Date: 20050630
Docket: IMM-7833-04
Citation: 2005 FC 930
Ottawa, Ontario, June 30, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
JOSE ANTONIO SABINO CHAVEZ
MERLIN BEATRIZ SEGOVIA
GARY SEBASTIAN SABINO SEGOVIA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated August 20, 2004, in which Mr. Jose Antonio Sabino Chavez (the applicant), Mrs. Merlin Beatriz Segovia and Mr. Gary Sebastian Sabino Segovia (collectively the applicants) were determined not to be Convention refugees nor persons in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant, his wife and his son are citizens of Venezuela and allege a fear of persecution at the hands of the Caracas Metropolitan Police Force (the Police).
[3] In 1994, the applicant and his wife opened a retail-clothing store in downtown Caracas. On November 9, 1999, two men robbed the applicants' store. The applicant flagged down a passing Police car and they told him not to worry as they would take care of the situation. However, the next day, members of the Police returned to the store and tried to extort money from the applicant in return for protection. When the applicant refused, the Police threatened him and left.
[4] On November 24, 1999, the Police returned and once again demanded to be paid in return for their protection. Upon refusal, the applicant was beaten and his store vandalized. The applicant therefore reported the incident to the Attorney General's office who said they would investigate the matter.
[5] As the Police continued to constantly threaten the applicant, another report was filed with the Attorney General's office on January 6, 2000. On April 18, 2000, the Police returned and threatened the applicant and his family at gun point. The applicant again reported this incident to the Attorney General, who assured him they were still investigating the matter.
[6] On May 10, 2000, the applicant received a phone call from someone identifying himself as a member of the Police, who threatened to kidnap the son of the applicant if their demands were not met. This incident was also reported to the Attorney General's office.
[7] On July 26, 2000, members of the Police vandalized the applicant's home, stating that they were aware of the reports filed with the Attorney General's office and that if they continued, the applicant and his family would be killed.
[8] The applicants therefore left Venezuela on September 15, 2000 and arrived in Canada on October 23, 2000, after spending a little over a month in Miami. The applicant claims that after his departure, his father informed him that the Police had come looking for him and had placed numerous threatening notes under the door of his home.
ISSUES
[9] Was the Board's decision with regards to the possibility of an Internal Flight Alternative (IFA) patently unreasonable?
ANALYSIS
[10] As the issue before me is one dealing solely with the Board's decision in regards to the possibility of an IFA, the standard to be applied is that of a patently unreasonable decision. As was stated in Chorny v. Canada(Minister of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No. 1263 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] The concept of an IFA requires that the applicants have a well-founded fear of persecution which renders them unable or unwilling to return to their home country. More specifically, I quote the words of Justice Mahoney in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, (C.A.) at paragraph 8:
As to the third proposition, since by definition 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. It follows that the determination of whether or not there is an IFA is integral to the determination whether or not a claimant is a Convention refugee. I see no justification for departing from the norms established by the legislation and jurisprudence and treating an IFA question as though it were a cessation of or exclusion from Convention refugee status. For that reason, I would reject the appellant's third proposition. [my emphasis]
[12] The Federal Court of Appeal has developed a two-pronged test for the determination of whether a refugee claimant has an IFA in another part of his or her country. That test is reformulated clearly at paragraph 20 of Kumar v. Canada(Minister of Citizenship and Immigration), 2004 FC 601, [2004] F.C.J. No. 731:
In order for the Board to find that a viable and safe IFA exists for the applicant, the following two-pronged test, as established and applied in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunavukkarasu, [1994] 1 F.C. 589 (C.A.), must be applied:
(1) the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the proposed IFA; and
(2) conditions in the proposed IFA must be such that it would not be unreasonable, upon consideration of all the circumstances, including consideration of a claimant's personal circumstances, for the claimant to seek refuge there.
[13] In applying that two part test, the Board found that there was not a serious possibility that the applicants would be persecuted in larger cities outside of the Federal District, the area in which the Police was predominantly located. Although the applicants claim that the Police is a state sponsored organization and therefore that the persecution faced would be widespread, numerous different pieces of documentary evidence relied upon by the Board indicated the contrary. The Board was well within its rights to prefer the documentary evidence to that given during the applicant's oral testimony (Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 at paragraph 1).
[14] As is concerned the second part to the test, the Board found that the applicants had operated their own business for six years, and had been able to close shop and live and work in Canada for nearly four years. The Board determined that it would not be unduly harsh to therefore expect the applicants to be able to successfully relocate to one of the larger cities in Venezuela where the Police had no jurisdiction.
[15] Although the applicants state that the documentary evidence points to widespread corruption and instability within certain organisms of the judiciary, the Board did not disagree. In its decision, the Board mentions the fact that it is aware of the evidence indicating widespread corruption, lengthy pre-trial detentions and severe inefficiencies in the judicial and law enforcement systems. Nonetheless, evidence of possible corruption does not equate to a finding that the applicants would not be safe in another part of Venezuela.
[16] The Board properly applied the first part of the two-pronged test in determining that there existed an IFA and that there was no serious possibility of the claimant being persecuted in that IFA. Furthermore, the Board determined that no barriers existed in preventing the applicant and his family from relocating to another safer area of Venezuela and that the relocation would not be unduly burdensome on the applicants. I therefore do not find that the Board's decision can be categorized as patently unreasonable.
ORDER
THIS COURT ORDERS that:
- The application for judicial review be dismissed;
- No question for certification.
"Pierre Blais"
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