Toronto, Ontario, December 08, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] In oral reasons dated March 23, 2005, a panel of the Refugee Protection Division of the Immigration and Refugee Protection Board (the "Board") found that Ms. Garcia, a 22 year-old citizen of Mexico, was neither a Convention refugee nor a person in need of protection. The applicant seeks judicial review of the Board's decision that she had a reasonable flight alternative in the Federal District of Mexico. As I have concluded that the finding of an internal flight alternative was not patently unreasonable, I must dismiss this application.
[2] The applicant's claim related to her victimization at the hands of a man who was a member of a wealthy and influential family believed to be well-connected to the police and involved with drug trafficking. This victimization included a beating and sexual assault in May 2001 aided and abetted by local police officers for which she received medical attention. The assault was reported to the police who refused to investigate. The applicant left Leon for refuge with a friend in Tampico, during which her assailant made inquiries about her location. She came to Canada in July 2001 and took language lessons. In May 2002 she returned to her family's home in Mexico and was attacked a second time. Again the police refused to investigate. The applicant returned to Canada in June, 2002 and made a claim for protection in September, 2002. She states that her assailant has continued to inquire about her whereabouts and she fears that he would be able to locate her wherever she went in Mexico.
[3] A hearing before the Board was held on March 23, 2005 and oral reasons were given that same day. The panel member found that the applicant did not have a credible fear of persecution based on a number of factors including that the applicant had delayed leaving Mexico after the initial assault even though she had a valid passport and a valid U.S. visa. The panel member also found a number of implausibilities in the applicant's claim and that she had failed to provide clear and convincing evidence that state protection would not be available to her in Mexico.
[4] In concluding her analysis, the member held that even if the alleged events occurred the applicant had a reasonable and effective internal flight alternative (IFA) in the Federal District of Mexico (Mexico City).
[5] Ms. Garcia based her application for judicial review on the grounds that the panel member ignored a psychologist's report, drew patently unreasonable inferences from the evidence and erred in finding a reasonable flight alternative. The medical report issue was effectively abandoned in oral argument as the transcript of the panel member's reasons clearly indicates that it was considered. Counsel for the applicant conceded that the weight to be given that evidence was within the member's domain.
[6] Counsel made some effective points about certain of the member's implausibility findings that do not stand up to close scrutiny; however the claim was ultimately decided on the finding that there was a reasonable and effective IFA in Mexico City.
[7] It is well-settled that the standard of review of patent unreasonableness applies to a Board's IFA finding: Yrais Del Carmen Silva Ramirez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1413 at paragraph 34; Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263 at paragraph 11 (QL); Cerna v. Canada (Solicitor General), 2005 FC 1061 at paragraph 33; Zakka v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1759 (QL).
[8] The applicant submits that the Board ignored relevant evidence about the problems experienced by women in the Federal District in obtaining state protection, when determining that the applicant had a viable IFA in that city. The question is not whether a legislative and procedural framework exists for protection, but also whether the state, through the police, is willing to effectively implement such a framework: Elcock v. Canada(Minister of Citizenship and Immigration) (1999), 175 F.T.R. 116. The applicant submits that the evidence in this case demonstrates that the police are far from being willing to implement a framework of protection, and in fact have aided her assailant.
[9] The respondent submits that there is no evidence in this case that the applicant's persecutor pursued her anywhere in Mexico outside of Leon, and the fact that a few local police have actively aided in her persecution does not in itself demonstrate that Mexico is unable to provide her with protection. The events in Leon are not determinative of what will happen in Mexico City.
[10] The two-part test for finding an IFA was established in Rasaratnam v. Canada(Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A). The Board must be satisfied on a balance of probabilities that: (1) there is no serious possibility of the applicant facing persecution in the IFA; and (2) in all of the circumstances, it is not unreasonable for the applicant to seek refuge there. As clarified by Justice Linden in Thirunavukkarasu v. Canada(Minister of Employment and Immigration), [1994] 1 F.C. 589, the concept of an IFA is an inherent part of the definition of a Convention refugee, and refugee status will not be granted where it is determined that there is an IFA. Once the issue of an internal flight alternative is raised, the onus is on the claimant to demonstrate on a balance of probabilities that there is a serious possibility of persecution in the area suggested as the IFA.
[11] I am satisfied that the panel member properly applied the test in determining that the applicant did not face a serious possibility of persecution if she were to return to Mexico, and that given the applicant's particular circumstances, it was not unreasonable for her to relocate to the Federal District.
[12] The Board clearly acknowledged that state protection in Mexico City and the country in general, continues to experience some problems. However, the Board considered factors such as the initiatives taken to address the issue of sexual crimes in Mexico, the presence of women's organizations, and steps taken to clean up the judiciary and federal law enforcement agencies. The Board considered not just whether counselling and psychological support for victims exists in Mexico City as the applicant suggests, but most importantly whether real protection actually exists. Having concluded that it does, the finding that the applicant should first have sought such protection within her own country before seeking it internationally was not unreasonable.
[13] Accordingly, this application will be dismissed. No questions of general importance were proposed and none will be certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No questions are certified.
"Richard G. Mosley"
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2119-05
STYLE OF CAUSE: KARLA TATIANA SALAZAR GARCIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Repondent
DATE OF HEARING: DECEMBER 7, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER AND
ORDER BY: MOSLEY J.
APPEARANCES BY:
J. Byron M. Thomas For the Applicant
Stephen Jarvis For the Respondent
SOLICITORS OF RECORD:
J. Byron M. Thomas
Barrister and Solicitor
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General
of Canada For the Respondent