Date: 20110512
Docket: IMM-6216-10
Citation: 2011 FC 543
Ottawa, Ontario, May 12, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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CARLOS MANUEL MANITAS VARGAS INGRID SELENE CRUZ AMADOR
JOSEPH RAFAEL MANITAS CRUZ
INGRID NINIVET MAITAS CRUZ
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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
I. Overview
[1]
The
question of whether an Internal Flight Alternative (IFA) exists is an integral
part of the definition of a Convention refugee. It arises when an applicant
who, otherwise, meets all of the elements of the definition of a Convention
refugee. Yet, an applicant may, nevertheless, not be a Convention refugee
because of the existence of an IFA; however, an IFA is only a valid
alternative, if, in fact, it is viable. Whether it is viable or not, can only
be ascertained by analyzing the subjective and objective fear and evidence of
the claim.
II. Judicial Procedure
[2]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Board), dated September 28,
2010, wherein the Board found that the Applicants are not Convention refugees
or persons in need of protection as defined in sections 96 and 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA). The Board based its decision on its determination that they
had an IFA in Monterrey, Mexico.
III. Background
[3]
The
Applicants, Mr. Carlos Manuel Manitas Vargas, Ms. Ingrid Selene Cruz Amador, Ms. Ingrid Ninivet Manitas Cruz and Mr. Joseph Rafael Manitas Cruz, are
citizens of Mexico who lived in the city of Veracruz. The principal Applicant, Mr. Vargas, was born on
March 29, 1984, and was a press photographer working for a Veracruz newspaper.
[4]
Mr. Vargas
alleged that he fears a group called the Zetas. He claimed that he accidentally
encountered members of the Zetas on January 11, 2009, when there was an
altercation between Mr. Vargas and members of the
Zetas; they assaulted him and took pictures of his information and
Identification (ID) cards. Mr. Vargas stated that he was threatened and
told that he would have to start working for the Zetas.
[5]
A
few days later, the Zetas called him and demanded that he take some pictures
for them; they threatened his family should he refuse. As a result, Mr. Vargas fled to a
church with his family where they hid for 15 days. Mr. Vargas left
his family in hiding in Cosamaolapan, in the state of Veracruz, and left for
Cancun, where the threats continued. He bought a ticket to Canada while he hid
in Mexico City until his flight for Edmonton.
[6]
Approximately
five months after her husband fled, Ms. Cruz Amador was
approached by some men who asked questions about her husband. She decided to
follow her husband to Canada with their two children. They immediately fled to
Mexico City and then to Canada.
IV. Decision under Review
[7]
The
Board found that the Applicants had an IFA in the city of Monterrey, in the
state of Nuevo Leon. The Board did not make a negative credibility
finding with respect to the Applicants; however, the Board found that the
Applicants had failed to demonstrate that the Zetas had any interest in
pursuing them:
[12] You seem to be very good,
honest people and I do not take issues with the story as you have told it.
[13] I do find that you would face a
risk in your hometown of Veracruz but I am not convinced that you are at risk
in Monterrey or other parts of Mexico.
[14] The Gender Guidelines
were taken into consideration in deciding for Ingrid Selena Cruz Amador and Ingrid Ninivet Manitas Cruz.
[15] In terms of your credibility, I
find that you have both been honest and upfront people and I do not find that
you have exaggerated your story.
[16] I do find, however, that there
is an Internal Flight Alternative for you in Monterrey and so that is the
determinative issue in your case today. The issue was raised with you both
before the hearing and at the hearing.
V. Position of the parties
[8]
The
Respondent contends that the Applicants failed to demonstrate that the Board’s
conclusion that they had an IFA was unreasonable. The Respondent submits that
the principal Applicant has not provided concrete evidence that the Zetas had
any desire to locate him or that he is of particular importance to them.
[9]
The
Applicants submit that the evidence before the Board showed that they would not
live safely in Monterrey. The Applicants contend that, given the access that
their persecutors have to their personal information in Mexico, the only way to
live safely in the proposed IFA is for them to remain constantly in hiding. The
Applicants cite Sabaratnam v Canada (Minister of Employment and
Immigration), [1992] FCJ No 901 (QL/Lexis) (FCA), in which this Court
decided that, if an individual had to remain in hiding to avoid problems, this
would not be evidence of an IFA. The Applicants also submit that the Federal Court
has decided that big urban centres do not automatically constitute an IFA per
se; that is, large urban areas cannot be assumed to be IFAs by virtue of
their population size alone. Finally, the Applicants submit that the Board did
not consider the evidence of how easy it is to locate someone in Mexico through
electoral lists, telephone companies and social security numbers, or other
means potentially available to the Zetas.
VI. Issue
[10]
Did
the Board err in determining that an IFA was available for the Applicants in
Monterrey?
VII. Relevant Legislative Provisions
[11]
The
following provisions of the IRPA are applicable in these proceedings:
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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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VIII. Standard of Review
[12]
Following Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190, a decision based on an IFA is reviewable on the standard of reasonableness.
It
is trite law that the assessment of the evidence and the IFA of an applicant is
within the Board’s purview. This Court will only intervene if the decision
does not fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir at para 47).
[13]
It
has also been held that a Board’s decision concerning questions of fact is
reviewable upon the standard of reasonableness (Corona v Canada (Minister of
Citizenship and Immigration), 2010 FC 508; Mejia v Canada (Minister of
Citizenship and Immigration), 2010 FC 530).
IX. Analysis
[14]
The
question is one of whether an IFA exists as an integral part of the Convention
refugee definition. A fundamental concept of refugee protection is that it is
meant to be a last resort and therefore does not apply to applicants who are
able to take refuge in another location within their home country. From the
classic cases in respect of the IFA such as Rasaratnam v Canada (Minister of
Employment and Immigration), [1992] 1 FC 706, 140 NR 138 (CA) and Thirunavukkarasu
v Canada (Minister of Citizenship and Immigration), 2003 FC 1075, 125 ACWS
(3d) 869, it is clear that the test to be applied in determining whether an IFA
exists is two-pronged: the Board must be satisfied on a balance of probabilities
that no serious possibility of persecution exists in the proposed IFA area; and
it would not be unreasonable, under the circumstances, including those specific
to an applicant, for him or her to seek refuge in the proposed IFA.
[15]
In
coming to its determination of an IFA’s availability, the Board considered certain
but not all of the evidentiary elements of the claim:
a.
that
the principal Applicant’s first encounter with the Zetas was by accident;
b.
that
none of the Applicant’s family members who remain in Mexico have been
approached or threatened by the Zetas;
c.
that
the principal Applicant’s mother is also a photographer but has not been
approached by the Zetas;
d.
that
the Zetas called the principal Applicant on his cell phone while he was staying
with his cousin in Cancun.
[16]
The
Board based its decision solely on a few factual elements of the claim; it
chose to analyze but it did not make reference or mention of any of the key or
pertinent aspects of the documentary evidence in the claim. A tribunal need not
refer to every piece of evidence presented; however, the more significant a
piece of evidence is, the more likely it is that a failure to make reference to
it will result in a finding that the decision was unreasonable (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, 83
ACWS (3d) 264). It is expected that significant evidence is to be specified,
analyzed and considered, especially when it appears to be in marked
contradiction to a finding of the Board. In the present case, the Applicants’
submitted voluminous documentary evidence which was not even mentioned by the
Board in its decision, namely:
a.
The
National Documentation Package – Mexico, 17 March 2010
b.
A
document from ICESI (Citizen Institute of Studies on Unsafety) “The Impunity at
Mexico”, April 2007
c.
A
document from ICESI (Citizens Institute of Studies on Unsafety) “Impunity”
d.
The
Amnesty International Report – Mexico: Laws without justice: Human rights
violations and impunity in the public security and criminal justice system –
February 2007.
[17]
In
addition, the Applicants submitted newspaper articles from La Presse, The Globe
and Mail, The Toronto Star, the National Post, Embassy Mag, El Confidential, El Universal, CNN.com
and The Guardian (Tribunal Record (TR) at p 264 and following). The objective
evidence clearly demonstrates that the Applicants’ persecutors are well
organized and extremely dangerous. Drug cartels in Mexico are structured,
powerful organizations. As an example, The Guardian’s article “The Zetas: gangster
kings of their own brutal narco-state” explains:
The crucial point about the “relative
peace” in areas held by the Zetas is that it is a peace whereby the cartels
controls every facet of life, is uncontested by its rivals and presides over an
omnipresent reign of terror.
(TR a
p 381).
[18]
In
addition, at the hearing, the principal Applicant explained that their
persecutors were collaborating with corrupt police officers; and, that their
persecutors would, therefore, be able to find them anywhere in Mexico (TR at p
428). The Applicants testified that their persecutors could easily obtain their
address, phone number, credit cards and other personal information. Since the
credibility of the Applicants had been accepted by the Board, the matter
becomes self-evident.
[19]
In
the present case, the Board failed to explain why it did not accept the pertinent
evidence which fully supported the Applicants’ arguments. This failure
constitutes a reviewable error. The Court, thus, acknowledges that this case,
within its particular context and distinct evidence, requires a more
significant analysis. The Board was under obligation to explain why it had
ignored evidence which corroborated the Applicants’ allegations.
X. Conclusion
[20]
Considering that the Applicants’ credibility and the particular
objective circumstances of the Applicants’ claim, were in tact, the Board’s
conclusion that
the Applicants are not Convention refugees, or persons in need of protection, was not reasonable.
[21]
For
all of the above reasons, the Applicants’ application for judicial review is
granted and
the matter is, therefore, remitted for redetermination by a differently
constituted panel.
JUDGMENT
THIS COURT
ORDERS that the application for judicial
review be granted and that the matter be remitted for redetermination by a
differently constituted panel. No serious question of general importance be certified.
“Michel
M.J. Shore”
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