Date: 20041019
Docket: IMM-88-04
Citation: 2004 FC 1434
Ottawa, Ontario, October 19, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
ARTURO LOPEZ COVARRUBIAS
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 Immigration Protection Division of the Immigration and Refugee Board (the Board), dated December 10, 2003, under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). In that decision, the panel determined that the applicant did not qualify as a "Convention refugee" under section 96 or as a person in need of protection under section 97.
ISSUE
[2] Was it patently unreasonable for the panel to determine that the applicant has an internal flight alternative (IFA) in his country?
[3] For the following reasons, I respond to that question in the negative. The application for judicial review will be dismissed.
FACTUAL BACKGROUND
[4] The applicant is a Mexican refugee alleging that he would be subjected to a risk to his life or to or to a risk of cruel and unusual punishment if he were to return to his native country.
[5] The facts alleged are summarized by the panel as follows. The applicant had been self-employed since 1991 as a refrigeration technician and, at the time of the events leading to his refugee claim, he lived in the city of Ciudad Constitucion where he worked in maintenance at City Hall.
[6] The applicant explained that he had been a member of the Institutional Revolutionary Party for a long time as a block chief and that he had worked for the federal deputy Amancio Miranda during the 2000 elections when Mr. Miranda was not re-elected. He said that it was at that time that he met the son of deputy Miranda. The son had the same name as the father, i.e. Amancio Miranda. The son was an attorney at the Attorney General's office.
[7] According to the applicant, Amancio Miranda, the son, called him to his office during 2002 to ask him if he was available to work for the Institutional Revolutionary Party. He knew that the applicant was working at City Hall, which was controlled by the National Action Party (NAP), and around mid-October 2002 he asked him to steal documents that could implicate municipal officials who had misappropriated funds for the NAP. The applicant did not respond and did nothing to take any documents.
[8] On November 17, 2002, he received a visit from two imposing individuals. He was asked to give them the documents he had obtained. The applicant told them that he had not found anything interesting. One of them informed him that counsel Miranda wanted results as soon as possible. On November 25, two other individuals beat him up, telling him that counsel Miranda was still waiting for those documents.
[9] Following that incident, he called counsel Miranda on December 20, 2002, to tell him that he would give him confidential information when he returned to work after the holidays, i.e. on January 6, 2003. Taking advantage of this time, the applicant left the city of Ciudad Constitucion on December 21, 2002, to hide at his brother Alfredo's home in La Paz where he spent four weeks. On January 6, 2003, he learned from one of his friends in Constitucion that he was wanted and that some individuals had came to his home to obtain documents.
[10] Fearing counsel Miranda, he followed the advice of his brother and left the country on January 24, 2003. When he arrived in Canada, he claimed refugee status on February 3, 2003.
IMPUGNED DECISION
[11] The Board determined that the applicant was sincere and that his testimony was credible and could not be discredited. However, the Board determined that there were no substantial grounds believed to exist that the applicant would be subjected to a danger of torture within the meaning of the Convention against torture.
[12] In making this finding, the Board had to decide whether the applicant had an internal flight alternative (IFA) elsewhere in Mexico. Counsel Miranda was aware of Mexican law and knew very well that the applicant had to report him in the State where the crime had been committed. If the claimant was elsewhere in Mexico, this danger for the counsel was non-existent.
[13] Further, as the applicant was no longer in a position to provide City Hall documents regarding the NAP, counsel Miranda no longer has any interest in threatening him or beating him up.
[14] Finally, the claimant stated to the Board that he had no intention of reporting this counsel for fear of reprisals against his daughters. He added that he did not intend to return to the State where the counsel lived.
ANALYSIS
[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. . . .
[18] The applicable tests for determining whether there is an IFA are set out in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunavukkarasu, supra. The test is two-pronged: (1) The Board must be persuaded on a balance of probabilities that there is no serious risk that the applicant would be persecuted in the place proposed as an IFA; (2) Considering the circumstances, including those personal to the applicant, the situation at the place proposed as an IFA must be such that it is not unreasonable for the applicant to find refuge there.
[19] In this case, the applicant feared the threats of counsel Miranda of the municipality of Ciudad Constitucion in the State of Baja California Sur, following his refusal to carry out a criminal act, i.e. the theft of certain documents at City Hall. As stated above, the applicant must establish on a balance of probabilities that there is a serious risk that the applicant would be persecuted in the other parts of his country.
[20] He feared the revenge of counsel Miranda with the police who could easily find him in Mexico. The panel did not accept this submission. Considering the lack of jurisdiction of the police outside the State where the crime was allegedly committed, I do not consider the panel's finding on this point patently unreasonable.
[21] His ex-wife and two daughters returned to live in the applicant's home in Mexico three months after he left for Canada and they were never visited by the police or Miranda's people. The evidence from the applicant's testimony establishes that since January 6, 2003, nobody had heard from the counsel Miranda.
[22] The Court does not intend to intervene in this case because the panel reasonably explained the applicant's internal flight alternatives elsewhere in his country.
[23] The parties declined to submit serious questions of general importance. No question will be certified.
ORDER
THE COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-88-04
STYLE OF CAUSE: ARTURO LOPEZ COVARRUBIAS
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 28, 2004
REASONS FOR ORDER AND
ORDER: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS: October 19, 2004
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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