Date: 20090810
Docket: IMM-281-09
Citation: 2009 FC 806
Ottawa, Ontario, this 10th day of August
2009
Present: The Honourable Orville
Frenette
BETWEEN:
LIZBETH ADRIANA GOMEZ ESPINOZA
LUIS DANIEL GOMEZ ESPINOZA
EVA ESPINOZA CASTILLO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
I. Introduction
[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”) rendered
on November 28, 2008, determining that the applicants were not Convention
refugees nor persons in need of protection pursuant to sections 96 and 97 of
the Act.
II. The facts
[2]
The
principal applicant, Lizbeth Adriana Gomez Espinoza, her mother, Eva Espinoza
Castillo, and her brother, Luis Daniel Gomez Espinoza, are all Mexican
citizens. The latter applicants are relying on the principal applicant’s claim and
their Personal Information Form (“PIF”).
[3]
The
principal applicant claims to have a well-founded fear of persecution at the
hands of her ex-partner Cesar Vargas Martinez (“Vargas”).
[4]
The
principal applicant was licensed in the field of Communication Sciences in
Journalism and worked as a news reporter for a local television station in Guererro, Mexico. She
related having met Vargas in October 2006, in a hotel in Acapulco where they
both worked. She became pregnant in January 2007. They lived together for one
and a half months in February 2007. She then moved to her mother’s house in Tampico, Mexico. Vargas came
to see her in Tampico, caused a
scene and assaulted her physically. He also wanted her to obtain an abortion.
[5]
She
sought support and protection from a government agency (Integral Development of
the Family, “DIF”) and a family court, but received no support. DIF recommended
her to seek help from the police. She did not report the threats or assaults in
2007 to the police or an alleged kidnapping attempt on June 4, 2007 because she
feared them. She claims Vargas threatened to reach her, because he was in the
drug trafficking business and had contacts through which he could find her. She
fled to Canada on June 6,
2007 and claimed refugee protection on June 25, 2007. [During her testimony she
said she did not report the assaults and attempted kidnapping to the police but
admitted she went to the police once, to obtain information about Vargas (page
668 of the Tribunal Record).]
[6]
The
applicant declared that Vargas threatened to kill her and her family.
III. The impugned decision
[7]
The
Board found that the applicants had a viable Internal Flight Alternative
(“IFA”) in Guadalajara,
Mexico,
and that if state protection is needed, the authorities of that city would be
able to offer protection to the applicants.
IV. The issue
[8]
The
only issue in this matter is whether the Board erred in finding that the
applicants had a viable IFA available to them in Guadalajara or elsewhere
in Mexico.
V. Pertinent legislation
[9]
Sections 96 and 97 of the Act read as follows:
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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.
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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.
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VI. The standard of review
[10]
To
determine a claimant’s risk of return to a particular country is a fact-driven
inquiry which calls into play paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F-7, which provides this Court may grant relief
if it is satisfied a tribunal “based its decision or order on an erroneous
finding of fact that it made in a perverse or capricious manner or without
regard to the material before it”.
[11]
The
Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, and Canada (Minister of Citizenship and Immigration)
v. Khosa,
2009 SCC 12, has established that questions of fact or mixed fact and law, are
to be governed by the standard of reasonableness. In judicial review,
reasonableness is concerned mostly with “the existence of justification,
transparency and intelligibility within the decision-making process” and
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, supra,
at paragraph 47).
[12]
Questions
of law are reviewable on a standard of correctness as are questions of
procedural fairness (see Chrétien v. Canada (Commission
of Enquiry into the Sponsorship Program and Advertising Activities, Gomery
Commission), [2008] F.C.J. No. 973 (QL)).
[13]
Questions
of credibility are to be assessed on the standard of reasonableness (see, for
example, Malveda v. Minister of Citizenship and Immigration, 2008 FC
447; Aguirre v. Minister of Citizenship and Immigration, 2008
FC 571; Khokhar v. Minister of Citizenship and Immigration, 2008 FC
449, and Tovar v. Minister of Citizenship and Immigration, 2009 FC 600).
VII. Analysis
[14]
The
applicants contest the part of the respondent’s submission that the
“applicant’s evidence was suspect”, and argued that she made insufficient
efforts to seek state protection, neither of which was a finding of the Board.
The applicant argues that she would not add these grounds, since the “Board’s
decision and reasons must stand on their own”. She draws support on this point
from the following jurisprudence: Ako v. Minister of Citizenship and
Immigration, [2005] F.C.J. No. 5, at paragraph 12, and Pankou v.
Minister of Citizenship and Immigration, [2005] F.C.J. No. 247, at
paragraph 10.
[15]
The
above authorities are not contested but a reading of the Board’s decision
reveals that it discussed and considered the availability of state protection
and the legislation against gender violence in general and in this case (at pages
4 to 9), with special emphasis on the reasonableness of an IFA in Guadalajara.
It is clearly inherent in the Board’s reasons that it considered the principal applicant
had not made sufficient efforts to seek state protection (in general) but especially
a viable IFA in Guadalajara, Mexico. Therefore, the
applicant’s submission on this point is unfounded. The case turns on this IFA.
[16]
The
applicants argue that the Board erred in finding that they had a viable IFA in Guadalajara. They fear
living anywhere in Mexico because Vargas is a drug trafficker who has
connections and can find them anywhere in Mexico. They submit
that Vargas found the principal applicant at her aunt’s house in Tampico yet no one
from the family told him where she was. The applicants add that there is no
evidence of “police response” to the principal applicant’s claims of domestic
abuse, and Mexico has a
corrupt, ineffective police response to domestic violence against women (Garcia
v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 385,
at paragraph 14).
[17]
The
respondent answers that the applicants have not adduced evidence of the
inadequacy of an IFA in Guadalajara, that the state of Jalisco, where
Guadalajara is located, has laws to protect women since 2003 plus a federal law
since February 2007, and has an interdisciplinary team offering free services
for women victims of violence. This is based upon up-to-date documentation.
[18]
The
respondent pleads that there is no persuasive evidence that Vargas is involved
in drug trafficking or that he has means to find the applicants in Guadalajara or another
city of Mexico.
[19]
Finally,
the respondent argues the applicants have not discharged the burden of
establishing that an IFA was not open to them in Guadalajara, Mexico.
[20]
In
principle an applicant must prove on a balance of probabilities that he or she
cannot reasonably obtain safety in another part of the country of origin (Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706
(C.A.); Thirunavukkarasu v. Canada (Minister of Employment
and Immigration), [1994] 1 F.C. 589 (C.A.); Munoz v. Minister of
Citizenship and Immigration, 2009 FC 478; Vargas v. Minister of
Citizenship and Immigration, 2008 FC 1347 and A.T.V. et al. v. Minister
of Citizenship and Immigration, 2008 FC 1229).
[21]
An
IFA is subject to a two-pronged test: (a) the Board must be satisfied that
there is no serious danger of persecution in the city where the IFA is located,
and (b) the Board must consider whether the claimant can reasonably, without
undue hardship, seek refuge in that city.
[22]
The
respondent submits that in this case, seeing the evidence, the Board was
justified to suggest Guadalajara as an accepted IFA.
[23]
The
applicants argue that notwithstanding the fact that Mexico has federal and
state laws declared to protect citizens from domestic violence plus declared
good intentions, women in Mexico are left unprotected because either the police
or other authorities of the state, do not consider domestic violence a police
matter but rather a private one and no effective action is taken to prevent it.
The applicants claim that the Board’s analysis that the police in Mexico respond to
complaints of domestic violence is erroneous and constitutes an error of law.
[24]
The
applicants’ counsel relies heavily on the following statement found in Garcia,
supra, at paragraph 16:
. . . The same test applies to the help
that a woman might be expected to receive at the complaint counter at a local
police station. That is, are the police capable of accepting and acting on her
complaint in a credible and earnest manner? . . .
[25]
The
principal applicant claims that when she approached the police in Acapulco with her
complaint, they did not respond “in a credible and honest manner”.
[26]
The
respondent submits that the above argument is incorrect because when the
principal applicant approached the police in Acapulco it was not
to lodge a complaint but solely to obtain the whereabouts of Vargas. In fact,
she did not report the threats of violence, assaults or kidnapping.
[27]
Even
in a case where an alleged victim of domestic violence lodges a complaint with
the appropriate state authorities, the complainant must later show to the Board
some evidence which is sufficient to rebut the presumption of state protection,
i.e. clear and convincing evidence (see Montesinos Hidalgo v.
Minister of Citizenship and Immigration, 2009 FC 707, at paragraph 22).
[28]
Furthermore,
the Board did discuss and analyse the issue of the violence against women in Mexico and the
state’s laws and efforts to counter such violence (at pages 4, 5 and 6 of its
decision).
[29]
The
principal applicant claims the Board did not follow the gender guidelines which
exist to help it in domestic violence cases against women. In fact, the Board
did consider in general the issues covered by these guidelines.
[30]
I
reiterate that to rebut the presumption of state protection, an applicant must
present clear and convincing evidence that the state protection is either non-existent
or inadequate (Flores Carrillo v. Canada (Minister of Citizenship and
Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at paragraph 38). It is
insufficient for a claimant to successfully rebut the state protection
presumption simply to allege or show that the state has not always been
effective in protecting its citizens in their particular circumstances (Canada
(M.C.I.) v. Villafranca (1992), 150 N.R. 232 (F.C.A.); J.C.M.G. et al. v.
Minister of Citizenship and Immigration, 2009 FC 610). As long as the state
provides adequate “not necessarily effective” protection, the criterion
required in law is satisfied (Zalzali v. Canada (Minister of Employment and
Immigration), [1991] 3 F.C. 605 (F.C.A.)).
[31]
An
analysis of the Board’s decision leads to the conclusion that it considered
adequately the issue of state protection and particularly the issue of an IFA
and concluded the applicants had a viable, acceptable IFA by moving to the city
of Guadalajara, Mexico. Finally the
impugned decision falls well within the range of acceptable outcomes that flow
from the facts and the law.
VIII. Conclusion
[32]
The
application must therefore be dismissed.
JUDGMENT
The
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 rendered on November 28,
2008, determining that the applicants are not Convention refugees nor persons
in need of protection pursuant to sections 96 and 97 of the Act, is dismissed.
No
question is to be certified.
“Orville
Frenette”
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