Date:
20130207
Docket:
IMM-5455-12
Citation:
2013 FC 132
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 7, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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LEONEL MENDOZA VELEZ
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection Division
(RPD) of the Immigration and Refugee Board dated April 25, 2012, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001
c 27 (IRPA). The RPD found that the applicant is not a Convention refugee under
section 96 of the IRPA or a person in need of protection under section 97 of
the IRPA.
I. Facts
[2]
The
applicant is a Mexican citizen. On June 12, 2005, he witnessed the murder of Cirilo Morales
Feliciano, a friend who was 16 years old. During the incident, the applicant
was with another friend, Gorgonio Ventura Vasquez, as well as Jesus Victorio
Barrio, known as “El Navarro”. That evening, Jesus Victorio Barrio and Cirilo
Morales Feliciano fought and Cirilo accused Jesus Victorio Barrio of being
a horse and cattle thief. Jesus Victorio Barrio assaulted Cirio Morales Feliciano
with rocks to the head, which killed him. Jesus Victorio Barrio left the area
and threatened to kill the applicant and Gorgonio Ventura Vasquez if they spoke
about the murder. When people approached to find out who had killed Cirilo
Morales Feliciano, the applicant went home because he was afraid that Jesus
Victorio Barrio would return and kill him.
[3]
After
those incidents, the Office of the Public Prosecutor arrested Gorgonio Ventura
Vasquez and two other men who showed up at the scene of the crime. Fearing for
his life, Gorgonio Ventura Vasquez stated that Cirilo Morales Feliciano was
attacked by a group of men from the village of San Augustin, Cuilutla. Thus,
the police arrested three men from that village.
[4]
When
the applicant learned that three innocent men had been arrested, he went to the
Office of the Public Prosecutor on August 22, 2005, to make a detailed
statement accusing Jesus Victorio Barrio of having been solely responsible for
the death of Cirilo Morales Feliciano. According to the applicant, he had bribed
certain people to ensure that he was not arrested for the crime he committed.
[5]
On
July 9, 2007, the applicant received a summons from the Office of the Public
Prosecutor to appear at the trial of the three men accused of murdering Cirilio
Morales Feliciano. He felt obliged to question Gorgonio Ventura Vasquez on the
false statement he made to the Office of the Public Prosecutor. Gorgonio
Ventura Vasquez then explained that Jesus Victorio Barrio had threatened to
kill him if he ever told the truth.
[6]
A
few months later, the applicant learned that the three men accused of murdering
Cirilio Morales Feliciano would be released. However, in December 2007, he
learned that Jesus Victorio Barrio had returned to the area and had uttered
threats against him and his family. Therefore, the applicant left the region
with his wife and two children to go live in Chicoloapan, in the State of Mexico.
He became a clothing salesperson in a small store. He rented a house and
registered his children in school there.
[7]
In
May 2008, the applicant learned that his friend Gorgonio Ventura Vasquez, who
had moved to Guadalajara, in the State of Jalisco, had been shot dead. Following
his statement, Gorgonio Ventura Vasquez had been tracked throughout the
country by Jesus Victorio Barrio or people he had hired. Thus, the applicant
left Mexico for Canada on July 3, 2008, and claimed refugee protection the day he
arrived.
II. Decision
under review
[8]
The
RPD found that the applicant is not a refugee because the reason at the basis
of his refugee claim is not a valid Convention ground. Regarding the claim
filed under section 97 of the IRPA, the RPD found that the applicant did not
establish, on a balance of probabilities, that he would be the subject of cruel
and unusual treatment if he returned to Mexico.
[9]
In
support of his claim, the applicant provided a declaration dated August 22,
2005, to the Office of the Public Prosecutor of the State of Guerrero, in which
he set forth a detailed description of what occurred on June 12, 2005, resulting
in the death of Cirilio Morales Feliciano. He also provided a copy of the summons
dated July 9, 2007, which states that a criminal trial was instituted with
respect to the murder of Cirilio Morales Feliciano. The RPD thus found that the
applicant’s account was credible and that Jesus Victorio Barrio had murdered
Cirilio Morales Feliciano.
[10]
The
RPD found that it was curious that Jesus Victorio Barrio had been convicted of
murder but was not in prison and now lives in a city close to San Augustina,
Cuilutla, where the applicant’s family lives. It also found that the applicant does
not know whether Jesus Victorio Barrio is free because the latter has filed an appeal
from the criminal conviction.
[11]
The
RPD found that the applicant stated that Gorgonio Ventura Vasquez’s death could
only be attributed to Jesus Victorio Barrio since he had no enemies. However,
it also found that the applicant lived in Chicoloapan for four and a half years
in the same house. Furthermore, the applicant confirmed that he has stayed in
contact with his family in Mexico and that they have not been threatened.
[12]
The
RPD also found that Jesus Victorio Barrio and his family breed livestock and
that he probably has neither the interest nor the financial ability to search
for the applicant, especially since he was never imprisoned for the crime he
committed. The RPD therefore found that the applicant could return to Chicoloapan
without being at risk of cruel and unusual treatment. Furthermore, the RPD
found that, given that the applicant made a living in Chicoloapan for six
months before leaving Mexico for Canada, it would not be “objectively unreasonable”
or “unduly harsh” to expect the refugee claimant to move to that location.
III. Position
of the applicant
[13]
The
applicant submits that the RPD’s decision did not take into account the
evidence that it is possible to corrupt public servants in Mexico to obtain
data bases containing confidential information on third parties. That evidence
should have been examined as part of the internal flight alternative analysis
given that it shows that, regardless of where the applicant would live, he
could be located by Jesus Victorio Barrio. Thus, the RPD erred because that was
a very important piece of evidence.
[14]
Furthermore,
the applicant states that the RPD did not consider that the context for people
in the applicant’s position is very different in Mexico and instead examined
the applicant’s situation from a Canadian point of view. Mexico is an emerging
democracy.
[15]
Third,
the applicant alleges that the RPD erred when assessing his testimony. In fact,
the RPD, in its decision, indicated that it did not know why Jesus Victorio
Barrio did not serve prison time for murder following the guilty verdict.
However, the applicant explained that there was only, to his knowledge, an
arrest warrant issued against him and that he was not convicted by a Mexican
court for the murder of Cirilio Morales Feliciano. Thus, the RPD’s decision,
particularly regarding the internal flight alternative, is erroneous because
the RPD drew a negative inference based on an erroneous finding of fact. In
fact, it is clear from the hearing transcripts that when the applicant was questioned
about Jesus Victorio Barrio, he was referring to the proceedings involving the
three accused men and that, when he claimed that Jesus Victorio Barrio was found
guilty, he was actually referring to the three men released after he made his statement
about Jesus Victorio Barrio. Thus, it is clear that, for the applicant, there
is no difference between the acquittal of the three men and the case against Jesus Victorio
Barrio.
[16]
Fourth,
the applicant submits that the RPD committed an error similar to that found by
this Court in Lugo v Canada (Minister of Citizenship and Immigration),
2010 FC 170 at paragraphs 35‑39, 364 FTR 188 (Lugo), because it
rejected his claim on the basis of the fact that he did not avail himself of an
internal flight alternative before he claimed refugee protection in Canada. The
RPD thus added a criterion to the test developed in the case law regarding internal
flight alternative assessments.
[17]
Again
regarding the internal flight alternative, the applicant states that it was not
available to him given that Jesus Victorio Barrio was able to kill Gorgonio
Ventura Vasquez in the State of Jalisco and he suspects that he hired a killer to
do so. Thus, Jesus Victorio Barrio would have the financial means to harm the
applicant. Furthermore, the applicant explained that Jesus Victorio Barrio belongs
to a higher class of breeders than his. Therefore, the RPD made an arbitrary
finding without regard for the evidence before it.
[18]
Finally,
the fact that the RPD found the applicant to be credible should have had an
impact on the internal flight alternative analysis.
IV. Position
of the respondent
[19]
The
applicant submits that the RPD did not err by finding that the applicant has an
internal flight alternative in Chicoloapan, where he found refuge in December
2007 with his family. The two-part text established in Rasaratnam v Canada (Minister
of Employment and Immigration) (1991), 140 NR 138 was applied fairly.
[20]
Regarding
the first part of the test, the applicant did not demonstrate on a balance of
probabilities that he faces persecution or a risk to his life or a risk of
cruel and unusual treatment or punishment in Chicoloapan. In fact, the
applicant had lived there peacefully since 2007 and the respondent alleges that
the RPD validly found that the applicant did not prove that Jesus Victorio
Barrio would try or would be willing to try to find him.
[21]
Regarding
the second part of the test, the RPD’s finding that it is not unreasonable for
the applicant to avail himself of the internal flight alternative in
Chicoloapan, where he already lived with his family before leaving Mexico, was
just.
[22]
Regarding
the applicant’s argument that the RPD misunderstood his testimony with respect
to Jesus Victorio Barrio’s arrest, the respondent states that that has no bearing
on the RPD’s analysis of the applicant’s internal flight alternative.
V. Issue
[23]
Did
the RPD err by finding that the applicant has an internal flight alternative?
VI. Standard
of review
[24]
The
reasonableness standard applies to the RPD’s decision with respect to the
internal flight alternative because it is a question of fact (Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190).
VII. Analysis
[25]
The
RPD rendered an unreasonable decision for the following reasons.
[26]
The
applicant’s argument that the RPD added a condition to the test applicable to
the internal flight alternative issue is fair. In fact, the RPD, in this case, committed
an error in the application of the test that is similar to the one found by
this Court in Lugo, above. It applied the two parts of the test and, in
addition, required the applicant to have already availed himself of his internal
flight alternatives before he claimed refugee protection. A reading of the
relevant passage of the decision shows that the RPD found that the applicant’s
refugee claim should fail on the ground that he did not avail himself of the internal
flight alternatives before he claimed refugee protection in Canada. That
constitutes an error.
[27]
Regarding
the applicant’s allegation that the RPD ignored the documentary evidence that
it is possible, in Mexico, to obtain personal information, for example, someone’s
address, by paying members of the government, the RPD did not commit an error.
In fact, the applicant cannot allege that the RPD did not consider documentary
evidence on an element when there is nothing in his factual situation that
corresponds to it. The RPD rendered a reasonable decision and did not commit an
error by failing to address this specific problem because there is no evidence
that suggests that that could be the applicant’s situation (Zavala v Canada
(Minister of Citizenship and Immigration), 2009 FC 370 at paragraphs 14-15,
2009 CarswellNat 6562; Alba v Canada (Minister of Citizenship and
Immigration), 2007 FC 1116 at paragraphs 31-32, 2007 CarswellNat 3608). In
fact, the evidence shows that Jesus Victorio Barrio is a livestock breeder and is
not linked to a criminal organization, which demonstrates that it is unlikely
that he used that means to try to locate the applicant.
[28]
Like
the applicant stated, it seems that the RPD was confused in its interpretation
of his testimony. The RPD understood that Jesus Victorio Barrio had been tried
for murder and was therefore surprised to find that he did not serve a prison
sentence. Furthermore, according to the RPD, given that he did not serve a
sentence, Jesus Victorio Barrio would have no reason to harm the applicant.
However, the applicant provided answers that demonstrate that he made no
distinction between Jesus Victorio Barrio’s trial and the acquittal of the
three men.
[29]
The
RPD’s finding is erroneous and it had an impact on the result. In fact, the
evidence shows that the applicant made a statement that led to the release of
three innocent men and the issuance of a warrant to arrest Jesus Victorio
Barrio. Thus, the RPD found that the applicant, by his actions, was able to aggravate
Jesus Victorio Barrio. The current situation is that the applicant could be a
key witness in the trial against Jesus Victorio Barrio, who is still free. The
RPD’s finding that he would not harm the applicant given that he is not serving
a prison sentence after his conviction is based on a misinterpretation of the
applicant’s testimony, which impacted the issue of the applicant’s internal
flight alternative.
[30]
Thus,
the two errors committed by the RPD, that is, the addition of a criterion to the
test applicable to the internal flight alternative and the misinterpretation of
the applicant’s testimony that led to an erroneous finding make the decision
unreasonable in the circumstances.
[31]
The
parties were invited to submit a question for certification, but none was
submitted.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the
application for judicial review is allowed and no question will be certified.
“Simon Noël”
______________________________
Judge
Certified
true translation
Janine
Anderson, Translator
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