Date: 20041116
Docket: IMM-9512-03
Citation: 2004 FC 1611
Toronto, Ontario, November 16th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
HILARIO IBARRA-LERMA
EUGENIA DIAZ-CAZARES
MARGARITA IBARRA-DIAZ
VANESSA ALEMAN-DIAZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicants, who are citizens of Mexico, claim refugee protection from government authorities in Mexico on the basis of their political opinion; they are: Hilario Ibarra Lerma (the "male claimant"), his common-law wife, Eugenia Diaz Cazares (the "female claimant"), their children, Margarita Ibarra Diaz (the "first minor claimant"), and Vanessa Aleman Diaz (the "second minor claimant").
Page: 2
[2] In its decision dismissing the Applicants' claim, the Refugee Protection Division ("the RPD") gave the following undisputed synopsis of the factual background:
The claimants are from Durango in the State of Durango. The female complainant is the daughter of Maria Eugenia Casares (the "Mother"), who was found to be a Convention refugee in February 2000, after she suffered persecution as a consequence of her efforts to seek justice for her daughter, Yessica Yadira ("Yessica"). Yessica was raped by three Durango judicial police officers in March 1997. The Mother and Yessica fought to obtain justice for this violation but instead, were themselves victimized and persecuted by the state officials of Durango. This persecution eventually caused Yessica's death in June 1997. Following Yessica's death, members of the Mother's family and their supporters organized to raise the issue nationally and internationally.
As a result, the members of Mother's family were intimidated, harassed, publicly defamed, beaten up, shot at, attempted run over by cars and/or tortured.
(Decision, p. 7)
[3] As a result of the persecution of members of the Mother's family as described, in June 1998, the Applicants left Durango and, according to their evidence, sought safe refuge from the same persecutors in other locations in Mexico, namely, La Paz, Tijuana, and Aguacalientes. While the RPD did not accept the evidence of fear causing flight after the Applicants left Durango, nevertheless, the following finding was made:
I accept that there is a serious possibility that the claimants would be persecuted should they return to Mexico today and live in Durango. However, in order to be determined Convention refugees, the claimants must meet all the elements of a Convention refugee definition, including their onus of proving that there is no Internal Flight Alternative (IFA) available for them in Mexico. Two such IFA area found were Mexico City and Aquacalientes.
(Decision, p. 3)
[4] It is agreed that the rejection of the Applicants' claim for protection turns on the RPD's finding that an IFA is available to them in Mexico City. The essence of this finding is as follows:
While it was true that the state agents in Mexico City found the Mother on May 1998, I distinguish the claimant's case from the Mother's. In May 1998, the Mother had just left Durango and the agents had followed the Mother to Mexico City. In the case at bar, there is a 6-year gap.
I, therefore, find, based on the above analysis, that there is no serious possibility that the state agents from Durango will persecute the claimant should they return to Mexico today and live in Mexico City. This satisfied the first prong of the test of an IFA in accordance with Rasaratnam. [Emphasis added]
(Decision, p. 8)
[5] The issue for determination is whether there is evidence on the record to support the RPD's finding that an IFA exists in Mexico City. For the reasons which follow, I find that the answer is "no".
[6] On behalf of the Applicants, an ombudsman from Mexico gave evidence before the RPD of the persecution he himself suffered as a result of supporting the Applicants' pursuit of justice. As a result, the ombudsman sought and was granted refugee protection in Canada; he left Mexico in March, 2001, and was granted refugee status shortly before he testified before the RPD.
[7] As grounds for the fear that ultimately won him refugee protection, the ombudsman gave the following description:
WITNESS: It was because I was showing the government with fact investigation and pictures that the human rights of children, of boys and girls in Mexico, and especially in Jessica's case, which was nationally and internationally known, at least in the United States. With this I was showing that they weren't complying with the courts for the convention of rights of infancy to which Mexico has rectified being part of. Can I add something?
COUNSEL: Go ahead.
WITNESS: And also it would show with Jessica's case (inaudible) me and my office and other human rights organizations like Amnesty International, the Mexican session, Pro Human Rights Centre, Collective Support of Infancy in Mexico, and others. We showed the strong links that there were and are between the Governor of the State of Durango (inaudible) the justice, and other members of the State of Durango and the drug cartels of (inaudible) like the way Jessica's mother showed at a moment in front of the international press.
(Tribunal Record, p. 284)
[8] In his evidence, the ombudsman confirmed that, as part of his persecution, he had been threatened while in Mexico City. In addition, with respect to anywhere in Mexico as an IFA for the Applicants, he testified as follows:
COUNSEL: Now, I've asked you to testify today in the case of the claimants here, Eugenia and Hilario, and it assists the panel in understanding whether today and in the future, whether this family would continue to have good reason to fear if they returned to Mexico or if they would have good reason to be afraid (inaudible) should they have to return. Do you feel that this family would continue to have problems if they went back to Mexico today?
WITNESS: Yes, absolutely.
COUNSEL: What reason do you have for believing that?
WITNESS: I have three reasons not to believe, but to be certain about, and the first of them is the situation of human rights in Mexico in contrary to situations, like economic situation, for example, the human rights situation has been getting worse. There has been constant persecution from activists and the families of human rights, and especially of the first lawyer that was handling the case of the family, a lawyer (inaudible) that was assassinated two years ago in the City of Mexico, and there was a note left on her body they will continue with all the other human rights activists one by one.
The second reason that I have that to me, personally, a person in the State of Durango, a person (inaudible) State of Durango told me not to continue bothering the governor, because they were going to do the same thing that they did to Jessica; that is, rape her and push her to death with all the other daughters of all the (inaudible) including Beatrice, of course.
And the last reason is because the governor threatened the lady once and said, "I am like a tiger. I wait and let them do, but then I give a paw and I end (inaudible)." Because he's a member, an horrific member of the (inaudible) of human rights and the human rights organizations in Mexico have (inaudible) ability and also not willing to support people in their case.
(Tribunal Record, pp. 285-286)
He continued as follows:
COUNSEL: Now, you mentioned three reasons why you believe that there would still be reason to fear. I just want to have you go back to the first point that you made, and you mentioned the human rights situation in Mexico is getting worse. Now, the panel is aware that since this family came to Canada, there has been a change of the government. Are you saying that even after that change in government, after President Fox came to power that there would still be danger for this family?
WITNESS: With regards to human rights, like I said before, yes, because the party of President Fox and the party (inaudible) before (inaudible) link that had never been very visible to the eyes of everybody, and President Fox hasn't had the will to touch the issue of human rights because he doesn't want to provoke the powerful men of the party that was in power before. Up to today, they are still (inaudible) the country, parts of the country, like other war.
COUNSEL: Well, is there somewhere this family could go in Mexico where those people were not in power, where they could live safely?
WITNESS: No, definitely they can't, because when we tell people involved with drugs (inaudible) they have links all over the republic.
[Emphasis added]
(Tribunal Record, p. 287)
[9] I find there is absolutely no evidence on the record to substantiate the finding that after a "6-year gap" a viable IFA exists for the Applicants in Mexico City. Indeed, there is substantial evidence on the record that, at the time of the RPD hearing, an IFA was not available for the Applicants in Mexico City, or anywhere in Mexico. This evidence was not referred to in any way in the RPD's decision. Therefore, I find that the IFA in Mexico City conclusion reached by the RPD is capricious as it is sheer speculation.
[10] As a result, I find that the RPD's decision was made in reviewable error which renders the decision as patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for re-determination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9512-03
STYLE OF CAUSE: HILARIO IBARRA-LERMA
EUGENIA DIAZ-CAZARES
MARGARITA IBARRA-DIAZ
VANESSA ALEMAN-DIAZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 16, 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: NOVEMBER 16, 2004
APPEARANCES:
Mr. Douglas Lehrer
FOR APPLICANTS
Mr. Lorne McClenaghan
FOR RESPONDENT
SOLICITORS OF RECORD:
Douglas Lehrer
Barrister & Solicitor
Toronto, Ontario FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR RESPONDENT
FEDERAL COURT
Date: 20041116
Docket: IMM-9512-03
BETWEEN:
HILARIO IBARRA-LERMA
EUGENIA DIAZ-CAZARES
MARGARITA IBARRA-DIAZ
VANESSA ALEMAN-DIAZ
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER