Date: 20081104
Docket: IMM-2128-08
Citation: 2008 FC 1229
Toronto, Ontario, November 4,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ANDREA TAPIA VILLA
MITZI NIEVES TAPIA
and JAFET NIEVES TAPIA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Principal Applicant Villa is an adult woman who is a citizen of Mexico; the other
two Applicants are her children who have not yet reached an age of majority.
The Applicants made a claim for refugee protection in Canada pursuant to
sections 96 and 97(1) of the Immigration Refugee Protection Act, S.C.
2001, c. 27 (IRPA).
[2]
The
Claim was rejected by a Member of the Immigration and Refugee Board of Canada
by a decision in writing dated April 10, 2008. Leave was granted by this Court
permitting the Applicants to seek judicial review of that decision.
[3]
For
the reasons that follow, I find that the application is allowed.
[4]
The
Member in her decision helpfully stated that the basis of her decision was that
she determined that the Applicants had not rebutted with clear and convincing
evidence that there was an internal flight alternative (IFA) available to the
Applicants in the Federal District of Mexico City (FDMC). The Member found
that the evidence given by the Principal Claimant on her behalf and that of her
children was credible and not embellished. This finding is not challenged. The
factual background can be stated briefly.
[5]
The
Principal Applicant is an educated woman with an accounting background who was
raised and worked in Queretaro, Mexico. She was
married to a Mr. Noe Nieves Gallagos and bore him two children who are the
other Applicants in this proceeding. The Principal Applicant was employed as
an administrative assistant in Queretaro in a restaurant
business owned by Victor Correa Granados (Correa). One evening in December
2005 Correa encountered the Principal Applicant when she was leaving work. She regularly
had to leave information in an area used as an apartment by Correa. Correa
seized the Principal Applicant, physically abused her and raped her. The
Principal Applicant fled and returned home where she was confronted by her
husband who observed her bruises and injuries. Her husband said nothing at the
time but in subsequent days became withdrawn then violent. Meanwhile a person
acting on behalf of Correa visited the Principal Applicant on at least two
occasions warning her not to speak out against Correa. Ultimately her husband
left the Principal Applicant and her children. The Principal Applicant sought
help from her church and psychologists. She moved to another place in Mexico, Colonia La
Loma. On the advice of her psychologist, the Principal Applicant denounced
Correa to the police who advised her to come back since the relevant officer
who dealt with such matters was not there. That night, Correa’s representative
against visited the Principal Applicant to warn her to stop complaining. This
person continued to stalk the Principal Applicant even though she had secured
employment at a new place.
[6]
The
Principal Applicant again spoke to her psychologist who suggested that she move
to another place, including a suggestion as to Canada. The
Principal Applicant met with her parents and her brother, a state judge, and it
was determined that she leave Mexico and come to Canada.
Apparently, the representative of Correa continues to pester the Principal
Applicant’s family.
[7]
The
Member’s findings were set out in that portion of her Reasons entitled
“Analysis” commencing on page 3. I repeat the first paragraph:
I find that the evidence
presented by the claimant in support of her claim was credible and not
embellished. However, the determinative issue in this claim is that I find the
claimants have not rebutted with clear and convincing evidence the presumption
that the authorities in the IFA of the FDMC can protect its citizens. I find
that with her accounting degree and constant employment in her profession prior
to leaving Mexico, then she could relocate there with her children and find
satisfactory employment in her area of expertise with no problems related to
language or credentials and avail herself of the protection that the
documentary evidence states is available for victims of domestic violence in
this district.
[8]
On
page 4 over to page 5 of her Reasons, the Member writes a shopping list of
legal criteria used to establish if there is a viable internal flight
alternative. It is in the application of the relevant criteria that the Member
has failed to appreciate how the evidence before her is to be considered.
[9]
The
Supreme Court of Canada in the often cited case of Ward (Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689) has established, as the
Member has set out, that one must begin with a presumption that states are
capable of protecting their own citizens except where it is evident that the
state is in complete breakdown. It is also correct to say that the Applicants
bear a burden of persuading the Member that the protection afforded by the IFA
is not adequate Canada (Minister of Citizenship and Immigration)
v. Carillo,
2008 FCA 94 at paragraph 20.
[10]
However
in that case the Court of Appeal was careful to point out in paragraph 20 that
the standard of proof “…does not require a higher probability than what is
normally required on the balance of probabilities standard to meet the burden
of proof.” At paragraph 30 of that decision, the Court of Appeal wrote that
the evidence had to be reliable and sufficiently probative such as to convince
the Member that state protection is inadequate on the balance of
probabilities. The manner in which this proof is to be adduced was set out at
paragraphs 17 to 19 of the Court of Appeal’s decision:
17 The respondent claims that the
state of Mexico could not or failed to provide her with state protection
against her husband's physical abuse. As a result of her claim, the respondent
bears both an evidentiary and a legal burden.
18 Indeed, in order to rebut the
presumption of state protection, she must first introduce evidence of
inadequate state protection (for the sake of convenience, I will use
"inadequate state protection" as including lack of such protection).
This is the evidentiary burden.
19 In addition, she must convince the
trier of fact that the evidence adduced establishes that the state protection
is inadequate. This is the legal burden of persuasion.
[11]
In
the present case, the Member addressed the IFA question. At page 12 of the
transcript of the hearing, the Member acknowledged that she was aware that the
Federal District (Mexico City) was not very distant from Queretero:
Member: I did note that
everybody – no, not everybody. The mother and her son where both born in the Federal District. So I’m just wondering how
that came about. It appears that the – nobody ever lived there, so – or no one
was educated there. I also know that it’s not very distant from Queretero.
[12]
At
pages 18 and 19 of the transcript of the hearing we find the Member questioning
the Principal Applicant (through an interpreter):
Member: And you have, in your
personal information form, what happened on that day, and it’s also referred to
in a couple of the medical reports that we have.
Madam, if you were to return
to Mexico and set up your life in the Federal District, do you think that either
of these men would follow you there?
Principal Claimant: Definitely.
Member: Well, let’s again them in
order. I understand that they – they’re not – they’re – your problem with them
isn’t really connected so that one – they wouldn’t come at your together. So
it’s all right if I separate them in the way I’ve been doing?
Principal Claimant: That’s correct.
Member: Okay. Let’s talk about your
husband first. Why do you think he would come to Mexico City?
Principal Claimant: Well, to harm me. Him,
during the communications or contacts that we have had, he tells me like I’m a
damn person and he tells me that he’s not going to allow me to live happily
with my children.
Member: But you haven’t seen him
since he moved out of your family home. You said that the last time you saw
him was in January 2006. So you were in Mexico for six months after that. You stayed
in Queretero and he didn’t come to see you. So why d you think that he would
follow you to Mexico
City?
Principal Claimant: He didn’t try or attempt to
see us because he knew that now, or at that time I was in contact with my
parents. And cowardly, or in a cowardly manner, what he would do was to reach
me and talk to me only on the phone. When on other occasions, he would call
from other telephones, and those were the occasions when I would normally
answer the phone, then he would take the opportunity to insult me.
Member: So why do you think he would
follow you to Mexico
City?
Principal Claimant: Because in Mexico I don’t have any family. In Mexico I would be alone with my
children.
Member: Would you be safer in
Queretero?
Principal Claimant: That’s right.
Member: Now, let’s talk about Victor
Correa (phonetic) and your problems with him. You haven’t seen him since he
raped you?
Principal Claimant: No.
Member: And you were in Mexico for quite a few months after
that?
Principal Claimant: That’s right.
Member: Why did he not come to see
you after the rape?
Principal Claimant: He didn’t come personally,
but he sent, on several occasions, an employee, a person I didn’t know and
would introduce himself on behalf of Mr. Victor Correa (phonetic).
Member: Well, again, I’m going to ask
you what would happen if you went to the Federal District? Do you think that
he would follow you there?
Principal Claimant: I am sure that in any part of
the Mexican’s country, he would locate me to be sure that I wouldn’t do
anything against, against him, because he has many contacts in the government
and very powerful business people or businessmen.
Member: But if he didn’t come after
you in the six months you remained in Mexico, why would he now follow you, now that
its two years later?
Principal Claimant: Because he keeps on being an
important person and what he did to me represents, or becomes a risk, a danger
to him.
[13]
This
appears to be the evidence before the Member as given at the hearing by the
Principal Applicant. Given this evidence, this Court would conclude, as the
Member should have done, that the Applicants had met their burden of providing
that Mexico
City
was not a viable IFA.
[14]
The
Applicants lawyer was given an opportunity to make further submissions as to
IFA and did so in writing. In doing so reference was made to a number of
reports such as those emanating from the United Nations and the United
States
and to decisions of this Court including Diaz de Leon v. Canada (MCI),
2007 FC 1307 at para. 28; Peralta Raza v. Canada (MCI), 2006 FC 1475 at
para.10; and Davila v Canada(MCI), 2006 FC 1425 at para. 25. Those and
other decisions of this Court point to the fact that Mexico is an emerging, not
a full fledged, democracy and that regard must be given to what is actually
happening and not what the state is proposing or endeavouring to put in place.
[15]
In
the present case, the Member refers to “documentary evidence” in her
Reasons, at the first paragraph on each of pages 3 and 4 footnoted at 11, 16
and 16 as affording the basis for concluding that Mexico City offers an
appropriate IFA. That evidence appears to bundles of documents. The Member does
not say on which document or portion thereof, she places reliance. The Member
does not say how the evidence given by and on behalf of the Applicants was
weighed against such documentary evidence. A review of that documentary
evidence fails to disclose what it might have been that would have convinced
the Member, on a balance of probabilities, that Mexico City afforded a
reasonable IFA.
[16]
Therefore,
I find that the application must be allowed and the matter sent back for
redetermination by a different Member. Given that the Principal Applicant’s
evidence was found to be credible and not embellished the issue for
redetermination should be limited to that of the Federal District of Mexico
City as an appropriate internal flight alternative. The matter is fact
specific and no question will be certified. There is no Order as to costs.
JUDGMENT
For the Reasons provided:
THIS COURT ADJUDGES that:
- The
application is allowed;
- The
decision of April 21, 2008 rejecting the Applicants’ refugee claim is
quashed and sent back for redetermination by a different Member. The
issue for redetermination shall be limited to whether the Federal District
of Mexico City is an appropriate internal flight alternative;
- There
is no question for certification;
- No
Order as to costs.
“Roger T. Hughes”
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