J JESUS HERNANDEZ GUTIERREZ Applicant v. THE MINISTER OF, 2012 FC 785

Date: 20120620 Docket: IMM-8876-11 Citation: 2012 FC 785 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Montréal , Quebec , June 20 , 2012 PRESENT: The Honourable Mr. Justice Shore BETWEEN: J JESUS HERNANDEZ GUTIERREZ Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT I. Introduction [ 1 ] The burden of demonstrating the non-viability of an internal flight alternative (IFA) is on the applicant. In this case, it has not been demonstrated that the evidence not referred to by the Refugee Protection Division (RPD) was relevant to the viability of the proposed IFAs. II.

Judicial procedure [ 2 ] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 (IRPA), of a decision by the RPD dated November 10, 2011, determining that the applicant is not a Convention refugee within the meaning of

section 96 of the IRPA or a person in need of protection under

section 97 of the IRPA. III. Facts [ 3 ] J Jesus Hernandez Gutierrez is a Mexican citizen. [ 4 ] The applicant alleges that he was persecuted in Querétaro, in the State of Querétaro, by Jose Luis Alvarado Tapia, an entrepreneur by whom he was employed as a taxi driver for two years.

[ 5 ] In November 2008, the applicant purportedly signed a contract to purchase a taxi with Jose Luis Alvarado Tapia, the terms of which provided for a six-month warranty for the vehicle. Under the terms of this purchase contract, the applicant was to comply with a payment schedule. [ 6 ] In March 2009, after having mechanical problems with the vehicle, the applicant met with Jose Luis Alvarado Tapia to avail himself of the warranty. A quarrel between the two men ensued. [ 7 ] On March 16, 2009, the applicant retained the services of a lawyer and commenced legal proceedings against Jose Luis Alvarado Tapia.

The applicant claims that the authorities refused to take any action due to Jose Luis Alvarado Tapia’s influence. [ 8 ] On March 19, 2009, the applicant alleges that he was physically assaulted at his home by Jose Luis Alvarado Tapia and the latter’s bodyguards, who demanded the balance of payment or they would kill him. The applicant was apparently hospitalized. [ 9 ] The applicant took refuge at his mother’s in Salamanca, an hour away from Querétaro, where he claims to have been tracked down by Jose Luis Alvarado Tapia.

In fact, he purports to have seen a vehicle driving slowly by the house on March 30, 2009. [ 10 ] On May 3, 2009, the applicant took refuge at his in-laws’ home in Caderyta, in the State of Querétaro. [ 11 ] On May 14, 2009, the applicant flew to Canada, without his wife and child, where he claimed refugee protection. IV. Decision under review [ 12 ] The RPD determined that the applicant had an IFA in cities that were further afield, such as Monterrey, Oaxaca or Veracruz. [ 13 ] The RPD came to this conclusion because it felt that his persecutor had no motivation to track him down.

It noted that the occupants of the vehicle that had driven by his mother’s house had not seen him. [ 14 ] Relying on the documentary evidence, the RPD was of the view that it was unlikely that the persecutor would be able to locate the applicant using his personal information because Mexico has taken measures to combat corruption. [ 15 ] The RPD further noted that the applicant’s wife and child had remained in Mexico, with his in-laws, and had not been harassed by the persecutor. V. Issue [ 16 ] Did the RPD err in finding that there was a viable IFA? VI.

Relevant statutory provisions [ 17 ] The following provisions of the IRPA are relevant in this case : Convention refugee 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa

particular social group or political opinion, (

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (

b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97.

(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (

a) to a danger, believed on substantial grounds to exist, of torture within the meaning of

Article 1 of the Convention Against Torture; or (

b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (

i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of nationalité, de son appartenance à un groupe social ou de ses opinions politiques :

a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;

b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne à protéger 97.

(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :

a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;

b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (

i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris

accepted international standards,and (iv) the risk is not caused by theinability of that country toprovide adequate health ormedical care. Person in need of protection

(2) A person in Canada who is amember of a class of personsprescribed by the regulations asbeing in need of protection isalso a person in need ofprotection. des normes internationales — etinhérents à celles-ci ouoccasionnés par elles, (iv) la menace ou le risque nerésulte pas de l’incapacité du paysde fournir des soins médicaux oude santé adéquats. Personne à protéger

(2) A également qualité depersonne à protéger la personnequi se trouve au Canada et faitpartie d’une catégorie depersonnes auxquelles est reconnupar règlement le besoin deprotection VII. Parties’ positions [18] The applicant contends that the RPD did not take into account the documentary evidence that was before it and the fact thatthe agent of persecution was his employer. Thus, the latter had access to all of his personal information, which would allow him to locatethe applicant anywhere in Mexico. The applicant would therefore have been forced to live in hiding.

The applicant argues that the RPDought to have discussed the evidence that was contrary to its findings. [19] The respondent maintains that the RPD reasonably found that there was an IFA given that it did not think that the applicantwould have been located. The respondent also submits that the RPD took into consideration all of the evidence to which it was notrequired to refer. Furthermore, the respondent argues that the evidence that was not cited does not challenge the IFA or the persecutor’smotivation to locate the applicant. VIII.

Analysis [20] In this case, the applicable standard of review is that of reasonableness.

A significant degree of deference is owed to theRPD’s assessment of the evidence (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011SCC 62, [2011] 3 SCR 708); Hernandez v Canada (Minister of Citizenship and Immigration), 2011 FC 703). [21] The Court, in Kumar v Canada (Minister of Citizenship and Immigration), 2004 FC 601, summed up the applicable test forthe finding of an IFA as follows: [20] In order for the Board to find that a viable and safe IFA exists for the applicant, the following two-pronged test, as establishedand applied in Rasaratnam v.

Canada (Minister of Employment and Immigration), (FCA), [1992] 1 F.C. 706 (C.A.),and Thirunavukkarasu, supra, must be applied: (1) the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in theproposed IFA; and (2) conditions in the proposed IFA must be such that it would not be unreasonable, upon consideration of all the circumstances, includingconsideration of a claimant’s personal circumstances, for the claimant to seek refuge there. [Emphasis added.] [22] The RPD applied the aforementioned test taking into account the circumstances of the case, including the fact that thepersecutor, Jose Luis Alvarado Tapia, the applicant’s employer, had access to his personal information (RPD’s decision at paragraph 25).

[23] First of all, with regard to the applicant’s fear of being located, which relates to the first prong of the test, the RPD referred tothe documentary evidence, specifically, Tab 2.4 of the National Documentation Package from April 20, 2011, entitled: “Mexico:Situation of Witnesses to Crime and Corruption, Women Victims of Violence and Victims of Discrimination Based on SexualOrientation” dated February 2007.

This document states the following: 3.3 Traceability of individuals fleeing violent situations Of all the interlocutors interviewed, none was aware of incidents in which witnesses to crime and corruption were located by theiraggressors through the use of government databases or registries (CDHFFV 28 Nov. 2006; PGR 21 Nov. 2006; ibid. 22 Nov. 2006a;ibid. 24 Nov. 2006).

In particular, SIEDO's Rosas Garcia, the AFI's Gonzalez Dominguez and the SDHAVSC's Garduno were unawareof any cases in which national registries, such as the Federal Electoral Institute (Instituto Federal Electoral, IFE) database, had been usedto track individuals who had relocated to avoid detection by criminal groups (ibid. 21 Nov. 2006; ibid. 22 Nov. 2006a; ibid. 24 Nov.2006). According to the SFP's Diaz Garcia, although much work has been done to improve the level of content within national registriessuch as the IFE, a comprehensive personal identification database is still lacking in Mexico (21 Nov. 2006).

The two most importantnational registries are the IFE database, which contains, among other things, the addresses of individuals, and the Population Registry'sSingle Code (Clave Unica de Registro de Poblacion, CURP) database, which features individuals' dates of birth (SFP 21 Nov. 2006). Public access to national registries, including the IFE database, is prohibited by law (PGR 21 Nov. 2006; ibid. 22 Nov. 2006a).Furthermore, federal police officers can only gain access to the IFE database with a court order and the written permission of the publicprosecutor's office (ibid. 21 Nov. 2006).

In the case of the government's passport database, federal law enforcement agencies such as theAFI can gain access to it, although they must first submit a request in writing to the corresponding public prosecutor's office (ibid.22 Nov. 2006a). According to SIEDO's Rosas Garcia, it is much easier to locate individuals by seeking information from family members or friends thanthrough government registries (PGR 24 Nov. 2006).

In addition, Rosas Garcia and the CDHFFV's Castillo Garcia both noted that thepublicly accessible national housing registry may provide another means of tracking individuals, although neither was aware of cases inwhich the registry had been used in this way (ibid.; CDHFFV 28 Nov. 2006). Rosas Garcia noted that it would only be a feasible methodif the targeted individual had registered a property in it (PGR 24 Nov. 2006).[Emphasis added.] [24] The documentary evidence therefore supports the RPD’s reasoning that the applicant would not be located in Mexico bymeans of his personal information.

The RPD did not expect the applicant to live in hiding in the proposed IFAs. [25] The applicant further submits that the RPD overlooked some of the evidence. The reasoning set out in Cepeda-Gutierrez vCanada (Minister of Citizenship and Immigration) (1998), (FC), 157 FTR 35 applies to the present case: [15] The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to theevidence" from the agency’s failure to mention in its reasons some evidence before it that was relevant to its finding, and pointed to adifferent conclusion from that reached by the agency.

Just as a court will only defer to an agency’s

interpretation of its constituent statuteif it provides reasons for its conclusion, so a court will be reluctant to defer to an agency’s factual determinations in the absence ofexpress findings, and an analysis of the evidence that shows how the agency reached its result. [Emphasis added.] [26] The Court notes that the following evidence was not mentioned by the RPD: (

a) Lawyer’s letter attesting to the efforts undertaken to file a complaint against Jose Luis Alvarado Tapia; (

b) Medical evidence attesting to the applicant’s injuries; (

c) Testimonial letters from the applicant’s family and from a third party witness of the assault; (

d) Sales contract and other evidence linking Jose Luis Alvarado Tapia to the applicant. [27] In order for his application for judicial review to succeed, the applicant must not only point out the adduced evidence that wasnot referred to by the panel, this evidence must be relevant to the findings, which is not the case here. In fact, a careful review of thisevidence shows that it is not contrary to the RPD’s findings regarding the viability of an IFA. At most, the evidence corroborates thoseparts of the applicant’s narrative that the RPD had not called into question.

In fact, it had not doubted the existence of the persecutor orthe assault of the applicant. [28] Moreover, upon reading the decision and the transcript of the hearing, this Court is satisfied that the RPD did not undulydiscount the testimonial evidence. The RPD did, among other things, take into consideration the applicant’s attempts to hide from hispersecutor in Mexico before he came to Canada. The applicant has not shown that the RPD made findings without regard to the evidencein the record that would affect the viability of the proposed IFAs.

[ 29 ] Lastly, the second prong of the IFA test applied by the RPD was reasonable. Moreover, the RPD did not err by finding that it would not be unreasonable for the applicant to seek refuge in one of the proposed cities. [ 30 ] Consequently, the finding of an IFA was reasonable. IX. Conclusion [ 31 ] For the reasons set out above, the Court’s intervention is not warranted. The applicant’s application for judicial review is dismissed. JUDGMENT THE COURT ORDERS that the applicant’s application for judicial review be dismissed. There is no question of general importance to certify. “Michel M.J.

Shore” Judge Certified true translation Sebastian Desbarats, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8876-11 STYLE OF CAUSE: J JESUS HERNANDEZ GUTIERREZ v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: June 19, 2012 REASONS FOR JUDGMENT AND JUDGMENT: SHORE J. DATED: June 20, 2012 APPEARANCES : Alain Vallières FOR THE APPLICANT Salima Djerroud FOR THE RESPONDENT SOLICITORS OF RECORD : Alain Vallières Attorney Montréal , Quebec FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Montréal , Quebec FOR THE RESPONDENT