Date: 20090303
Docket: IMM-3445-08
Citation: 2009 FC 216
Ottawa, Ontario, March 3,
2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
DANIELA HUERTA MORALES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Huerta Morales is a twenty-five year old Mexican national from Puebla. Her claim for
Convention refugee protection is founded on the allegation that she fears
persecution at the hands of her former boyfriend, Rogelio Roque Flores, the
nephew of the Governor of the State of Puebla. She recounts that some three years after they
began to date, he became possessive and distant, had relationships with other
women and was drinking. When she confronted him, he became violent and
physically assaulted her. He threatened her in August 2006 when she told him
that she wished to end their relationship. She appears to have had no contact
with him for the next two months, until her birthday in October 2006 when he
came to speak to her. He threatened her with a gun and told her that he would
rather see her dead than with another man. He reminded her that his uncle was
the Governor of Puebla.
[2]
On
account of this incident, Ms. Huerta Morales decided to leave Puebla and spend
the Christmas season in Oaxaca. When it came time to
return to Puebla, she confided her fear
of Rogelio Roque Flores to her mother and her wish to remain in Oaxaca. The two remained
there while the rest of the family returned to Puebla. Rogelio Roque Flores, however, tracked
her down and called her, threatening that if she didn’t return, her father
would suffer the consequences. Subsequently, her family home was looted and her
brothers were beaten. Rogelio Roque Flores told her that what had happened was
just a taste of what was to come. Ms. Huerta Morales returned to Puebla and filed a complaint
with the police, but nothing came of it. The police told her to think twice
about the person she was denouncing, apparently with reference to Rogelio Roque
Flores’ uncle. The threats continued. As a result, Ms. Huerta Morales saw no
alternative than to seek refuge abroad. She arrived in Canada in March of 2007 and
claimed refugee protection.
[3]
In
its decision of June 13, 2008, the Board rejected Ms. Huerta Morales’ claim on
the basis of the existence of an Internal Flight Alternative (IFA) in Mexico
City or Guadalajara. It referred
specifically to Mexican Federal legislation passed in 2007 to respond to
domestic violence against women, and free-of-charge legal, psychological, and
medical counseling for victims of domestic violence in Guadalajara, through the
Sistema Nacional para el Desarollo Integral de la Familia. The Board
found that there was no basis for the applicant’s contention that Rogelio Roque
Flores would be able to track her whereabouts, commenting that the way she
suggested he had tracked her in Oaxaca was implausible. It also noted that her only
attempts to obtain police assistance were made at the local, municipal level. The
Board’s key conclusion was that “even if the claimant was pursued to Mexico City or Guadalajara and I do not find this
likely, police protection would be reasonably forthcoming for the claimant. The
agent of persecution would have limited influence in those jurisdictions.”
Issues
[4]
The
applicant raises three issues:
(a)
Whether
the Board’s finding that the abuser would be unlikely to be able to trace the
applicant anywhere in Mexico was unreasonable;
(b)
Whether
the Board erred in failing to properly consider that the identity of
the abuser, and more specifically his uncle, would impact the availability of
State Protection; and
(c)
Whether
the Board erred in its determination that state protection was available to the
applicant in Mexico
City and Guadalajara.
Analysis
[5]
Canadian
law relating to state protection has been stated and developed in a decade and
a half of Federal Court jurisprudence interpreting and applying the seminal
exposition of the issue in Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689. In that decision Justice LaForest stressed the surrogate nature of
refugee protection; it is only the failure of the foreign state to protect that
will engage Canadian responsibility. Absent a situation of total breakdown of
state institutions, the ability of the foreign state to provide protection is
presumed. The surrogacy principle has raised various issues relating to the
intensity of the presumption of state protection and the type of evidence that
can demonstrate a failure thereof. The following principles have been
articulated in this respect:
(i)
The
stronger the democratic institutions of the foreign state in question, the
heavier the burden will be on the claimant to rebut the presumption: Kadenko v. Canada (Solicitor
General), (1996),
206 N.R. 272 (F.C.A.).
(ii)
A
refugee claimant must make reasonable efforts to seek domestic state
protection, but needn’t exhaust every conceivable recourse: Chaves v. Canada (Minister
of Citizenship and Immigration), 2005 FC 193.
(iii)
Evidence
sufficient to rebut the presumption must be “clear and convincing”: Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171.
(iv)
An
absence of perfect or ideal protection in the foreign state will not engage Canada’s surrogate
role; “adequacy,” not effectiveness per se, is what
matters: Canada (Minister of
Citizenship and Immigration) v. Carillo, 2008 FCA 94.
[6]
The
law relating to an IFA, is closely bound up with the notion of state protection.
Justice Kelen in Farias v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1035, recently summarized the legal
principles in this area at paragraph 34 of his Judgment.
1. If IFA will be an issue, the Refugee
Board must give notice to the refugee claimant prior to the hearing (Rasaratnam,
supra, per Mr. Justice Mahoney at paragraph 9, Thirunavukkarasu) and
identify a specific IFA location(s) within the refugee claimant's country of
origin (Rabbani v. Canada (MCI), [1997] 125 F.T.R. 141 (F.C.), supra at
para. 16, Camargo v. Canada (Minister of Citizenship and Immigration)
2006 FC 472, 147 A.C.W.S. (3d) 1047 at paras. 9-10);
2. There is a disjunctive two-step test for
determining that there is not an IFA. See, e.g., Rasaratnam, supra; Thirunavukkarasu,
supra; Urgel, supra at para. 17.
i. Either the Board must be persuaded by the
refugee claimant on a balance of probabilities that there is a serious
possibility that the refugee claimant will be persecuted in the location(s)
proposed as an IFA by the Refugee Board; or
ii. The circumstances of the refugee claimant
make the proposed IFA location unreasonable for the claimant to seek refuge
there;
3. The applicant bears the burden of proof
in demonstrating that an IFA either does not exist or is unreasonable in the
circumstances. See Mwaura v. Canada (Minister of Citizenship and
Immigration) 2008 FC 748 per Madame Justice Tremblay-Lamer at para 13; Kumar
v. Canada (Minister of Citizenship and
Immigration) 130
A.C.W.S. (3d) 1010, 2004 FC 601 per Mr. Justice Mosley at para. 17;
4. The threshold is high for what makes an
IFA unreasonable in the circumstances of the refugee claimant: see Khokhar
v. Canada (Minister of Citizenship and
Immigration), 2008 FC
449, per Mr. Justice Russell at paragraph 41. In Mwaura, supra, at para.
16, and Thirunavukkarasu, supra, at para. 12, whether an IFA is
unreasonable is a flexible test taking into account the particular situation of
the claimant. It is an objective test;
5. The IFA must be realistically accessible
to the claimant, i.e. the claimant is not expected to risk physical danger or
undue hardship in traveling or staying in that IFA. Claimants are not compelled
to hide out in an isolated region like a cave or a desert or a jungle. See: Thirunavukkarasu,
supra at para. 14; and
6. The fact that the refugee claimant has no
friends or relatives in the proposed IFA does not make the proposed IFA
unreasonable.
The refugee claimant probably
does not have any friends or relatives in Canada. The fact that the refugee claimant may
not be able to find suitable employment in his or her field of expertise may or
may not make the IFA unreasonable. The same may be true in Canada…
[7]
With
these principles in mind, I now turn to the specific issues raised by the
applicant in this case.
Whether the abuser would be able to
trace the applicant?
[8] The Board found that “there is no
persuasive evidence that Rogelio would be able to trace the claimant anywhere
in Mexico.” The applicant
submits that the Board asked itself the wrong question. The question the Board
had to address was whether there was a reasonable chance or serious possibility
of persecution: Adjei v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 67
(F.C.A.). She submits that the Board, instead of asking what might reasonably
happen, asked what would happen and, in so doing, applied an overly
stringent test.
[9] The respondent submits that no such
error was made. The respondent submits that the finding that the abuser would
not be likely to be able to trace the applicant anywhere in Mexico was a finding of fact,
not a statement of the standard of proof the applicant was required to meet.
Counsel points to passages in the decision where the Board accurately describes
the burden as one requiring that the applicant “show that there is a reasonable
chance that persecution will occur in the entire country” (emphasis added).
[10] In reply, the applicant submits that
this situation is much like that in Carpio v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 383, 76 F.T.R. 64 and Ghose v.
Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 464
where, although the Board correctly stated the test at the beginning of its
analysis, the use of the word “would” on a key finding raised a doubt, and thus
a reviewable error, as to which test was actually used by the Board.
[11] As was noted by Justice Reed in Carpio,
in circumstances such as these it is not appropriate to assess words in
isolation – one must examine the whole of the decision. The question to be
asked is whether, on a reading of the whole of the decision, one is left in
doubt as to whether the Board applied the right test. If so, then the matter
is reviewable. If there is no doubt that the correct test was applied, then
the decision is not reviewable.
[12] In the decisions cited by Justice
Snider in Ghose at paragraph 21, the phraseology used by the Board
suggested that it was holding claimants to the proof that they would be
persecuted. For example, in Carpio the Board had written “[t]his
does not mean (…) that there is a good chance that the claimant would be
persecuted.” Formulated in this way, the test is clearly more stringent than
what is implied by the phrase “well-founded fear of persecution,” which has a
statutory foundation in the Immigration and Refugee Protection Act and
its predecessor statute. In Ghose itself, Justice Snider considered the
following passage from the decision there under review: “[It is] unreasonable
to conclude that the BNP or Jamat goons would recognize the claimant in a dense
metropolis of Dhaka or more specifically that the local Maulvibazar BNP leader
Siddique or the local Maulvibazar Jamat leader would happen to notice the
claimant in Dhaka should they be visiting.” While not so clearly a wrong formulation
of the test as the phrase considered in Carpio, Justice Snider held that
with this wording “the Board seems to have required that the Applicant prove
that persecution would more likely than not occur in Dhaka.” Ghose can be
contrasted with Nilani v. Canada (Minister of Citizenship and Immigration),
2004 FC
1041, an earlier case where Justice Snider rejected a similar allegation
concerning the Board’s use of the word “likely”, on the basis that in the
impugned phrase, the Board was not actually discussing the likelihood or
probability of persecution but something else.
[13] In this case, when the Board stated that
“there was no persuasive evidence that Rogelio would be able to trace the
claimant anywhere in Mexico,” it was not, in my
view, referring to whether persecution would be more likely than not to occur
or articulating any kind of a test in this respect. Rather, it was commenting
on something else - an absence of reliable evidence in relation to the
claimant’s assertion that Rogelio would find her anywhere in Mexico because he
had found her in Oaxaca. When asked how he had
found her there, she had responded that it was either through her electoral
card and telephone receipts and / or by using his uncle’s influence. The Board
found that these explanations were either implausible or not possible as a
means of discovering her whereabouts. Accordingly, it reasonably concluded,
based on its analysis of the evidence, that there was no persuasive evidence
that the boyfriend would be able to find her in the cities identified as an
IFA.
[14] In Mutangadura v. Canada (Minister
of Citizenship and Immigration), 2007 FC 298, where once more use of the
word “would” in relation to a risk of persecution was an issue, Justice Phelan
remarked that “one cannot become fixated in these words or engage in matters of
semantics without considering the whole of the decision and the context in
which those words appear.” I agree. In my view, and keeping in mind that the
proper approach is examine the whole of the decision, it is clear that the
Board was not imposing too high a standard on the applicant. On page 3 of its
decision, the Board properly observed that “the claimant always bears the
burden of proof to show that there is a reasonable chance that persecution will
occur,” which is a correct formulation of the test. After reviewing the
evidence as to how the boyfriend had allegedly found the applicant, the Board
wrote: “…if the claimant was pursued to Mexico City or Guadalajara and I do not find that this is likely,
police protection would be reasonably forthcoming…” This passage makes it
clear that the Board found it unlikely that the applicant would be
persecuted and, furthermore, that protection would be forthcoming in any
event. These findings are simply incompatible with the existence of a serious
possibility, or reasonable chance, of persecution.
[15] Even if I had some doubt as to whether
the Board had applied the correct test, I would dismiss this application for
judicial review if this was the only basis raised to challenge the Board’s
decision. I say this because whatever test was used in relation to the possibility
of Mr. Roque Flores tracking the applicant, in light of the Board’s finding that
state protection would be forthcoming in the identified IFAs, the claim would
have been rejected.
Whether the
identity of the abuser would impact the availability of State Protection?
[16] The applicant submits that the
Board’s conclusion that “the agent of persecution would have limited influence
in [Mexico City and Guadalajara]” was unreasonable given the position occupied
by the abuser’s uncle. It is submitted that the Board’s findings are
“speculative and without any support in the evidence.”
[17] The applicant relies on documents
that speak of a “deeply entrenched culture of impunity and corruption” in Mexico and submits
that through the uncle’s position as Governor of a State and his influence, the
abuser would be able to locate the applicant anywhere in Mexico. As noted,
the Board found that it would be unlikely that the abuser would find the
applicant in Mexico City and Guadalajara.
[18] It was for the applicant to lead
clear and convincing evidence that the uncle would be inclined to assist his
nephew, and that he has the position and power to locate her. The Board
observed that not once during the three and one-half years of her relationship
with Rogelio Rogue Flores had the applicant ever met the uncle. Further, it
held that there was “no persuasive evidence of a close relationship between
Rogelio and the governor.” Thus, even if the uncle was in a position to use
his position to locate the applicant, there was no evidence that he would be
inclined to do so. In my view, that was a conclusion that was reasonably open
to the Board on the evidence before it. Absent evidence that the uncle and his
nephew were close or that the uncle had indicated an inclination to assist his
nephew in locating the applicant, the applicant’s submission that the uncle
would assist Rogelio Rogue Flores in his efforts to locate the applicant is nothing
more than speculation. Accordingly, the Board’s finding cannot be said to have
been unreasonable.
Evidence of State
Protection
[19] The applicant alleges that the
Board erred
in its determination that state protection was available to her in Mexico City and Guadalajara. She submits that the
Board’s finding was unreasonable as it made only selective reference to country
condition documents and did not consider or was silent with respect to
contradictory evidence. It is submitted that one document in particular
deserved comment and consideration by the Board, namely a 2006 Human Rights
Watch report. It is submitted that this report provides evidence that victims
of domestic violence face challenges in Mexico City as well as
elsewhere in the country.
[20] There is no legal requirement
that the Board specifically reference each and every document placed before it
by either party. However, if a document provides clear and convincing evidence
that runs counter to the Board’s findings, then the Board may have to explain
why the document was found not to be persuasive. In this case, the Board
relied heavily on The General Law on Women’s Access to a Life Free of
Violence, enacted as federal legislation in Mexico on February 1, 2007, and
the application of that law in the Federal District and in the State of Jalisco, where Guadalajara is located.
This law is more recent than the report the applicant says was passed over. In
light of this newly enacted law, the information in the 2006 Human Rights Watch
is arguably dated.
[21] A reading of the whole of the
decision shows that the Board provided a basis for preferring the evidence it
did and to which it gave weight. In my view, and having reviewed the certified
tribunal record, there was no evidence before the Board that was contrary to its
conclusions and so compelling that it cried out for discussion. As such, the
decision of the Board cannot be said to be unreasonable.
[22] For all of these reasons, the
application for judicial review is dismissed. Neither party proposed any
question for certification and there is none. This case turns on its
particular facts.
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