TEODORO PEREZ LILIANA AIDE TORRES VERGARA Applicants v. THE MINISTER OF CITIZENSHIP, 2011 FC 8

Federal Court Cour fédérale Date: 20110106 Docket: IMM-2418-10 Citation: 2011 FC 8 Ottawa, Ontario, this 6 th day of January 2011 Before: The Honourable Mr.

Justice Pinard BETWEEN: TEODORO PEREZ LILIANA AIDE TORRES VERGARA Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review of the decision of a member of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27, (the “Act”) by Teodoro Perez and Liliana Aide Torres Vergara (the “applicants”).

The Board determined that the applicants were neither “Convention refugees” nor “persons in need of protection” under sections 96 and 97 of the Act. * * * * * * * * [ 2 ] The applicants are citizens of Mexico and are a married couple. Prior to their departure, they lived in Acapulco , where the male applicant ran a business and the female applicant was a police officer. [ 3 ] In September 2006, the male applicant’s motorcycle was stolen. He was informed by his neighbours that the perpetrators were local firefighters.

The applicants allege that it is well-known in Acapulco that firefighters have links with organized crime and drug traffickers. The male applicant complained at the local police station and denounced the firefighters to their commanding officer. In late November 2006, he was interviewed on local television and made a public appeal for the return of his motorcycle.

The applicants were not able to obtain an original copy of this interview, but were provided with a synopsis of the interview signed by the reporter; the synopsis does not indicate that the applicant specifically mentioned the firefighters in the televised interview. [ 4 ] The male applicant alleges that he subsequently received threatening phone calls from unknown individuals who told him that they knew his whereabouts and the location of his business. He alleges that suspicious-looking vehicles were occasionally seen around his home. In May 2007 he was followed home from work by unknown individuals.

[5] The applicants moved briefly to the female applicant’s mother’s home in Acapulco, and then sold the business and moved in withthe female applicant’s father in Conchero, a three-hour drive from Acapulco. They allege that they continued to feel unsafe there. [6] The female applicant allegedly fears being killed by organized criminal gangs in Acapulco, who she says have been responsible fora number of murders of police officers since November 2006, including that of her partner, who was killed in a grenade attack. * * * * * * * * [7] The Board found that there was no nexus to a Convention ground, and that therefore

section 96 did not apply. The Board found thatwith the exception of some slight exaggerations, the applicants were credible. The determinative issue was the existence of an internalflight alternative (“IFA”) in Durango.

The Board found that on the balance of probabilities, there was no serious possibility ofpersecution and/or risk to life or risk of torture or cruel and unusual punishment in Durango, and it would be objectively reasonable forthe applicants to build a life there. * * * * * * * * [8] There are two issues in this application, as argued orally by counsel for the parties who also referred the Court to their writtensubmissions: a. Did the Board err in its characterization of the central element of the applicants’ claim? b.

Did the Board err in concluding that an internal flight alternative was available to the applicants? [9] The applicants raise procedural fairness questions with the first issue, alleging that the Board committed a breach of natural justiceby misunderstanding or mischaracterizing the central elements of their claim, thereby leading to erroneous conclusions. According toKhosa v.

Canada (Minister of Citizenship and Immigration), 2009 SCC 12 , [2009] 1 S.C.R. 339, at paragraph 43, issues ofprocedural fairness attract a standard of review of correctness. [10] The standard of review applicable to the Board’s finding of the existence of an IFA, which is a fact-based question, isreasonableness, according to Navarro v. The Minister of Citizenship and Immigration, 2008 FC 358, at paragraphs 12 to 14. * * * * * * * * A. Mischaracterization of the basis of the applicants’ claim [11] The applicants allege that the Board misunderstood the central basis of their claim.

They allege that their main fear was notsimply harassment related to the denunciation of the motorcycle theft, but rather that they believe that this harassment was a way for thedrug cartels to harass the family of a police officer in order to later blackmail the officer for favours.

They allege that the Board did notunderstand this, due to the complexity of their claim, and argue that it was the responsibility of the Board and of the Refugee ProtectionOfficer present at the hearing to ensure that all necessary clarifications were obtained and the central basis of their claim was understood. [12] In my view, if the applicants felt that the Board did not fully understand the nature of their claim, they should have raised thisissue at the hearing itself. In Ayub v.

The Minister of Citizenship and Immigration, 2004 FC 1411, Justice Luc Martineau held atparagraph 21 that the “failure to object at the hearing amounts to an implied waiver of any breach that might have occurred”. In Ayub,the applicant was also alleging that the Board had not properly understood her testimony, but Justice Martineau found that “the applicanthad every opportunity to explain her side of the story and to respond to the tribunal’s questions”. Moreover, in my opinion, the hearingtranscript and the applicants’ Personal Information Form (“PIF”) do not bear out their argument.

There is nothing at all to suggest thatthe basis of their claim was anything other than the motorcycle story. The PIF and the submissions by the applicants’ counsel at thetribunal hearing focus solely on this incident without raising any connection to the female claimant’s job. Moreover, the female applicantwas specifically asked if there was a connection between what happened to her husband and her fear of her job, to which she replied thatthere was not (Certified Tribunal Record, at page 527).

I find that there is no evidence that the Board erred in its characterization of theclaim, and that the applicants could have raised this objection at the hearing had they chosen to do so. Furthermore, this would notovercome the issue of the existence of an internal flight alternative.

B. Internal flight alternative [13] The applicants argue that it was unreasonable of the Board to find an internal flight alternative in Durango, as there was noevidence in support of this finding. The applicants cite Barajas v. The Minister of Citizenship and Immigration, 2010 FC 21, in whichJustice James Russell found that the Board had committed a reviewable error in identifying certain cities as IFAs “without citing anyevidence that might have established that the situation existing in the metropolitan areas identified was qualitatively different from thatprevailing in Guadalajara” (paragraph 72).

The applicants also contend that the Board demonstrated a lack of knowledge of theconditions and modus operandi of Mexican drug organizations, which they allege are well-known by most Mexicans.

The applicantsappear to be arguing that the Board ignored evidence of corruption and drug trafficking in Durango, while failing to cite any evidenceshowing that the applicants would be safe there. [14] I note that in the Barajas case, there was ample evidence that the applicant, having been beaten by police on several occasionsfor denouncing police corruption, was still being pursued even while he was in Canada, and his remaining family members in Mexicowere being threatened in his absence.

In my opinion, the facts are therefore distinguishable from the present case. [15] The threshold for disproving an IFA is high, and the applicants must demonstrate conditions that would jeopardize their lifeand safety, according to Ranganathan v. Canada (Minister of Citizenship and Immigration), (FCA), [2001] 2 F.C.164 (C.A.). International protection is provided only if the applicants’ country of origin cannot provide them with adequate protectionthroughout its territory, as per Rasaratnam v. Canada (Minister of Employment and Immigration), (FCA), [1992] 1F.C. 706 (C.A.), at page 711.

Here, the Board explicitly acknowledged that criminality and impunity problems exist in Durango, and yetstill found it to be a viable IFA. It appears from the Board’s reasons that the Board relied on common sense and rationality regarding thepassage of time since the incident as well as the perpetrators’ apparent lack of real interest in the male applicant while he was still inMexico.

The Board did not ignore any evidence, but rather took into account the applicants’ fears, while finding them insufficient todisplace the Board’s findings. [16] The respondent submits that the applicants mischaracterize the decision when they argue that the Board did not provide anyevidence supporting its finding of an IFA. The respondent points to paragraphs 16 to 24 of the decision, which outline the Board’sfinding that the agents of persecution are unlikely to pursue the applicants in the future.

I agree with the respondent that it was thisconclusion that formed the basis of the Board’s conclusion that Durango constituted a reasonable IFA, despite the acknowledgedpresence of drug traffickers and organized crime. I find the Board’s reasoning to be sound: the applicants were not likely to be pursuedby anyone once they left Acapulco, and therefore there would be no danger to them in Durango arising from the relevant incidents. Ageneralized fear of drug traffickers is not enough to ground a finding of persecution under

section 97. [17] In my opinion, the applicants have not identified any reviewable error in the Board’s reasoning in this regard, nor have theyidentified any evidence which the Board failed to take into account. * * * * * * * * [18] For the above-mentioned reasons, the application for judicial review is dismissed. [19] I agree with counsel for the parties that this not a matter for certification. JUDGMENT

The application for judicial review of the decision of a member of the Immigration and Refugee Board, determining that the applicants were neither Convention refugees nor persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27, is dismissed. “Yvon Pinard” Judge FEDERAL COURT NAME OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-2418-10 STYLE OF CAUSE: TEODORO PEREZ, LILIANA AIDE TORRES VERGARA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: December 1, 2010 REASONS FOR JUDGMENT AND JUDGMENT: PINARD J.

DATED: January 6, 2011 APPEARANCES : Me Patrizia Ruscio FOR THE APPLICANTS Me Simone Truong FOR THE RESPONDENT

SOLICITORS OF RECORD : Patrizia Ruscio FOR THE APPLICANTS Montréal , Quebec Myles J. Kirvan FOR THE RESPONDENT Deputy Attorney General of Canada