Date: 20080205
Docket: IMM-1019-07
Citation:
2008 FC 140
Ottawa, Ontario, February 5, 2008
Present:
The Honourable Mr. Justice Shore
BETWEEN:
MARIA
AUXILIO VALENZUELA DEL REAL
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
According
to the evidence, the applicant, who arrived in Canada on April 28, 2006, was a victim of domestic
violence at the hands of her husband, with whom she cohabitated from 1973
until their separation in November 2005. The husband was diagnosed with
schizophrenia in 1995.
[2]
According
to the decision of the Immigration and Refugee Board (IRB):
The claimant was a victim of her spouse,
a chauvinistic, violent, alcoholic and schizophrenic man who is the father of
her seven children and the father of ten other children of a similar age.
The claimant was subject to persecution
in the form of physical assault with beatings and injuries, humiliation and
insults in front of her children and neighbours. Her children and some
neighbours, witnesses to the ill treatment endured by the claimant, advised her
to leave her spouse, but each time, she refused.
The claimant never really went to the
authorities, the police or the public prosecutor’s office to obtain help and
protection, although on a few occasions, she could have gotten help from a
pharmacist, doctor and psychologist.
(Applicant’s record, IRB decision, page 8.)
[3]
The
Refugee Protection Division (RPD) considered in its assessment the fact that
the applicant remained passive and that she had not attempted to pursue and
take steps with the authorities (Sanchez v. Canada (Minister of Citizenship
and Immigration), 2004 FC 391, [2004] F.C.J. No. 485 (QL); Madoui
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1372
(QL), paragraph 5; Eminidis v. Canada (Minister of Citizenship and
Immigration), 2004 FC 700, [2004] F.C.J. No. 858 (QL), paragraph 15).
[4]
In fact, the
evidence established that following the incident on March 21, 2006, a municipal
police officer intervened, took the applicant’s statement, told her that she
had to go to the public prosecutor to file a report and that he would give
them the report. The municipal police officer then brought her to the public
prosecutor and gave this report to an employee. After waiting several hours,
the public prosecutor’s officers asked her what she wanted to report and she
told them about her ex-husband’s abuse and the attempted murder. The officer
told her to come back the next day because there were other people with serious
reports like firearms injuries and death and that her case could be settled
easily with the Integral Development of the Family (DIF) (Personal Information
Form (PIF), paragraph 14),
[5]
She was
therefore asked to come back the following day because her case could be easily
settled at the DIF (PIF, supra).
[6]
However,
the applicant chose not to return there.
[7]
It was
therefore in this context that the RPD could reasonable determine that “[t]he
claimant never really went to the authorities, the police or the public
prosecutor’s office to obtain help and protection” and that, accordingly, she “made
no attempt to obtain protection” (Reasons, page 1, paragraph 5 and page 3,
paragraph 3).
JUDICIAL PROCEEDING
[8]
This is an
application for judicial review against a decision by the RPD of the IRB, dated
February 13, 2007, determining that the applicant
was not a “Convention refugee” as defined under section 96 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), or a “person in need
of protection” according to section 97 of the IRPA, because she failed to establish
that she did not have an internal flight alternative (IFA).
FACTS
[9]
According
to the evidence, the applicant, Maria Auxilio Valenzuela Del Real, who arrived
in Canada on April 28, 2006, was a victim of domestic violence at the
hands of her husband, with whom she cohabitated from 1973 until their
separation in November 2005. The husband was diagnosed with schizophrenia in
1995. The alleged facts took place between 1974 and April 2006. The
RPD does not mention whether Ms. Del Real is credible or not.
[10]
The RPD determined
that Ms. Del Real had an internal flight alternative (IFA) in Mexico.
ISSUE
[11]
Is the RPD’s
decision unreasonable?
ANALYSIS
[12]
The
central issue to examine in this case bears on the merits of the RPD’s finding
that the applicant, who would be at risk in the city of San Juan, “has a viable IFA in Mexico.” This finding alone was
sufficient to dismiss her refugee claim.
[13]
In short,
in her pleadings, Ms. Del Real strenuously argued that this finding is
patently unreasonable since the RPD did not make any finding against her
credibility and, accordingly, she is [translation]
“entitled to have the findings resulting from the alleged facts
established according to the facts as alleged by her.”
[14]
According
to Ms. Del Real’s arguments, the RPD erred (1) because [translation] “her husband could locate
her through his police contacts” and (2) because she addressed the authorities
of the city of Guanajuato who, despite the gravity of
her situation and the imminent danger to her life, allegedly told her to come
back the following day.
[15]
Yet, if [translation] “the applicant is
entitled to a decision that is consistent with the facts she alleged”, then the
RPD’s finding that she failed to establish that she did not have an IFA in her
country cannot be reversed given the following determinative facts that she
alleged before the RPD:
(a) The police did not refuse
to come to her aid (Tribunal record (TR), pages 232, 264-267, and 303);
(b) The applicant was aware
that there were several organizations that could help her and, specifically,
she admitted on several occasions that she knew that the DIF could help her, but
that she never went there (TR, pages 233-234, 268-269);
(c) The applicant explained that
the reason she never availed herself of this assistance was that she was afraid
to leave the house in Guanajuato where she was hiding in fear that her husband
would find her in that city (TR, page 268);
(d) However, the applicant, who
claimed to be afraid to go out to seek protection in Guanajuato, a drive of several
hours from her city, out of fear that her husband would find her, nevertheless
chose to return to her own city of San Juan to take the steps to obtain a
passport as well as make arrangements for her departure, in the very city where
her alleged persecutor was (who she argued before the Court [translation] “could find her though
his police contacts; anywhere in Mexico) while these arrangements could very
well have been made elsewhere in the country (TR, pages 270-271; 273-275,
318).
[16]
This was
the context in which the RPD determined that Ms. Del Real “never really
went to the authorities.”
[17]
With
respect, the RPD’s determination is self-explanatory:
In light of the documentary evidence, the
panel is of the opinion that the Mexican government is making considerable
efforts, in Mexico
City, to protect
women who are victims of domestic violence and that state protection will be
offered to the claimant even if her aggressor is a powerful person or works
in the justice system.
[Emphasis added.]
(Reasons, page 3; TR, page 6.)
[18]
Ms. Del
Real did not meet her burden of establishing on a balance of probabilities that
there was a serious possibility of persecution everywhere in Mexico and that it would be unreasonable
for her to seek refuge in another part of her country. (Thirunavukkarasu v. Canada
(Minister of Citizenship and Immigration), [1994] 1 F.C. 589 (C.A.);
[1994] F.C.J. No. 1172 (QL).)
[19]
Therefore,
considering the absence of evidence to the contrary, the RPD’s determination in
regard to the existence of an internal flight alternative is therefore
consistent with the principles established in the case law and was sufficient
to refuse Ms. Del Real’s refugee claim since the existence of an internal
flight alternative eliminates the possibility of qualifying as a “refugee” or a
“person in need of protection” (Fabela v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1028; [1994] F.C.J. No. 1277
(QL).)
[20]
With
regard to the argument contained in the applicant’s memoranda, even though
Ms. Del Real does not agree with the determination made by the RPD based
on the evidence and would have preferred an interpretation in her favour, she
did not establish that the RPD made a perverse or capricious decision without
regard to the material before it by gauging the testimonial and documentary
evidence submitted and by drawing the necessary inferences.
[21]
The RPD
must, as a specialized tribunal, weigh the evidence submitted and make the
necessary determinations.
[22]
To do so,
the RPD may choose the evidence that best represents reality and this choice is
part of its role and its expertise. On this point, the Court refers inter
alia to the following decisions: Mahendran v. Canada (Minister of Employment and
Immigration),
[1991] F.C.J. No. 549 (C.A.) (QL); Mohimani v. Canada (Minister of Employment and
Immigration),
[1993] F.C.J. No. 564 (C.A.) (QL); Zhou v. Canada (Minister of Employment and
Immigration),
[1994] 1 F.C. 589 (C.A.); [1994] F.C.J. No. 1087
(C.A.) (QL).
[23]
The same
applies when the documentary evidence is inconsistent on certain points (which
is not at all admitted in this case), the RPD may validly rely on evidence that
it prefers (Kanagaratnam v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 1069 (QL); Ganiyu-Giwa v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 506 (QL); Omar
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 665
(QL); Vasquez v. Canada (Minister of Citizenship and Immigration),
[1997] F.C.J. No. 776 (QL)).
[24]
In the absence
of clear and convincing evidence to the contrary, the RPD is presumed to have
considered all of the evidence in a given matter and has no obligation to
comment on it in its entirety. Just because the RPD does not expressly mention particular
evidence in its reasons does not mean that the evidence was not considered (Woolaston
v. Canada (Minister of Employment and Immigration), [1973] S.C.R. 102;
Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946
(C.A.) (QL); Florea v. Canada (Minister of
Citizenship and Immigration), [1993] F.C.J. No. 598
(C.A.) (QL)).
[25]
Indeed, it
is not enough for claimants to file documentary evidence setting out
problematic situations in their countries for them to be recognized as
Convention refugees or persons in need of protection. The claimants must
establish a connection between this evidence and their personal situation. In
this case, Ms. Del Real did not establish such a connection (Al-Shamhusband
v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 364, [2002] F.C.J. No. 478 (QL)).
Credibility
[26]
Recently,
in Garcia v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 385, [2007] F.C.J. No. 118 (QL), involving a female victim of domestic
violence and involving the issue of state protection, Mr. Justice Douglas Campbell decided as
follows:
[4] ... Since
no negative credibility finding is made, I find that the RPD accepted the
applicant's evidence as true, and, subject to correction on two points, the
statement constitutes facts upon which the claim for protection should be
decided.
[27]
Accordingly,
the facts alleged are accepted as credible.
Internal flight alternative in
Mexico City
[28]
It is well
established that an IFA in another part of the same country is inherent to the
very notion of a refugee. In fact, the definition of a Convention refugee
requires that “be
unable or unwilling by reason of fear of persecution to claim the protection of
their home country in any part of that country” (Ranganathan
v. Canada (Minister of Citizenship and
Immigration), [2001] 2 F.C. 164, [2001] F.C.J. No. 2118
(QL)).
[29]
To
determine that such a possibility truly exists, the RPD must be convinced, according
to the balance of probabilities standard, that the claimant is indeed safe from
persecution in a given region or city of the country and that it would not be unreasonable,
given the claimant’s particular situation, to live in that place (Righi v. Canada
(Minister of Citizenship and Immigration),
2002 FCT 1032, [2002] F.C.J. No. 1351 (QL), by Madam
Justice Carolyn Layden-Stevenson, paragraph 6).
[30]
The bar
must be placed very high when determining what would be unreasonable: 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” (Ranganathan, supra, paragraph 15).
[31]
In Julien
v. Canada (Minister of Citizenship and Immigration),
2005 FC 313, [2005] F.C.J. No. 428 (QL), Mr. Justice Pierre
Blais reiterated that the burden of proof is on the claimants to establish
that it is objectively unreasonable for them to avail themselves of an IFA:
[11] ... Consequently, if
there is a safe haven for claimants in their own country, where they would be
free of persecution, they are expected to avail themselves of it unless they
can show that it is objectively unreasonable for them to do so. (Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589
(C.A.), at paragraph 12.)
[Emphasis added.]
[32]
On the
issue of documentary evidence, this Court has already stated that even though the
RPD does not specifically mention any documentary evidence in its reasons, this
does not as such vitiate the decision (Perrier v. Canada (Minister
of Citizenship and Immigration), 2002 FCT 35, [2002] F.C.J. No. 54
(QL), by Mr. Justice Yvon Pinard, paragraph 6; see also Hassan v. Canada (Minister
of Citizenship and Immigration) (C.A.), [1992] F.C.J. No. 946
(QL)).
[33]
Further,
this Court determined that in the absence of clear and convincing evidence to
the contrary there is a presumption that the RPD considered all of the evidence
(Florea, supra).
The RPD’s decision was
reasonable
[34]
In this
case, the RPD considered all of the evidence (testimonial as well as documentary)
in its analysis and it was reasonable for it to determine that Ms. Del
Real had a viable IFA in Mexico
City and that it
was not objectively unreasonable for her to relocate to Mexico City.
[35]
First, the
RPD analyzed the documentary evidence in the record on the availability of an
internal flight alternative and state protection in Mexico City.
[36]
The RPD
established inter alia that the government had adopted various
legislative measures and offered various services to help victims of domestic
violence. Indeed, the RPD noted that it is possible to turn to several
government services, including the family courts and the public prosecutor; that
victims have temporary shelter available and that there are centres where
victims of violence can obtain psychological support, counselling and legal assistance.
(Reasons, page 2, paragraph 3.)
[37]
Moreover,
the RPD noted that the documentary evidence also indicated that to report a
crime or offence in Mexico, whether as a victim or as a witness,
the case must be reported to the nearest public prosecutor’s office. If the
authorities do not consider a complaint or do not process it, recourse is
available against the internal comptroller of the Office of the Attorney General
of the Republic (AGR), which notably was reorganized in 2001 in order to better
fight against internal corruption (Reasons, page 2).
[38]
Then the RPD
analyzed the steps undertaken by Ms. Del Real in order to obtain
protection from the police.
[39]
The RPD considered
in its assessment the fact that Ms. Del Real remained passive and that she
did not attempt to pursue and undertake steps with the authorities (Sanchez,
supra; Madoui, supra, paragraph 5; Eminidis, supra,
paragraph 15).
[40]
In fact, the
evidence established that, following the incident on March 21, 2006, a
municipal police officer intervened, took Ms. Del Real’s statement, told
her that she had to go to the public prosecutor to file a report and that he
would give them the report. The municipal police officer then brought her to
the public prosecutor and gave this report to an employee. After several hours
of waiting, the public prosecutor officers asked her what she wanted to report and
she told them about her ex-husband’s abuse and the attempted murder. The
officer told her to come back the next day because there were other people with
serious reports such as firearms injuries and deaths and that her case could be
easily settled with the DIF.(PIF, paragraph 14).
[41]
She was
therefore told to return the next day because he case could be easily settled
at the DIF. (PIF, supra.)
[42]
Ms. Del
Real chose not to return, however.
[43]
It was
therefore in this context that the RPD could reasonable determine that “[t]he
claimant never really went to the authorities, the police or the public
prosecutor’s office to obtain help and protection” and that, accordingly, she
“made no attempt to obtain protection” (Reasons, page 1, paragraph 5
and page 3, paragraph 3).
[44]
Accordingly,
it is difficult to criticize the Mexican authorities for their failure to act
when Ms. Del Real did not return the following day to give them the
opportunity to protect her. As stated by Mr. Justice Yves de Montigny
in Villasenor v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1080, [2006] F.C.J. No. 1359 (QL):
[19] ...
it is
reasonable to expect that a person alleging that the authorities were unable to
protect him should first have done something that would usually have resulted
in their protection. Save in exceptional circumstances, it seems inconceivable
to the Court that an applicant should be able to blame the authorities in his
country for their inaction when he did not even make them aware of his position
of vulnerability and never gave them an opportunity to protect him.
(See also: Smirnov v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1080; Villanueva v. Canada (Minister of Citizenship and Immigration), 2004 FC 1320, [2004] F.C.J. No. 1619
(QL).)
[45]
This is
not an indication of a lack of protection but rather reticence on Ms. Del
Real’s part to avail herself of it. As stated in the case law of this Court,
this does not render the State unable to protect her.
[10] Also, the
applicant made the decision not to press criminal charges against her husband
because she was afraid of his reaction. This behaviour is understandable
considering the circumstances but it does not make the state protection
insufficient. A decision was made by the applicant not to use the system
established by governmental authorities. If all victims of violent domestic
abuse do not use the service offered, that system will never improve.
[Emphasis
added.]
(Ferguson v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 1212, [2002] F.C.J. No. 1636 (QL); see also Tenorio
v. Canada (Minister of Citizenship and
Immigration),
2007 FC 63, [2007] F.C.J. No. 98 (QL), paragraph 28.)
[46]
Still in
regard to the same issue, the RPD could also consider in its analysis the fact
that Ms. Del Real was not able to give a reasonable explanation as to why
she had not relocated in Mexico
City; she
testified that she had never thought to move to Mexico City. Further, she testified that she had
already heard about the DIF although she chose not to contact it. This Court,
in Skelly v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1244, [2004] F.C.J. No. 1503 (QL), per
Mr. Justice James Russell, has already stated:
[51] ... Hence, it is difficult to fault the Board's conclusion that the Applicant
had not rebutted the availability of state protection in her particular circumstances
because she “made no effort whatsoever to seek protection in St. Lucia, or even to find out
what protection was available to her.”
(See also: Jara v. Canada (Minister of Citizenship and
Immigration),
2006 FC 973, [2006] F.C.J. No. 1226 (QL), paragraph 12; Zhuravlvev
v. Canada (Minister of Citizenship and
Immigration),
[2000] 4 F.C. 3, [2000] F.C.J. No. 507 (QL), paragraph 31)
[47]
Finally, the
RPD could take into account the fact that in terms of finding work in Mexico, Ms. Del Real is a
resourceful, well-spoken businesswoman.
[48]
The RPD’s
determination with regard to the existence of an internal flight alternative is
therefore consistent with the principles set out in the case law, supported by
the evidence submitted and sufficient to dismiss Ms. Del Real’s refugee
claim. In fact, the existence of an internal flight alternative eliminates the
possibility of qualifying as a “refugee” or a “person in need of protection” (Fedomin
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1684
(QL)).
CONCLUSION
[49]
Considering
the foregoing, Ms. Del Real’s application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
Judge
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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