Almaguer v. Can. (M.C.I.) (2011), 393 F.T.R. 129 (FC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2011] F.T.R. TBEd. JL.040
Oswaldo Daniel Leon Almaguer, Adriana Villeda Chavez (demandeurs) v. Le Ministre de la Citoyenneté et de l’Immigration (défendeur)
(IMM-5603-10; 2011 CF 807; 2011 FC 807)
Indexed As: Almaguer et al. v. Canada (Minister of Citizenship and Immigration)
Federal Court
Lemieux, J.
June 30, 2011.
Summary:
The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee and protection claim of the applicants, a married couple of Mexican citizenship. The applicants applied for judicial review.
The Federal Court allowed the application, set aside the Board’s decision and referred the matter back to a differently constituted panel of the Board for redetermination.
Aliens – Topic 1323.2
Admission – Refugee protection, Convention refugees and persons in need of protection – Persecution – Protection of country of nationality or citizenship (internal flight alternative) – The Refugee Protection Division of the Immigration and Refugee Board rejected the refugee and protection claim of the applicants, a married couple of Mexican citizenship – The main allegation of the principal applicant was that judicial police officers were looking for him because of his involvement in a social movement to help citizens in the State of Oaxaca against abuses by the central government – The Board found that the principal applicant had not shown that it was reasonable to refuse to seek the protection of the Mexican authorities and he had not rebutted the presumption that the Mexican authorities were able to protect him – The Board also found that the applicants had an internal flight alternative (IFA) – The applicants applied for judicial review – The Federal Court allowed the application – The Board’s decision failed to assess, or improperly assessed, the true nature of the applicants’ fear, which was fear of persecution by the state and its police because the principal applicant supported a movement that the state wanted to suppress – When the state or the police was the agent of persecution, the analysis of the need to seek protection had to be adapted accordingly, which the Board did not do – The Board’s IFA finding suffered from the same infirmity – The Board failed to analyze whether the police would have been able to find the principal applicant in the territory of the IFA if he had continued to support the movement.
Cases Noticed:
Minister of Employment and Immigration v. Villafranca (1992), 150 N.R. 232; 18 Imm. L.R.(2d) 130 (F.C.A.), refd to. [para. 10].
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 14].
Zepeda et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 367; 2008 FC 491, refd to. [para. 16].
Aguilar Soto et al. v. Canada (Minister of Citizenship and Immigration) (2010), 378 F.T.R. 169; 2010 FC 1183, refd to. [para. 16].
Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 115; 2005 FC 193, refd to. [para. 16].
De Leon v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 890; 2007 FC 1307, refd to. [para. 16].
Nieves et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 327; 2010 FC 497, refd to. [para. 16].
Yanez et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 721; 2010 FC 1059, refd to. [para. 16].
Ayllon Valencia et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 752; 2005 FC 1136, refd to. [para. 17].
Castaneda v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 224; 2010 FC 393, refd to. [para. 17].
Sanchez v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 518; 2008 FC 696, refd to. [para. 17].
Monroy v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 545; 2006 FC 834, refd to. [para. 17].
Soto v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. B54; 2005 FC 1654, refd to. [para. 17].
Hinzman et al. v. Canada (Minister of Citizenship and Immigration) (2007), 362 N.R. 1; 2007 FCA 171, refd to. [para. 18].
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 18].
Counsel:
Dorin Cosescu, for the applicants;
Mario Blanchard, for the respondent.
Solicitors of Record:
Dorin Cosescu, Montreal, Quebec, for the applicants;
Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
This application was heard on May 17, 2011, at Montreal, Quebec, before Lemieux, J., of the Federal Court, who delivered the following decision on June 30, 2011.
