Date: 20110519
Docket: IMM‑6401‑10
Citation: 2011 FC 581
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, May 19, 2011
PRESENT: The Honourable Mr. Justice
Shore
BETWEEN:
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RICARDO JORGE IRIGOYEN TORRES
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary
[1]
An
internal flight alternative (IFA) is only taken into account once the applicant’s
credibility has been accepted:
[5] . . . After all, state
protection and IFA (the subjects she is mostly interested in) only become
issues once the Applicant’s story is accepted (i.e. his credibility is
accepted) and his objective and subjective fear is established. . . .
(Bokhari v Canada (Minister of Citizenship and
Immigration), 2005 FC 574, 139 ACWS (3d) 126).
[2]
In identifying
IFAs, the Immigration and Refugee Board (Board) must take all of the evidence
into account, including the applicant’s testimony at the hearing and the
documentary evidence. The existence of an IFA may be determinative in itself;
however, consideration of all of the evidence must be reflected in the Board’s
decision concerning the regions proposed as viable
II. Judicial proceeding
[3]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision by the
Refugee Protection Division (RPD) of the Board dated October 15, 2010,
determining that the applicant is not a Convention refugee as defined at
section 96 of the IRPA or a person in need of protection under
section 97 of the IRPA.
III. Facts
[4]
The
applicant, Ricardo Jorge Irigoyen Torres, was born on
March 5, 1976, and is a Mexican citizen.
[5]
Mr. Torres
submits that he worked as a taxi driver. He states that on September 20,
2008, when he was returning home at or about 9 p.m., he was intercepted in
his work vehicle by two individuals. They allegedly forced him to drive them
into the centre of the city of Monterrey to extort other taxi drivers. He
states that before letting him go, the two individuals threatened him with a
weapon, stole his wallet and demanded that he pay them a ransom of 500 pesos
a week.
[6]
Mr. Torres
alleges that after this assault, he filed a complaint with the police department.
He states that, the next day, he received a call on his cellphone in which he
was issued death threats. During this call issuing death threats, the
persecutors allegedly represented themselves as members of Los Zetas.
Mr. Torres states that he later received other calls of the same nature,
the last of which was on December 19, 2008.
[7]
Mr. Torres
submits having taken steps to protect his family by moving three times, in
particular in the cities of Guadalupe and Monterrey.
[8]
The
applicant arrived in Montréal on January 29, 2009, where he claimed
refugee protection the day he arrived.
IV. The decision sought to be reviewed
[9]
The
RPD concluded that the refugee protection claim should not be allowed because
there was no link with the reasons set out at section 96 of the IRPA or
with the ground of torture set out at paragraph 97(1)(a) of the
IRPA, since there was no involvement of a state agent or of a person acting on
behalf of or with the consent of a state agent. Consequently, the RPD conducted
its analysis in accordance with paragraph 97(1)(b) of the IRPA.
[10]
Regarding
all comments on the applicant’s credibility, the RPD took the following stance:
[translation]
[9] Although many questions were raised
during the hearing regarding the credibility of the applicant’s allegations and
the efforts he made to obtain the protection of the authorities in his country,
the panel identified the internal flight alternative as the determinative issue
in this case.
[11]
Regarding
the IFA, the RPD pointed to and examined certain points of the applicant’s
testimony at the hearing in which he stated the following:
- The applicant
testified that when he stayed in Guadalupe and Monterrey, he received
death threats via his cellphone, but that he stopped receiving them once
he got rid of it;
- He then returned to
live at home, and received no further threats;
- The RPD then stated
in its reasons that the applicant failed to submit evidence showing that
his persecutors were willing and able to track him down everywhere in
Mexico;
- The RPD also considered
the applicant’s testimony in which he stated that aside from his fear
related to his problems with Los Zetas, there was no obstacle making it
unreasonable for him to relocate to one of the proposed IFAs.
(Decision at paragraphs 12 to 14).
[12]
Consequently,
the RPD rejected Mr. Torres’ claim.
V. Issue
[13]
Did
the RPD err in finding that a viable IFA existed for the applicant?
VI. Relevant statutory provisions
[14]
The following provisions of the IRPA apply in this case:
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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.
(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.
(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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V. Submissions of the
parties
[15]
The
applicant submits that the RPD erred in fact and in law in finding that there
was an IFA and erred in failing to take all of the documentary evidence into
account. According to the applicant, the RPD’s decision results from an
erroneous assessment of the evidence and the facts, especially the country’s
social and political context.
[16]
The respondent
submits that the RPD’s decision is well founded in fact and in law, is
reasonable and contains no error warranting the intervention of this Court.
According to the respondent, the evidence clearly shows that the applicant’s
presumed persecutors had no motivation to search for him everywhere in Mexico.
VI. Standard of review
[17]
In
matters concerning IFAs, the standard is reasonableness (Corona v Canada
(Minister of Citizenship and Immigration), 2010 FC 508, at paragraph 5).
VII. Analysis
[18]
The criteria to be met for a finding of an IFA are well established in the
case law (Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA); Thirunavukkarasu v Canada (Minister of
Employment and Immigration), [1994] 1 FC 589, 109
DLR (4th) 682(CA)). The RPD must first determine whether the claimant has a
viable internal flight alternative, then assess whether it is objectively
reasonable for the claimant to seek refuge by moving to another part of the
country before claiming refugee status abroad. To establish the existence of
these two criteria, the RPD examined and reiterated some passages from the applicant’s
testimonial evidence and found that there was an internal flight alternative,
that is, in the cities of Mexico D.F., Veracruz and Monterrey (Decision at
paragraph 12).
[19]
This
statement by the RPD that Monterrey, Veracruz and Mexico D.F. are safe places
where the applicant could go live is problematic because it is not supported by
the documentary evidence, which the RPD also did not analyze, or by the
applicant’s testimony.
[20]
First
of all, the applicant testified that he had already tried to move three times, in
particular with his family to the city of Monterrey, and, according to his
testimony, at that time he continued to receive death threats from his
persecutors on his cellphone:
[translation]
Q. : (Inaudible). And then, the second place?
R. : I rented a friend’s house.
(Inaudible). The place is called Valler del Maiz. [BY THE INTERPRETER] V‑A‑L‑L‑E‑R
del Maiz; M‑A‑I‑Z. The Villa de Chapultepec neighbourhood.
Q. : Is that a city?
A: No. The city is Monterrey, Monterrey,
Nuevo León. Monterrey, Nuevo León
(Hearing transcript (HT), file of the panel (FP) at page 125).
[21]
Furthermore,
Monterrey is the city where the presumed members of Los Zetas forced the
applicant to drive them to extort money from other taxi drivers in
September 2008 (Personal Information Form (PIF), FP at page 21).
These two elements in the testimonial evidence suggest the presence of Los
Zetas in the city of Monterrey. The RPD does not address that in its decision
at all.
[22]
The
documentary evidence filed in the record is not mentioned anywhere in the RPD’s
decision. According to some excerpts of this evidence, “. . . the US
government has stated that Los Zetas is ‘the most technologically advanced,
sophisticated and dangerous cartel operating in Mexico’” (RESPONSES TO
INFORMATION REQUESTS (RIRs), MEX103396.FE, Mexico: The presence and structure
of Los Zetas and their activities, Research Directorate, Immigration and
Refugee Board of Canada, Ottawa) [FP at page 86]. This group is widely
present throughout Mexico:
. . . Los Zetas are present in
13 Mexican states and in 43 cities in the US . . . The area
they cover extends from El Paso to the US/Mexico border, south through the
state of Veracruz and east through the state of Tabasco, and into the
Yucatan peninsula (ibid.). According to NPR, their territory crosses through
the State of Chiapas and extends to Guatemala (2 Oct. 2009). Some sources
note that Los Zetas have bases in the states of Tamaulipas (NPR 2 Oct.
2009; Agencia EFE 30 Jan. 2010), Zacatecas, Aguascalientes, San Luis
Potosí and Guanajuato (Mural 29 Jan. 2010). [Emphasis added.]
(RIRs, below, FP
at pages 86 to 87).
[23]
By
identifying the city of Veracruz as an IFA, the RPD’s decision is inconsistent
with the information contained in the documentary and testimonial evidence. The
Court is certainly not here to re‑weigh the evidence (Linares
v Canada (Minister of Citizenship and Immigration), 2010 FC 1250, at
paragraph 49); however, the Court does have jurisdiction to refer the application back
to another member when the finding does not result from the evidence having
been reasonably taken into account.
[24]
The
RPD did not explain how the three places identified reasonably constituted
viable IFAs so as to be consistent with the evidence (Martinez v Canada
(Minister of Citizenship and Immigration), 2010 FC 550). The RPD could not
reasonably state that it accepted the applicant’s credibility and then make the
findings set out in its decision. If the RPD doubted the applicant’s
credibility, it had to provide its reasons in its decision.
VIII. Conclusion
[25]
It
is clear that the RPD did not reasonably review all of the evidence submitted
to it, including the documentary evidence in particular. In its reasons, the
RPD deals almost exclusively with the testimony of the applicant, who can only
provide a subjective opinion of the danger he faces. The objective evidence (documentation
packages on country conditions) was ignored, despite its relevance to the
hearing before the RPD. Given the facts of this case, this Court is justified
in intervening. For these reasons, the application for judicial review is
allowed and the matter is referred back to a differently constituted panel for
redetermination.
JUDGMENT
THE COURT ORDERS that the application for
judicial review be allowed and the matter be referred back to a differently
constituted panel for redetermination. No serious question of general
importance is certified.
“Michel M.J.
Shore”
Certified true
translation
Sarah Burns
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