Date: 20090507
Docket: IMM-4092-08
Citation: 2009
FC
468
Ottawa, Ontario, May 7, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ALBERTO MORALES ESQUIVEL
CLAUDIA VALLE CARRASCO
RAQUEL MORALES VALLE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review made pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the IRPA) of a decision of the Refugee Protection Division of the Immigration
and Refugee Board (the Board) dated August 13, 2008,wherein
the applicants were found not to be “Convention refugees” nor “persons in need of protection” pursuant
to sections 96 and 97 of IRPA, on the main basis that the applicants had an
internal flight alternative (IFA) in Mexico.
I. Facts
[2]
Alberto Morales Esquivel (the principal applicant), his
common-law spouse Claudia Valle Carrasco, and their daughter Raquel Morales
Valle, all citizens of Mexico, claimed refugee protection alleging a
well-founded fear of persecution by reason of their membership in a particular
social group, and that they are personally subject to a risk to their life or to a
risk of cruel and unusual treatment or punishment.
[3]
The principal applicant states that on May 1, 2007, his
brother, Guadalupe Morales Esquivel, was murdered by members of a gang involved
in drug trafficking, abductions, extortion and murders. He also alleges that
the Mexican authorities refused to investigate the matter, despite requests
made by himself and by his brother’s wife.
[4]
He contends that on May 19, 2007, six members of this gang
saw him and told him that they were soon going to shoot him because he had
asked questions about the death of his brother. He also alleges that, from that
day on, he no longer thought that he and his family were safe. He claims that
he asked his wife not to come home on weekends anymore and to stay with his or
her parents instead, and that he would work but remain in hiding.
[5]
On June 11, 2007, he was assaulted by two individuals who
stole his bag, his wallet, which contained some money, and his driver’s
license, as well as a telephone bill. He also claims that the following day he
received a telephone call and was told that he was being followed and that he
would have to pay if he did not want his family to be hurt.
[6]
He
claims that he lodged a complaint with the State Public
Prosecutor’s Office on June 13, 2007, but that the copy of the complaint received
that day did not contain his entire statement. He asked why and was told it was
not possible for him to be given the entire content of this complaint.
[7]
Two days later, the two individuals who had assaulted him on
June 11, 2007, stopped him and told him that they knew that he lodged a
complaint. The principal applicant also alleges that he then wanted to add to
his complaint of June 13, 2007, that he knew that these two individuals were
members of the gang, but his
request was
refused and he was told that the investigation was in
progress.
[8]
On June 17 or 18, 2007, his wife was stopped by members of
the gang, who told her that her husband and her family were going to die. The principal
applicant claims that on the following day, he and his wife returned to the
State Public Prosecutor’s Office to add this incident to his original
complaint, but this
request was again refused for the same reasons, and he was told once
again that the investigation was in progress.
[9]
Finally, on August 14, 2007, the applicants left Mexico and
claimed refugee protection in Canada on the
same day.
[10]
The applicants stated that before deciding to leave Mexico
to seek refuge in Canada they
had considered relocating to another state in Mexico, but that
having been advised otherwise by their lawyer, they decided not to do so.
II. Impugned Decision
[11]
After analyzing all of the evidence, the Board concluded that
it was not objectively unreasonable or unduly harsh to expect the claimants to
relocate to another part of their country prior to seeking refugee protection
abroad, that they had an internal flight alternative and that, as a consequence,
they were not Convention refugees under section 96, nor persons in need of
protection under subsection 97(1) of the IRPA.
III. Issue
[12]
Did the Board commit a reviewable error with respect to the
availability of an Internal Flight Alternative?
IV. Analysis
Standard of
Review
[13]
It
is stated law that the question at issue of an IFA is factual in
nature and is clearly within the expertise and purview of the Tribunal,
and
therefore deference is owed (Dunsmuir v. New Brunswick, 2008 SCC 9). This Court should not intervene to quash the Board’s decision, unless
the applicants demonstrate that its conclusion was unreasonable.
Internal
Flight Alternative (IFA)
[14]
The applicants had to demonstrate on a
balance of probabilities that they had no IFA in Mexico, their country of
origin, in order to be granted protection (Thirunavukkarasu
v. Canada (Minister
of Employment and Immigration)(C.A.), (1993) 163 N.R. 232 (F.C.A.). However, the Board
found that the applicants did not demonstrate that they could not live
elsewhere in Mexico, such as Monterrey,
Puebla or Merida.
[15]
Indeed, the applicants
did explain that their lawyer advised them to leave the country because of “the
gangs’ code of honour”, but the Board dismissed this allegation as the
applicants could not corroborate their allegations. In any
event, and even admitting the
applicants did receive this
advice, they still had the obligation to
demonstrate on a balance of probabilities that they had no IFA in Mexico, their
country of origin, in order to be granted protection in Canada.
[16]
The burden was on the
applicants to prove all the elements of their claim (Rule 7 of the
Refugee Protection Division Rules, SOR/2002-228;
Ramanathan v. Canada
(Minister of Citizenship and Immigration),
2004 FC 862;
Akhtar v. Canada
(Minister of Citizenship and Immigration),
2004 FC 1319;
Taha v. Caanda (Minister of Citizenship and Immigration), 2004 FC 1675).
[17]
The Board also noted that the applicants were unable to identify their
aggressors; therefore, it was not unreasonable for
the Board to find that the applicants had failed to establish who was targeting
them and that they were at risk throughout their country. Indeed, if the
applicants did not know the identity
of their aggressors’ gang,
how could they claim that an unknown gang would target them throughout the whole country?
[18]
Moreover, and for the same reason, the applicants could not
adduce evidence that the gang in
question was powerful and had contact with the authorities. It was
therefore not unreasonable for the Board to find that it would not be unduly
harsh for the applicants to relocate elsewhere in another part of their
country.
[19]
It is well established that the existence of a valid IFA is determinative
of a refugee claim. Therefore, the Court need not consider the other issues
raised by the applicants (Shimokawa v. Canada (Minister of
Citizenship and Immigration), 2006 FC 445 at paragraph 17; Sran v. Canada (Minister of Citizenship and Immigration),
2007 FC 145 at paragraph 11).
[20]
The Board was satisfied here, on a balance of probabilities, that
there was no serious possibility that the claimants would be persecuted in the
proposed IFA, and that it was not unreasonable for the claimants to seek refuge
there.
In
determining that the applicants had an available IFA, the Board met the test set out
in Thirunavukkarasu, above, and Rasaratnam v. Canada
(Minister of Employment and Immigration), [1992] 1 F.C.
706 (C.A.).
[21]
The
only excuse offered by the applicants for not seeking an IFA was that they
acted on the advice of their lawyer and decided to seek refuge abroad instead.
But considering the applicant’s situation, this has not proved to be the best
advice for them to receive. They will have to bear
now the consequence of the advice they decided to follow.
[22]
The
applicant’s only criticism of the Board’s judgment on the IFA is that it did
not examine the evidence as to whether or not the serious efforts to fight
violence were paying off in Mexico. Since the applicants made no effort to
seek an IFA, we will never know if an effort on their part in that direction,
instead of seeking refuge abroad, would have succeeded or not. Moreover,
the Board is presumed to have considered all evidence, and is not required to
refer to all the evidence (Florea v. Canada (Minister
of Employment and Immigration)(F.C.A.), [1993] F.C.J. No. 598.
[23]
There
being no evidence that the applicants would be
at risk in a different city in Mexico, the Court sees no reason for intervention
on the IFA issue.
Child’s best
interest
[24]
The
applicants further claim that the Board failed to consider the “best interest
of the child”, Raquel Morales Valle, their daughter.
[25]
However,
it is clear from the transcript that the Board took into consideration the
“best interest” of the child, as it followed the Guideline 3 – Child Refugee
Claimants (Guideline 3), and made sure that she had a representative for
the claim purposes. The child was present at the hearing and on that date was
only four months and three weeks short of being 18 years old.
[26]
The
documents indicate that counsel for the child chose not to make her testify.
Moreover, the minor applicant based her claim upon her parents’ claim. She can
hardly complain now that her claim was heard jointly with her parents’ claim. Inasmuch as the daughter’s
claim depended completely on her father’s claim for the same protection, the
issue is whether the latter’s claim was fairly heard; since the applicants did not contend that
it was not, there is no issue as to whether the child’s claim was adequately
heard or not. Therefore, the reproach made by the applicants that the Board did
not apply the Guideline 3 is inconsequential in this instance and there is no
reason for the Court to intervene on that basis.
V. Conclusion
[27]
The
documents filed by the applicants in support of their application for judicial
review do not disclose any serious or sufficient ground which could allow this Court to intervene
in order to set aside the Board’s decision.
[28]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING REASONS, THIS COURT dismisses the application.
“Maurice E. Lagacé”
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