Federal Court Decisions

Date: 20040402

Docket: IMM-496-03

Citation: 2004 FC 495

Ottawa, Ontario, this 2^nd day of April 2004

Present:           THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN

BETWEEN:

                                   FERNANDO ENRIQUE RIVERA DELGADILLO

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The principal issue in this judicial review is whether the member of the Immigration and Refugee Board ("IRB") erred in concluding that the Applicant, a gay man, had an Internal Flight Alternative ("IFA") in Mexico City.

Background

[2]                The Applicant based his claim for refugee status and need for protection on his sexual orientation as a gay man.

[3]                Before 1995, the Applicant had two unpleasant incidents involving the police in his hometown, arising from his contact with other gay men. As a result, he quit his job and moved to Puerto Vallarta where he secured employment at the Public Safety Department, of which the local police formed a part.

[4]                By 1999, the Applicant claimed his co-workers began to suspect that he was gay. The atmosphere in his department was also said to be anti-gay and lesbian as evidence by the firing of a lesbian police officer.

[5]                In that same year, he was, firstly, confronted by two police officers who threatened to inform his boss of his sexual orientation if he did not pay them. Secondly, two men, one of whom was one of the police officers from the earlier incident, grabbed him and forced him to give them $100.

[6]                Shortly thereafter, he entered Canada and three months later claimed refugee status.

[7]                The Applicant is an accountant, proficient in English and currently working for the Bank of Montreal as a customer service representative.

[8]                The IRB accepted that the Applicant fears persecution from the two police officers in Puerto Vallarta but denied refugee status on the basis of an IFA in Mexico City.

[9]                The IRB found that the documentary evidence established that an IFA in Mexico City was not possible for three groups:

-            effeminate men

-            HIV positive men

-            political activists and whistleblowers

The Applicant was clearly neither of the two latter groups.

[10]            In response to counsel's claim that the Applicant was vulnerable because he was effeminate, the IRB rejected that contention; not solely on grounds of his apparent mannerisms but also because of his ability to secure and retain a job in the macho environment of a Public Safety Department, is inconsistent with obvious effeminate behaviour.

[11]            The IRB considered such other matters, as the lack of coordination between the local Puerto Vallarta police and the federal police who are also responsible for Mexico City and that people of low socioeconomic status (of which the Applicant was not one) were vulnerable, to conclude that objectively his fear was not sustainable and that he was not at risk.

[12]            Most particularly, the IRB reviewed the substantial evidence about gay issues in Mexico City. That evidence included the presence of gay politicians, the seventeen-year history of gay pride marches, legislative changes favouring gay persons and the highly publicized marriage of four hundred gay couples in 2002.

[13]            The IRB also examined the evidence tendered as to his psychological state, his ability to find work and whether a return to Mexico City was either unduly harsh or posed a risk of harm. The IRB gave reasons for rejecting such evidence both, individually and cumulatively.

Analysis

[14]            The standard of review of the IRB's determination of a viable IFA is patent unreasonableness (see Mohammed v. Canada (Minister of Citizenship and Immigration) 2003 FC 954).

[15]            The IRB did not misconstrue the nature of the Applicant's fear of Mexican police generally. It accepted both the subjective and objective basis for the fear in Puerto Vallarta, however, it rejected the objective basis for that fear in Mexico City. It did so in a cogent, clear and balanced finding.

[16]            The IRB rejected that there was a basis for a personalized fear of federal police. This finding was open to the IRB on the facts of this case. It found the notion that Puerto Vallarta's police would seek out the assistance of federal police in Mexico City to harass a single gay individual to be highly speculative.

[17]            Upon a review of all of the evidence before the IRB, I conclude that the findings made were reasonably open to it. No material issue was overlooked.

[18]            The Applicant challenges the weighing of the evidence by the IRB and wishes this Court to engage in that very same exercise and substitute its weighing for that of the IRB. This is something that the Court should not and will not do.

[19]            The IRB's decision is not unreasonable much less patently so.

[20]            As agreed by counsel, there is no issue to be certified.

                                                                       ORDER

THIS COURT ORDERS that this application is dismissed.

               "Michael L. Phelan"            

JUDGE

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-496-03

STYLE OF CAUSE:               FARID MEHMOOD ANJUM ET AL v. MCI

                                                                             

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       March 23, 2004

REASONS FOR ORDER:                Phelan J.

DATED:                                              April 2, 2004

APPEARANCES:

SOLICITORS OF RECORD: