Date: 20110208
Docket: IMM-3117-10
Citation: 2011 FC 139
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, February 8, 2011
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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JOSE ALFREDO VEGA ZARZA
ABIGAIL PICHARDO ROMERO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review in
accordance with subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act), of a decision
dated May 7, 2010, by the Immigration and Refugee Board, Refugee
Protection Division (panel). In its decision, the panel ruled that the
applicants were not Convention refugees or persons in need of protection as
defined in sections 96 and 97 of the Act.
Factual background
[2]
The
applicants, Jose Alfredo Vega Zarza and his spouse, Abigail Pichardo Romero, are
citizens of Mexico.
[3]
On
November 6, 2007, an individual allegedly approached Mr. Vega Zarza
to propose that he sell drugs on behalf of someone named El Gavilan. Mr. Vega
Zarza stated that he refused the proposal immediately.
[4]
Two
days later, on November 8, 2007, an individual allegedly came another
time for an answer. Mr. Vega Zarza purportedly turned down the offer again.
The same
day, four men appeared at their home claiming to be police officers. Ms. Pichardo
Romero refused to open the door for them. They apparently told her that they
would return. The applicants allege that their house was watched for about a
week.
[5]
On
November 16, 2007, Mr. Vega Zarza allegedly went to the
courthouse in Toluca to file a
protection request. The
people there apparently made him return several times, and nothing came of the
request.
[6]
On
November 20, 2007, Mr. Vega Zarza was purportedly taken, beaten and
kidnapped by five (5) individuals who allegedly reiterated their proposal that
he sell drugs for them. The individuals apparently left him unconscious by the
side of the road. After he returned home, the couple apparently decided to find
refuge elsewhere.
[7]
On
November 21, 2007, the applicants went to the home of some of Ms. Pichardo
Romero’s uncles in San Mateo. They had to leave because the attackers
apparently found them.
[8]
On
November 24, 2007, the applicants then went to stay with one of Ms. Pichardo
Romero’s other uncles in the Federal District. On December 16, 2007, two
of the four (4) men who purportedly appeared at the couple’s home came to the
uncle’s residence and allegedly threatened the applicants and their unborn
child with death.
[9]
On
February 11, 2008, the applicants came to Canada and claimed
refugee protection the same day.
Impugned decision
[10]
In
its decision dated May 7, 2010, the panel rejected the applicants’
refugee claim for two reasons. In the first place, the panel found that the
applicants were not credible because the hearing revealed inconsistencies,
incongruities and contradictions in the testimonies.
[11]
However,
the panel noted that it did not focus on validating or rebutting the applicants’
allegations or demonstrating a lack of credibility because even if the
applicants were credible, the panel arrived at the conclusion that the
applicants had an internal flight alternative.
[12]
In
this regard, the panel analyzed the case law applicable to internal flight
alternatives (IFA). The panel noted that during the hearing, it gave the
applicants the opportunity to submit their evidence on this matter and that
they were unable to explain why the suggested cities were unreasonable
and/or why there was be a serious possibility that they would be persecuted
there.
[13]
The panel identified two cities as IFAs and found that the
applicants would not be faced with a fear of persecution by their attackers in
those cities. The panel believed that a move to one of the identified cities by
the applicants was a realistic and reasonable option. The panel therefore found
that the applicants had not discharged their burden of showing that there was
no possibility of an IFA for them.
Relevant provisions
[14]
Sections 96 and 97 of the Immigration
and Refugee Protection Act read as follows:
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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.
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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.
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Issue
[15]
This application raises the following question:
Did the panel err in
finding that there is an internal flight alternative (IFA) for the applicants?
Standard of review
[16]
The Court found in Mejia
v Canada (Minister of Citizenship and Immigration),
2009 FC 354, [2009] FCJ No 438, at para 26,
that in light of Dunsmuir
v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190, the standard of review applicable to credibility
findings and IFA decisions was that of reasonableness:
[26] In relation to the standard of review for an IFA, the Court
in Diaz v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 1543 (F.C.)
summarized the case law at paragraph 24 as follows:
. . . Ortiz v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 1716,
summarizes the features of IFA determinations in judicial review, “[Justice
Richard] held at paragraph 26 that Board determinations with respect to an IFA
deserve deference because the question falls squarely within the special
expertise of the Board. The determination involves both an evaluation of the
circumstances of the applicants, as related by them in their testimony, and an
expert understanding of the country conditions” from Sivasamboo v.
Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 2018.
In light of these issues, this Court has found the standard of review to be
patent unreasonableness pre‑Dunsmuir above.
. . .
Thus, it was
well-settled that this Court should not disturb the Board's finding of a viable
IFA unless that finding was patently unreasonable. The standard of review,
therefore, is reasonableness as a result of Dunsmuir above.
Analysis
[17]
The applicants pointed out that the panel
erred in its analysis of the credibility of the facts.
According to the argument submitted by the applicants’ counsel, the panel had
to elaborate on the credibility issue. Despite the able presentation by the
applicants’ counsel, the Court cannot agree with her arguments.
[18]
In fact, in reading paragraph 6 of the panel’s
decision in context, it is apparent that the panel’s comments are that it would
not focus on validating or rebutting the applicants’ allegations because, in
this case, the panel could dispose of the refugee claim on the basis of an IFA.
In this case, the case law of this Court states that when a panel makes an IFA finding,
this finding is sufficient to dispose of the refugee claim because the internal
flight alternative is inherent in the very notion of refugee and person in need
of protection (Estrella v Canada (Minister
of Citizenship and Immigration),
2008 FC 633, [2008] FCJ No 806). Thus, the
Court is of the opinion that, under the circumstances, addressing the
applicants’ allegations point by point was unnecessary because the panel’s
decision does not rely on the credibility issue but rather on an internal
flight alternative. The case law submitted by the applicant’s counsel during
the hearing (Canada (Minister of
Citizenship and Immigration) v Koriagin, 2003 FC
1210, [2003] FCJ No 1534; Kedelashvili v Canada
(Minister of Citizenship and Immigration), 2010 FC 465,
[2010] FCJ No 547) does not raise the IFA issue and therefore does not apply in
the case under review.
[19]
The Court points out that the panel is assumed to have
considered all the evidence unless the contrary is shown, and is not required
to refer to all the evidence (Florea v Canada (Minister of Employment and Immigration)
(FCA), [1993] FCJ No 598).
[20]
Referring to Ramirez v Canada
(Minister of Citizenship and Immigration), 2008
FC 1214, [2008] FCJ No 1533, at para 32, the panel
emphasized the following in its decision:
[32] It is settled law
that the burden of proof regarding an internal flight alternative rests on the
claimant (Del Real v. Canada (Minister of Citizenship and
Immigration), 2008 FC 140 at paragraph 18). Thus, the applicant had to
establish either that it would be unreasonable for her to seek refuge in
another part of the country or that there were, in fact, conditions preventing
her from relocating elsewhere in Mexico, and she failed to do so.
[21]
In Julien v Canada (Minister of Citizenship and Immigration), 2005 FC 313, [2005]
FCJ No 428, at para 9, the Court reiterated the
IFA concept relying on Rasaratnam v Canada (Minister of Employment and Immigration)
(FCA), [1992] 1 FC 706, [1991]
FCJ No 1256, by the Federal Court of Appeal:
[9] For a refugee claim to be
approved under sections 96 or 97 of the Act, there must be an internal flight
alternative in the applicant's country of nationality:
As to the third
proposition, since by definition a Convention refugee must be a refugee from a
country, not from some subdivision or region of a country, a claimant cannot be
a Convention refugee if there is an IFA. It follows that the determination of
whether or not there is an IFA is integral to the determination whether or not
a claimant is a Convention refugee. . . . (Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992]
1 F.C. 706 (C.A.), at paragraph 8.)
[22]
The applicants are alleging that it is unreasonable to
believe that their persecutors would be unable to find them in the cities suggested
by the panel because they succeeded in finding them in the Federal District of
Mexico City, the biggest and most populated city in Mexico.
[23]
The Court cannot agree with this argument for the following
reasons. First, the two cities in which the applicants found refuge, San Mateo and the Federal District of Mexico City,
are located close to their city of residence, Toluca. Secondly, the applicants found refuge with Ms. Pichardo Romero’s
uncles.
It is
therefore not unreasonable to believe, as the respondent’s counsel pointed out,
that, under these circumstances, it is easier to find them with a simple search.
Thirdly, the cities suggested by the panel, Hermosilla (Sonora) and La
Paz (Baja California), are located on the other side of Mexico. It
is reasonable to doubt that the persecutors would succeed in locating the
applicants.
[24]
The applicants are also alleging that their persecutors are
police officers and would therefore be able to find them more easily. However,
the evidence in the file is far from being clear on the matter. In fact, the
transcript refers to [translation]
“people who claim to be police officers” (Tribunal Record, p. 178), and the
applicants’ affidavit refers to [translation]
“so-called police officers” (Tribunal Record, p. 33).
[25]
It is worth remembering that the burden of demonstrating
that an IFA is unreasonable is heavy (Ranganathan v Canada (Minister of
Citizenship and Immigration), [2001] 2 FC 164) and this burden rests on the applicants.
[26]
In this case, the applicants submitted no evidence that it
was impossible for them to find refuge in the two cities suggested by the
panel. Furthermore, nothing permits the Court to find that the panel committed
an error and that its decision is unreasonable. For
these reasons, the Court finds that the impugned decision falls within the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (Dunsmuir).
[27]
Consequently, the application for judicial
review will be dismissed. There is no question for certification arising and
this matter does not contain any.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for
judicial review be dismissed. No question is certified.
“Richard
Boivin”
Certified
true translation
Janine
Anderson, Translator
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