Date: 20090320
Docket: IMM-3790-08
Citation: 2009 FC 289
Ottawa, Ontario, this 20th day of March
2009
Present: The Honourable Orville
Frenette
BETWEEN:
Gloria
Isabel ZURITA VALLEJOS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the “Board”),
dated August 1, 2008, wherein the Board determined that the applicant was not a
“Convention refugee” nor a “person in need of protection” pursuant to sections 96
and 97 of the Act.
[2]
The
applicant, who represents herself, was served on December 17, 2008 with Justice Michel Shore’s Order,
granting her leave for a judicial review in this case. The hearing was fixed
for Thursday, March 12, 2009 at 9:30 a.m. at the Federal Court in Montréal, province of Quebec.
This document was served at the last known address of the applicant, on Notre-Dame
Street
in Montréal. The applicant did not show up at the hearing. Counsel for the
respondent presented a motion to dismiss the application and also proceeded
upon the merits of the application.
[3]
Having
read the evidence in the file and the written memorandum of both parties, I
conclude that the motion for the dismissal of the application must be granted,
based upon the absence of the applicant and the lack of merit of her
application.
Facts
[4]
The
applicant, Ms. Gloria Isabel Zurita Vallejos, a 22-year-old a citizen of Chile, claims to
have a well-founded fear of persecution at the hands of her former boyfriend, a
43-year-old major in the Chilean military.
[5]
She
alleges that, in March 2005, she met Renato Figueroa at an army presentation he
was giving at the university she was attending. Their relationship progressed
from then and in September 2005 the couple started living together in an
apartment in Valparaiso, despite her
parents’ disapproval.
[6]
Ms.
Vallejos contends that Mr. Figueroa mistreated her physically, psychologically
and sexually and therefore asserts to have a reasonable fear of persecution.
[7]
She
also claims that, in March 2006, Mr. Figueroa forced her to abort and the
abortion took place at their apartment. After this horrific event, the applicant
left Valparaiso to live with
a cousin in Talcahuano, where she stayed until her departure for Canada on August
28, 2006; she asked for asylum one month after.
[8]
Ms.
Vallejos fears her former boyfriend who, she claims, could now kill her to
silence her forever of the secret she knows: he is married and was unfaithful
to his wife.
[9]
She
came to Canada declaring to
the Custom Officer that she came to visit her sister; however she admitted
having the intention of claiming refugee status.
Impugned decision
[10]
The
Board found that the applicant had a viable internal flight alternative (“IFA”)
in Talcahuano,
Chile. It considered
the fact that the applicant would have spent over six months in Talcahuano without ever
being found by her former boyfriend.
[11]
Despite
the fact that Mr. Figueroa would have gone to the applicant’s mother’s house in
Valparaiso in July 2006
and July 2007 to enquire about Ms. Vallejos, threatening to beat her mother if
she did not reveal her daughter’s whereabouts, Mr. Figueroa is no longer
looking for Ms. Vallejos. Given that Ms. Vallejos will not publicize in
any way their past relationship, that she was unable to establish with credible
evidence that Mr. Figueroa would try to locate her should she return to
Talcahuano, and that no obstacles or difficulties were identified by the applicant
with regard to establishing herself in Talcahuano, the Board rejected her
application.
Issues
[12]
Did
the Board err in concluding that the applicant had a viable IFA and that she
had not sought state protection?
Standard of review
[13]
The
weighing of facts or questions of mixed fact and law are subject to the
standard of reasonableness. On questions of law, the standard is one of
correctness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190). Decisions of
administrative tribunals are to be treated with deference on factual findings (Canada (Citizenship and
Immigration) v. Khosa,
2009 SCC 12).
Respondent’s preliminary objection
[14]
The
respondent objects to the applicant’s affidavit, dated September 25, 2008, i.e.
subsequent to the impugned decision of August 1, 2008 for the following
reasons: (1) the affidavit does not comply with paragraph 10(2)(d) of
the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22,
and (2) the affidavit is to be given no weight as it contains opinions or
arguments on the correctness of the Board’s decision rather than on facts as
required by subsection 81(1) of the Federal Courts Rules, SOR/98-106.
[15]
An
analysis of the applicant’s affidavit shows that it mainly contains the
applicant’s opinion or negative commentaries on the decision rendered. Because
of this, subsection 81(1) of the Federal Courts Rules, requiring
affidavits be confined to facts (with an exception on beliefs), has been
violated.
[16]
Case-law
states that courts can, when affidavits contain hearsay or opinions, either
strike all or parts of it or give it no weight (Burns Lake Native Development
Corp. v. Commissioner of Competition, 2005 FCA 256; Bastide v. Canada
Post Corp., [2006] 2 F.C.R. 637, at paragraphs 26 and 27).
[17]
In
the present case, the applicant is not represented by counsel. In equity I will
not strike out the affidavit but will give it no weight.
Analysis
Internal
flight alternative
[18]
The
applicant asserts that her former boyfriend went twice to her parents’ house in
Valparaiso and threatened to beat
her mother if she did not tell him where the applicant was hiding. Moreover,
she claims that her life is in danger should she be returned to Chile as she believes
Mr. Figueroa will kill her to silence her forever.
[19]
The
jurisprudence clearly establishes that the refugee claimant has the burden to
prove and demonstrate that it would be unreasonable for him or her to seek
refuge in a different part of the country (Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); Ranganathan
v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164
(C.A.)).
[20]
The
Court has also realized that the existence of a valid internal flight
alternative is sufficient to dispose of the refugee claim (Rasaratnam v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)).
[21]
Recognizing
that the applicant did reside in Talcahuano for nearly six months
without any incident, it was reasonable for the Board to conclude that she had
a viable internal flight alternative.
State
protection
[22]
After
analyzing the applicant’s story and the objective documentary evidence on Chile, the Board concluded
that the applicant had not rebutted the presumption of state protection.
[23]
In
accordance with the Supreme Court of Canada’s decision in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, at paragraphs 49 and 50, the applicant
has the onus to adduce clear and convincing evidence of the inability of the
Chilean state to protect its citizens. This evidence must demonstrate that a
claimant has first exhausted all possible avenues available in his or her
country before seeking international protection.
[24]
The
evidence shows that in the applicant’s declaration to the immigration officer,
when she asked for asylum, she declared she had asked for police protection but
was not taken seriously. Before the tribunal she admitted the above declaration
was untrue and she had not asked for police protection but later contradicted
this statement.
[25]
It
is evident that the applicant has not reversed the presumption of state
protection. Thus it was reasonable for the Board to conclude that the applicant
did not exhaust all or any recourses available in her country to obtain
protection. The applicant chose to come to Canada and to claim refugee protection while such
claim is a solution of last resort. As stated by Justice Yves de Montigny in Lopez
v. Minister of Citizenship and Immigration, 2007 FC 198:
[22] In short, we are not dealing here with a
situation in which it was unreasonable to expect the applicants to take action
to alert the Peruvian authorities. Although I sympathize with the applicants'
problems and the difficult experience which they had to go through, we should
never lose sight of the fact that a refugee protection claim in a state which
is a signatory to the Convention must always be a solution of last resort.
Assaults and threats by a few police officers did not exempt the applicants
from having to file complaints with the proper authorities in the particular
circumstances of this case. Although the RPD could have provided better reasons
for its decision and may have shown itself too demanding as to what must be
established to prove that the state is unable to protect its nationals, I am of
the opinion that, in these circumstances, the errors were not fatal to its
decision and do not warrant the matter being referred back for reassessment.
Conclusion
[26]
Based
on the foregoing, I believe that the findings made by the Board were reasonable
and opened to it on the evidence. Consequently, this judicial review will be
dismissed.
JUDGMENT
THE
COURT ORDERS that:
The
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board dated August 1, 2008 is dismissed.
No
question will be certified.
“Orville
Frenette”
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