Date: 20110519
Docket: IMM-6424-10
Citation: 2011 FC 580
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, May 19, 2011
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
|
|
PEDRO ESCARBALLEDA VALDEZ
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is the case of a Mexican citizen whose claim was rejected by the Immigration
and Refugee Board (Board) on the ground that there was an internal flight
alternative (IFA). It was reasonable for the Board to find that the applicant had
not met his burden of establishing that there was no serious possibility of him
being persecuted in the region of the proposed IFA, and that the conditions in
the said region were such that it is not unreasonable, given all of the
circumstances, for the refugee claimant to seek refuge there (Rasaratnam v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (FCA)).
II. Judicial procedure
[2]
This
is an application for judicial review in accordance with subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision by the Refugee Protection Division (RPD) of the
Board,
dated October 5, 2010, that the applicant is not a Convention refugee under
section 96 of the IRPA or a person in need of protection under section 97 of
the IRPA.
III. Facts
[3]
The
applicant, Pedro Escarballeda Valdez, was born on June 1, 1981, and is a
Mexican citizen. He was living in the State of Morelos when the events under
review occurred.
[4]
Mr.
Valdez is alleging that he fears returning to his country because his life
would be at risk. He apparently refused to give money to individuals who
initially stopped him while leaving work on December 13, 2008. Mr. Valdez was purportedly
also attacked on three other occasions by these same individuals:
a.
On
January 29, 2009, when he left home to go to work;
b.
On
February 12, 2009, when he was in the municipality of Yautepec, in the State of
Morelos, inquiring about job possibilities;
c.
On
March 2, 2009, when he was passing through a party in the village and was
allegedly recognized by his supposed persecutors.
[5]
Mr.
Valdez alleges that he filed a complaint with the Office of the Public Prosecutor
after each of these three attacks. He also claims that he sent his wife and
children to live outside of the State of Morelos after the attack on January 29,
2009. He himself apparently stayed in the State of Morelos.
[6]
The
applicant arrived in Canada on March 5, 2009, and claimed protection that same
day. His wife and children still live in Mexico.
IV. Impugned decision
[7]
Having
heard the applicant’s testimony and analyzed all of the evidence, the RPD determined
that the refugee claim should not be allowed. First, there was no nexus to one
of the five Convention grounds under section 96 of the IRPA. Second, there was
no torture under paragraph 97(1)(a) of the IRPA since there was no
involvement by a state agent or any person acting on behalf of or with the
consent of a state agent. Consequently, the analysis was conducted with respect
to paragraph 97(1)(b) of the IRPA.
[8]
It
appears from the RPD’s reasons that “ . . . several questions with respect to the
claimant’s credibility were raised during the hearing . . . ” (decision at
paragraph 7) and that he was inconsistent with respect to the dates for the
various places he allegedly lived in Mexico. However, the RPD found that the
determinative issue was the existence of an IFA. The applicant could have availed
himself of an IFA in Mexico City, Monterrey or Veracruz (decision at paragraphs
9 and 12). In particular, the RPD specified that it was rejecting the
applicant’s explanations that he had not moved to another state for the safety
of his family.
V. Issue
[9]
Did
the RPD make a reviewable error with respect to the existence of an internal
flight alternative?
VI. Relevant statutory
provisions
[10]
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.
(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 tous lieux
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.
(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. Parties’ claims
[11]
The
applicant claims that he would be found by his persecutors if he were to return
to Mexico and that the methods of protection noted by the RPD in the
documentary evidence submitted would be of no help. The applicant assumes
that he was given the benefit of the doubt because the RPD specified that there
had been no major contradictions regarding elements central to the refugee
claim and that the IFA had been identified as the only determinative issue.
[12]
The
respondent argues that the RPD’s decision is based on the evidence adduced, draws
reasonable inferences from it and respects the relevant legal principles.
VIII. Standard of review
[13]
Regarding
the issue of an internal flight alternative, it has been established that it is
a question of mixed fact and law that is within the purview of the RPD (Sosa v. Canada (Minister of Citizenship and Immigration), 2009 FC 275, at paragraph 15; Esquivel v. Canada
(Minister of Citizenship and Immigration), 2009 FC 468, at paragraph 13).
The Court must therefore analyze the issue on the standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
IX. Analysis
[14]
The
Federal Court of Appeal developed, in Rasaratnam, above, at paragraph
10, a two-part test to determine the existence of an IFA: 1) the Board must be satisfied,
on a balance of probabilities, that there is no serious possibility of the
refugee claimant being persecuted in the region of the proposed IFA; and 2) the
conditions in the said region must be such that it is not unreasonable, given
all of the circumstances, for the refugee claimant to seek refuge there.
[15]
In
this case, it was reasonable for the RPD to find that the applicant had not met
his burden of establishing, on a balance of probabilities, the existence of
such conditions.
[16]
For
the first part, one of the questions the RPD asked the applicant was why he did
not believe he would be safe in Mexico City, Monterrey or Veracruz, to which
the applicant replied, namely: “[b]ecause those people have
information about me. They know that I could be here in Canada, because the
people in my neighbourhood know that I am here.” (decision at paragraph
9; TR at page 128). It was reasonable for the RPD to find that the applicant’s
answers were insufficient to demonstrate that his persecutors had the desire or
ability to find him throughout Mexico.
[17]
In
its analysis, the RPD specified that the applicant had not been obligated to
try to move to another state before seeking protection (decision at paragraph
9); however, a move would have shown that the persecutors had the desire and
ability to find the applicant throughout Mexico. In this case, the applicant
did not try to move to another state, even after his in-laws invited them to move
in with them outside of Morelos for a period of time (he sent only his wife and
children). His own parents apparently suggested that he move to the State of Tlaxcala,
which the applicant did not do. Contrary to what he states in his memorandum
(at paragraph 9), the applicant did not relocate three times. The evidence
demonstrates that the applicant had always been subject to attacks while living
in the State of Morelos. One of the attacks even seemed fortuitous, as he was
passing through a party in the village. However, the applicant should have explored
these options before seeking international protection. It is settled law that
international protection exists only if the government of the country of origin
is unable to offer effective protection throughout its territory and if it is proven
that it would be unreasonable for an applicant to avail him- or herself of the
possibility of seeking refuge in another part of the country:
[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 (F.C.A.)).
[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.
(Esquivel, above).
[18]
With
respect to the second part of the test in Rasaratnam, the
applicant stated that the only obstacles to settling down in the proposed IFAs were
his fear of the threats he was subject to before he left Mexico and the fact
that he works in construction and would not be able to find suitable employment
in this field:
[15] . . . “I do not know anyone there. There is
not much construction in those places, and I work in construction, and those
are cities with many buildings. Mexico City is already built, and as for
Monterrey and Veracruz, I do not know the construction situation there.” . . .
(Decision; Tribunal Record (TR) at page
130).
[19]
It
is worth remembering that, with respect to the second part of the test, the
Federal Court of Appeal, in Ranganathan v. Canada (Minister of Citizenship
and Immigration), [2001] 2 F.C. 164 (CA), placed the bar very high:
[14] . . . 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. . . .
[20]
It
was therefore reasonable for the RPD to come to the conclusion that the
applicant had not met his burden of proof. It was up to the RPD, as part of its
role and part of its expertise, to assess the evidence submitted, determine the
weight to be attached to it and make the necessary determinations.
X. Conclusion
[21]
The
Court’s intervention is unwarranted in this case and in light of the foregoing,
the application for judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review be dismissed. No question for certification arises.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
Email this Content