Docket: IMM-7870-13
Citation:
2014 FC 807
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, August 19, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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JUAN AARON OBED PONCE GALLEGOS
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ENRIQUE SERNA DE LA CRUZ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for
judicial review, pursuant to section 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA)
of a decision by the Refugee Protection Division of
the Immigration and Refugee Protection Board (the RPD) dated November
19, 2013, rejecting the applicants’ claim for
protection as refugees or persons in need of protection within the meaning of
sections 96 and 97 of the IRPA.
II.
Facts
[2]
The applicants are citizens of Mexico from the
city of Calvillo. They are common-law spouses. They allege to have been targeted
by the police in Mexico because they are homosexuals.
[3]
The applicants allegedly publicly advertised
their relationship for the first time in 2008, and as of May 2008, they
purportedly started to be intercepted and beaten by police. They were also
reportedly discriminated against by members of the public.
[4]
After a number of incidents with police, the principal
applicant, Juan Gallegos, allegedly filed a complaint with the Public Ministry,
but the employee registering his complaint purportedly ridiculed him and asked
him to leave the premises. The discrimination and threats from the public and police
continued unabated for months afterwards.
[5]
The applicants arrived in Canada on September 25,
2008, and claimed refugee protection on the same day.
III.
Analysis
[6]
In this case, the key point at issue is, in
essence, whether the applicants could benefit from an internal flight
alternative (IFA) in the city of Guadalajara if they had to return to Mexico. The
RPD concluded that the applicants had an IFA in Guadalajara, which, according
to the documentary evidence, was relatively liberal towards homosexuals. The
RPD noted that the documentary evidence shows that “LGBT people
(lesbians, gays, bisexuals and transsexuals) are
able to show affection to each other in the centre [of Guadalajara] without being bothered by authorities” (at page 4). It
nevertheless recognized that there continued to be discrimination against
homosexuals outside Guadalajara.
[7]
The applicants argue that the RPD erred in
concluding that they can live safely in Guadalajara, as the evidence available
evidence clearly reveals that in general, Mexican authorities do not respect
human rights. In short, they submit that the RPD [Translation] “turned a blind eye to
evidence that contradicted its thesis” (applicants’ factum at paragraph 25).
[8]
Despite the applicants’ allegations, the Court is
not inclined to accept that the RPD’s findings regarding the existence of an IFA
do not fall within a range of possible, acceptable outcomes (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190). Contrary to the applicants’ submissions, the reasons
that the RPD made its decision are fully supported by the evidence in the
record. However, the RPD was not required to mention all the documentary
evidence (Hassan v Canada (Minister of Employment and Immigration) (1992),
147 NR 317, 36 ACWS (3d) 635 (CA); Florea v Canada (Minister of Employment
and Immigration), [1993] FCJ No 598 (QL/Lexis) (CA)).
[9]
In this case, the RPD acknowledged that the
situation for homosexuals in Mexico was not perfect and that there were problems.
The RPD was also alive to the applicants’ alleged discrimination as members of
the homosexual community in Mexico (it had no doubts about their credibility). However,
after consulting the documentary evidence, the RPD found that there was no
serious possibility of the applicants being subjected
to a danger of torture, or to a risk to their lives or to a risk of cruel and
unusual treatment or punishment in the city of Guadalajara.
[10]
The Court is of the opinion that it has come to
this conclusion reasonably. A reading of the decision and record shows that
homosexuals in Guadalajara do not appear to suffer discrimination, much less
persecution. None of the evidence put forth by the applicants shows that there
is a sustained or systemic violation of basic human
rights of
homosexuals in Guadalajara demonstrative of a failure
of state protection (see Canada (Attorney General) v Ward, [1993]
2 SCR 689). The Court does not accept that a single reference of violence
against certain members of the LGBT community in Guadalajara in the National Documentation Package on Mexico (September
17, 2012, Tab 6.6) or references to the overall discrimination against
homosexuals in Mexico support the applicants’ submission that no IFA exists in Mexico.
The evidence, read as a whole, rather suggests that homosexuals in Guadalajara
can live openly without discrimination or problems with the authorities.
[11]
The Court notes that it was for the applicants to
demonstrate, on a balance of probabilities, that
there is a serious possibility of persecution throughout the country,
including Guadalajara and that it would be unduly harsh for the applicants
to relocate to the proposed IFA (see Rasaratnam v Canada (Minister of
Employment and Immigration) (1991), 31 ACWS (3d) 139, 140 NR 138 (FCA); Thirunavukkarasu
v Canada (Minister of Employment and Immigration), (1993), 109 DLR (4th)
682, 22 Imm LR (2d) 241 (FCA)). It required actual
and concrete evidence (Ranganathan v Canada (Minister of Citizenship
and Immigration), [2001] 2 FC 164, at paragraph 15, 102 ACWS (3d) 592 (CA)).
[12]
In this case, the applicants did not provide
convincing evidence that the first branch of the test set out in Rasaratnam,
above, was met. Similarly, they failed to demonstrate that it would be objectively
unreasonable to avail themselves of the IFA in Guadalajara.
[13]
The Court cannot intervene in this case by
reason only of the fact that the applicants are in disagreement over the weight
assigned to the evidence by the RPD.
IV.
Conclusion
[14]
For all of the above reasons, the applicants’
application for judicial review is dismissed.
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