Ottawa, Ontario, April 10, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
LOPEZ HUERTA ISIS MARINA
Applicants
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division (the panel) of the Immigration and Refugee Board (the IRB) dated September 21, 2005. The panel concluded that the applicants were not Convention refugees or persons in need of protection.
I. Issues
[2] The applicants invoked the following issues:
a) Did the panel commit an error warranting the intervention of this Court in deciding that the applicants could have had state protection in Mexico?
b) Did the panel commit an error warranting the intervention of this Court in deciding that the applicants could have found refuge elsewhere in Mexico?
[3] For the reasons that follow, the answer to these two questions is negative, and this application for review is dismissed.
II. Facts
[4] The applicants, who are husband and wife, are citizens of Mexico.
[5] In 2003, Osvaldo Yanez Alfaro (the principal applicant) decided to open a car wash in Morelia, in the state of Michoacán.
[6] He signed a three-year lease for a building to use in the operation of his business with Leodoro Vega Almonte (the landlord), who was the chief medical examiner at the Office of the Attorney General of the State of Michoacán, as well as being a personal friend of that state’s Attorney General, the state Governor, and the Attorney General of the Federal District.
[7] The landlord had promised to make some repairs which had to be made to adapt the building in question for the main applicant’s purposes, but he did not keep this promise.
[8] The principal applicant protested to the landlord and was the victim of harassment and intimidation on several occasions, particularly at the hands of the police.
[9] The applicants left the premises in October 2004, and the applicant contacted the landlord to advise him of his intent to terminate the lease. The landlord threatened the principal applicant, and the applicants continued to be victims of harassment and intimidation.
[10] The applicants filed complaints with the authorities but received no support.
[11] On March 16, 2005, the applicants left Mexico and applied for refugee status when they arrived at Dorval airport.
III. Impugned Decision
[12] In its reasons, the panel concluded that the applicants had not exhausted all the possible avenues to redress the conflict they had with the landlord. Although the applicants tried to complain to the Human Rights Commissions, they never consulted or retained the services of a lawyer, who could have contested the decisions rendered by the Commissions or instituted civil or criminal proceedings against the landlord.
[13] The panel rendered its decision on the basis of the decisions in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.J.) (QL), Kadenko v. Canada (Solicitor General), [1995] F.C.J. No. 889 (F.C.T.D.) (QL), De Baez v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1020 (F.C.T.D.) (QL), and Szorenyi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1382, [2003] F.C.J. No. 1761 (F.C.T.D.)(QL), to reiterate the following principles:
· Countries are presumed to be able to protect their citizens. In the absence of a complete breakdown of state apparatus, the state is presumed to be able to protect an applicant (Ward);
· No government can guarantee perfect protection to all its nationals at all times. It is not sufficient for an applicant to show that the state did not succeed in protecting persons in his or her situation (Villafranca);
· When the state from which a refugee protection claimant originates is a democratic one, the claimant must show that he or she has done more than just complain fruitlessly to certain individual police officers. The more democratic the state in question is, the heavier the applicant’s burden of proof will be (Kadenko). In this case, the panel stated it was of the opinion that the words “police officers” could be replaced by the word “commissions” and that the principle remained the same;
· The acts of individual police officers do not in themselves prove that the state is unwilling to protect its nationals or that state protection is not available to them (De Baez);
· It is not unreasonable for the panel to require that an applicant show that he or she has exhausted all possible avenues of protection and redress (Szorenyi).
[14] The panel concluded that the applicants did not meet their burden of proof and did not exhaust all possible avenues for obtaining protection from the Mexican state.
[15] Moreover, noting the size of Mexico, the panel stated it seemed unlikely that the landlord would have influence to such an extent it would be impossible for the applicants to feel safe anywhere in their native country. Therefore, the panel concluded that the applicants had an internal flight alternative.
IV. Analysis
A. Did the panel commit an error warranting the intervention of this Court in deciding that the applicants could have availed themselves of state protection in Mexico?
[16] The applicants submit that the conclusions of the panel as to the possibility of availing themselves of state protection in Mexico are contrary to the documentary evidence it had. The applicants submit that the panel did not take into consideration an IRB report concerning state protection in Mexico (Exhibit C of the principal applicant’s affidavit), which established that Mexican courts did not offer any protection to its nationals.
[17] The excerpt from this report cited by the applicants in support of this argument concerns corruption in the judicial system. However, it must be noted that the same document mentions the determination of President Vicente Fox to carry out the reforms undertaken at the beginning of his administration. It is therefore not possible to conclude that the state apparatus has totally broken down as far as the protection of its nationals is concerned.
[18] The principles of case law noted by the panel and which guided its analysis are relevant. This Court has concluded on several occasions that Mexico is a free and democratic society (Balderas v. Canada (Minister of Citizenship and Immigration), 2005 FC 157, [2005] F.C.J. No. 225 (F.C.T.D.) (QL), Velazquez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 934 (F.C.T.D.), Urgel v. Canada (Minister of Citizenship and Immigration), 2004 FC 1777, [2004] F.C.J. No. 2171 (F.C.T.D.) (QL), Garcia v. Canada (Minister of Citizenship and Immigration), 2004 FC 1699, [2004] F.C.J. No.2058 (F.C.T.D.)(QL)). Therefore, considering the political situation in Mexico, I am of the opinion the panel did not commit any error that would warrant the intervention of this Court in deciding that the applicants did not discharge their burden of proof by not having consulted with a lawyer to explore the possibilities of civil or criminal proceedings against their landlord.
B. Did the panel commit an error warranting the intervention of this Court in deciding that the applicants could have found refuge elsewhere in Mexico?
[19] The applicants allege that the panel did not analyze their situation on the basis of the criteria developed by case law in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (C.A.), Kahlon v. Canada (Immigration and Refugee Board), [1993] F.C.J. No. 811 (F.C.T.D.) (QL), and Sran v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1047 (F.C.T.D.) (QL) concerning the existence of a reasonable internal flight alternative.
[20] They submit that the decision of the panel should be quashed, as it is impossible to determine what the basis of this conclusion was, and the panel did not seem to take into consideration the applicant’s personal situation.
[21] I cannot agree with this argument.
[22] The applicants had the burden of proving that they did not have an internal flight alternative in any other part of Mexico (Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (C.A.), Torres v. Canada (Minister of Citizenship and Immigration), 2005 FC 284, [2005] F.C.J. No. 343 (F.C.T.D.) (QL)). However, at the hearing, the principal applicant admitted being able to move elsewhere in the country (panel record, pages 247 and 248). Faced with such an admission, the panel was entitled to conclude that the applicants had an internal flight alternative in another part of Mexico, and it was neither necessary nor warranted to perform a detailed analysis, considering the panel had already determined that the applicants had not shown that they could not have the benefit of state protection in Mexico.
[23] However, it must be pointed out that the principal applicant changed his mind and stated that he would not have been safe elsewhere in Mexico, because of the influence of Mr. Vega. In spite of this statement, the Court does not find that the conclusion reached by the panel concerning the protection of the Mexican state was unreasonable.
[24] Although it would have been preferable to mention in the decision a place in Mexico where the applicants could have found a possible refuge, it appears from the transcript (page 235) that the city of Monterrey was mentioned by the panel.
[25] The parties did not submit a question to be certified. This case raises no such question.
JUDGMENT
THE COURT ORDERS that the application for judicial review be dismissed. There is no question to be certified.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5397-05
STYLE OF CAUSE: YANEZ ALFARO OSVALDO
LOPEZ HUERTA ISIS MARINA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 4, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: The Honourable Mr. Justice Beaudry
APPEARANCES:
Odette Desjardins FOR THE APPLICANTS
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marie-José Blain FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec