Date: 20080916
Docket: IMM-658-08
Citation: 2008 FC 1035
Ottawa, Ontario, September 16,
2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ALEJANDRINA
DAYNA GALLO FARIAS
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated December 14,
2007 concluding that the applicant, a Mexican citizen, is not a Convention
refugee or a person in need of protection.
[2]
In this application the Court found that (1) the
applicant’s personal situation in relation to her alleged abuser, a
high-ranking agent of the state, was not properly considered by the Board; and
(2) the Board did not properly consider whether the applicant had a viable
internal flight alternative (IFA) in Mexico.
The Court has
summarized the legal criteria which the Board must follow in identifying an IFA
in Mexico and elsewhere and
applying it to the circumstances of this applicant and other refugee claimants.
FACTS
[3]
The
applicant arrived in Canada in July 2005 at the age of 22 seeking
refugee protection because of her abusive relationship with a senior government
official in the Mexican state of Hidalgo.
[4]
The
applicant states that she first met this man in January 2002 while applying for
a job at the Hidalgo Ministry of Public Security, Transit and Civil and
Municipal Protection. The applicant was 19 years old at the time. The official
was 20 years the applicant’s senior.
[5]
The
applicant states that the two developed an intimate relationship. However, the
public official was married to another woman at the time, and remained so
throughout the relationship. In June 2003, the applicant moved into an apartment
rented by the public official. She states that during this time, the public
official helped her gain admission to the state university in Pachuca and provided
her with money and a credit card.
[6]
The
applicant states in her Personal Information Form (PIF) that shortly after
moving into the apartment, the public official began to abuse her physically and verbally. She lists several such incidents:
a.
in August
2003 the public official slapped the applicant’s face after an argument about
how much time she was spending with friends at the university;
b.
in
November 2003 the public official beat the applicant during an argument about
his refusal to allow the applicant to visit her family in Mexico City. A few days later he raped
the applicant, telling her it was because of their argument;
c.
in January
2004, after spending the New Year with the applicant’s family, the applicant
and the public official had an argument over his
treatment of her family. During the argument, he “became more violent than he
ever had before,” verbally abused her, and raped her. The applicant sought
medical attention and reported the incident to the police in Pachuca. The police refused to take
her rape complaint because of the public official’s position, and told the
applicant that they doubted its veracity because he was married and a public
figure. After this incident, the applicant began attending a group for abused
women. She was told that because the group was connected to the ministry run
by the public official, they could not assist her in taking action against the
public official;
d.
in May
2004 the public official accused her of being unfaithful and pushed her to the
floor, choked her with a belt, and raped her. After this incident, the
applicant moved out of the apartment and went to live with her grandmother in Mexico City. She was examined by and
obtained a medical report from a physician and reported the incident to the
police in Mexico City, but was told that she could only make a report to the
police in her home state of Hidalgo where the assault occurred; and
e.
in August
2004, the public official tracked her down in Mexico City and arrived at her grandmother’s home in
a “judicial police car” with four armed individuals who forced the applicant to
return with the public official.
The applicant states that despite these
incidents, she maintained her relationship until March 2005 when she consulted
a lawyer in Pachuca. The lawyer
advised the applicant that acting against such a high-ranking public official would
be impossible. In fact, the lawyer feared personal repercussions if the lawyer acted
against the public official.
[7]
The
applicant continued to move around Hidalgo and Mexico City, staying
with a number of friends and relatives in an attempt to avoid the public
official. This continued from March 2005 until July 2005 when she fled to Canada and sought
refugee protection.
Decision under review
[8]
On
December 14, 2007, the Board concluded that the applicant was not a Convention
refugee or a person in need of protection. In the decision, the Board made
no findings with respect to the applicant’s credibility. (In the transcript
of the hearing, at p. 322, the Board member stated “In light of the psych
report … I’m going to take credibility off the table.”) Rather, the Board’s
decision is based solely on the adequacy of state protection, wherein it
concluded that the Federal District of Mexico City was making
“serious efforts to provide adequate protection” to persons in the applicant’s
situation.
[9]
The
Board began its analysis by recounting the submissions of the applicant’s
counsel as well as the specific circumstances of the applicant’s situation. The
Board next reviewed the documentary evidence concerning state protection in Mexico before
concluding at page 5:
This review satisfies me that at the
federal level, that is, at least in the D.F. of Mexico City, there is in place
a legislative framework that is designed to provide victims of domestic
violence recourse through the rule of law.
[10]
The
Board then considered whether the evidence was sufficient to conclude that the
framework was being “implemented and supported” in the Federal District. The Board
noted that there are “vast differences” between the manner in which federal
initiatives are implemented and supported throughout the country. However, the
Board narrowed its analysis to the Federal District of Mexico City, which it
held most effectively implemented all of the relevant initiatives.
[11]
After
reviewing the relevant evidence, the Board concluded at page 10:
For all of the above, the claimant has
failed to establish she will not be afforded effective protection in the D.F.
within Mexico
City as she is
required to do. Hence, the Refuge Protection Division rejects the claim
pursuant to both sections 96 and 97 of the Immigration and Refugee
Protection Act.
ISSUES
[12]
There
are three issues to be considered in this application:
a.
Did the
Board err in finding that adequate state protection was available to the
applicant within the Federal District of Mexico City;
b.
Did the
Board implicitly find that the applicant had an internal flight alternative in Mexico City, and if so, did the Board
properly address this issue; and
c.
Did the
Board err in failing to assess psychological evidence, medical evidence, the
Gender Guidelines, and the applicant’s psychological risk if returned to Mexico?
STANDARD OF REVIEW
[13]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of [deference] to be accorded
with regard to a particular category of question.”
[14]
In
Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA
171, 362 N.R. 1, the Federal Court of Appeal affirmed at paragraph 38 that
questions as to the adequacy of state protection are “questions of mixed fact
and law ordinarily reviewable against a standard of reasonableness.” This
standard has been previously applied in a number of decisions of this Court:
see Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, 45 Imm. L.R. (3d) 58; Nunez
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1661, 51 Imm. L.R. (3d) 291; and Franklyn
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1249, [2005] F.C.J. No. 1508
(QL). Accordingly, as long as the Board’s reasons are “tenable in the sense
that they can stand up to a somewhat probing examination,” the decision is
reasonable and the Court will not interfere with the Board’s decision: see Franklyn,
above, at para. 17.
ANALYSIS
Issue No. 1: Did the
Board err in finding that adequate state protection was available to the
applicant within the Federal District of Mexico City?
[15]
In
Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, the Court held that
refugee protection is a form of “surrogate protection” intended only in cases
where protections from the home state are unavailable. As Mr. Justice
La Forest held at page
709:
… International refugee law was formulated to
serve as a back-up to the protection one expects from the state of which an
individual is a national. It was meant to come into play only in situations
when that protection is unavailable, and then only in certain situations. The
international community intended that persecuted individuals be required to
approach their home state for protection before the responsibility of other
states becomes engaged. …
Further, the Court held that except in
situations where there has been a complete breakdown of the state apparatus,
there exists a general presumption that a state is capable of protecting its
citizens.
[16]
While
the presumption of state protection may be rebutted, this can only occur where
the refugee claimant provides “clear and convincing” evidence confirming the
state’s inability to provide protection. Such evidence can include testimony of
similarly situated individuals let down by the state protection arrangement, or
the refugee claimant’s own testimony of past incidents in which state protection
was not provided: see Ward at pp. 724-725.
[17]
In
Hinzman, above, the Federal Court of Appeal relied on Ward in
holding that a person will only be afforded refugee protection in Canada where they
can demonstrate through “clear and convincing” evidence that the protections
provided by the home state are “unavailable or ineffective”: see Hinzman
at para. 54.
[18]
In
Kadenko v. Canada (Solicitor General) (1996), 206 N.R. 272 (F.C.A.), the
Federal Court of Appeal held at paragraph 5 that in order to rebut the presumption
of state protection, refugee claimants must make “reasonable efforts” at
seeking out state protection, and that the burden on the claimant increases
where the state in question is democratic:
¶ 5 When the state in question is a
democratic state, as is the case at bar, the claimant must do more than simply
show that he or she went to see some members of the police force and that his
or her efforts were unsuccessful. The burden of proof that rests on the
claimant is, in a way, directly proportional to the level of democracy in the
state in question: the more democratic the state’s institutions, the more the
claimant must have done to exhaust all the courses of action open to him or
her. …
[19]
However,
recent Federal Court jurisprudence has held that Kadenko cannot be
interpreted as requiring refugee claimants to exhaust “every conceivable
recourse” available to them in order to rebut the presumption of state
protection. This is especially true where the state is alleged to be involved
in the persecution. For example, in Chaves, above, Madam Justice
Tremblay-Lamer held at paragraph 15:
¶ 15 In my view, however, [Ward], supra
and Kadenko, supra, cannot be interpreted to suggest that an
individual will be required to exhaust all avenues before the presumption of
state protection can be rebutted…. Rather, where agents of the state are
themselves the source of the persecution in question, and where the applicant’s
credibility is not undermined, the applicant can successfully rebut the
presumption of state protection without exhausting every conceivable recourse
in the country. The very fact that the agents of the state are the alleged
perpetrators of persecution undercuts the apparent democratic nature of the
state’s institutions, and correspondingly, the burden of proof. …
See also Nunez,
above, at para. 15 and Sanchez v. Canada (Minister of
Citizenship and Immigration), 2004 FC 731, 36 Imm. L.R. (3d) 283 per Madam
Justice Mactavish at para. 22.
[20]
In
the case at bar, the Board concluded that at least in the Federal District of
Mexico City, the state was “making serious efforts to provide adequate
protection” for individuals in the applicant’s situation. The applicant
challenges that the Board erred in its conclusion by equating “serious efforts
to provide adequate protection” with the actual requirement in Ward,
above, that the state be able to provide “adequate protection.”
[21]
The
applicant has alleged that the specific circumstances surrounding her
relationship with a powerful public figure exclude her from any otherwise
available state protection. The Board addressed the issue of corruption of
public servants by canvassing the remedies available to victims of violence by
public officials and members of the security forces. However, the Board’s
analysis on this issue does not directly address whether the applicant could
reasonably obtain state protection when the agent of persecution was a
powerful, high-ranking public official. Given that the Board did not make any
negative credibility assessments, it accepted that the applicant unsuccessfully
sought assistance from the police on more than one occasion, from a lawyer, and
from the support group attended by the applicant in Hidalgo.
[22]
The
Board did not address the applicant’s attempts to avail herself of state protection.
In addition to attempting to make a report to the police in Hidalgo, the
applicant went to the police in Mexico City, taking with her a
medical report from a Mexico City physician, when she
fled following the May 2004 assault. The applicant argues that if recourse to
adequate state protection existed in Mexico City, the police there would have
taken steps to communicate with Hidalgo police rather than
simply turning her away for lack of jurisdiction. In light of these facts,
unquestioned by the Board, the Board could not reasonably find that state
protection was available to the applicant in the Mexico City. Could the
applicant be expected to return to Mexico City after being forcibly
taken back to Hidalgo in order to
report this incident to the authorities after they had already once told her
they were unable to help her?
[23]
The
Board’s analysis of the state protection available in the Mexico City is too
general and inadequately addresses the allegation that the applicant approached
the Mexico
City
police for assistance, after being denied protection from the police and from a
support group in Hidalgo, the jurisdiction where the applicant was
allegedly assaulted and raped.
[24]
In
Avila v. Canada (Minister of Citizenship and Immigration), 2006 FC
359, [2006] F.C.J. No. 439 (QL), Mr. Justice Martineau held at paragraph 32:
¶ 32 Here
is the rub: the main flaw of the impugned decision results from a complete lack
of analysis of the applicant's personal situation. It is not sufficient for the
Board to indicate in its decision that it considered all the documentary
evidence. …
[25]
Similarly,
in the case before me, the Board’s decision did not analyse the applicant’s
personal situation in relation to adequate police protection, in particular,
a.
whether
the police would prosecute the high ranking public official who allegedly raped
her twice, and kidnapped her;
b.
whether
the three attempts by the applicant to report the criminal acts by the senior
public official to the police in Mexico City,
in Hidalgo, and to a lawyer in Hidalgo show that the authorities
will not protect the applicant because the alleged abuser is a high ranking
agent of the state. This lack of analysis by the Board renders the decision
unreasonable. “Conducting a state protection analysis in the absence of a
determination as to the nature of the persecuting agent risks short circuiting
a full assessment of the claim”. See Lopez v. Canada (Minister of Citizenship and
Immigration),
2007 FC 1341, [2007] F.C.J. No. 1733 (QL) at paragraph 21.
[26]
The
Board, in its decision acknowledged this question but provided no response. The
Board said at page 8:
Would the fact the claimant’s former
lover is a powerful person result in her not being afforded legal recourse?
[27]
For
these reasons, the Board’s decision on state protection is unreasonable, and
must be set aside.
Issue No. 2: Did the
Board implicitly find that the applicant had an internal flight alternative in Mexico City, and if so, did the Board properly
address this issue?
[28]
The
applicant is not from Mexico City. She is from the city
of Pachuca in the State
of Hidalgo. The Board
did not address the adequacy of state protection in the State of Hidalgo. Instead the
Board focussed its consideration of state protection on Mexico City. Neither the
Board nor the parties expressly considered Mexico City as an
internal flight alternative (IFA) or applied the two-step analysis required for
an IFA.
[29]
The
Board addressed the issue of whether there is adequate state protection in Mexico City as the
primary issue. From the Board’s analysis, it is evident that the Board accepted
that state protection was not available to the applicant in the state of Hidalgo. Then the
Board proceeded to the IFA step of its analysis by considering whether there
was adequate state protection in Mexico City. The Board’s conclusion
that there was adequate state protection in Mexico City was effectively a
finding that Mexico
City
was a viable IFA for the applicant. This is not a proper approach to an IFA
analysis, as will be discussed below.
The law on internal
flight alternatives
[30]
The
concept of an IFA is “inherent” in the definition of a Convention refugee: see Urgel
v. Canada (Minister of
Citizenship and Immigration), 142 A.C.W.S. (3d) 486, 2004 FC 1777, at
para. 15; Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at paras. 2 and 9.
In Rasaratnam v. Canada (Minister of Employment
and Immigration), [1992] 1 F.C. 706 (C.A.), writing for the Federal Court of
Appeal, Mr. Justice Mahoney stated:
¶6 …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.
[31]
The
applicant was not given the opportunity to show that Mexico City is not an
IFA in this case. The failure of the Board to raise the issue of an IFA
specifically and apply the two-step test constitutes an error of law; Kulanthavelu
v. Canada (Minister
and Citizenship of Immigration) (1993), 71 F.T.R. 129 (F.C.), 46 A.C.W.S.
(3d) 503, at para. 13, and warrants the quashing of the Board’s decision.
Internal flight
alternatives in Mexico
[32]
In
cases before this Court, it is clear that crime and domestic abuse in Mexico are
widespread. The Court has seen more refugee claims from Mexico than any
other country in the past few years. Many of these cases involve domestic
abuse. In its Departmental Performance Report of the Immigration and Refugee
Board of Canada to the Treasury Board of Canada Secretariat for the 2006-2007
fiscal year, available at <http://www.tbs-sct.gc.ca/dpr-rmr/2006-2007/inst/irb/irb01-eng.asp>,
the Immigration and Refugee Board of Canada provides the following statistics:
Mexico was the top source country in 2006-2007
with 5,490 claims referred; China was second, far behind Mexico, with 1,700 claims; and Colombia was third with 1,450 claims.
Mexico accounted for 23% of all
claims referred in 2006-2007, 43% above the number of claims referred in
2005-2006; this source country is the principal reason for the overall increase
in referrals.
[33]
If
the state is not able to protect these victims in their hometown, the Board
must examine whether they have an internal flight alternative in their own
country of 108 million people. The research directorate of the Refugee Board
should analyze the number of cities and locations in Mexico where a
victim of domestic abuse could seek refuge far away from their abuser. Mexico
is of a large geographic size and has a population three times the size of Canada. There may
be an IFA in Mexico so that the
refugee claimant does not need to come as far as Canada to seek
refuge from domestic abuse. Victims of domestic abuse cannot seek refuge in
Canada without proving that they cannot safely or reasonably relocate in Mexico.
Criteria for a
determination of an IFA
[34]
For
ease of reference, I summarize a checklist of legal criteria for determining
whether an IFA exists. The checklist is as follows:
1.
If IFA will be an issue, the Refugee Board must
give notice to the refugee claimant prior to the hearing (Rasaratnam,
supra, per Mr. Justice Mahoney at paragraph 9, Thirunavukkarasu) and
identify a specific IFA location(s) within the refugee claimant’s country of
origin (Rabbani v. Canada (MCI), [1997] 125 F.T.R. 141
(F.C.), supra at para.
16, Camargo v. Canada (Minister of Citizenship and Immigration) 2006
FC 472, 147 A.C.W.S. (3d) 1047 at paras. 9-10);
2.
There is a disjunctive two-step test for
determining that there is not an IFA. See, e.g., Rasaratnam, supra; Thirunavukkarasu,
supra; Urgel, supra at para. 17.
i.
Either the Board must be persuaded by the
refugee claimant on a balance of probabilities that there is a serious
possibility that the refugee claimant will be persecuted in the location(s)
proposed as an IFA by the Refugee Board; or
ii.
The circumstances of the refugee claimant make the
proposed IFA location unreasonable for the claimant to seek refuge there;
3.
The applicant bears the burden of proof
in demonstrating that an IFA either does not exist or is unreasonable in the
circumstances. See Mwaura v. Canada
(Minister of Citizenship and Immigration) 2008 FC 748 per Madame Justice
Tremblay-Lamer at para 13; Kumar
v. Canada (Minister of Citizenship and
Immigration)
130 A.C.W.S. (3d) 1010, 2004 FC 601 per Mr. Justice Mosley at para. 17;
4. The threshold is high for what makes an IFA unreasonable in the
circumstances of the refugee claimant: see Khokhar v. Canada (Minister of Citizenship and
Immigration), 2008 FC 449, per Mr. Justice
Russell at paragraph 41. In Mwaura, supra, at para. 16,
and Thirunavukkarasu, supra, at
para. 12, whether an IFA is unreasonable is a flexible test taking into account
the particular situation of the claimant. It is an objective test;
5. The IFA must be realistically accessible to the claimant,
i.e. the claimant is not expected to risk physical danger or undue hardship in
traveling or staying in that IFA. Claimants are not compelled to hide out in an
isolated region like a cave or a desert or a jungle. See: Thirunavukkarasu,
supra at para. 14; and
6. The fact that the refugee claimant has no friends or
relatives in the proposed IFA does not make the proposed IFA unreasonable. The
refugee claimant probably does not have any friends or relatives in Canada. The fact that the refugee claimant
may not be able to find suitable employment in his or her field of expertise
may or may not make the IFA unreasonable. The same may be true in Canada; and
Issue No. 3: Did the
Board err in failing to assess psychological evidence, medical evidence, the
Gender Guidelines, and the applicant’s psychological risk if returned to Mexico?
[35]
The
applicant argues the Board erred by failing to consider psychological and
medical evidence demonstrating the applicant suffered from post-traumatic
stress disorder and would suffer further psychological deterioration if
returned to Mexico. Further,
the applicant states that the Board erred by not making any reference to the
applicability of the Gender Guidelines on Women Refugee Claimants Fearing
Gender-Related Persecution (the Gender Guidelines).
[36]
As
I discussed in Gisela Gallo Farias v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 735 (QL) at paras.
13-19, psychological and medical evidence goes to the credibility of the
applicant’s testimony and whether or not the applicant has a subjective fear of
persecution. It is not relevant to the objective issue of state protection.
[37]
Given
that state protection was the determinative issue before the Board, the
psychological and medical evidence was not relevant and need not have been
referenced in the Board’s decision. Similarly, the Gender Guidelines referred
to by the applicant are not relevant to the issue of state protection.
CONCLUSION
[38]
I
have concluded that the Board’s decision was unreasonable because it
inadequately addressed the particular circumstances of the applicant’s
relationship and her attempts to seek state protection. As discussed, the Board
did not question the credibility of the applicant in deciding this refugee
claim and thus accepted that these events took place. Although the Board
recognized the issue of corruption among public officials, it did not address
the specific difficulties the applicant faced in seeking state protection
against her abuser, including in the D.F., where the Board held that adequate
protections existed. Neither did it apply the appropriate test for determining
that Mexico
City
was an IFA.
[39]
For
these reasons, this application for judicial review will be allowed and the
matter referred back to the Board for redetermination.
[40]
I
note, however, that I find it a coincidence that the applicant’s sister has
made the same type of refugee claim, and that this matter was before me in Gisela
Gallo Farias, supra. That case was sent back by me to the Board for
redetermination. It may be important that the Board take this coincidence into
account in redetermining the credibility of the applicant.
[41]
Neither
party considered that this case raised any serious question of general
importance that ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This application for judicial review is allowed, the
decision of the Board is set aside, and the matter is remitted to another panel
of the Board for redetermination.
“Michael A. Kelen”
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