Date: 20080304
Docket: IMM-961-06
Citation: 2008 FC 289
Ottawa, Ontario, March 4, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
WILBER
ORLANDO CARTAGENA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Cartagena, a citizen of El Salvador, was orphaned at
fifteen by the death of his mother in 2001. He had very little formal education
at a rural school, and worked as a farm labourer around the small town of El Chilamate.
[2]
In
October 2001, Mr. Cartagena was approached by members of the Mara 18 gang, who
attempted to recruit him. Following two other encounters with the gang, during
which he was threatened for his failure to join them, he went to the police for
help. He claims that the police informed him that they would not open an
investigation due to his age and the fact that he had not been attacked or
hurt.
[3]
Mr. Cartagena claims
that he then spent until May 2003 working on farms around the small towns of El
Rancho and El Chilamate. He asserts that, during this time, he was hiding and
waiting for a friend of his mother, with whom he now lives in Toronto, to raise
funds to help him leave El
Salvador with the help of a
“coyote”, or smuggler. In May 2003, he left his country, travelling overland
through Guatemala, Mexico and the United States before claiming refugee protection at Fort Erie in
August, 2003.
[4]
Mr. Cartagena’s hearing
before the RPD was conducted by video-conference and with interpretation. It extended
over three days between March and November 2005. The transcript of the hearings
indicates a few minor technological issues, but mainly a problem of
communication of questions and their answers. It appears that Mr. Cartagena
experienced difficulty in understanding what was being asked and in answering
clearly.
[5]
The
Refugee Protection Division found that Mr. Cartagena was not a Convention
refugee or a person in need of protection because he had a viable internal
flight alternative (IFA) in the departments of San Miguel and San Vicente or in
the capital city, San Salvador. The panel also found that he had not
credibly established that the Mara 18 gang continued to search for him.
[6]
The
applicant raised two issues in his application for leave: whether procedural
fairness was breached by ‘reverse order questioning’ under Guideline 7, and
whether the Panel’s finding of a viable IFA was unreasonable.
[7]
The
fairness of ‘reverse order questioning’ was upheld by the Federal Court of
Appeal in its decisions in Thamotharem
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198 and Benitez v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 199. As a result, the
issue was not pursued at the oral hearing of this matter.
[8]
At paragraph 39 of Thamotharem,
Justice John Maxwell Evans noted that some claimants might, in exceptional
circumstances, need to be questioned by their counsel first in order to have a
fair hearing. At the conclusion of the hearing, I commented that this may have
been such a case. However, I need not delve into that question as I will allow
the application on the second issue raised.
[9]
The first step in
finding that a viable IFA exists is a factual finding, subject to a patently
unreasonable standard of review. However, the second prong of the test is that
the IFA must be reasonable for the particular claimant in the context of the
particular country: Thirunavukkarasu v. Canada (Minister of Employment and
Immigration) (C.A.), [1994] 1 F.C. 589.
[10]
The finding of the RPD
panel that a viable IFA existed for Mr. Cartagena was unreasonable for a person
in his situation. The member found the applicant’s allegations of threats from
the Mara 18 gang to be credible, and noted that gangs were a problem in El Salvador generally. He
found, however, that the claimant could move away from the Mara 18 gang and
thus avoid persecution. Given
the evidence about the high murder rate, high unemployment rate, lack of family
of the applicant and the presence of the Mara 18 gang in San Salvador and similar problems in the departments of San
Vicente and San Miguel, it was unreasonable for the member to find that Mr.
Cartagena could safely relocate to any of these places.
[11]
The member noted the
fragile mental health of Mr. Cartagena, but maintained his finding of the
existence of a viable IFA despite the psychological opinion in evidence. Psychological
evidence is central to the question of whether the IFA is reasonable and cannot
be disregarded: Singh v. Canada (Minister
of Citizenship and Immigration), 97 F.T.R. 139, [1995] F.C.J. No. 1044. The panel failed to thoroughly
assess the reasonableness of the locations suggested as viable IFAs in the
context of Mr. Cartagena’s situation and vulnerable mind-set.
[12]
A young man with little
education and no prospects of employment in any field other than menial labour
is in a high risk category. His lack of family and fragile psychological state
compound that risk. On the evidence, the decision under review was, in my
opinion, unreasonable and must be returned for reassessment by a differently
constituted panel.
[13]
No questions were
submitted for certification, and none are certified.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the
application for judicial review is allowed and the matter is remitted for
consideration by a differently constituted panel. No questions of general
importance are certified.
“Richard
G. Mosley”
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