Date:
20120813
Docket:
IMM-548-12
Citation:
2012 FC 987
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, August 13, 2012
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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ANUAR EDUARDO
MAYORGA GONZALEZ & NATIVIDAD ACUNA LARA
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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]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the panel) made under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (the Act). The panel rejected the applicants’ refugee protection
claim, concluding that they were not refugees or persons in need of protection
within the meaning of the Act.
FACTS
[2]
Anuar
Eduardo Mayorga Gonzalez (the male applicant) and his wife Natividad Acuna Lara
(the female applicant) (together, the applicants) are citizens of Mexico. The
male applicant comes from Guadalajara, Jalisco, and the female applicant from
Villahermosa, Tabasco.
[3]
The
male applicant stated that on May 13, 2009, while he was driving in his
neighbourhood, Santa Elena, in Villahermosa, he witnessed a transaction among a
group of individuals that he suspected of being a drug deal. He stated that
looks were then exchanged between him and the person directly involved in the
transaction. A few days later, while the male applicant was driving with a
friend in the La Selva neighbourhood (acknowledged by the male applicant to be
a dangerous part of Villahermosa), he again encountered the individual involved
in the transaction on May 13. The male applicant recounted the event to
his friend, who informed him that the man was known as “El Pirata” and was a
well known drug trafficker in La Selva, and that he made a practice of being
armed.
[4]
The
male applicant claimed that on May 22, 2009, he was accosted by El Pirata near
his home. El Pirata allegedly became aggressive, blaming the applicant for a
recent drug seizure by the police authorities and for the resulting financial
loss.
[5]
On
May 27, 2009, the male applicant allegedly made a complaint to the Mexican
police authorities. After his deposition was taken, he was informed that the
police service was going to send units to do surveillance in his neighbourhood,
and they had him meet with a psychologist to make sure he was not affected too
much by the events.
[6]
On
May 31, 2009, while the applicants were driving in La Selva, El Pirata allegedly
blocked their way, banged on their car windows and told them he was aware of
the report made about him. He allegedly threatened the male applicant and made
obscene gestures at the female applicant, and then told them he was a member of
a criminal group known as the Zetas and the male applicant’s days were numbered.
[7]
On
June 5, 2009, the applicants left their home and went to live with a friend in
another part of Villahermosa.
[8]
On
June 15, 2009, the applicants gave another deposition to the police
authorities, to report the events of May 31, 2009. They were allegedly
again told that their neighbourhood would be under police surveillance. On the
same day, the male applicant allegedly received a call from El Pirata, who
threatened to rape the female applicant and kill the male applicant.
[9]
The
male applicant left for Canada on June 18, 2009, and the female applicant remained
in Mexico to liquidate his business assets. From June 18 to July 15,
2009, the date when the female applicant joined the male applicant in Canada, she
allegedly received two telephone calls in which attempts were made to extort
money from her by threats. The female applicant did not complain to the
authorities following those events.
[10]
The
applicants’ refugee protection claim was heard by the panel on
November 17, 2011. The panel rejected their claim because state protection
was available in Mexico and there was an internal flight alternative [IFA].
DECISION
UNDER APPEAL
[11]
It
its decision dated December 19, 2011, the panel correctly pointed out that
the ground of persecution alleged by the applicants does not fall under
section 96 of the Act, and so the applicants are not Convention refugees.
The panel instead analyzed the applicants’ refugee protection claim under
paragraph 97(1)(b) of the Act, and had to determine whether they
are persons in need of protection because they would be subject to the risks
listed in that paragraph if they had to return to Mexico.
[12]
The
panel concluded that the applicants had not succeeded in rebutting the
presumption of state protection, as they had not provided clear and convincing evidence
of Mexico’s inability to offer them adequate protection (see Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 [Ward]). Although the situation in
Mexico is not ideal at present, the decisions of the Board and of this Court
recognize that there is state protection in Mexico. While those decisions are
not, in principle, binding on the panel, the decision of the panel on state
protection in TA6-07453, [2007] RPDD No. 253 has been recognized as persuasive
by Justice Zinn (see Mendoza v Canada (Minister of Employment and
Immigration), 2010 FC 648, [2010] FCJ 788 [Mendoza]) and the panel did
not believe it justified to depart from it in this case.
[13]
In
the panel’s view, it cannot be concluded from the failure of the authorities to
provide adequate protection in certain circumstances that the state is unable
to provide its citizens with protection. The panel noted that there are several
organizations in Mexico to help individuals seek protection, such as the
National Human Rights Commission or the Commission for the Defence of Human
Rights. The documentary evidence before the panel shows that those
organizations also offer recourses for individuals who wish to file complaints
against officials who do not do their jobs.
[14]
Accordingly,
the documentary evidence confirms that there are various mechanisms in Mexico
by which victims of crime can file complaints, whether against the criminals,
against the authorities who fail to investigate or against corrupt elements.
The Mexican government, in the Board’s view, is making serious efforts to
tackle the problem of corruption.
[15]
The
male applicant complained to the authorities on May 27, 2009, and the
authorities took his complaint seriously, as illustrated by Exhibit P-3. They
promised him heightened surveillance in his neighbourhood and offered him
psychological support.
[16]
The
panel had regard to all of the evidence in the record and concluded that the
applicants had failed to establish, by clear and convincing evidence, that
Mexico was unable to offer them adequate protection.
[17]
The
panel was also of the opinion that the applicants had an IFA in Mexico, more
specifically in the locations identified as being safe. The panel was thinking
of Mérida and Mexico City, in particular.
[18]
Those
cities are located far from the applicants’ home and the panel believed they
could live there safely. There is no evidence that El Pirata made any effort to
find the applicants after July 15, 2009, and neither the male applicant’s
friend nor the applicants’ family members suffered any reprisals after their
departure. Although the male applicant claimed he could be found anywhere in
Mexico and there is still corruption, there is no concrete evidence to that
effect. The applicants did not prove that their assailant had the means or the ability
to find them everywhere in Mexico. Their problem seems to have been relatively
localized and the documentary evidence shows that it is difficult to find
someone in Mexico using government databases; information about individuals is
not easily accessible.
[19]
The
panel ultimately concluded that the applicants had not established that it
would be unreasonable for them to relocate to Mérida or Mexico City, or that
those cities were inaccessible to them.
[20]
For
those reasons, the panel concluded that the applicants were not refugees or
persons in need of protection within the meaning of the Act. Their refugee
protection claim was therefore rejected.
ISSUES
[21]
This
application for judicial review raises the following issues:
(1) Did
the panel
err in concluding that state protection was available in Mexico, basing its
conclusion on erroneous findings of fact that it made capriciously or without
regard for all of the evidence?
(2) Did
the panel
err in concluding that the applicants had an internal flight alternative?
[22]
The
panel's determination as to whether state protection is available is a question
of mixed fact and law subject to review against the standard of reasonableness
(see Mendoza v Canada (Minister of Citizenship and Immigration), 2010 FC
119 at paragraph 26; Soto v Canada (Minister of Citizenship and Immigration),
2010 FC 1183 at paragraph 26; Burgos v Canada (Minister of Citizenship and
Immigration), 2006 FC 1537 at paragraph 17; Velasquez v Canada (Minister
of Citizenship and Immigration), 2009 FC 109 at paragraphs 12-13 [Velasquez];
Leon v Canada (Minister of Citizenship and Immigration), 2011 FC 34 at
paragraph 12, [2011] FCJ 57 [Leon]).
[23]
The
same standard of review applies to the panel’s conclusion regarding the
existence of an IFA in Mexico (see Rahal v Canada (Minister of Citizenship
and Immigration), 2012 FC 319 at paragraph 22 [Rahal]; Velasquez,
above at paragraph 12).
[24]
This
Court must therefore determine whether the decision and conclusions of the panel
are justified, transparent and intelligible, and fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47 [Dunsmuir]).
ANALYSIS
(1) Did
the panel err in concluding that state protection was available in Mexico,
basing its conclusion on erroneous findings of fact that it made capriciously
or without regard for all of the evidence?
Position
of the Applicants
[25]
The
applicants submit that the panel erred in its state protection analysis. They
contend that the panel failed to have regard to the efforts made by the
applicants and the reprisals they allegedly suffered after filing their
complaints. They state that they had no further recourses available in Mexico
without endangering their lives. The applicants argue that the evidence clearly
establishes that they were threatened for complaining to the police
authorities. In addition, it is not the role of the various organizations
listed by the panel to provide protection, and they are unable to protect the
applicants. In view of the threats and the corruption on the part of the
Mexican authorities, they had no obligation to do more to seek the protection
of the authorities in Mexico, as any other efforts would put their lives in
peril.
Position
of the Respondent
[26]
The
respondent submits that the panel’s decision is reasonable. The applicants had
the burden of rebutting the presumption of state protection with clear and
convincing evidence (see Ward, above), which they did not do. The agent
of the applicants’ persecution was not a state agent, it was a criminal. The
evidence cited by the panel indicates that Mexico offers a number of mechanisms
for victims of crime, in spite of the existence of corruption. The applicants’
testimony confirmed that the Mexican authorities responded to the complaints
made, and not only opened an investigation, but promised heightened
surveillance and offered the male applicant psychological help. As it was
required to do, the panel had regard to the general situation in Mexico, the
efforts made by the applicants and their relationship with the authorities (see
Leon, above). The respondent added that even if the authorities had been
unable to offer the applicants effective protection, that is insufficient to
support their refugee protection claim (Canada (Minister of Employment and
Immigration) v Villafranca [1992] FCJ 1189, (1992) 150 NR 232 [Villafranca]).
The panel’s conclusion that the applicants had not succeeded in rebutting the
presumption of state protection is therefore reasonable.
Analysis
[27]
This
Court may intervene only if the applicants establish that the panel’s findings
regarding state protection were made in a perverse or capricious manner or
without regard to the evidence before it (Leon, above at paragraph 13).
[28]
Although
the applicants were not required to put their lives at risk to show that they
tried to get protection from their country before seeking international
protection (see Villasenor v Canada (Minister of Citizenship and Immigration),
2006 FC 1080 at paragraph 19, [2006] FCJ 1359), they had to present clear and
convincing evidence of their country’s inability to protect them, and it is up
to the panel to assess that evidence (Leon, above at paragraph 28). The
applicants contend that it was unreasonable for them to make further efforts to
seek the protection of the Mexican authorities, their lives being in danger
because of the reprisals to which they were subject after filing their two
complaints. The applicants’ main argument is based on the fact that those
reprisals suggested a direct link between the police authorities and El Pirata.
However, El Pirata associated the male applicant with the drug seizure
following the transaction of May 13, 2009, even before the male applicant had
reported the events to the authorities for the first time. The male applicant left
Mexico shortly afterward and the female applicant did not seek police
protection after the threats made against her between June 18 and July 15,
2009.
[29]
The
panel’s conclusion regarding state protection in Mexico takes into account the
evidence in the record: the panel considered the efforts made by the
applicants, the situation in Mexico and their relationship with the Mexican
authorities. The action taken by the authorities in response to the reports
filed by the applicants shows the ability and willingness of the state to
protect them: the police opened an investigation, promised heightened
surveillance in their neighbourhood and offered the male applicant
psychological help. El Pirata was plainly known to the authorities, since he
had been the subject of a drug seizure even before the male applicant reported
the events of May 13, 2009. It was not sufficient for the applicants to
allege that there is corruption in Mexico or that the government has not always
been able to protect its citizens, to rebut the presumption operating against
them. As Justice Hugessen stated in Villafranca, above at paragraph
7:
[W]here a state is in effective control of its territory . . . and
makes serious efforts to protect its citizens, the mere fact it is not always
successful at doing so will not be enough to justify a claim that the victims
are unable to avail themselves of protection.
[30]
Having
regard to the evidence in the record, it was reasonable for the panel to
conclude that state protection was available in Mexico, the applicants having
failed to provide clear and convincing evidence to rebut the presumption in
that respect. Accordingly, the panel’s conclusion is supported by the evidence
in the record and is transparent, intelligible and justified within the meaning
of Dunsmuir.
(2) Did
the panel err in concluding that the applicants had an internal flight
alternative?
Position
of the Applicants
[31]
The
applicants assert that there is no IFA, since their agent of persecution has
the means and motivation to find them everywhere in the country, the criminal
group to which he belongs having infiltrated Mexico’s various institutions and
organizations. They contend that the panel disregarded the evidence in the
record.
Position
of the Respondent
[32]
The
respondent contends that the panel’s conclusion regarding the existence of an
IFA is also reasonable, since the applicants failed to show that they could not
settle safely in either of the cities suggested. A mere assertion of corruption
in Mexico is insufficient to establish that an IFA is not reasonable or is not
accessible. It was possible to conclude from the documentary evidence in the
record that the personal information of Mexican citizens is protected and is
difficult to access. The applicants failed to establish that actual conditions
would put their lives and safety in peril in Mérida and Mexico City, or that
their lives would be in danger everywhere in Mexico.
Analysis
[33]
The
panel was required to consider the two aspects of an IFA analysis, which it did
(see Ranganathan v Canada (Minister of Citizenship and Immigration), [2001]
2 FC 164, [2000] FCJ No 2118 at paragraph 13 [Ranganathan] and Thirunavukkarasu,
above). The panel had to analyze (i) whether the applicants could live
safely in Mexico, in the locations identified as safe, and (ii) whether
those locations were reasonable and accessible to the applicants.
[34]
The
panel first had to determine whether, having regard to the persecution the
applicants had suffered in their city, and in fact their neighbourhood, it is
“objectively reasonable to expect [them] to seek safety in a different part of
that country before seeking a haven in Canada or elsewhere”. The burden of
convincing the panel of the contrary rested on the applicants, as this Court
noted in Ranganathan, (above at paragraph 15; see also Perez v Canada
(Minister of Citizenship and Immigration), 2011 FC 8 at
paragraph 15, [2011] FCJ 16):
. . . It
requires nothing less than the existence of conditions which would jeopardize
the life and safety of a claimant in travelling or temporarily relocating to a
safe area. In addition, it requires actual and concrete evidence of such
conditions.
[35]
The
applicants simply asserted that corruption was present throughout Mexico and
that their agent of persecution could find them anywhere. That is not
sufficient, and it does not constitute actual, concrete evidence of the
circumstances that would put their lives or safety in peril. The applicants
presented no evidence that their agent of persecution had the desire and/or the
ability to find them, nor were they able to identify for this Court the
evidence showing such a desire or ability that was disregarded by the panel.
[36]
Having
regard to the fact that the applicants did not produce any actual, concrete
evidence showing that Mérida and Mexico City were unreasonable IFAs or that
those cities were inaccessible to them, the panel’s conclusion was reasonable.
The existence of an IFA is conclusive and is sufficient in itself for the
applicants’ application for judicial review to be dismissed (see Villasenor,
above at paragraph 20).
CONCLUSION
[37]
I
am therefore of the opinion that the applicants have not established that an
error was made by the panel that would justify intervention by this Court, nor
have they identified evidence that was disregarded by the panel. The panel’s
decision falls “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above at
paragraph 47). Intervention by the Court is not warranted.
[38]
The
parties agree that this case does not raise any question for certification. The
Court is also of that view.
JUDGMENT
THE
COURT ORDERS THAT:
1.
the
application for judicial review is dismissed.
2.
the
case raises no question for certification.
“Jocelyne
Gagné”
Certified
true translation
Monica
F. Chamberlain
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