Date : 20050930
Docket: IMM-1449-05
Citation: 2005 FC 1328
BETWEEN:
Ulises Roberto MELENDEZ MARTINEZ
Juan Carlos CANO VERDUZCO
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board dated February 11, 2005, that the applicants are not "Convention refugees" or "persons in need of protection" as defined under sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Ulises Roberto Melendez Martinez, the principal applicant, alleges that he is homosexual and Juan Carlos Cano Verduzco, his common law partner since February 14, 2002, alleges that he is bisexual. Both tell stories of persecution relating to their sexual orientation and their alleged problems coincided with the beginning of their cohabitation.
[3] The panel did not believe the applicants' story. Its analysis in that respect may not have been devoid of error, but the panel determined, indeed after a detailed analysis, that the applicants had failed to rebut the presumption that they were protected by the State. The panel also determined that there was an internal flight alternative.
[4] There is a general presumption to the effect that the State is able to provide protection to its citizens; clear and convincing evidence is necessary when the applicant wants to establish that this is not the case (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 724-725). In Canada (M.E.I.) v. Villafranca (1992), 150 N.R. 232, the Federal Court of Appeal stated the following at page 233 :
The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.
[5] I am not persuaded that the applicants rebutted this presumption. The panel recognized that even if the situation is not ideal in Mexico, there is no clear and convincing evidence that the Mexican State would not attempt to ensure the applicants' protection if they were to return to their country, at least in Mexico City or other metropolitan cities, or even in the tourist cities of Acapulco and Cancun, where sexual minorities are able to live in a somewhat tolerant atmosphere with the support of several human rights organizations. The applicants did not seek any protection in their country, either with another police force, or by following up with the prosecutor for the State of Puebla. I do not believe it was unreasonable for the panel to determine that the applicants had not established that they acted reasonably by only taking one step to obtain protection from the Mexican authorities.
[6] The applicants submit that exhibit P-19 confirms that the Mexican police stopped and harassed homosexual couples in Mexico City. The respondent submits that the fact that the IRB did not mention this document in its reasons does not establish that it did not consider it. On that point, it is well established that the panel is not bound to refer in its reasons to each piece of evidence that it considered (see Hassan v. Canada (M.E.I.) (1993), 147 N.R. 317 (F.C.A.) and Zhou v. Minister of Employment and Immigration (July 18, 1994), A-492-91 (F.C.A.)). There is a presumption that the Protection Division considered all of the evidence before making a decision (Woolaston v. Minister of Manpower and Immigration, [1973] S.C.R. 102 and Hassan, supra).
[7] The applicants submit, in their written memorandum, that the panel determined in a perverse manner that their story had been made up, considering that during the hearing the member advised counsel Alain Joffe that he was not interested in hearing questions related to the applicants' sexual orientation or to their relationship as a couple. It is clearly evident from the IRB's reasons that it did not doubt the applicants' sexual orientation or relationship. What the panel did not believe was the story of alleged persecution. It is therefore my opinion that there was no breach of natural justice or procedural fairness in this case.
[8] Under the circumstances, as the applicants' sexual orientation was properly assessed, the IRB's determinations relating to the State's protection and to the existence of an internal flight alternative are supported by persuasive evidence in the record and in themselves justify the dismissal of this application for judicial review.
[9] An order is therefore made accordingly.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 30, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1449-05
STYLE OF CAUSE: Ulises Roberto MELENDEZ MARTINEZ, Juan Carlos CANO VERDUZCO v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 20, 2005
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 30, 2005
APPEARANCES:
Pia Zambelli FOR THE APPLICANTS
Evan Liosis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alain Joffe FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada