Date: 20041223
Docket: IMM-10141-03
Citation: 2004 FC 1777
BETWEEN:
MARIA ELENA LOBATON URGEL
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.
[1] The purpose of this application for judicial review, brought pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), is to challenge a decision of the Refugee Division of the Immigration and Refugee Board (the panel), dated December 1, 2003. The panel found in that decision that the applicant did not satisfy the definition of "Convention refugee" in section 96 or of "person in need of protection" in section 97. The applicant is asking the Federal Court to overturn that decision and to return this case to the Board for judgment pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7.
[2] The principal issues are the following:
1. Did the panel err in finding that there was an internal flight alternative for the applicant elsewhere in Mexico?
2. Did the panel commit a patently unreasonable error in finding that a portion of the applicant's testimony was not credible?
[3] For the following reasons, I must answer in the negative to both these questions and dismiss this application for judicial review.
[4] The applicant, 28 years of age, is a Mexican citizen. She alleges that her life would be in danger if she had to return to Mexico. She claims to have a well-founded fear of persecution in her country of origin because of her membership in a particular social group, trade-union leaders.
[5] The applicant was born in the city of Tuxtla Gutierrez, the capital of the state of Chiapas. Graduating in tourism from the Autonomous University of Chiapas in 1995, she began to work for the airline AVIAXSA S.A. (business corporation) of C.V. (open-end trust) on July 20, 1998 as a sales agent in an office in downtown Tuxtla Gutierrez. A few months later, she was transferred to the airport where she worked as a sales agent, traffic and reservations.
[6] The applicant alleges that she was a victim of sexual harassment by her immediate boss, Mr. Eugenio Pineda Lopez, after her transfer to the airport. She notes that she complained to her boss's superior, Mr. David Rojas Ruiz, but that he never took any action on her complaint.
[7] In September 2000, when the company launched a call to everyone to determine the new union, the applicant alleges she was immediately involved in the process. The applicant thought that since she was a member of an organization that supports employees' rights, the harassment would cease.
[8] The applicant was elected as a new union leader in the Tuxtla Gutierrez, Chiapas station. Following her election, she alleges, she began to take steps to improve working conditions by seeking the support of the union and the airline.
[9] As a result of these attempts, the applicant was the victim of several threats by her employer. She was unjustly and arbitrarily fired for her trade-union activities. She decided to lodge a complaint with the federal conciliation and arbitration assembly number 49. The tribunal found in her favour and ordered her reinstatement. About four months later, the applicant was again dismissed unjustly and arbitrarily. She complained a second time. The dispute lasted a full year during which the applicant was unemployed. She alleges that she tried to find work in various cities in Mexico and says she could not be absent for long periods of time because she had to be present at the hearings. However, she says she found that her employer had put her on a blacklist and that it was impossible for her to find employment. In fact, no one wanted to hire her as she now had a bad reputation in the tourist industry, throughout Mexico. The federal conciliation and arbitration assembly found in her favour a second time and ordered her employer to reinstate her in her position. This second reinstatement did not even last a day; before the end of her first shift, she had again been dismissed.
[10] The applicant decided to complain a third time. Following this third complaint, she says she received two telephone calls from her bosses, in September 2002, recommending that she stop her many complaints if she valued her life. The applicant further alleges that her employer hired some people to kill her. She claims that they twice tried to run her over with a car, on October 24 and November 11, 2002. She says that following these two incidents she received a third telephone call informing her that the next time the driver would not miss her and that she would be crushed. During this period, the applicant notes, her lawyer was also assaulted and threatened, which is why he decided to abandon her case. Fearing for her life, the applicant's family helped her flee from Mexico and find refuge in Canada.
[11] The panel gave the applicant the benefit of the doubt concerning the facts that she had been a union representative and had been fired three times by her employer. The panel also thinks it is possible that the applicant obtained three decisions in her favour on the complaints filed with the federal conciliation and arbitration branch. However, the panel did not believe the rest of her story, namely that she was pursued and threatened with death in every city in Mexico and that she was on a blacklist that prevented her from working in the tourist industry everywhere in the country.
[12] The panel relied on common sense in finding that it is virtually impossible that a small airline company sent a letter to all employers in Mexico in order to so tarnish the applicant's reputation that no company wanted to hire her. Moreover, the panel reached the conclusion that there is an internal flight alternative elsewhere in Mexico. The panel consequently agreed that the applicant did not qualify as a Convention refugee or a person in need of protection.
1. Did the panel err in finding that there was an internal flight alternative for the applicant elsewhere in Mexico?
[13] The existence of an internal flight alternative (IFA) is the first question that must be analyzed in this application for review. When the Federal Court is asked to review an administrative tribunal's decision on the issue of an IFA, the applicable standard of review is that of the patently unreasonable decision (Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263 (F.C.) (QL)).
[14] It is well-established law that the existence of an IFA means there is no reason to find that the applicant is unable or unwilling to claim the protection of her country (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), paragraph 2).
[15] This Court has stated many times that the concept of the IFA is "inherent" in the definition of Convention refugee. Consequently, the applicant has to prove, on a balance of probabilities, that she seriously risks being persecuted throughout her country (Thirunavukkarasu, supra, at paragraphs 2 and 9).
[16] In a case similar to the proceeding before me, also concerning a Mexican refugee, Arturo Lopez Covarrubias v. The Minister of Citizenship and Immigration, IMM-88-04, 2004 FC 1434, my colleague Beaudry J. stated:
[15] The two parties agree that the standard of review in like cases is that of patent unreasonableness (Chorny v. Canada (Minister of Citizenship and Immigration, 2003 FC 999, [2003] F.C.J. No. 1263 (F.C.T.D.)(QL) and Mohammed v. Canada (Minister of Citizenship and Immigration), 2003 F.C. 954, [2003] F.C.J. No. 1217 (F.C.T.D.)(QL)).
[16] The Federal Court of Appeal in Thirunavukkarasu. v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), defined the concept of an internal flight alternative as follows:
. . . The idea of an IFA is "inherent" in the definition of a Convention refugee; it is not something separate. The definition of "Convention refugee" requires that claimants have a well-founded fear of persecution which renders them unable or unwilling to return to their home country. If claimants are able to seek safe refuge within their own country, there is no basis for finding that they are unable or unwilling to avail themselves of the protection of that country.
[17] It added the following with regard to the burden of proof:
Since the existence or not of an IFA is part of the question of whether the claimant is a Convention refugee, the onus of proof rests on the claimant to show, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the area which is alleged to afford an IFA. . . .
[17] In Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunavukkarasu, supra, a two-step test was developed for determining whether there was an IFA. To find the existence of an IFA, it is necessary, first, that the Board be persuaded on a balance of probabilities that there is no serious possibility that the applicant will be persecuted in the location proposed as an IFA, and, second, that, bearing in mind all of the circumstances including the circumstances peculiar to the claimant, the situation in the proposed IFA location is such that it is not unreasonable for the claimant to seek refuge there.
[18] Concerning the first step, the applicant in this case says she is the victim of two forms of persecution. First, she alleges she is precluded from exercising her profession in the whole of Mexico, and second, she cites a fear for her life should she have to return to her country. In order to analyze this first step in the test, it is important to ensure that there is no serious possibility that the applicant will be persecuted for either of these two reasons.
[19] The applicant argues that she attempted to find employment during the period in which her second claim against her unjust and arbitrary dismissal was being heard. As she mentioned during her testimony, the applicant could not be absent for lengthy periods of time since she had to be present at the hearings so as not to adversely affect her case. I would like to point out, in the first place, that it is completely normal to suffer some rejections when one is looking for work. Consequently, I do not think the applicant's unproductive searches indicate that her employer had sent a letter to all the other employers in Mexico's tourist industry that would prevent her from working any longer in that field.
[20] Quite apart from that, I think it is worth pointing out that the applicant herself mentioned that the city of Tuxtla Gutierrez is a small city. Consequently, it would not be unusual if her former employer and all the other employers in this small city were aware of the problems that existed between the applicant and this airline. That being said, I do not think it indicates that the applicant would be unable to find work in another city. Accordingly, I am of the opinion that the panel did not commit any patently unreasonable error. It based itself on common sense in finding that it would be possible for the applicant to find a job in another city.
[21] Secondly, the applicant alleges that she received death threats and on two occasions was almost run over by an automobile. She contends these were not accidents but attempts at murder. She suggests that the perpetrators of these acts were hired by her employer to get her to stop challenging her dismissal. The applicant presented no evidence that her life was in danger in all the cities of Mexico. On the contrary, she simply indicated that she would not feel safe in Mexico City, a place where the head office of the union for which she was a representative is located. Once again, I am of the opinion that the panel did not commit any patently unreasonable error in saying that her life would not be threatened if she were to settle in some other city in Mexico. Indeed, it is rational to conclude that the employer in a small airline company would not hound the applicant everywhere throughout Mexico.
[22] It is well established that it is the applicant's job to demonstrate that she risks persecution everywhere in her country. In this case, I am of the opinion that the applicant has failed to discharge her onus of proof. It is my opinion, therefore, that the first step is accomplished and that the panel's decision in this regard was not unreasonable.
[23] Concerning the second step in the test developed in Rasaratnam, supra, and Thirunavukkarasu, supra, the applicant says she was able to leave Mexico without difficulty from the city where she was working. In my opinion, therefore, it would not be unreasonable to expect that the applicant could return to Mexico, to another city, without that imposing an excessive burden on her.
[24] Moreover, in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Mr. Justice LaForest, writing on behalf of the Supreme Court of Canada, stated that international refugee law is a back-up to the protection normally owed to an individual within his or her own country. The international community intended that persons who were being persecuted should ask their own state of origin for protection before engaging the responsibility of other states. However, the Court acknowledged that in those cases where the evidence established that such protection would not be available, the individual was under no obligation to solicit protection. Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting its citizens. Otherwise, there should be clear and convincing confirmation of the state's inability to protect its citizens.
[25] As mentioned above, there is a presumption that the state is able to provide some protection to its nationals. From this standpoint, the state's protection need not necessarily be complete for a Court to find that there is an IFA (Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.) (QL), (1992), 18 Imm. L.R. (2d) 130).
[26] In the case at bar, I am of the opinion that Mexico can provide reasonable protection to the applicant. In this regard, I note that the applicant herself stated that she had not attempted to obtain protection from the police. She testifies that she did not complain to the police because of the corruption that exists and because of her adverse experience with the legal system following her dismissal. On this point I defer to the panel's opinion that the applicant did not necessarily have an adverse experience with the legal system. To the contrary, the letter from her lawyer clearly demonstrates that she won three times. Moreover, even if the panel does not deny that there are some problems of corruption, it preferred to rely on the documentary evidence which shows clearly that the Mexican government has taken a number of steps to combat this problem.
[27] Furthermore, it is not as if the applicant was having some problems with the governmental authorities in her country. In this case it was an airline. Consequently, I do not think it was unreasonable to conclude that the applicant could request the protection of the Mexican authorities. At the end of the day, I am of the opinion that the panel did not commit any error that would warrant the intervention of this Court.
2. Did the panel error in finding that the applicant was not credible?
[28] Where an IFA exists for someone who is claiming refugee status, I do not think it is necessary to examine the question of credibility. Irrespective of whether or not the applicant is credible, the fact that there is an IFA means there is no justification for the applicant's unwillingness or inability to avail herself of this protection.
[29] Having examined all of the evidence presented to the panel and the submissions by the parties, I am of the opinion that the panel did not commit any error that would warrant the intervention of this Court. Consequently, the application for judicial review is dismissed. No question is certified.
"Max M. Teitelbaum"
Judge
OTTAWA, ONTARIO
December 23, 2004
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10141-03
STYLE: MARIA ELENA LOBATON URGEL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 4, 2004
REASONS FOR ORDER: Teitelbaum J.
DATED: December 23, 2004
APPEARANCES:
Manuel Antonio Centurion FOR THE APPLICANT
Édith Savard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Manuel Antonio Centurion FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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