Date: 20101208
Docket: IMM-1253-10
Citation: 2010 FC 1250
Ottawa, Ontario, December 8, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JOSE
LUIS NAVARRO LINARES
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of the decision of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board, dated 2 February 2010 (Decision), which refused the
Applicant’s application to be deemed a Convention refugee or a person in need
of protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of Mexico. He lived in the village of San Juanico in the state of Michoacán and, at the
material time, served as treasurer of a village committee responsible for
determining family eligibility for a federal aid program. The person
responsible for aid distribution was Elias Caraves (“Elias”). In 2002, the
Applicant and two other committee members began to suspect that Elias was
keeping some of the food and money for his own use, and they formed a “watchdog”
group to monitor the situation. In May 2004, they reported their suspicions to
municipal officials, who dismissed their concerns and reported the visit back
to Elias.
[3]
Soon
thereafter, Elias visited the Applicant at his home and warned him not to
interfere in the way Elias carried out his responsibilities.
[4]
Later
that same month or in the following month, the watchdog group approached state
officials with their concerns. These officials accused the group of making
false accusations and also reported the visit back to Elias. Within a week,
Elias again sought out the Applicant, and this time the Applicant’s family was
present. Elias threatened to kill the Applicant if he continued to denounce him
and to mete out consequences to the family as well. The Applicant made no further
complaints against Elias. He never reported the threats to police because he feared
for himself and his family and because he believed that the authorities would
not help him.
[5]
In
2004, unknown parties broke into the Applicant’s family home. The Applicant
stated at one point that this incident occurred in early 2004 but later
contradicted himself by stating that it occurred in mid-2004. The Applicant
believes that Elias instigated this crime. He reported the break-in to the
police. Following this incident, the Applicant and his family decided to leave Mexico.
[6]
The
Applicant stated at his hearing before the RPD that the other members of the
watchdog group had had arguments with Elias, but he did not know whether they
had been threatened by him. Both of these members died of natural causes
following the Applicant’s departure from Mexico.
[7]
The
Applicant and his family left Mexico in October 2004 and settled illegally in
the United
States
until 2008, when the recession made it difficult for him to find work. On 11
May 2008, the Applicant entered Canada and made a refugee claim the same day.
[8]
The
Applicant appeared before the RPD on 31 August 2009. He claims that he fears
returning to Mexico because Elias has
direct or indirect connections throughout the country, which he would use to
locate the Applicant wherever he settled. The RPD rejected the Applicant’s
refugee claim on the basis that he is neither a Convention refugee nor a person
in need of protection because an Internal Flight Alternative (IFA) is available
to him in Mexico. This is the Decision
under review.
DECISION UNDER REVIEW
[9]
The RPD
observed that the Applicant’s corroborating evidence consisted of a notarized
declaration from two individuals who knew the Applicant in Mexico. The declaration does
not identify Elias as the agent of persecution; it does not provide details
about the conflict or his alleged threats; and it is based on the Applicant’s
own reporting to these people.
[10]
The
RPD found that, contrary to the Applicant’s assertions, he does have a viable
IFA “in an area away from San Juanico, Michoacán [and] … areas around Elias’
farm.” This determination was based on four findings.
[11]
First,
the assertion that Elias has sufficient authority and connections beyond the
municipal level to locate the Applicant anywhere in the country is mere speculation.
The Applicant has no objective evidence to support it.
[12]
Second,
neither the Applicant nor the other members of the watchdog group were ever
harmed or put in danger despite the opportunity for Elias to do so. It seems
clear, therefore, that “Elias would have little or no interest” in pursuing the
Applicant were he to return to another part of Mexico.
[13]
Third,
Elias’ threats were conditional; the Applicant would be killed if he continued
to interfere. The Applicant’s capitulation to Elias’ threats and the cessation
of his denunciations “seriously diminishes” any motive that Elias might have to
carry out a five-year-old threat.
[14]
Fourth,
Elias is now 75 or 80 years old. It is unlikely that he would antagonize the
Applicant, even if he were to learn of the Applicant’s return to Mexico.
[15]
The
RPD found that the IFA was reasonable. The Applicant is a reasonably young
college graduate with extensive experience in agriculture, landscaping,
painting and construction. Between 1998 and 2008, he had no significant
difficulty finding employment, a situation that is unlikely to change should he
return to Mexico.
[16]
Based
on its finding of an available IFA, the RPD declined to address the Applicant’s
credibility, his well-founded fear of persecution or the risks he would face if
he were to return to Mexico.
ISSUES
[17]
The
Applicant has raised the following issue:
Did the RPD err in
finding that an Internal Flight Alternative was available to the Applicant?
More particularly, was the RPD’s reasoning based on erroneous findings of fact made in a perverse and
capricious manner, and did the RPD properly analyze the availability and
reasonableness of an IFA?
STATUTORY PROVISIONS
[18]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear
of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in
need of protection
97. (1) A person in need of protection is a person in Canada whose removal
to their country or countries of nationality or, if they do not have a
country of nationality, their country of former habitual residence, would
subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD OF REVIEW
[19]
The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[20]
In considering
whether the RPD erred in finding a viable IFA, the parties submit that the appropriate
standard of review is reasonableness. See Canada
(Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, at paragraphs 46 and 72.
[21]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph
47. Put another way, the Court should intervene only if the Decision was
unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
Fact Findings Made in
a Perverse and Capricious Manner
[22]
The
Applicant argues that the RPD’s conclusion that he has a viable IFA was based
on erroneous findings of fact that were arrived at without the required
analysis.
[23]
First,
the RPD found in paragraph 23 of the Decision that the Applicant was not harmed
or endangered while in Mexico. This contradicts the
Applicant’s oral evidence that Elias twice threatened him and, he suspects,
instigated the break-in at the Applicant’s home. Although the Applicant was not
physically beaten, he clearly was harmed. The Applicant argues that this erroneous
finding of fact “goes directly to the heart” of his claim that he has a
well-founded fear of persecution. For this reason, the RPD had a duty to
analyze the evidence by, for example, reviewing his testimony, weighing it
against the objective evidence and making a credibility finding. The RPD failed
to carry out any of these steps and so failed in its duty.
[24]
Second,
the RPD found that Elias no longer has a motivation to pursue the Applicant
elsewhere in Mexico. This is simply a
pronouncement, arrived at without the necessary assessment of the evidence.
[25]
Third,
the RPD rejected as “speculative” the Applicant’s evidence that Elias has the
resources necessary to locate him anywhere in Mexico. This is a credibility finding disguised
as an IFA analysis. The Applicant stated that Elias has access to federal funds
and that both municipal and state officials informed him of the watchdog
groups’ complaints against him, clearly indicating that Elias’ reach extends
beyond the village. In rejecting this evidence, the RPD was obliged to explain
why it was not credible.
[26]
Although
the RPD states at paragraph 28 that it has refrained from addressing
credibility, the well-founded fear of persecution and the risk to life, in fact
it did address those issues but in such a way as to exclude the required
analysis.
RPD Erred in Failing to
Specify an IFA Location
[27]
The
RPD stated that the Applicant has a viable IFA “in an area away from San
Juanico, Michoacán [and] … areas around Elias’ farm.” This is insufficient. In Valdez
Mendoza v. Canada (Minister of
Citizenship and Immigration), 2008 FC 387 (Valdez Mendoza) at
paragraphs 17 and 18, Justice Eleanor Dawson observed that it is not enough for
a board to identify an approximate area of danger and then to conclude that the
Applicant is safe anywhere other than that area. Rather, the board must specify
a geographical area that would constitute a safe haven for the Applicant and
provide some analysis of the prevailing conditions in that location. In the
instant case, the RPD’s IFA findings fail in both respects. Given that a viable
IFA was the only finding purportedly canvassed by the RPD, the failure to
conduct a proper analysis with respect to that finding renders the Decision
unreasonable.
The Respondent
Fact
Findings Are Reasonable
[28]
The
Respondent argues that the Applicant failed to provide sufficient evidence to
demonstrate that Elias had harmed the other two members of the watchdog group;
that he was responsible for the break-in at the Applicant’s house; and that he remained
motivated to pursue the Applicant anywhere in Mexico. Moreover, the Applicant’s evidence
regarding the date of the break-in was inconsistent. The RPD assessed the
evidence, based its Decision on that assessment and acted reasonably in so
doing.
[29]
It
is within the discretion of the RPD to weigh the evidence presented. See Aguebor
v. Canada (Minister of Employment
and Immigration)
(1993), 160 N.R. 315 (F.C.A.). In order to review a Decision on the
basis of alleged error of fact, the Court must find that the finding was truly
erroneous, that it was made capriciously and without regard to the evidence and
that it formed the basis of the Decision. See Rohm and Hass Canada Ltd. v. Canada (Anti-Dumping Tribunal)
(1978),
22 N.R. 175 (F.C.A.). The Applicant failed to satisfy this test.
[30]
The
Applicant may disagree with the findings and with the weight assigned to the
evidence, but that does not make the Decision unreasonable. See Singh v.
Canada (Minister of Citizenship and Immigration), 2003 FC 1146 at paragraph
11. On the contrary, it was based on a cumulative assessment of the evidence,
which was referred to in the Decision. For this reason, the findings of fact
should not be disturbed.
Viable
IFA Is Available
[31]
The
Respondent argues that an IFA is an inherent part of the definition of a
Convention refugee and that, where an IFA is available, an applicant will not
be granted Convention refugee status. See Rasaratnam v. Canada (Minister of Employment
and Immigration),
[1992] 1 F.C. 706 (C.A.) (Rasaratnam) at paragraphs 4, 6, 8; Thirunavukkarasu
v. Canada (Minister of Employment
and Immigration),
[1994] 1 F.C. 589 (C.A.) (Thirunavukkarasu) at paragraph 12.
[32]
An applicant
bears the onus of demonstrating that there is a serious possibility of
persecution in the IFA area. See Rasaratnam, above, at paragraphs 4, 8; Thirunavukkarasu,
above, at paragraph 6. In the instant case, the RPD considered the Applicant’s
evidence and was unconvinced that Elias has the resources to pursue him and
that he still cares to pursue him anywhere in Mexico.
[33]
The
Respondent also challenges the Applicant’s argument that the RPD failed to
identify a specific geographical location in its IFA analysis. It asserts that
the RPD found that the Applicant could safely locate to Mexico City and that, given his
education and successful work history, he would be able to live there in safety.
The Applicant’s Reply
[34]
The
Applicant challenges the Respondent’s assertion that the RPD properly applied
the test in determining that the Applicant faced no serious possibility of
persecution in Mexico. Indeed, the Applicant
argues that the RPD applied no test. Rather, it made findings of fact and
credibility related to the well-foundedness of the Applicant’s fear of
persecution without conducting any analysis whatsoever.
[35]
The
inaccuracy of the RPD’s statement that it would limit itself to assessing the
availability of an IFA is evident in the credibility findings and in the
findings of fact, both of which go to the heart of the Applicant’s claim and both
of which were pronounced without appropriate procedure and analysis.
[36]
The
Applicant also argues that the mere mention of Mexico City as a viable IFA is insufficient to satisfy
the test for assessing the reasonableness of an IFA as set out in Valdez
Mendoza, above. The RPD was bound, at minimum, to discuss the prevailing
conditions in Mexico
City, and
it did not. This failure to conduct a proper IFA analysis is fatal to the RPD’s
Decision.
ANALYSIS
[37]
In
his submissions, the Applicant spends a great deal of time arguing points that
are not at issue in this application. The Decision was based upon one ground
alone: the availability of an IFA in Mexico. On that point the Applicant raises serious
objections to the RPD’s finding of a viable IFA. At paragraph 28 of the Decision
the RPD says:
As
a result of my findings regarding the availability of an Internal Flight Alternative,
I need not address other issues in the claimant's case, such as the credibility
of his evidence, the well-foundedness of his fear of persecution, or the risk
to his life that he faces if he were to return to Mexico.
[38]
First
of all, the Applicant says that the RPD failed to specify a geographic location
where it would be safe for the Applicant to return. A reading of the Decision
as a whole reveals that the RPD does not simply say that the Applicant could “return
to Mexico in an area away from
San Juanico.”
[39]
In
the Decision the RPD says that “the claimant has a viable Internal Flight Alternative
in at least one or more of the areas canvassed in evidence, and almost
certainly a number of other areas in Mexico away from Michoachan as well.”
[40]
As
paragraph 18 of the Decision also makes clear, the Applicant was questioned
about IFAs in Monterrey and the Yucatán, as well as about Mexico City. So a general location
was specified – “away from Michoachan” – as well as several specific locations,
including Mexico
City.
[41]
The Applicant
also says that the RPD failed to provide any analysis as to why a specified
location would be a reasonable and realistic safe haven. A reading of the Decision
reveals that this is not the case.
[42]
The
RPD found that the proposed IFAs were safe, that Elias would not be interested
in, or able to locate, him in these places and that they were reasonable
because:
The
claimant is reasonably young and has a college education. According to his PIF,
he also has extensive work experience in agriculture, landscaping, painting and
construction, and was able to remain gainfully employed continuously or almost
continuously both in Mexico and the United States
between 1986 and 2008. He should not face significant problems relocating
within Mexico.
[43]
Unlike
the situation in Valdez Mendoza, above, the RPD in this case did more
than state that the Applicant had an IFA “elsewhere in Mexico.”
[44]
I
find the only arguable issue raised by the Applicant is whether, in its IFA
analysis, the RPD paid sufficient attention to evidence before it concerning
the financial hardships and the security issues of the Applicant’s family
relocating to the places referred to by the RPD. There was evidence of general
violence in Mexico as well as in Monterrey, Yucatán and Mexico City, the three places specifically referred to
by the RPD.
[45]
The Federal
Court of Appeal in Thirunavukkarasu, above, at paragraph 12, makes it
clear that, once the Member and the Board warn a claimant that an IFA is going
to be raised then the onus is on the claimant to demonstrate that it would be
unreasonable to require the claimant to move there.
[46]
In
this case, counsel for the Applicant raised the issue of “financial means.” In
my view, the RPD addresses this issue reasonably in paragraph 27 of the Decision
when it refers to the Applicant’s age, education and work background. There is
nothing to suggest that, given the Applicant’s demonstrated ability to find
work in Mexico, a move is not
financially feasible.
[47]
Counsel
also referred to security issues and submissions at page 298 of the Tribunal Record,
but the Applicant’s fear here is of Elias being able to track him down, which
is dealt with reasonably in the Decision. The RPD weighs the evidence and finds
that it does not indicate that Elias would have a continuing interest in the Applicant
were he to return to another part of Mexico such as Mexico City.
[48]
It
is also clear from the Decision as a whole that the RPD does not make
erroneous findings of fact or base its Decision upon credibility issues, as
alleged by the Applicant. Finding that the Applicant was not harmed clearly
means physically harmed; it is not a finding that he was not threatened. And a
finding that the Applicant’s reasons against the IFA locations raised were
speculative is not a credibility finding. The RPD did not doubt the Applicant’s
belief about why he could not go to, say, Mexico City. The RPD found that, given all of the
evidence, the Applicant’s belief that he could still be harmed in those
locations was speculative.
[49]
Just
because the RPD has a different opinion from the Applicant as to what the
evidence reveals does not mean that the RPD makes a credibility finding. The
RPD does not disregard objective evidence. It weighs the applicant’s
submissions against the other factors revealed in the evidence and comes to a
conclusion, as it did in this case, that the Applicant will not be at risk if
he goes to Mexico City or one of the other locations mentioned. The Court is
not here to re-weigh evidence. See Ramirez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1404; Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at paragraphs 34-38.
[50]
The Decision
is transparent and intelligible and it falls within the range of possible,
acceptable outcomes which are defensible with respect to the facts and law. See
Dunsmuir, above, at paragraph 47.
[51]
It is,
of course, possible that a different tribunal would disagree with the Decision
and weigh the evidence so as to reach a different conclusion, but this does not
make the Decision unreasonable.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
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