Date: 20080627
Docket: IMM-5270-07
Citation:
2008 FC 816
Ottawa, Ontario, June 27, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Elias Humberto Ortegon Palacios
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND Immigration
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The documentary evidence relating to drug
trafficking in Mexico paints a picture of a very serious situation: the various
clans are waging a bloody battle, which is becoming increasingly violent, over
the market for transporting drugs to the United States; cities along the
American border, such as Nuevo Laredo, Ciudad Juarez, Tijuana and
Reynosa, are controlled by drug traffickers, who have infiltrated the police to
the point that state protection can no longer be reasonably assured in those
places.[citation
omitted] Fortunately, that is not the situation
throughout Mexico. The documentary evidence does not mention Ecatepec as a city
where protection may not be available to citizens.
A well‑established principle is the presumption
that a state is capable of protecting its citizens. The Federal Court has
repeated many times that international protection should be offered only to a
person who shows that he or she cannot receive the protection of his or her country.
In order to rebut the presumption that a state can effectively protect its
citizens, the claimant had to present to the panel clear and convincing
evidence of the state’s inability to protect him.
This is what Presiding Member Michelle Langelier stated in
the decision of the Immigration and Refugee Board’s Refugee Protection
Division.
[2]
In addition, as thoroughly analyzed by Mr.
Justice Yves de Montigny in Campos Navarro v. The Minister of Citizenship and Immigration, 2008 FC 358, [2008] F.C.J. No. 463 (QL),
[12]
With
regard to internal flight alternative, it has been common practice to apply the
standard of patent unreasonableness given the highly fact-driven nature of such
decisions: see, for example, Ali v. Canada (Minister of Citizenship and
Immigration), 2001 F.C.T. 193; Ezemba v. Canada (Minister of Citizenship and
Immigration),
2005 F.C. 1023. However, the Supreme Court of Canada recently determined in Dunsmuir v.
New Brunswick, 2008 S.C.C. 9 [Dunsmuir] that the two reasonableness
standards should be merged into a single standard, given the problems that
arise in trying to apply the two standards and the incongruity of parties being
required to accept an irrational decision simply because, on a deferential
standard, the irrationality of the decision is not clear enough.
[13]
Does this
mean that the application of a single standard of reasonableness invites
greater judicial intervention? I do not think that this is the intended meaning
and scope of the Dunsmuir judgment. On the contrary, Bastarache and
LeBel JJ. emphasize the deference courts must show when lawmakers decide to
entrust an administrative body with the responsibility of making certain
decisions when enforcing its enabling legislation. Here is what they have to
say about the matter.
[48] The move towards a single
reasonableness standard does not pave the way for a more intrusive review by
courts and does not represent a return to pre-Southam formalism. In this
respect, the concept of deference, so central to judicial review in
administrative law, has perhaps been insufficiently explored in the case law.
What does deference mean in this context? Deference is both an attitude of the
court and a requirement of the law of judicial review. It does not mean that
courts are subservient to the determinations of decision makers, or that courts
must show blind reverence to their interpretations, or that they may be content
to pay lip service to the concept of reasonableness review while in fact
imposing their own view. Rather, deference imports respect for the
decision-making process of adjudicative bodies with regard to both the facts
and the law. The notion of deference “is rooted in part in a respect for
governmental decisions to create administrative bodies with delegated powers” (Mossop,
at p. 596, per L’Heureux-Dubé J., dissenting).…
[49] … In short, deference requires
respect for the legislative choices to leave some matters in the hands of
administrative decision makers, for the processes and determinations that draw
on particular expertise and experiences, and for the different roles of the
courts and administrative bodies within the Canadian constitutional system.
[14]
What can
be learnt from these considerations? It would seem that courts of law will have
to continue to show a high degree of deference when there is more than one
right answer to issues decided by administrative tribunals. This would be the
case, for example, where a question is essentially one of fact or involves the
discretion of the administrative body or policy it is tasked with enforcing (Dunsmuir,
supra, paragraph 53). In such cases, courts must ask whether the
decision under review is reasonable in terms of its “justification,
transparency and intelligibility within the decision-making process” and in
terms of “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
supra, paragraph 47).
[15]
Given this
standard of review, can one conclude that the Board erred in concluding that
state protection was available to the applicants and that they had an internal
flight alternative within Mexico? I do not think so.
II. Introduction
[3]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated November 7, 2007, in which the Board determined that the
applicant was not a “refugee” as defined in section 96 of the IRPA or a
“person in need of protection” as defined in section 97 of the IRPA, and
therefore rejected his refugee protection claim.
III. Facts
[4]
The
applicant, Elias Humberto Ortegon Palacios, is a citizen of Mexico. While he was in high school,
he was approached by a group of youths connected with drug trafficking.
[5]
The
applicant based his claim on the grounds that he belongs to a particular social
group, namely, “[Translation] youths persecuted by drug traffickers for refusing to deal drugs”
(the Board’s decision at page 2).
IV. Issues
[6]
Does the
Board’s decision contain irregularities that would warrant this Court’s
intervention, considering
(a) state protection and
(b) the existence of an
internal flight alternative?
More specifically, is the Board’s finding concerning an
internal flight alternative unreasonable? Is there supporting evidence for the
finding concerning state protection?
V. Analysis
Does the Board’s decision contain
irregularities that would warrant this Court’s intervention?
[7]
Some
important exchanges took place between the applicant and the Board concerning
state protection and an internal flight alternative, including concrete
evidence that it would not be unreasonable for the applicant to flee to another
part of Mexico because his situation would
not prevent him from moving.
Internal flight alternative
[8]
The Board
explained the following:
The
evidence does not support a conclusion that the claimant could be in danger in
his country, much less the conclusion that the claimant credibly established
how his attackers could find him anywhere in a country as large as Mexico.
Consequently,
the claimant did not establish that he does not have an internal flight
alternative and that the risk to which he would allegedly be subjected exists
throughout Mexico.
(The Board’s decision at page
4.)
[9]
It is
settled law that in matters concerning internal flight alternatives the burden
of proof is on the applicant:
[18] Ms. Del Real did not meet her burden of establishing on a balance
of probabilities that there was a serious possibility of persecution everywhere
in Mexico and that it would be
unreasonable for her to seek refuge in another part of her country. (Thirunavukkarasu
v. Canada (Minister of Citizenship and Immigration), [1994] 1 F.C. 589
(C.A.); [1994] F.C.J. No. 1172 (QL).)
(Del Real v. Canada (Minister of Citizenship and
Immigration),
2008 FC 140, [2008] F.C.J. No. 170 (QL).)
[10]
Therefore,
the refugee claimant must demonstrate that it would be unreasonable for him or
her to seek refuge in a different part of the country:
[8] … For an IFA to be unreasonable, conditions must exist
that would jeopardize the life and safety of a claimant if travelling or
temporarily relocating to that area. The absence of relatives in the IFA is not
relevant unless it affects the claimant's safety. (Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.)).
(Parras Camargo v. Canada (Minister of Citizenship and
Immigration),
2006 FC 472, [2006] F.C.J. No. 601 (QL).)
[11]
The Court
realizes the following:
[28] It should be noted that the existence of an internal flight alternative
is in itself sufficient to dispose of the refugee claim. In Shimokawa v.
Canada (Minister of Citizenship and Immigration), 2006 FC 445,
Madam Justice Tremblay‑Lamer explained that “the existence of a valid IFA
is determinative of a refugee claim and, consequently, the other issues raised
by the applicant upon judicial review need not be considered” (see also Rasaratnam
v. Canada (Minister of
Employment and Immigration), [1991]
F.C.J. No. 1256 (QL)).
(Carrasco Baldomino
v. Canada (Minister of Citizenship and
Immigration),
2007 FC 1270, [2007] F.C.J. No. 1638 (QL).)
[12]
The
presiding member’s finding concerning the existence of an internal flight
alternative in Mexico is reasonable. Consequently,
this Court’s intervention is not warranted.
State protection
[13]
The
applicable standard of review for findings respecting state protection is
reasonableness. Therefore, only the existence of findings made without regard
for the evidence would warrant the Court’s intervention. Justice Simon Noël
recently recalled the following:
[8]
First of all, the appropriate
standard of review in cases involving the question of state protection is
reasonableness simpliciter: see Amiragova v. Canada (Minister of Citizenship and
Immigration), 2006 FC 882, [2006] F.C.J. no.
1116. To succeed, the applicant must prove that the RPD’s decision was
unreasonable—that no evidence exists to support its finding. This is a heavy
burden for the applicant to meet.
(Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 66, [2008] F.C.J. No. 76 (QL);
also, Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1
at paras. 43–64.)
[14]
The Court
concurs with the Board’s finding that the applicant had not demonstrated, using
clear and convincing evidence, that Mexico
could not provide him with the necessary protection:
Consequently,
the panel concludes that the claimant did not show that he was justified in not
claiming the protection of his state following the attack in March 2005.
With respect to the July 2006 complaint, because no
assault took place, it was reasonable for the authorities not
to investigate in the circumstances. The claimant did not present any clear and
convincing evidence that the state of Mexico could not protect him.
(The Board’s decision at page
3.)
[15]
In reading
the decision, it is clear that the Board had consulted the documents describing
the situation in Mexico, including the one that
indicates that obtaining protection in certain places can sometimes be
difficult. The Board referred to the objective documentary evidence in several
places in its decision.
[16]
The Board
reasonably interpreted and analyzed all of the evidence and the applicant’s
testimony.
[17]
Consequently,
the Court’s intervention is not warranted.
VI. Conclusion
[18]
As a
signatory to the Convention on refugees and persons in need of protection who
could be in danger as defined in section 97 of the IRPA, Canada grants
protection to claimants who cannot obtain the protection of their own country.
However, the IRPA imposes an obligation on the claimant that he or she must
have exhausted every resource of his or her own country’s protection and that,
despite every effort, his or her life may be in danger. Acknowledging that the
applicant did not discharge his burden of proof, this Court must dismiss his
application for judicial review.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be
certified.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, Reviser
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