Date: 20050927
Docket: IMM-2149-05
Ottawa, Ontario, September 27, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
ELENA HINOSTROZA SOTO
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 14, 2005, that Elena Hinostroza Soto (the applicant) is not a Convention refugee or a person in need of protection within the meaning of sections 96 or 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
RELEVANT FACTS
[2] The applicant is a citizen of Mexico. She alleges that on May 27, 2004, her godfather, who is a bodyguard for the State Prosecutor where she lived, raped her and threatened to kill her if she reported him.
[3] At her brother's insistence, the applicant went to the hospital to undergo physical and gynaecological tests. The physician who examined her called the police, who met with the applicant.
[4] The applicant and her attacker were summoned on two occasions, but her attacker never showed up. Further, the applicant received threatening phone calls after the first summons.
[5] The applicant's father then brought his daughter to Reynosa. She was depressed and had to undergo psychological counselling. On August 4, 2004, when she was leaving the cinema in Reynosa, the applicant was attacked by her godfather who threatened her once again. Despite her father's pleas that she report her attacker after that incident, the applicant did not do anything.
[6] On August 19, 2004, the applicant left Mexico, accompanied by her family, to come to Canada.
ISSUES
[7] 1. Did the panel err in failing to proceed to a distinct analysis
for the application of subsection 97(1) of the Act?
2. Did the panel err in determining that the applicant had an
internal flight alternative within Mexico?
ANALYSIS
1. Did the panel err in failing to proceed to a distinct analysis
for the application of subsection 97(1) of the Act?
[8] The applicant alleges that the panel had a duty to examine her claim under section 96 and subsection 97(1); considering that the panel was of the opinion that there was an internal flight alternative (IFA), that finding is valid for section 96 as well as for section 97. To that effect, see Ankamah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1514, where my colleague Mr. Justice von Finckenstein states at paragraph 18:
. . . The Board had already made a finding regarding Internal Flight Alternative under s. 96 of the IRPA and any analysis under s. 97 would inevitably come to the same conclusion. . . .
[9] Because the panel carried out an analysis under section 96 of the Act, in my opinion the panel did not err by not proceeding to a distinct analysis for the application of subsection 97(1) of the Act.
2. Did the panel err in determining that the applicant had an
internal flight alternative within Mexico?
[10] When the Federal Court is called on to review the decision by an administrative tribunal bearing on the issue of an IFA, the appropriate standard of review is patent unreasonableness. Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263, points this out at paragraphs 9 and 10:
What standard has the Court applied in similar situations? Two recent decisions of this Court, while not explicitly carrying out a pragmatic and functional analysis, concluded that the review of a Board's IFA findings is patent unreasonableness (Ali v. Canada (Minister of Citizenship and Immigration), 2001 FCT 193, [2001] F.C.J. No. 361 (QL); Ramachanthran v. Canada (Minister of Citizenship and Immigration), 2003 FCT 673, [2003] F.C.J. No. 878 (QL)).
I also note that in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (T.D.) (QL), Tremblay-Lamer J. conducted an analysis based on the pragmatic and functional approach in order to determine the standard of review of the Board's determination regarding whether the Applicant would face persecution if he returned to India. Her conclusion was that the appropriate standard is patent unreasonableness. As indicated above, the notion of IFA is inherent in this determination.
[11] For a person to be a Convention refugee, there cannot be an IFA. The Federal Court confirmed that the notion of an IFA is inherent to the definition of a refugee. Mahoney J.A. in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, stated the following atparagraph 8:
. . . a Convention refugee must be a refugee from a country, not from some subdivision or region of a country, a claimant cannot be a Convention refugee if there is an IFA. . . .
[12] The Federal Court of Appeal developed a two-part test to determine whether a person claiming refugee status has an IFA in another part of their country. The test was clearly reiterated by Beaudry J. in Dillon v. (Minister of Citizenship and Immigration), [2005] F.C.J. No. 463, at paragraph 11:
In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at paragraph 2, the Federal Court of Appeal listed two elements to be considered when establishing an IFA: the Board must be satisfied on the balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists, and, taking into account all the circumstances, including those specific to the applicant, the situation in the proposed location must be such that it would not be unreasonable for the applicant to seek shelter there.
[13] The question of who has the burden of proof to establish that there is a risk throughout the country when an IFA is raised was addressed by Linden J.A. in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589. Linden J.A., at paragraph 5, quotes Mahoney J.A. in Rasaratnam v. Canada (Minister of Employment and Immigration),
[1992] 1 F.C. 706, stating:
Mahoney J.A. held that, since the question of whether or not there is an IFA is simply part and parcel of whether or not 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.
[14] The applicant therefore has the burden of establishing, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the area that is alleged to be an IFA.
[15] The panel correctly applied the first part of the test to determine that there was an IFA and that there was no serious possibility that the claimant would be persecuted there. The panel refers to the fact that Mexico is a federal State made up of 31 states and that there are several cities with a population exceeding one million; the panel mentions several of these large cities. Taking into account the attacker's profession, the panel stated that it was logical to determine that he would not doggedly pursue her throughout Mexico.
[16] The panel does not appear to have considered the fact that, even though the applicant had changed cities, her attacker found her just the same. Yet, the applicant's father had brought her to Reynosa, a drive of several hours from her home. It was only a few days later that he attacked her and threatened her again.
[17] That said, I do not believe that this indicates that the applicant cannot settle in a safe area in Mexico. The applicant did not file any evidence to the effect that her life is in danger in all the large cities of Mexico.
[18] Even though it was far away from where she was living, she had family, i.e. her father, in Reynosa, and she could therefore be tracked down fairly easily. The applicant was questioned about the possibilities of living elsewhere in Mexico and she did not provide an answer establishing that it was impossible for her to do so. The panel could legitimately find as it did.
[19] In my opinion, the panel did not make a patently unreasonable error by stating that her life would not be threatened if she were to settle in another city in Mexico.
[20] With regard to the second part of the test, the applicant is a young woman who studied in university. It is my opinion that it would not be unreasonable to expect that the applicant could return to Mexico, to another city, without it causing her too much hardship.
[21] The applicant's counsel proposed a question for certification:
Does the panel have the obligation to justify with the evidence before it the existence of an internal flight alternative?
[22] The respondent's counsel objects to the question on the grounds that the panel's obligation to provide written reasons for its decision is specified in the Act (paragraph 169(d) of the Act) and that it is not a question of general importance.
[23] I agree with the respondent's argument, accordingly, no question will be certified.
ORDER
THE COURT ORDERS THAT:
1. The application for judicial review be dismissed;
2. No question for certification.
"Pierre Blais"
Certified true translation
Kelley A. Harvey, BCL, LLB
Email this Content