Docket:
IMM-6487-11
Citation:
2012 FC 315
Ottawa, Ontario, March 16, 2012
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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JUAN
CARLOS HERNANDEZ OLIVA
LETICIA
ROSAS RODRIGUEZ
KARLA
PAMELA HERNANDEZ ROSAS (MINOR)
CARLOS
IVAN HERNANDEZ ROSAS (MINOR)
SAMANTHA
NATALY HERNANDEZ ROSAS (MINOR)
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|
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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
question is whether it would have been unreasonable for the applicants, Mexican
citizens all, to seek refuge in Guadalajara,
rather than to claim refugee status in Canada. The Refugee Protection Division of the
Immigration and Refugee Board of Canada found that Guadalajara would be a viable internal flight
alternative (IFA). In my opinion, that decision was not unreasonable, and
should not be overturned.
[2]
The
applicants were residents of Leon. They fear their former
neighbour, an alleged criminal, one Mr. Sanchez Reynoso, nicknamed “El Cosmos”.
In 2008, they realized that El Cosmos, who had recently moved into the
neighbourhood, was selling drugs. They made an anonymous call to a police tip
line. El Cosmos was arrested. Thereafter, they were intimidated by individuals
who may have been members of the Federal Investigation authority and told they
had to pay El Cosmos money.
[3]
Mr.
Hernandez Oliva informed his supervisor at work who identified someone with
whom they could stay in Aguascalientis. They moved there, but were tracked
down. They then fled to Mexico
City, but were
again tracked down.
[4]
Although
the Board expressed some concerns with respect to the applicants’ credibility,
the decision turned on the IFA. I can assume that the applicants were credible
and had a legitimate subjective fear of El Cosmos.
[5]
As the
family did not file change of official residence documents, did not send their
children to school, and only worked for cash, the question arises as to
how they were found out by El Cosmos. The only explanation is that Mr.
Hernandez Oliva continued to communicate with his former boss by telephone
landlines. Since El Cosmos tracked them down after their anonymous tip, it may
well be that he was able to tap telephone lines in Leon. As to whether his influence extended
beyond that city, a newspaper article was filed which indicated that there was
a powerful drug dealer with the nickname El Cosmos, based out of Cancun.
However, there is no evidence whatsoever that the two “El Cosmos” are one and
the same.
[6]
As to a
viable IFA, the Board noted that it had to be satisfied on the balance of
probabilities that there was no serious possibility that the applicants would
be persecuted, or in danger of torture or subjected to a risk to their life or
cruel and unusual punishment or treatment in Guadalajara, and that the
conditions there were such that it would be reasonable, in all the
circumstances, for them to claim refuge there.
[7]
As the
panel was not satisfied that the influence of El Cosmos extended beyond Leon, and assuming that Mr. Hernandez Oliva
would stop communicating with his former boss, the decision was not
unreasonable.
[8]
A refugee
claim is in its very essence forward-looking. The applicants submit that the Board’s
decision was outright speculation, rather than inference. However, the burden
of proof is on the applicants and, if anything, they are the ones who are
speculating.
[9]
In cases
such as these, all the facts cannot possibly be known, so that the burden of
proof is an important element to take into consideration.
[10]
The IFA is
inherent in any determination as to whether a person is a refugee, the burden
being on the applicant (Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706, [1991] FCJ No 1256 (QL) (FCA), Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1994] 1 FC 589, [1993]
FCJ No 1172 (QL) (FCA)). As Justice Devlin, as he then was, said in Waddle v
Wallsend Shipping Company, Ltd, [1952] 2 Lloyd’s Rep 105, at page 139:
In a case where substantially all the
facts have been brought to light, it is no doubt legitimate to argue that some
cause must be found, and therefore the one that has most to be said for it
should be selected. Where it can fairly be said that all possible causes have
been canvassed, the strongest must be the winner. But in a case where all
direct evidence is missing, there is no ground for saying that the most
plausible conjecture must perforce be the true explanation. The answer that may
well have to be given is that not enough is known about the circumstances of
the loss to enable the inquirer to say how it happened. All that he can say is
that no theory advanced has been able to collect enough support from the facts
to make it more likely than not that it happened in that way and not in any
other...
[11]
Consequently,
the application falls.
[12]
The
parties agree that there is no serious question of general importance to
certify.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that
1.
This
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”