Date: 20090508
Docket: IMM-4870-08
Citation:
2009 FC 482
Ottawa,
Ontario, May 8, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
GUADALUPE BALLESTEROS VALERIO
SUZANA QUINTERO CIENFUEGOS
JONATHAN ALDHER BALLESTEROS QUINTERO
JESSICA ALEJANDRA BALLESTEROS QUINTERO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act),
of a decision by the Refugee Protection Division of the Immigration
and Refugee Board (panel)
dated October 10, 2008, that the applicants are not Convention refugees or
persons in need of protection.
[2]
For the following
reasons, the application for judicial review will be dismissed.
Factual background
[3]
Guadalupe
Ballesteros Valerio, his spouse Susana Quintero Cienfuegos and their two
children, Jonathan Aldher Ballesteros Quintero and Jessica Alejandra Ballesteros
Quintero, all citizens of Mexico, are claiming refugee
protection based on section 96 and subsection 97(1) of the Act. The mother is
named as the designated representative of the two minor children and the
members of the family are basing their refugee claim on that of the principal
applicant, the father.
[4]
The
applicant started working as a driver and delivery person for the company Sersufar
in February 2000. This company manufactures drugs. As he was transporting some
equipment and merchandise, several boxes fell and came open, and some white
powder escaped from the boxes. His employer, José Luis Arias, came to the scene
with three uniformed municipal police officers. They started to punch the
applicant. After the applicant had returned home, his former employer telephoned
him and told him that he would make him and his family disappear.
[5]
The
following day, the applicant went to the public ministry to file a complaint. He
was given a blank page on which he was asked to recount the facts of the
incident and was told that the process would be lengthy and difficult since
police officers were involved.
[6]
On October
14, 2006, at about 3:00 p.m., two unknown persons forcibly seized the applicant
and tried to make him get into their car. Several people intervened and the
applicant was freed. Again, he went to the public ministry to report these
facts and he was told that someone would contact him.
[7]
On October
22, 2006, gunshots coming from outside his residence were fired in his
direction. He went to see a lawyer the next day. This counsel told him that it
was futile to continue to file complaints, and that it would be preferable if
he left the country.
[8]
The
applicant arrived in Canada on November 6, 2006, and he
made his refugee claim on December 4, 2006.
Impugned decision
[9]
The panel
rejected the claim on the basis of state protection and the possibility of an internal
flight alternative (IFA) in the cities of Guadalajara, Monterrey, Tijuana and Cancun.
[10]
The panel
considered that the applicant had 12 years of education and that he had worked
as a driver and delivery person for five different companies between the years
of 1996 and 2006. He could have therefore found work elsewhere in Mexico. His spouse also had 12 years
of education and had worked in customer service between 1997 and 1998. She
resumed this work from November 2006 until April 2007 for an office supplies
company. Regarding the two minor children, they could continue to go to primary
school and nursery school.
[11]
Citing (Ranganathan
v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, 266 N.R.
380), the panel found that the difficulties associated with moving and
resettling would not make the IFA unreasonable. The IFA was therefore a
realistic and affordable option in this particular case.
Standard of review
[12]
The
appropriate standard of review for issues of state protection is reasonableness
(Chaves v. Canada (Minister of Citizenship and Immigration), 2005
FC 193, 137 A.C.W.S. (3d) 392 at paragraphs 9 to 11; Gorria v. Canada (Minister
of Citizenship and Immigration), 2007 FC 284, 310 F.T.R. 150 at paragraph
14 and Chagoya v. Canada (Minister of Citizenship and Immigration), 2008
FC 721 at paragraph 3, [2008] F.C.J. No. 908 (QL)).
[13]
The
appropriate standard of review for IFA issues was patent unreasonableness (Khan
v. Canada (Minister of Citizenship and Immigration), 2005 FC 44, 136 A.C.W.S.
(3d) 912 and Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, 238 F.T.R.
289). According to Dunsmuir, the Court must continue to show deference in
determining an IFA and this decision is reviewed on the new standard of
reasonableness. Consequently, the Court will intervene only if the decision
falls outside the range of “possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir, above at paragraph 47). The reasonableness of a decision is concerned with the existence of
justification, transparency and intelligibility within the decision-making
process.
[14]
In this
case, the panel determined that the principal applicant failed to provide clear
and convincing evidence that the State of Mexico was unable to ensure his
protection because he did not exhaust all recourses available to him by the
State of Mexico before seeking international
protection.
[15]
This conclusion
is not unreasonable in light of the context. The panel could also have found
that the applicant did not make a genuine effort to seek state protection
because he left Canada less than a month after
filing his first complaint.
[16]
With
respect to the establishment of an IFA, the Federal Court of Appeal stated that
this must be carried out in two steps: 1. the Board must be satisfied on the
balance of probabilities that there is no serious risk that the applicants will
be persecuted in the suggested place; and 2. the situation in the suggested
place is such that it is not unreasonable for them to seek refuge there (Thirunavukkarasu
v. Canada (Minister
of Employment and Immigration),
[1994] 1 F.C. 589 (C.A.)).
[17]
For the
first step of the analysis, the panel determined that there was no serious risk
of the principal applicant being persecuted by his alleged persecutors. The
panel simply did not believe that his former employer and the municipal police
officers who had accosted him would have been interested in searching for him
all over the country. The panel also did not believe that they would have had
the means to search for and find the applicant in that immense country,
especially since documentary evidence indicates that the municipal police even have
a difficult time tracking down those involved in crimes of local jurisdiction.
[18]
For the
second step, the panel found that internal flight was a reasonable option that
would not impose an unreasonable burden on the applicants. Considering the
personal circumstances of the applicants, the panel found that it would not be
unreasonable for the family to settle elsewhere in the country.
[19]
In Thirunavukkarasu,
above, the Court established that an applicant must cross a very high
threshold to prove that the IFA is unreasonable. As explained in Ranganathan (Minister
of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.), at
paragraph 15:
. . . 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.
The absence of relatives in a safe place, whether taken alone or in conjunction
with other factors, can only amount to such condition if it meets that
threshold, that is to say if it establishes that, as a result, a claimant's
life or safety would be jeopardized. . . .
[20]
The
panel’s decision is based on the testimony of the applicant as well as the
documentary evidence in the record and it is reasonable in light of the
circumstances.
[21]
The
intervention of the Court is not warranted in this proceeding.
[22]
The
parties did not propose any question for certification.
JUDGMENT
THE COURT ORDERS that this
application for judicial review be dismissed and no question is certified.
“Michel
Beaudry”
Certified
true translation
Janine
Anderson,
Translator
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