Date: 20051121
Docket: IMM-271-05
Citation: 2005 FC 1577
BETWEEN:
JESUS EMIDGIO MALDONADO OCHOA
IVONNE QUINTERO
DAVID ALFREDO MALDONADO QUINTERO
LAURA BEATRIZ MALDONADO QUINTERO
ASHLEY IGNACIO VILLAVICENCIO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HUGHES J.
[1] This is an application for judicial review of a decision of a member of the Immigration Refugee Board dated December 22, 2004 wherein it was determined that the Applicants were not convention refugees and not persons in need of protection under the provisions of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).
[2] The Applicants are a family, father, mother, three children, all citizens of Venezuela. The father and mother were employed by Venezuelan Petroleum Company (PDVSA) until that employment was terminated in January and March, 2003 respectively apparently because they had participated in a general strike against the current Chavez government in December, 2002.
[3] The Applicants claim that commencing in about December, 2002 they received a series of threats culminating in two abduction attempts. The perpetrators of these activities are said to be the Directorate for Intelligence and Prevention Services (DISIP) the Columbian Revolutionary Armed Forces (FARC) and the Bolivian Circles. Further, a fear of extermination groups in Venezuela who directed their activities against not only high ranking executives but those of lesser ranks, was also claimed.
[4] The Applicants raise four issues in their Memorandum:
A. Whether the Board erred in law by finding that there was no more than a mere possibility of persecution if the Applicants' were to return to Venezuela by imposing an improper onus upon the Applicants to prove their claim for refugee protection?;
B. Whether the Board erred in law by essentially requiring the Applicants to have acted on their political beliefs in order to merit protection?;
C. Whether the Board's finding that the Applicants would not be at risk in the proposed internal flight alternatives (IFA(s)) and its assessment of the reasonableness of the IFA(s) constituted an error of law?; and
D. Whether the Board made perverse and capricious findings without evidence and in disregard of the evidence?
[5] The last issue (D) while stated in sweeping terms essentially was argued on the basis that the Board considered that only very senior management persons were at risk and not lesser ones such as the Applicant father, together with a re-iteration of the internal flight alternatives argument.
[6] At the oral hearing, Counsel for the Applicants reduced the issues to three, namely:
1. Was the Board correct in its determination as to whether the Applicants had a well founded fear of persecution based on their:
a. Political beliefs; and
b. Employment status
2. Was the Board correct in its determination that the Applicants had reasonable internal flight alternatives (IFA); and
3. Was the net effect of the Board's decision in respect of profiling the Applicants such as to raise the standard, unreasonably, as to the burden of proof as to standard of risk.
[7] Most of Applicants Counsel's argument was directed to the third issue. Each of these issues will be examined.
1. Well Founded Fear - Political Beliefs and Employment Status
[8] On this issue argument by Applicants' Counsel was largely directed to the employment status of the Applicant father and whether the status was sufficiently "high" so as to attract retribution by Chavez supporters. The Board reviewed the evidence and made findings including at page 10 of its Reasons:
Given their level of education and employment experience, their strike and union activities, their political and the documentary evidence before me, I find on a balance of probabilities that the first male claimant and the first female claimant would not be seriously restricted in their right to earn a livelihood in Venezuela today. Even if they were banned from government or public sector employment positions and subsidiary companies, I find that some private companies would be interested in hiring a person with the first male claimant's and the first female claimant's education and employment experience.
[9] The determination by the Board is consistent with a recent decision of this Court based on very similar facts namely Gil v. Canada (MCI) 2005 F.C. 1498.
[10] These finding were open to the Board upon the evidence, both oral and documentary. The Board's decision is not patently unreasonable and should not be set aside for this reason (Sinan v. Canada(MCI), 2004 F.C. 87 at paras 8-11).
2. Internal Flight Alternatives
[11] The Board considered the issue of internal flight alternatives available to the Applicants within Venezuela and found that such alternatives existed. At page 11 of its Reasons the Board said:
One of the other determinative issues for me in these protection claims relating to the FARC is whether a viable internal flight alternative exists for the claimants elsewhere in Venezuela, outside of the State of Zulia as this issue was raised with the claimants both before and at the hearing. Based upon the evidence before me, I find that there is no serious possibility that the claimants would be subjected to persecution for a Convention ground in Venezuela at the hands of the FARC is they were to relocate to Barcelonaor Cumanawhere an internal flight alternative exists.
and at page 15:
Having found that there is no serious possibility of the claimants being subjected to persecution in the internal flight alternative locations, the issue then becomes whether it would be unreasonable for them to seek refuge there. Having considered the conditions in the internal flight alternative location and all the circumstances of these refugee protection claims, including the particular circumstances of the claimants, I find that it would not be unduly harsh for the claimants to relocate to Barcelona or Cumana.
[12] The Onus rested upon the Applicants to demonstrate that there were serious risks with these internal flight alternatives, no such risk has been clearly shown (Thirunavukkarasu v. Canada (MCI) [1994] 1 F.C. 589 (CA)). The decision cannot be set aside on this ground.
3. Was the Standard as to Burden of Proof Raised Unreasonably
[13] Applicants' counsel made an argument to the effect that the Board had established a profile as to employment status and political involvement that required an applicant to fit within the profile before a finding as to well founded fear of persecution under sections 96 and 97 of the Immigration and Refugee Protection Act S.C. 2001, c.27 (IRPA) could be made so as to establish the Applicants as convention refugees. This, says counsel, raises the bar as to what an applicant must demonstrate.
[14] In Adjei v. Canada (MCI), [1989] 2 F.C. 680 the Federal Court of Appeal said at paragraphs 4 to 8 as to the legal test:
4 ... However, the issue raised before this Court related rather to the well-foundedness of any subjective fear, the so-called objective element, which requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
5 It was common ground that the objective test is not so stringent as to require a probability of persecution. In other words, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not. Indeed, in Arduengo v. Minister of Employment and Immigration (1981), 40 N.R. 436 (F.C.A.), at page 437, Heald J.A. said:
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Accordingly, it is my opinion that the board erred in imposing on this applicant and his wife the requirement that they [page683] would be subject to persecution since the statutory definition supra required only that they establish "a well-founded fear of persecution". The test imposed by the board is a higher and more stringent test than that imposed by the statute.
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6 The parties were agreed that one accurate way of describing the requisite test is in terms of "reasonable chance": is there a reasonable chance that persecution would take place were the applicant returned to his country of origin?
7 We would adopt that phrasing, which appears to us to be equivalent to that employed by Pratte J.A. in Seifu v. Immigration Appeal Board (A-277-82, dated January 12, 1983, not reported):
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... [I]n order to support a finding that an applicant is a Convention refugee, the evidence must not necessarily show that he "has suffered or would suffer persecution"; what the evidence must show is that the applicant has good grounds for fearing persecution for one of the reasons specified in the Act. [Emphasis added].
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8 What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.
[15] The Adjei case was decided in 1989. In 2005 the Federal Court of Appeal in Li v. Canada (MCI) 2005 F.C.A. 1, considered this case in light of sections 96 and 97 of IRPA. In Li the Court of Appeal distinguishes between the standard of proof which is "balance of probabilities" and the legal test to be met as to fear of persecution which is "not necessarily more than a fifty percent chance but more than a minimal possibility of persecution". Rothstein J.A. for the Court in Li at paragraphs 10 to 12 as to section 96 of the IRPA said:
[10] However, the standard of proof must not be confused with the legal test to be met. The distinction was recognized in Adjei v. Minister of Employment and Immigration, [1989] 2 F.C. 680, in the context of a claim for Convention refugee status. The relevant provision is now section 96 of the Immigration Refugee and Protection Act, which provides:
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[11] At page 682 of Adjei, McGuigan J.A. stated:
It was common ground that the objective test is not so stringent as to require a probability of persecution. In other words, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not. [Emphasis added.]
[12] McGuigan J.A. adopted the "reasonable chance [of] persecution" test as the legal test to meet to obtain Convention refugee status, i.e. not necessarily more than a fifty percent chance but more than a minimal possibility of persecution.
[16] At paragraph 29 Rothstein J.A. said as to section 97 of IRPA:
Distinguishing the Standard of Proof and the Test under Paragraph 97(1)(a)
[29] It is immediately apparent that the words used to describe the standard of proof - balance of probabilities - are equivalent to the words used to describe the legal test to be met in order to be entitled to protection under paragraph 97(1)(a) - more likely than not. Although the words are equivalent, there are two distinct steps involved. Proof on a balance of probabilities is the standard of proof the panel will apply in assessing the evidence adduced before it for purposes of making its factual findings. The test for determining the danger of torture is whether, on the facts found by the panel, the panel is satisfied that it is more likely than not that the individual would personally be subjected to a danger of torture.
[17] The Board in the case now before the Court made its findings based on the Adjei test, namely has it found "no serious possibility" of risk and "no substantial grounds" to believe that they would be subject to torture. It found that the fear of persecution was not objectively well founded. At page 17 of its Reasons the Board concluded:
Given my findings that the claimants' fear of persecution at the hands of Chavez supporters, such as the Bolivarian Circles DISIP agents or other government authorities in Venezuela is not objectively well-founded, and that they have viable internal flight alternative respecting their fear of persecution at the hands of the FARC, I also find that there is no serious possibility that the claimants' removal to Venezuela would subject them personally to a risk to their lives or to a risk of cruel and unusual treatment or punishment. For the same reasons, I find there are no substantial grounds to believe that the claimants' removal to Venezuelawill subject them personally to a danger of torture.
[18] Consistent with the determinations of this Court in Mora v. Canada (MCI) 2005 F.C. 1164 at paragraphs 40 and 41, I find that the Board did not elevate the standard of proof against the interest of the Applicants in this case.
CONCLUSION
[19] The application for judicial review is dismissed. There is no order as to costs.
[20] As to a certified question, the Applicants shall have seven days from the date of the Order herein to submit any proposed question for certification and the Respondent shall have five days following any such submission to make its response.
"Roger T. Hughes"
Toronto, Ontario
November 21, 2005
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