Date: 20110308
Docket: IMM-3193-10
[UNREVISED ENGLISH
CERTIFIED TRANSLATION] Citation: 2011
FC 271
Toronto, Ontario, March 8,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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MARCOS HERNANDEZ RENDON
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Hernandez
Rendon is a citizen of Mexico who is seeking refugee protection in Canada. He alleges
that he was raped by his stepbrother and that he was ostracized by his family
when he told his father about the rape. He also claims that he suffered
physical and emotional abuse from his father and from schoolmates. He became an
advocate for gay rights in Mexico.
[2]
In
2000, the applicant began work teaching courses at the Police College in the state
of Mexico. When he
discovered the existence of corruption that involved selling course grades,
cocaine and diplomas in colleges, he began reporting these acts in 2005. As a
result of his speaking out, he claims he was assaulted on the college
principal’s orders and that he was raped by one of the assailants.
[3]
He
was fired in 2006, and then assaulted once again in 2007. He complained to the
local authorities without success and arrived in Canada in November
2007.
DECISION UNDER REVIEW
[4]
The
panel dismissed the applicant’s refugee protection claim on the ground that he
had an internal flight alternative. While there are questions as to the
applicant’s credibility, they are not determinative. With regard to the
internal flight alternative, the applicant stated that he could not live
elsewhere in Mexico due to the
drug trafficking and violence. He also mentioned that he could be found through
his elector’s card. The panel found that these explanations failed to demonstrate
how and why his assailants would have the will and means to track him all over Mexico.
[5]
The
applicant also raised his sexual orientation as being as barrier to his
settling elsewhere in Mexico. He even added that he would rather
support himself by working low-paying jobs and relying on food banks in Canada
than return to Mexico.
PARTIES’ SUBMISSIONS
[6]
In
his principal argument, the applicant stated that after the first hearing the
panel designated him as a vulnerable person under Guideline 8. Consequently,
the applicant was to be questioned first by his counsel, instead of the panel.
This decision was not respected at the second hearing. The decision that is
under review makes no reference to that previous decision.
[7]
The
issue of credibility was not raised at the hearing. The applicant argued that
it was not possible to analyze the issue of the availability of an internal
flight alternative solely on the basis of his sexual orientation and whether he
could find a place where homosexuals are safe, such as Guadalajara. The
applicant instead argued that he had exposed police corruption and that these
corrupt officers would be able to pursue him throughout the country. He also
submitted that the documentation clearly shows that people who expose corruption
are not safe in Mexico.
[8]
The
respondent stated that the applicant had had ample opportunity to plead his
case and to provide detailed answers to the questions he had been asked. With
regard to the internal flight alternative, the applicant failed to demonstrate
that his alleged assailants were determined to pursue him to another part of
the country.
[9]
In
reply, the applicant stated that he was stigmatized and that he cannot return
to Mexico. He added
that the panel was aggressive and sarcastic toward him.
ISSUES
[10]
The
issues are as follows:
1. Did the panel
err by not following the order of questioning that had been established in a
previous decision?
2. Did the panel
err when it determined that the applicant had an internal flight alternative in
Mexico?
ANALYSIS
Standard of review
[11]
Issues
of breach of procedural fairness are questions of law, reviewable on a standard
of correctness (Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461, [2007] 1 F.C.R. 107, at
paragraph 45).
[12]
Issues
of availability of an internal flight alternative are questions of fact (see Khokhar
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 449, [2008] F.C.J. No. 571 (QL),
at paragraph 21). Pursuant to Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, the applicable standard of review is reasonableness.
The application of
Guidelines 7 and 8 by the panel
[13]
The
applicant attended two hearings. At the first hearing, which was adjourned,
the member designated the applicant as a vulnerable person under Guideline 8.
Consequently, the order of questioning of the applicant was to have been
reversed. However, this Guideline was not followed at the applicant’s second
hearing. In fact, the panel instead followed Guideline 7, according to which
the decision-maker questions the claimant first.
[14]
First
of all, it should be noted that a subsequent decision-maker is in no way bound
by the first member’s statement. In this case, the panel followed the first member’s
recommendation but then decided to follow the order of questioning set out in
Guideline 7 and question the claimant first.
[15]
There
is nothing in the record to suggest that the applicant was placed at a
disadvantage by the application of Guideline 7. The issue of the application of
this Guideline was addressed by the Federal Court in Benitez, above, and
was upheld by the Federal Court of Appeal in Benitez v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 199, [2008] 1 F.C.R. 155. In
that decision, Justice Mosley of the Federal Court found that the Guideline
itself did not infringe the general principles of fundamental justice, or
fundamental justice under section 7 of the Canadian Charter of Rights and
Freedoms. With regard to the discretion of the members, Justice Mosley
determined that Guideline 7 does not serve as a mandatory pronouncement which
fetters their discretion.
[16]
These
findings were upheld by Justice Evans of the Federal Court of Appeal, at
paragraph 38 of the decision.
[17]
It
is also important to note that the applicant was represented by the same
counsel at both hearings and that at the second hearing no objection was raised
by the applicant’s counsel with regard to the order of questioning. Therefore,
this amounts to an implied waiver on the applicant’s part.
[18]
Therefore,
I find that the applicant was not placed at a disadvantage when the panel
decided to proceed with the order of questioning set out in Guideline 7.
Internal flight
alternative
[19]
The
applicant submits that he will be pursued wherever he settles in Mexico. However,
the police need to obtain a court order and authorization from the Minister
before they can pursue someone. The applicant adduced no evidence that the
police officers he had exposed would have had access to his personal
information. Furthermore, the applicant in no way showed that these individuals
were determined to pursue him elsewhere in Mexico.
[20]
The
applicant had an opportunity to defend his position at the hearing. In fact, he
clearly indicated his distaste for the city of Guadalajara, where he
did not want to move due to drug traffickers and other problems. This is a
general situation that does not lead to the conclusion that the applicant
feared moving to this city due to his particular situation.
[21]
I
therefore find that the applicant would simply prefer to live in Canada rather than
in Mexico. This is not
the purpose of Canada’s refugee system, or of sections 96 and 97 of
the Immigration and Refugee Protection Act.
[22]
The
application for judicial review is dismissed. No serious questions of general
importance were proposed for certification and none arise from the matter.
ORDER
THE COURT
ORDERS that the application for judicial review be dismissed and that
no serious question of general importance be certified.
“Sean
Harrington”
Certified
true translation
Sebastian
Desbarats, Translator
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