Date:
20090521
Docket: IMM-4686-08
Citation: 2009 FC 512
Ottawa, Ontario, this 21st day of May
2009
Present: The Honourable Orville
Frenette
BETWEEN:
Antonio de Jesus PELLON FRICKE
Dolores ALARCON PORTILLA
Jose Daniel PELLON ALARCON
Miguel Alexis NUNEZ ALARCON
Francisco Emmanuelle NUNEZ ALARCON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the “Board”),
dated September 15, 2008, determining that the applicants were not Convention
refugees or persons in need of protection pursuant to sections 96 and 97 of the
Act.
I. The Facts
[2]
The
applicants are a family of five from Veracruz, Mexico. The principal
applicant is Dolores Alarcon Portilla. Her common-law spouse, Antonio de Jesus
Pellon Fricke, their child, Jose Daniel Pellon Alarcon, and her two children
from her previous marriage, Miguel Alexis and Francisco Emmanuelle Nunez
Alarcon, are the other refugee claimants.
[3]
The
applicants fled Mexico after being verbally and physically threatened
over a number of years by Ms. Alarcon’s estranged husband, Miguel Angel Nunez
Damian (Miguel).
[4]
Ms.
Alarcon alleges that in January 2003, she separated from her husband as a
result of physical and verbal violence within the marriage.
[5]
In
June 2004, Miguel allegedly appeared at judicial proceedings for child support
and violence was cited as the reason for the break-up of the marriage. He was
released, provided he paid support into courts. Ms. Alarcon contends that
Miguel showed up at her place of employment and was abusive toward her. She
claims she was forced to quit her job in August 2004, as a result.
[6]
On
August 28, 2004, Mr. Fricke alleges he was beaten by two men, who he claims
looked like judicial police officers. He maintains that, at a later date, he saw
Miguel in the same car as the perpetrators.
[7]
In
May 2005, Mr. Fricke and Ms. Alarcon began cohabiting when they found out that
she was pregnant. There was no contact between Miguel and the applicants from
August 2004 to August 2005.
[8]
On
August 12, 2005, approximately one year after the alleged beating, Ms. Alarcon
claims that Miguel showed up at her home while Mr. Fricke was at work. She
states that Miguel brandished a gun at her and threatened her. Her neighbours
called the police, who attended at the residence and her ex-husband fled. The
police returned requesting money in order to continue investigating.
[9]
In
August 2005, the applicants decided to live separately, so Ms. Alarcon moved
back into her parents’ home.
[10]
It
is alleged that Miguel is employed as some high ranking member of a political
party, the Party of the Democratic Revolution.
[11]
In
December 2005, Mr. Fricke quit his job and started a new business.
[12]
In
June 2006, Mr. Fricke and Ms. Alarcon moved back in together. However, Miguel
would have threatened Ms. Alarcon on the phone and in September 2006, he would
have showed up at the applicants’ home. They allege that Miguel was armed and
accompanied by two men who assaulted Mr. Fricke. When neighbours appeared,
Miguel fled. The applicants did not report this incident to police.
Nevertheless, Mr. Fricke notes that the police were called but because Miguel
had fled, they did not come to investigate. He further states that the
perpetrators would have actually warned him against contacting the police.
[13]
In
September 2006, Mr. Frick alleges his workplace was vandalized and he
attributes this to Miguel, because of the language used in the written threats.
[14]
In
October 2006, Ms. Alarcon claims that she got two threatening calls.
[15]
Mr.
Frick came to Canada in October
2006, and Ms. Alarcon and the children came to Canada in December
2006. Ms. Alarcon remained behind to seek legal assistance in getting the
courts’ permission to bring Miguel Alexis and Francisco Emmanuelle to Canada.
II. The Impugned Decision
[16]
The
Board concluded that the applicants’ fear of persecution is not well-founded.
The determinative issues were the availability of state protection and the
viability of an Internal Flight Alternative (“IFA”) to Guadalajara.
[17]
The
Board accepted that Ms. Alarcon had suffered abuse during the time she was
married and made no adverse credibility finding with respect to the subsequent
events related by the applicants, except that it did not believe Ms. Alarcon
had received harassing phone calls from Miguel during the final two months she
was in Mexico, as she
testified.
[18]
Specifically,
on the question of state protection, the member found: “that the claimants did
not make a reasonable or diligent effort to seek protection in Mexico before
coming to Canada”. The Board rejected
the applicants’ explanation that state protection would not be effective,
saying:
The Board
has found the claimants’ responses regarding the effectiveness of state
protection to be unreasonable and unsatisfactory, since their statements about
the police are vague, speculative and inconsistent with what objective agencies
who observe conditions in Mexico indicate.
The Board concluded: “protection would be
reasonably forthcoming”.
[19]
With
regard to the IFA, the member correctly set out the two-pronged analysis from Rasaratnam
v. Canada (M.E.I.), [1992] 1 F.C. 706 (C.A.), and concluded as to the first
prong that “the claimant could not be easily located in Guadalajara”, and that
Miguel would not pursue her there since if he “was going to harm her, he would
have done so by now”.
[20]
The
Board also appeared to find that Guadalajara is too far from Veracruz for Miguel
to bother pursuing her there. In any event, according to the Board, there is
state protection available if Miguel does locate her.
[21]
As
for the second prong, the Board concluded that “it would not be unreasonable”
for the family to seek refuge in Guadalajara.
III. The Issues
[22]
The
applicants raise the following issues:
a.
Bias
Regarding the Agent of Persecution: Whether there is a reasonable apprehension
of bias with respect to the Board member’s assessment of the actions of the
agent of persecution?
b.
Internal
Flight Alternative for Children: Whether the Board member erred in law by
failing to consider whether an individual could be located by means of legal
entitlement a father has to his children?
c.
Internal
Flight Alternative Generally: Whether the Board member made inferences not
supported by the evidence as to whether the agent of persecution would seek to
find the claimants and what he would do to them?
d.
State Protection:
Whether the Board member failed to follow Federal Court jurisprudence in her
analysis of state protection; ignored specific evidence of the lack of state
protection and failed to consider documents supporting the applicant’s
testimony?
IV. The Legislation
[23]
Sections
96 and 97 of the Act read as follows:
|
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
|
96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de
son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
V. The Standard of Review
[24]
The
jurisprudence has established that the standard
of review for the assessment of facts or mixed facts and law is one of
reasonableness and, on questions of law the standard is correctness (Dunsmuir
v. New Brunswick,
[2008] 1 S.C.R. 190). Deference must be given to decisions in findings of fact
(Minister of Citizenship and Immigration v. Khosa, 2009 SCC 12).
Breaches of the rules of natural justice or procedural fairness are also
governed by the standard of review of correctness (Juste v. Minister of
Citizenship and Immigration, 2008 FC 670, paragraphs 23 and 24; Bielecki
v. Minister of Citizenship and Immigration, 2008 FC 442, paragraph 28; Hasan
v. Minister of Citizenship and Immigration, 2008 FC 1069, paragraph 8).
VI. Analysis
A. Apprehension
of Bias
[25]
The
applicants assert that the Board adopted an attitude which gave rise to an
apprehension of bias because of the way it misused the information from the
Designated Representative in regards to the intentions of the agent of
persecution. They declare that they had no reason to believe it was biased
during the hearing and it only became apparent after a review of the reasons of
the decision. They plead that this had a direct impact on the central issues of
their claim.
[26]
The
respondent contests this submission arguing that there is no evidence to
support such a conclusion.
[27]
The
test for reasonable apprehension of bias was set out by the Supreme Court of Canada
in Committee for Justice and Liberty et al. v. National Energy Board et al.,
[1978] 1 S.C.R. 369, at page 394:
. . . the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the question and
obtaining thereon the required information. […] that test is “what would an
informed person, viewing the matter realistically and practically—and having
thought the matter through—conclude”.
[28]
The
high threshold of the apprehension of bias test has to be based upon evidence
to reverse the strong presumption of judicial impartiality (Wewaykum Indian
Band v. Canada, [2003] 2 S.C.R. 260; Ferrari v. Minister of Citizenship
and Immigration, 2008 FC 1334, paragraphs 24 to 29).
[29]
In
this case, the applicants admit they perceived no sign justifying a reasonable
apprehension of bias during the hearing. I see no evidence in the Board’s
decision which would support a conclusion of reasonable apprehension of bias.
Even if the Board interpreted the evidence or drew inferences unfavourable to
the applicants, this does not support per se, such a conclusion. The
respondent submits the allegation of bias is without foundation and the Board
was merely exercising its obligation to assess the evidence.
[30]
It
was the Board’s duty to draw the inference which it believed, emanated from the
evidence. Therefore, in my view, the issue of bias is not founded.
B. Internal
Flight Alternative
[31]
The
applicants resided in Veracruz, Mexico; the estranged husband apparently
lived in Mexico
City,
about 600 kilometres away.
[32]
There
was question of an IFA to Guadalajara, which is 1200 kilometres from Veracruz. During the
last two months, the principal applicant lived in Mexico City, but in
hiding because she feared the biological father of her children who had
threatened them.
[33]
The
applicants argue the Board unreasonably inferred from the evidence that they
could live elsewhere in Mexico such as Guadalajara. They submit
that they could be reached there because of parental rights of visitation for
the children. However, the respondent answers that in such a case,
accommodation can be obtained from the Court to avoid publicizing their
residential address.
[34]
The
respondent pleads that it was reasonable for the Board to suggest an IFA such
as Mexico City or Guadalajara without a serious possibility of being
persecuted. Furthermore, the Board considered the evidence with regard to the
test set out in case law (Rasaratnam, supra and Thirunavukkarasu
v. Canada (M.E.I.), [1994] 1 F.C. 589 (C.A.)).
[35]
The
Board considered the likelihood that the children’s biological father would be
able to find the applicants, if he desired to do so. However, as the respondent
pointed out, in custody proceedings in Mexico the parents
report their addresses, but the Court can, in case of domestic violence, allow the
aggrieved to orally give his or her address to the Court.
[36]
In
my view, the Board’s reasoning is based on its assessment of the facts, and the
applicable law; therefore it did not commit a reviewable error on this question.
C. State
Protection
[37]
The
applicants submit that the Board erred in finding that they did not diligently
seek state protection because when they did in Mexico, it was
adequate and “reasonably forthcoming”. The Board faulted the principal
applicant for not contacting the police on many occasions over the years when
she was assaulted by Miguel. As for Mr. Fricke, it found that he never reported
to the police the physical assault suffered on September 16, 2006 or that his
business had been vandalized.
[38]
The
respondent answers that the Board interpreted correctly the evidence and that
the applicants had not established by “clear and convincing evidence” that the
state was unable or unwilling to protect them based upon Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689; Hinzman v. Minister of
Citizenship and Immigration, 2007 FCA 171; Carrillo v. Canada, [2008]
1 F.C.R. 3 (C.F.); and Granados v. Minister of Citizenship and Immigration,
2009 FC 210, at paragraph 19.
[39]
Mexico is
considered a “democratic country” and clear evidence is required to rebut the
presumption of state protection depending on the level of democracy in that
country (Carrillo, supra). However, claimants have the obligation
to show they sought state protection in their country before claiming refugee
status in Canada (see Hussain v. Minister of Citizenship and Immigration,
2003 FCT 324; Castro v. Minister of Citizenship and Immigration, 2006 FC
332, and Canseco v. Minister of Citizenship and Immigration, 2007 FC
73). Although Mexico is a developing democratic country, it is recognized in
documentation and by the Board that it has persistent problems with corruption,
state involvement in organized crime, drug trade, and lack of respect for the
rule of law (De Leon v. Minister of Citizenship and Immigration, 2007 FC
1307; Zepeda v. Minister of Citizenship and Immigration, 2008 FC 491).
[40]
The
evidence in the present case reveals that violence against women remains an
important problem in Mexico and the state does lack an effective
system to protect the victims even though it is making efforts to correct the
situation (Human Rights Watch World Reports, 2007, 2008 and 2009).
[41]
The
applicants allege that the Board did not consider whether the state protection
available in Mexico was
effective, a problem pointed out in documentary evidence. The respondent points
out that the Board did address this concern and referred to the applicable law.
[42]
The
specific question as to whether there is “effective” state protection is not,
according to Justice Richard G. Mosley, the right test as much as “adequacy”.
He wrote these lines in Mendez v. Minister of Citizenship and Immigration,
2008 FC 584:
[22] A
number of decisions of this Court have held effectiveness is too high a
standard . . . the test is whether the state protection is adequate.
[43]
Therefore,
the basic question is whether state protection was solicited and if so, was it
“adequate”. A number of recent decisions of our Court upon the questions of IFA
and state protection in Mexico have dismissed applications for judicial
review on this very point. See Ferrari, supra; Lozada v.
Minister of Citizenship and Immigration, 2008 FC 397; Mendoza v. Minister
of Citizenship and Immigration, 2009 FC 376, and Granados, supra.
[44]
The
Board’s decision on these questions of IFA and state protection is subject to
the standard of review of reasonableness. The decisions of administrative
tribunals are entitled to deference (Dunsmuir and Khosa, supra).
[45]
The
evidence in the present case revealed that the principal applicant has been a victim
of numerous incidents of domestic violence and threats on the part of her
estranged husband. During her marriage she did report this to the police in Mexico. On one
occasion, the police did not investigate and on another they came but demanded
a bribe to investigate. After another complaint, her estranged husband found
out about it, and threatened her. This engendered a lack of confidence in the
police or judicial authorities.
[46]
The
applicants resided in Veracruz but move frequently to
avoid harassment. However, they never sought an IFA such as Guadalajara in Mexico. I must
admit that the situation of abuse applications is sympathetic but this Court
cannot intervene with a Board’s very well analyzed and documented decision
unless it is decided to be unreasonable.
[47]
Applying
the Dunsmuir and Khosa decisions of the Supreme Court of Canada,
I must conclude that the Board’s decision falls within “a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
supra, at paragraph 47).
VII. Conclusion
[48]
Based
upon the foregoing reasons, the application for judicial review will be dismissed.
JUDGMENT
The application for judicial
review pursuant to section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, of the decision of the Refugee Protection Division of the
Immigration and Refugee Board, dated September 15, 2008, is dismissed.
No questions are certified.
“Orville
Frenette”
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