Docket:
IMM-4712-11
Citation:
2012 FC 187
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, February 9, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
|
|
JUAN JOSE CUBRIA
JUAREZ
IRIS EDITH MORTEO
PENA
ALAN DANIEL CUBRIA
MORTEO
JUAN JOSE CUBRIA
MORTEO
EDGAR EDUARDO CUBRIA
MORTEO
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
I Introduction
[1]
This case involves an internal flight alternative (IFA) for the
applicants in their country of origin. After assessing the facts of the matter,
it appears that the issue of state protection is independent of the IFA. The
administrative tribunal took the context of the matter into account when it
found that the applicants benefitted from an IFA.
[2]
It has been well established in the jurisprudence that it is up to
an applicant to demonstrate that the administrative tribunal’s analysis of the
IFA is unreasonable. Justice Yvon Pinard explained the following in Perez
v Canada (Minister of Citizenship and Immigration), 2011 FC 8:
[15] The threshold for
disproving an IFA is high, and the applicants must demonstrate conditions that
would jeopardize their life and safety, according to Ranganathan v.
Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.).
International protection is provided only if the applicants’ country of origin
cannot provide them with adequate protection throughout its territory, as per Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706
(C.A.), at page 711. Here, the Board explicitly acknowledged that criminality
and impunity problems exist in Durango, and yet still found it to be a viable
IFA. It appears from the Board’s reasons that the Board relied on common
sense and rationality regarding the passage of time since the incident as
well as the perpetrators’ apparent lack of real interest in the male applicant
while he was still in Mexico. The Board did not ignore any evidence, but
rather took into account the applicants’ fears, while finding them insufficient
to displace the Board’s findings. [Emphasis added.]
II Judicial procedure
[3]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision by the
Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB),
dated June 10, 2011, that the applicants are not
Convention refugees as defined in section 96 of the IRPA or persons in need of
protection under section 97 of the IRPA.
III Facts
[4]
The principal applicant, Juan Jose Cubria Juarez, his spouse, Iris
Edith Morteo Pena, and their three sons, Alan
Daniel Cubria Morteo, Juan Jose, Cubria Morteo and Edgar Eduardo Cubria Morteo,
are citizens of Mexico.
[5]
The female applicant, Iris Edith Morteo Pena, alleges that she was
sexually abused since she was eight years old by her paternal uncle, Miguel
Mortero, a captain in the Mexican military.
[6]
Iris Edith Morteo Pena married Juan Jose Cubria Juarez in 1988 without
telling him about the abuse she was a victim of because her uncle had threatened
to kill her and her family if she reported him.
[7]
After the marriage, Iris Edith Morteo Pena continued to suffer
abuse at the hands of her uncle during his visits.
[8]
Despite the family’s move in 1999 from the state of Veracruz to
Aguascalientes, the mistreatment continued as the uncle was transferred to the
same state as the family.
[9]
In 2007, Juan Jose Cubria Juarez left the family home because he found
a job in Mexico City.
[10]
During her spouse’s absence, Iris Edith Morteo Pena was abused by
her uncle more regularly. He even apparently insisted that she accompany him on
outings during which she was purportedly forced to engage in sexual activities
with other men.
[11]
In August 2008, Iris Edith Morteo Pena told her husband about the
abuse after receiving death threats as a result of telling her uncle that she
did not want anything to do with him.
[12]
Juan Jose Cubria Juarez returned to the family home at the end of
September 2008. On October 2, 2008, the applicants filed a complaint against
Miguel Mortero with the Public Prosecutor. They allege that the Public
Prosecutor refused to receive their complaint because it had no jurisdiction over
the military and it apparently questioned the female applicant’s credibility.
[13]
Friends of Juan Jose Cubria Juarez who work in the legal system
purportedly told him that there are no effective legal means to use against a
member of the military who apparently has a lot of contacts and influence.
[14]
Iris Edith Morteo Pena allegedly revealed the abuse to Miguel
Mortero’s wife, who apparently did not believe her.
[15]
On October 10, 2008, Miguel Mortero purportedly sent two soldiers
to beat up Juan Jose Cubria Juarez in retribution for wanting to report him,
but he succeeded in running away. The next day, he apparently went with his
spouse to a military recruitment post to file a complaint against the captain,
Miguel Mortero, but the guard soldier denied them entry.
[16]
On October 13, 2008, Miguel Mortero purportedly again uttered
death threats against the family.
[17]
The applicants left Aguascalientes for Calvillo, but Miguel
Mortero, accompanied by soldiers, allegedly found them on November 9, 2008.
[18]
On November 27, 2008, the applicants arrived in Montréal, where
they claimed refugee protection.
IV Decision
under review
[19]
The RPD was of the opinion that the applicants rebutted state
presumption even if there was a lack of credibility and plausibility in their account.
It found that, even if the applicants did not make every reasonable effort to
seek state protection, it, according to the documentary evidence, was not
imminent despite efforts made by the Mexican government.
[20]
Nevertheless, the RPD was of the view that the applicants had an
IFA in Mexico City. That finding relies on the fact that the female applicant’s
uncle would now be close to retirement and would have no reason to pursue them nearly
two years later. The documentary evidence also shows, according to the RPD,
that finding them throughout Mexico would not be possible, even if the agent of
persecution is a member of the military.
V Issue
[21]
Under
the circumstances, is the RPD’s decision reasonable?
VI Relevant
statutory provisions
[22]
The
following provisions of the IRPA apply to this case:
|
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.
|
VII
Position of the parties
[23]
The
Applicants’ Memorandum consists essentially of excerpts from case law on state
protection. The applicants maintain that no contextual analysis of their situation
to determine whether state protection was available. The RPD did not consider
that the agent of persecution was a member of the police force. They also state
that an IFA is not an appropriate remedy.
[24]
The
respondent first argues that the applicants’ affidavit is not consistent with
paragraphs 80(2.1)(a) and 80(2.1)(b) of the Federal Courts
Rules, SOR/98-106 (Rules). Indeed, the affidavit should have been
translated orally for the deponent in the language of the deponent by an
independent interpreter who must take an oath. The application for judicial
review must be dismissed for this reason. Alternatively, the Court should not
attach probative value to the affidavit.
[25]
The
respondent claims that the applicant does not challenge the IFA and that it must
therefore be considered valid. He argues that the RPD complied with the applicable
law pertaining to IFAs and that the applicants did not demonstrate that their
agent of persecution could find them throughout Mexico and that it would be
unreasonable for them to seek refuge in Mexico City.
VIII Analysis
[26]
Regarding
the respondent’s preliminary remark, the Court notes that the facts are not in
dispute. This Court’s reasoning in Velinova v Canada (Minister of
Citizenship and Immigration), 2008 FC 268 applies:
[14] In this case, the issues raised by the
applicant can be assessed without reference to the applicant’s affidavit, since
the necessary material can be found in the Certified Tribunal Record.
Furthermore, there is essentially no dispute with regard to the facts,
the question being whether the Board appropriately addressed the issue of state
protection. Therefore, I will not dismiss this case on the basis of subsection
80(2.1), but, since there is no indication that the applicant understood what she
was signing, without an affirmed statement that the content of the affidavit
had been translated for her, I give no weight to the applicant’s affidavit. [Emphasis
added.]
[27]
From
the outset, the Court notes that the RPD failed to analyze the subjective fear
of the applicants. Its comments on the lack of credibility and plausibility of
the applicants’ account concerned the search for state protection. In fact, it
identified contradictions between the testimony and the Personal Information
Form (PIF) regarding the complaint attempts.
[28]
The
applicants cite case law concerning the determination of state protection.
However, the RPD admitted that the applicants rebutted the presumption of state
protection because it was not imminent at the time of their departure. Thus,
the determinative issue in this case is the validity of the IFA.
[29]
That
issue must be analyzed in light of the reasonableness standard, which is
concerned with the transparency and intelligibility of the decision-making
process (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[30]
The
case law has established that an IFA finding must satisfy two criteria: the
proposed IFA must be safe, and it must be objectively reasonable for an
applicant to seek refuge there (Rasaratnam v Canada (Minister of Employment
and Immigration), [1992] 1 FC 706 (CA). Thirunavukkarasu v Canada
(Minister of Employment and Immigration), [1994] 1 FC 589, [1993] FCJ No
1172 (QL/Lexis)).
[31]
The
burden on an applicant to establish that an IFA is unreasonable has a high
threshold according to the Federal Court of Appeal in Ranganathan v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 164:
[14] We read the decision of Linden J.A. for
this Court as setting up a very high threshold for the unreasonableness test. It
requires nothing less than the existence of conditions which would jeopardize
the life and safety of a claimant in travelling or temporarily relocating to a
safe area. In addition, it requires actual and concrete evidence of such
conditions. The absence of relatives in a safe place, whether taken alone
or in conjunction with other factors, can only amount to such condition if it
meets that threshold, that is to say if it establishes that, as a result, a
claimant's life or safety would be jeopardized. This is in sharp contrast with
undue hardship resulting from loss of employment, loss of status, reduction in
quality of life, loss of aspirations, loss of beloved ones and frustration of
one's wishes and expectations. [Emphasis added.]
[32] In this case, the transcript
analysis shows that the applicants had every opportunity to make their
arguments to the RPD when it questioned them on the IFA in Mexico City (Tribunal
Record at pages 283-286).
[33] Those comments were
reiterated by the RPD. Regarding the first test component, the RPD stated that
the uncle would likely soon retire as the female applicant testified that he was
taking steps to do so when they departed for Canada. With respect to the second
test component, the principal applicant reported on his difficulty in obtaining
work in Mexico City given his age. The two applicants confirmed that it would
not be unreasonable for them to seek refuge in Mexico City apart from their
fear of her military uncle.
[34] The RPD also addressed
the applicants’ fear of being found through their electoral card or other
confidential data such as their cellular telephone, credit card or bank account.
Its finding is supported by the documentary evidence according to which no
government representative or police officer has used that information to find a
person in Mexico (RPD decision at paragraphs 14 and 15). It is clearly
apparent that the RPD fully considered that the agent of persecution, that is,
the female applicant’s uncle, was a member of the military.
IX Conclusion
[35] For these reasons, the
RPD’s decision is reasonable. Consequently, the application for judicial review
is dismissed.
Email this Content