Date: 20110525
Docket: IMM‑4227‑10
Citation: 2011 FC 588
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 25, 2011
Present: The Honourable Mr. Justice Pinard
BETWEEN:
Arturo SANABRIA OSUNA
Ma
Guadalupe VERDUZCO DE SANABRIA
Abril
SANABRIA VERDUZCO
Lluvia
Ruth VERDUZCO NORZAGARAY
Applicants
and
MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review of a decision by a member of the Immigration and Refugee
Board’s Refugee Protection Division (the panel) filed under subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. (2001), c. 27,
by Arturo Sanabria Osuna, Ma Guadalupe Verduzco de Sanabria, Abril Sanabria
Verduzco and Lluvia Ruth Verduzco Norzagaray (the applicants). The panel
concluded that the applicants were not Convention refugees or persons in need
of protection and therefore rejected their claims for refugee protection.
[2]
The applicants are
citizens of Mexico. Arturo Sanabria Osuna is the principal applicant. Ma
Guadalupe Verduzco de Sanabria is his spouse, Abril Sanabria Verduzco is their
daughter and Lluvia Ruth Verduzco Norzagaray is the sister‑in‑law
of the principal applicant. These three persons are filing their claims on the
basis of the principal applicant’s narrative.
[3]
The applicants lived in
Silao. The principal applicant is a chemical engineer and held a management
position within a company; his spouse is a doctor.
[4]
The principal applicant
states that he was kidnapped on February 27, 2008, by three individuals,
and that the family had to pay 600,000 pesos for his release. He was freed
two days later and left on the side of the road. A truck driver helped him and
he was able to call his wife, who took him to the hospital. The applicants
called the police on February 29, 2008. His spouse had not done so earlier
because the kidnappers had told her that if she did, her husband would be
killed. The applicants decided to spend a few days with the sister‑in‑law,
Lluvia, in Leon Guanajuato, some thirty minutes from their home.
[5]
On March 6, 2008, the
family received an anonymous letter while staying with the sister‑in‑law.
The authors demanded more money and stated that the police was on their side.
The principal applicant made a report to the public prosecutor’s office in
Leon. The applicants also decided to return to Silao to avoid placing the
sister‑in‑law in danger.
[6]
On March 12, 2008,
the principal applicant received a death threat by telephone. He informed the
public prosecutor’s office of this call. He received between 10 and
15 calls of this type in the following weeks. On March 12, 2008, the
family returned to the sister‑in‑law’s. On March 24, 2008,
they received another anonymous note stating that the persecutors were aware of
the complaint and were demanding money, under threat of death. The family went
to the public prosecutor’s office that very day to report these facts. The officer
at the public prosecutor’s office told them that there were not enough officers
available unless they paid 2,500 pesos a day.
[7]
The applicants then
went to the office of the Human Rights Commission, which referred them to a
lawyer, Mr. Villalobos. The lawyer strongly recommended that they leave
the country. The applicants made the decision to do so on March 25, 2008.
They left Leon for the city of Querétaro on April 2, 2008, to travel to
Mexico DF. They took a flight on April 14, 2008, and claimed refugee
protection as soon as they arrived in Canada. The sister‑in‑law
left Mexico on March 28, 2008, to go to Vancouver, where she claimed
refugee protection three months later. The principal applicant alleges that he
primarily fears the judicial police.
* * * * * * * *
[8]
After having decided
that the applicants were not entirely credible and that they could receive
state protection in Mexico, the panel found that, in any event, the applicants had
an internal flight alternative (IFA) in Mexico DF, Monterrey, Cancun and
Acapulco. The panel considered the two steps of the test for determining
whether an IFA exists. The panel found that there was no reason to believe that
the incidents in issue were related to drug trafficking or that this was a
matter of anything more than criminals, perhaps petty local criminals. Since
the applicants had never seen their persecutors and could not describe them, the
applicants could not pose a threat to their persecutors. The panel did not
believe that the persecutors would have the means or determination to search
all over the country for the applicants. The likelihood of finding them
elsewhere was practically non‑existent. It was objectively reasonable and
relatively undemanding to expect the applicants to move elsewhere in Mexico;
the conditions in the IFAs considered would not endanger their lives or their
safety. All four applicants could work or study in the identified cities, which
were realistic and affordable options.
* * * * * * * *
[9]
With regard to this
last conclusion, the applicants submit that the panel did not truly assess the
IFA, but simply listed the names of a few Mexican cities at random, without
providing a reason or justification for chosing those cities. This is an unfair
characterization of the decision. Paragraphs 29 to 36 of the decision
concern the IFA and clearly follow the test established in the case law for
determining whether the identified IFAs are relevant and reasonable for the
applicants.
[10]
The applicants add that
the existence of an IFA is insufficient for a refugee protection claim to be
rejected because a refugee protection claim is not necessarily a last‑resort
solution. They quote the following UNHCR guidelines (Guidelines on
International Protection: “Internal Flight or Relocation Alternative” within
the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating
to the Status of Refugees):
International
law does not require threatened individuals to exhaust all options within their
own country first before seeking asylum; that is, it does not consider asylum
to be the last resort.
[11]
The applicants argue
that since they do not know exactly who their persecutors are or which
organization they belong to, it is impossible to find an IFA that is suitable
for them. They point out that their persecutors found them in Leon and
Querétaro. They submit that the panel has no reason not to believe that
the persecutors belong to an organized crime group in league with the police. They
contend that the panel did not consider the documentary evidence concerning the
rampant drug traffickers in Mexico.
[12]
I do not accept these arguments.
[13]
As the respondent quite
rightly submits, it appears that the panel relied on the facts particular to
the applicants’ situation and on the documentary evidence in concluding that
the applicants did not have a well‑founded fear of persecution or of a
risk to their life in the identified IFAs.
[14]
The fear of persecution
in one of the potential IFAs must be objectively well‑founded (Hussain
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 913, at
paragraph 8). In the case at bar, there is no such objective basis. There
is no evidence linking the persecutors to the “mafia” or drug traffickers, as
appears from the following excerpt from the hearing transcript (record of the
panel, at page 376):
[translation]
Q.: Okay.
But it might be certain corrupt police officers with petty criminals. That’s
possible. Among other things. But, from your testimony so far and your
evidence, you have no knowledge of whether they’re connected to organized
crime, from what I can understand. That’s a presumption on your part. Correct?
R.: Correct.
[15]
Last, the applicants
are incorrect in alleging that an IFA is not determinative for a refugee
protection claim. In Lopez v. Canada (M.C.I.), [2010] F.C.J.
No. 1352 (QL), this Court wrote the following:
[13] With respect,
I believe that, in this case, the existence of an IFA was a determinative
finding in the Board’s decision and that the failure to dispute this finding is
sufficient to dismiss this application for judicial review.
[14] In Olivares
Vargas v. Canada (Citizenship and Immigration), 2008 FC 1347, as in this
case, the applicant had not disputed the Board’s finding concerning an IFA. Our
Court recognized that the Board’s finding about an IFA was sufficient on its
own to reject the claim for refugee protection because an internal flight
alternative is inherent to the very concept of refugee and person in need of
protection.
[16]
The applicants also
submit that their deportation would place their lives and their physical
integrity at risk, thus violating sections 7 and 12 of the Canadian
Charter of Rights and Freedoms and Canada’s international obligations under
Article 3 of the United Nations’ 1984 Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. The applicants
submit that Canada must allow their refugee protection claims or contravene its
constitutional and international obligations. The respondent contends that this
argument is premature, and I agree. If the refugee protection claim is
rejected, the applicants will be entitled to a Pre‑removal Risk
Assessment before being deported (see, for example, Barrera v. Canada
(M.E.I.), [1993] 2 F.C. 3 (C.A.), Arica v. Minister of Employment and Immigration
(1995), 182 N.R. 392 (F.C.A.), Kaberuka v. Canada (M.E.I.), [1995] 3 F.C.
252 (C.A.), Sandhu v. Canada (M.C.I.) (2000), 258 N.R. 100 (F.C.A.), Plecko
v. Canada (M.C.I.) (1996), 114 F.T.R. 7, Ithibu v. Canada (M.C.I.)
(2001), 13 Imm. L.R. (3d) 251 (F.C.T.D.), Ijagbemi v. Canada (M.C.I.) (2001),
16 Imm. L.R. (3d) 299 (F.C.T.D.), Manefo v. Canada (M.C.I.), [2001] F.C.J.
No. 819 (T.D.) (QL), Mihayo v. Canada (M.C.I.), [2002] F.C.J.
No. 15 (T.D.) (QL), Hilaire v. Canada (M.C.I.), [2002] F.C.J. No. 19
(T.D.), Akindele v. Canada (M.C.I.), [2002] F.C.J. No. 68
(T.D.), and Kofitse v. Canada (M.C.I.), [2002] F.C.J. No. 1168 (T.D.)
(QL)).
[17]
Last, the applicants
argue that there is a significant problem of administrative and institutional
bias at the Immigration and Refugee Board (IRB) with regard to Mexican
claimants. This contention is partly based on the IRB’s persuasive decision on
state protection in Mexico, in which it was found that state protection against
corrupt police officers is available. This contention is also based on the
statements allegedly made by the Minister of Citizenship and Immigration,
Mr. Kenney, concerning Mexican claimants and the need to reform the
system because of their abuses.
[18]
It should first be
emphasized, as counsel for the applicants acknowledged before me, that no
objection was raised before the panel regarding the panel’s appearance of bias.
[19]
In its decision, the
panel stated having reviewed the reasons of the persuasive decision by the
Refugee Protection Division in file TA6‑07453, dated November 26,
2007, and having adopted that reasoning with regard to the availability of
state protection. I note that the panel made that statement after having conducted
a detailed analysis of the factual evidence before it. This approach is correct
(see, for example, Hidalgo v. Minister of Citizenship and Immigration, 2009
FC 707 and Hernandez v. Minister of Citizenship and Immigration, 2009 FC
480).
[20]
Regarding the
statements the applicants attribute to Minister Kenney in attempting to prove
that they could raise a reasonable apprehension of bias, I note that the applicants
did not even adduce the text.
[21]
In my view, the very
general allegation that the IRB is less than impartial towards Mexican
claimants is not supported by any evidence in the file and, like the respondent,
I find that this allegation lacks seriousness and cannot be accepted.
[22]
For all of these
reasons, the application for judicial review is dismissed.
[23]
Counsel for the
applicants, Mr. Istvanffy,
proposed the following
question for certification:
[translation]
Must
the analysis of state protection in Mexico which is conducted on judicial
review of an I.R.B. decision take into account the international case law on
the functioning of the Mexican judicial system? Should not the file be analyzed
in accordance with this constitutional standard under section 24 of the Canadian
Charter of Rights and Freedoms when the demonstration of a Charter violation
is sought to be made?
[24]
For the reasons stated
by counsel for the respondent in his letter dated May 3, 2001, the
proposed question does not warrant certification. In the circumstances, I am of
the opinion that the question does not meet the tests established in the case
law, particularly in Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4
(F.C.A.) and Huynh v. Canada, [1995] 1 F.C. 633 (T.D.), affirmed in [1996]
2 F.C. 976 (C.A.).
JUDGMENT
The application for judicial review of the decision by a
member of the Immigration and Refugee Board’s Refugee Protection Division, dated
June 23, 2010, is dismissed.
“Yvon Pinard”
Certified true
translation
Sarah Burns
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