silva Fuentes are significantly different than those at hand.
There the applicants had been pursued by the gang that threatened them, even
after a gap of five years. Further, Mr. Silva Fuentes had a personal history
of standing up to the drug gang and as such fell within the description in the
documentary package of someone likely to be targeted elsewhere in Mexico. The
situation of Mr. Garcia is not comparable. He did not match the profile and
there was no evidence that Los Zetas had any continuing interest in him.
[14]
The Cruz
Martinez case is also distinguishable. In that case the applicant was
fleeing from the federal police, and accordingly the database, to which the
federal police had access, was of greater importance. Finally, as noted by the
respondent, in that case the Board did not provide the comprehensive analysis
of the cards and database that was offered here.
[15]
Finally,
I do not accept that the Board made a finding that there was no state
protection available in Mexico, as is stated by the
applicants; rather, it accepted the testimony that Mr. Garcia did not report
the incidents because he was afraid this would put himself and his family in
danger. The Board’s finding was clearly based on Mr. Garcia’s own subjective
point of view, and specifically related to Salina Cruz. Accordingly, this
finding did not render the Board’s very distinct IFA analysis unreasonable.
[16]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no question is certified.
“Russel W. Zinn”
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