Date: 20100601
Docket: IMM-1284-09
Citation: 2010 FC 600
Toronto, Ontario, June 1,
2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
JORGE ARMANDO RAMIREZ MARTINEZ
BEATRIZ ORTEGA
GONZALEZ
YARELY DENISSE RAMIREZ
ORTEGA
CHRISTIAN URIEL
RAMIREZ ORTEGA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The principal applicant and his family
(collectively, the Applicants), citizens of Mexico, lived in a city in the state of Guanajuato. The principal
applicant left Mexico in April
2007 to work in the United States. The Applicants then came to Canada in December 2007 and made
claims for refugee protection in Canada. The principal applicant claims that he and his family received
threats from his employer. These threats allegedly were also made after the
principal applicant left Mexico
for the United States in April 2007 and after the entire family came to Canada later that year.
[2]
In a decision dated February 16, 2009, a panel of the
Immigration and Refugee Board, Refugee Protection Division (the Board)
determined that the Applicants were not convention refugees, pursuant to
s. 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA),
or persons in need of protection, pursuant to s. 97 of IRPA. The key –
and only – determination made by the Board was that the Applicants had a viable
internal flight alternative (IFA) in Mexico City.
[3]
The determinative issue in this judicial review is whether or not
the correct legal test was applied by the RPD. This question is reviewable on a
standard of correctness (see Golesorkhi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 511, [2008] F.C.J. No. 637 (QL); Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 50).
[4]
The two-part test for a finding of an IFA is well-established in
the jurisprudence (Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706 (C.A.); Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 589 (CA)). The onus was on the Applicants to show, on a balance of
probabilities, that: (a) there is a serious possibility of persecution in all
parts of the country, even in the alleged IFA area – Mexico City; and that (b)
it would not be unduly harsh for the Applicants to relocate to Mexico City.
Both prongs of the test were explored by the Board during the hearing.
[5]
Even though the Board’s decision contains a correct statement of the IFA
test, the balance of the decision raises a serious doubt that the correct test
was applied to the facts of this case. In its decision, in several places, the
Board expressed the view that the Applicants were required to relocate to the
proposed IFA before being accepted as persons in need of protection.
[6]
The following statements in the decision reflect a misapplication of the
IFA test:
I am of the view that the
claimants had an obligation to at least try to find a safe haven in their own
country before abandoning it altogether and unless it were patently
unreasonable for them to do so, their failure to try will be fatal to their
claims.
I find that the claimants
clearly had an obligation to relocate, in this case to Mexico City,
and if in the chance they were to have problems with Mr. Ybarra or anyone else,
to approach the state before seeking Canada’s protection.
I find that the claimants had
the onus to move to an IFA, in this case specifically in Mexico City,
before leaving the country. The claimants have not discharged their responsibility
of showing that the risk of harm they fear would be faced in every part of Mexico
pursuant to section 97(1)(b) of the IRPA. [Emphasis added.]
[7]
According to Thirunavukkarasu, under the first part of the
IFA test, the Applicants need to show, on a balance of probabilities, that
there is a serious possibility of persecution throughout the country, including
the alleged IFA (above, at para. 5). This burden is only triggered when the
Board has warned the claimant that an IFA is going to be raised. As such, the
Court of Appeal in Thirunavukkarasu recognized that, “in some cases the
claimant may not have any personal knowledge of other areas of the country”
(above, at para. 9). This means that the potential IFA might not have crossed
the Applicants’ mind until it was raised. Thus, the test is for the Applicants
to show that, even in the proposed IFA of Mexico City, they will likely
face persecution. The test is not, as the Board stated, for the Applicants to
have attempted, or tried living in Mexico City, and show that they did
face persecution. It is incorrect to say that there is an onus on the
Applicants to move to Mexico City, prove that it is dangerous to live there,
and – only thereafter – seek surrogate protection in Canada. Such a requirement
is not contained in any of the jurisprudence dealing with IFA.
[8]
The Board’s approach to the test was rejected by Justice
Rothstein in Alvapillai v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 108, 45 Imm. L.R. (2d) 150, at paragraph 3, where
he stated:
The viability of an IFA is to be
objectively determined and it is not open to an applicant, simply for his own
reasons, to reject the possibility of resettlement in his own country, if he
can do so without fear of persecution; see Thirunavukkarasu v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.) at 597-599. However,
the way in which the panel has characterized the IFA test here is not correct.
The panel seems to be saying that it is up to an individual, before he seeks
the surrogate protection of Canada, to test the viability of an
IFA in his own country. The logical conclusion of this proposition is
that an applicant is obliged to test the IFA and suffer persecution before
making a refugee claim in Canada. This cannot be correct. There
is no onus on an applicant to personally test the viability of an IFA before
seeking surrogate protection in Canada. [Emphasis added.]
[9]
I acknowledge that some parts of the decision under review do
reflect that the Board may have understood that there was no obligation on the
Applicants to “test the IFA” before coming to Canada. However, the repeated use
of certain language by the Board, in its decision, raises a serious doubt that
the Board understood and applied the correct test. In the circumstances, I will
allow the judicial review.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the application for judicial review is allowed, the decision
quashed and the matter remitted to a different panel of the Immigration and
Refugee Board for reconsideration; and
2.
no question of general importance is certified.
“Judith
A. Snider”
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