Date: 20071115
Docket: IMM-1292-07
Citation: 2007 FC 1191
Ottawa,
Ontario, November 15, 2007
Present:
The Honourable Mr. Justice Martineau
BETWEEN:
Hector Luis JIMENEZ RAMIREZ
Olga HERNANDEZ FERRUSCA
Hector Luis JIMENEZ HERNANDEZ
Victor Daniel SANCHEZ HERNANDEZ
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicants are challenging the legality of a decision of the Immigration and
Refugee Board of Canada’s Refugee Protection Division (the tribunal), dated
February 27, 2007, concluding that the applicants are neither Convention
refugees nor persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, L.C. 2001, c. 27.
[2]
The
principal applicant, Hector Luis Jimenez Ramirez, is a citizen of Mexico and
Cuba, while the other members of his family are Mexican citizens. The applicant
has a diploma in physical education. In 2000, he left Cuba to become a coach in
Querétaro, Mexico. In April 2005, following a change in government, a certain
Mr. Martin became sports director for Querétaro. Mr. Martin, who had previously
been municipal sports director (a rival of the Querétaro organization, for
which the applicant worked), came into conflict with the applicant and other
coaches of Cuban origin, to the point that the matter came before the Querétaro
state human rights commission in 2005. The commission ruled in favour of the
complainants. Subsequently, the applicant began to receive various threats and
was even physically assaulted by Mr. Martin. Fearing for their safety, the
applicants left Mexico for Canada.
[3]
The
tribunal rejected the applicants’ application for refugee protection, being of
the opinion that they had an internal flight alternative (IFA) and that the protection
of the Mexican state was available to them.
[4]
Reiterating
before this Court that the applicant is credible and that [translation] “it is not fair that he
should have to leave everything because a senior official who has no integrity
is furious with him and wants to prevent him from working with athletes, to
promote his own company”, the applicants today submit that the tribunal’s
conclusions are patently unreasonable. After all, as the principal applicant
explained to the tribunal, Mr. Martin can find them anywhere in Mexico, and the
Mexican police are not in a position to protect the applicants. Thus, the
tribunal’s decision is reviewable – something which the respondent naturally
contests, contending that the tribunal’s findings are not patently unreasonable.
[5]
From
the outset, I note that Member Houde’s analysis in the decision under review
regarding the possibility of the applicants’ turning to the Mexican state
consists solely of a few general statements and is deficient and incomplete in
several regards. Moreover, in my view, this part of the tribunal’s decision
cannot hold up to an in-depth analysis; if the decision to reject the
application for refugee protection rested solely on this point, I would not
hesitate to set aside the tribunal’s decision (Chavez v. Canada (Minister
of Citizenship and Immigration), 2005 FC 193, at paragraphs 9 to 11; Avila
v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, [2006]
F.C.J. No. 439 (QL) at paragraphs 26, 27 and 32). However, in the case under
review, the tribunal also dealt with the question of an internal flight
alternative elsewhere in Mexico.
[6]
In
order for the application for asylum and protection to be granted, the
applicants had to demonstrate the absence of an IFA, either because a risk of
persecution existed everywhere in Mexico or because they would be subject to a
risk to their lives or a risk of cruel and unusual treatment or punishment
anywhere in the country: Thirunavukkarasu v. Canada (Minister of Employment
and Immigration), [1994] 1 F.C. 589 (F.C.A.).
[7]
The
test used to determine whether or not there is an IFA was set out by Mr.
Justice Mahoney in Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706 (C.A.), at page 711, and in Thirunavukkarasu,
supra, at paragraph 12:
In my opinion, in finding the IFA, the
Board was required to be satisfied, on a balance of probabilities, that there
was no serious possibility of the appellant being persecuted in [place of IFA]
and that, in all the circumstances including circumstances particular to him,
conditions in [place of IFA] were such that it would not be unreasonable for
the appellant to seek refuge there.
[8]
Moreover,
the abovementioned Federal Court of Appeal decision clearly states that it is
not sufficient for a refugee applicant to allege that he/she has no friends or
family in the more secure part of the country or that he/she risks not finding
suitable employment (Thirunavukkarasu, supra, at paragraphs 13 and 14).
[9]
The
Federal Court of Appeal recently ruled in Rujillo Sanchez v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 99, [2007] F.C.J. No.
336 (F.C.A.), at paragraph 16, that refugee applicants are expected to take
reasonable action to try to put a stop to the persecution, hence the necessity
of considering a move to another part of the country:
As noted by this Court in Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589
(C.A.), at paragraph 12, “if there is a safe haven for applicants in their own
country, where they would be free of persecution, they are expected to avail
themselves of it unless they can show that it is objectively unreasonable for
them to do so.” Similarly, applicants who are able to make reasonable
choices and thereby free themselves of a risk of harm must be expected to
pursue those options.
[Emphasis added]
[10]
As
regards the applicants’ alleged fears, the tribunal stated in the decision
under review:
The tribunal
also considered the possibility of an internal flight alternative for the
applicants. The applicant would have no difficulty moving to another place in
Mexico. He claimed that he telephoned all of the states in Mexico to find a job
and was refused. The applicant, who has a diploma in physical education and
whose discipline is taught, according to his testimony, in every school in
Mexico, would have no problem finding work. He did not show evidence that he
could not find work in Mexico.
The applicant
claimed that he would not feel safe in Mexico and that Martin would look for
him. The tribunal asked why he would do that. The applicant replied that he
would do it out of personal vengeance. The tribunal asked how he would do this.
The applicant simply stated that Martin had contacts in the police. That
brief explanation, upon which the applicant was unable to elaborate, leads the
tribunal to determine that there would be an internal flight alternative for
the applicants.
[Emphasis added]
[11]
Needless
to say, the existence of an internal flight alternative is essentially a
question of fact. The tribunal has exclusive jurisdiction to evaluate the
applicants’ personal situation in the light of the documentary evidence in the
file, the nature of the risk and the identity of the agent of persecution.
Although the tribunal’s reasoning is brief, I cannot say that it is arbitrary
or irrational. In my opinion, the tribunal’s reasoning, according to which it
is not unreasonable for the applicants to seek refuge in Mexico, is based on
evidence in the file and complies with the requirements of the case law
applicable in this case.
[12]
Given
the fact that the tribunal’s conclusion as to an internal flight alternative is
not reviewable in this case and that it has a determinative effect on the
applicant’s claim for refugee protection, the application for judicial review
must be dismissed. No question of general importance was raised and none arises
in the case at bar.
ORDER
THE COURT
ORDERS that the application for judicial review be dismissed. There is
no question to be certified.
“Luc
Martineau”
Certified
true translation
Magda
Hentel
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