Date: 20080528
Docket: IMM-4386-07
Citation: 2008
FC 680
Toronto, Ontario, May 28, 2008
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
VIRGINIA
GONZALEZ CERVANTES
GUSTAVO FABIAN AGAPITO
DINA MILDRED VALLEJO GONZALEZ
PAOLA AIDE FABIAN GONZALEZ
ALEXIS NEFERTITI FABIAN GONZALEZ
ANTONIO GONZALEZ CERVANTES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The applicants contend that the Refugee
Protection Division (the board) unreasonably determined that the Federal
District of Mexico City is a viable internal flight alternative (IFA) and that
state protection exists there. For the reasons that follow, I conclude that
the board’s determination was reasonable.
Background
[2]
The applicants’ claim was based on fear of
Efrain Fabian Reyes (the estranged paternal uncle of the male applicant Gustavo
Fabian Agapitoa) allegedly charged with criminal offences. The lawyer who
prosecuted Reyes is the female applicant’s uncle. No threats or problems arose
from his prosecution of Reyes.
[3]
Shortly after Reyes was charged with fraud,
Gustavo Fabian Agapitoa (Gustavo) and Virginia Gonzalez Cervantes (Virginia) began to receive threats, in
writing and by telephone. Reyes apparently blamed Gustavo for revealing his
hiding place in Guadalajara.
Although the threats were reported to the police, names and addresses were
requested by the police for the formal complaint.
[4]
The applicants claim that they followed up with
the police many times and were always told that their complaint was “in
process”. One day, Gustavo was forced into a car and assaulted by two
people. He was told that this “was nothing compared to what would come”.
Gustavo managed to escape from the car and asked a police officer for help. The
officer could do nothing since Gustavo did not have the licence number. The
telephone threats continued. The callers stated that wherever the family went,
they would be found. The applicants fled to Canada.
The Decision
[5]
The board noted a number of credibility
concerns. However, it found the determinative issue to be the availability of
a viable IFA in Mexico City
where adequate state protection is available. It concluded that the applicants
had not rebutted the presumption of state protection with clear and convincing
evidence.
The Issue
[6]
The only issue is whether the board erred in its
conclusion on state protection. The other grounds advanced in the written
submissions were not relied upon at the hearing.
The Standard of
Review
[7]
Questions of fact, discretion, policy, and
questions where the legal issues are intertwined with the factual issues will
attract a standard of review of reasonableness. When reviewing a decision on
the standard of reasonableness, the analysis will be concerned with the existence
of justification, transparency and intelligibility within the decision-making
process as well as whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir
v. New Brunswick,
2008 SCC 9. The parties agree, and I concur, that the adequacy and
availability of state protection involves questions of fact and the weighing of
evidence intertwined with legal issues and attracts a standard of
reasonableness.
Analysis
[8]
The applicants do not take issue with the choice
of Mexico City as an IFA. It
is the finding of state protection that concerns them. Their submission can be
succinctly stated. They maintain that the panel ignored the negative evidence
relating to the availability of state protection and failed to explain why it
preferred the pieces of documentary evidence that it cited. Further, it erred
by equating “adequate protection” with the “serious efforts” of the state to
provide protection.
[9]
The applicants are correct that the board did
not specifically refer to the documents relied upon by them when analysing the
issue of state protection. However, the fact that a tribunal fails to recite
all of the evidence does not mean that the decision is necessarily flawed. There
is a presumption that the board has considered all of the evidence. In
circumstances where the evidence is contradictory to the board’s conclusion and
is central to the claim, failure to acknowledge it may, and often will,
constitute reviewable error.
[10]
However, that is not the situation here. In Carillo
v. Canada
(Minister of Citizenship and Immigration), 2008 FCA
94, Mr. Justice Létourneau discussed the quality of the evidence required to
rebut the presumption of state protection. Such evidence must be reliable and
probative. Moreover, it must have sufficient probative value to meet the
applicable standard of proof. In short, an applicant seeking to rebut the
presumption of state protection must adduce relevant, reliable and convincing
evidence which satisfies the trier of fact on a balance of probabilities that
the state protection is inadequate (para. 30).
[11]
The documentary evidence paints a mixed picture
and the board’s decision is concise. However, the difficulty for the
applicants is that the documentation relied upon by them, viewed in context, is
not probative. The documents are not central to the applicants’ claim. They
do not relate to the applicants’ circumstances or to circumstances analogous to
those of the applicants. There is no obligation on the board to refer to
documentary evidence that is not probative in relation to the applicants’
claims.
[12]
The board was aware that there are issues,
systemically, with state protection in Mexico, generally, and in Mexico City. It focussed on Mexico City and concluded that it had functioning state protection. The board
was aware of the existence of corruption and criminality. It identified the
proper test and applied it. Although it referred to the efforts that were
being made, the board did not equate “efforts” to adequate protection. In the
end, the board simply was not satisfied that the applicants could not relocate
to Mexico City and approach the
state for protection. The board provided an analysis in support of its
determination. I am satisfied that its conclusion falls within a range of
reasonable outcomes that were available to it.
[13]
Counsel did not suggest a question for
certification and none arises.
ORDER
The application for judicial review is dismissed.
“Carolyn Layden-Stevenson”
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