Date: 20081006
Docket: IMM-467-08
Citation: 2008 FC 1126
Ottawa,
Ontario, October 6, 2008
PRESENT:
The Honourable Mr. Justice Louis S. Tannenbaum
BETWEEN:
Norma
FUENTES HERNANDEZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
I have before me an application
for judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dated November 29, 2007, that the applicant was not a
Convention refugee or a person in need of protection in accordance with
sections 96 and 97 of the Act.
[2]
The applicant is a
citizen of Mexico. Her claim is based on the domestic violence
she suffered during 39 years of marriage.
[3]
In October 2006, the
applicant obtained a divorce from her ex-husband. Nevertheless, she claims that
her ex-husband is pursuing her and continues to threaten her. Allegedly, he
threatened to kill her on five occasions and his threats intensified beginning
in 1999.
[4]
Despite these multiple
threats and her ex-husband’s alcoholism, the applicant never sought the
protection of the authorities and never followed up on the written complaint
that she lodged in 1998 with a court in trial division.
[5]
Further, the applicant,
an educated women working in education for many years, did not make any serious
effort to relocate in another large city in Mexico, whether it be Mexico City, F.D., Monterrey, Guadalajara or Veracruz.
[6]
The applicant alleges
that she fears for her safety because she had received death threats from her ex-husband
from whom she had no protection in a chauvinistic country like Mexico. The rights she asserted were put off and were not
even mentioned when the applicant raised as grounds persecution from her ex-husband
and her extreme stress caused by his harassment (applicant’s memorandum, applicant’s
record at page 147).
[7]
She claims that the
Board forgot to focus its analysis on the substance of the matter, namely the
fact that due to her state of stress she could not find peace unless she left
the country. Accordingly, the applicant alleges that the fact that the Board did
not decide the ground raised in support of her fear of persecution amounts to
an error justifying the intervention of this Court.
[8]
The respondent argues
that the Board clearly set out in its reasons the very difficult domestic
violence situation experienced by the applicant and that the Board never
questioned the merits of her history of persecution. Therefore there cannot be
an inference that the Board ignored the applicant’s fear of persecution.
[9]
Further, insofar as the
Board’s decision is based on the existence of state protection and an internal
flight alternative, the applicant had to establish that the Board erred on each
of these aspects of its reasons to justify this Court’s intervention, which was
not at all done in this case.
[10]
The Board determined
that the applicant was not a “person in need of protection” and that she had an
internal flight alternative. Accordingly, it dismissed her refugee claim.
[11]
The Board noted that
despite the fact the applicant’s story could be true, it could not accept her
refugee claim because she did not rebut the presumption that her country was
able to protect her.
[12]
Indeed, the Board determined
that, considering the applicant’s education and her experience in the field of
teaching, the applicant could relocate in another of the four large Mexican
cities and that such a move would be reasonable.
[13]
The issues are as
follows:
1.
Did the Board err in finding that state
protection was available?
2.
Did the Board err in determining that there was
an internal flight alternative?
[14]
Mr. Justice Martineau
points out the appropriate standard for determining whether the presumption of
state protection has been rebutted:
3 Prior to Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9 (Dunsmuir), a finding of the
Board regarding state protection was reviewable against a standard of
reasonableness simpliciter: see Chaves v. Canada (Minister of Citizenship and
Immigration), 2005 FC 193, [2005] F.C.J. No. 232
(QL) and Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, at paragraph 38 (Hinzman). Taking into
account the fact that the reasonableness simpliciter standard has been
consolidated with the patently unreasonable standard into a single standard,
but with a variable spectrum, I do not believe that the Court’s review of the
legality of a finding by the Board on state protection is really any different
today; the Court’s analysis is concerned essentially with the “existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” (Dunsmuir, at paragraph 47).
(Chagoya v. Canada (Minister of Citizenship and Immigration), [2008] F.C. 721 at paragraph 3)
[15]
In this case, I do not
see why the Court should adopt a different standard.
[16]
In regard to the issue
of the internal flight alternative, Mr. Justice Montigny points out
the following:
11 It is now
trite law that the applicable standard of review for decisions regarding state
protection is reasonableness simpliciter (see Chaves v. Canada (Minister of Citizenship and
Immigration), 2005 F.C. 193).
12 With regard to internal flight alternative, it has been common
practice to apply the standard of patent unreasonableness given the highly
fact-driven nature of such decisions: see, for example, Ali v. Canada
(Minister of Citizenship and Immigration), 2001 F.C.T. 193; Ezemba v. Canada (Minister of Citizenship and
Immigration), 2005 F.C. 1023. However, the Supreme
Court of Canada recently
determined in Dunsmuir v. New Brunswick, 2008 S.C.C. 9 [Dunsmuir]
that the two reasonableness standards should be merged into a single standard,
given the problems that arise in trying to apply the two standards and the
incongruity of parties being required to accept an irrational decision simply
because, on a deferential standard, the irrationality of the decision is not
clear enough.
13 Does this
mean that the application of a single standard of reasonableness invites
greater judicial intervention? I do not think that this is the intended meaning
and scope of the Dunsmuir judgment. On the contrary, Bastarache and
LeBel JJ. emphasize the deference courts must show when lawmakers decide to
entrust an administrative body with the responsibility of making certain
decisions when enforcing its enabling legislation. Here is what they have to
say about the matter:
[48]
The move towards a single reasonableness standard does not pave the way for a
more intrusive review by courts and does not represent a return to pre-Southam
formalism. In this respect, the concept of deference, so central to judicial
review in administrative law, has perhaps been insufficiently explored in the
case law. What does deference mean in this context? Deference is both an
attitude of the court and a requirement of the law of judicial review. It does
not mean that courts are subservient to the determinations of decision makers,
or that courts must show blind reverence to their interpretations, or that they
may be content to pay lip service to the concept of reasonableness review while
in fact imposing their own view. Rather, deference imports respect for the
decision-making process of adjudicative bodies with regard to both the facts
and the law. The notion of deference “is rooted in part in a respect for governmental
decisions to create administrative bodies with delegated powers” (Mossop,
at p. 596, per L’Heureux-Dubé J., dissenting). . . .
[49] . . . In short, deference requires respect for the legislative
choices to leave some matters in the hands of administrative decision makers,
for the processes and determinations that draw on particular expertise and
experiences, and for the different roles of the courts and administrative
bodies within the Canadian constitutional system.
14 What can be learnt from these
considerations? It would seem that courts of law will have to continue to show
a high degree of deference when there is more than one right answer to issues
decided by administrative tribunals. This would be the case, for example, where
a question is essentially one of fact or involves the discretion of the
administrative body or policy it is tasked with enforcing (Dunsmuir, supra,
paragraph 53). In such cases, courts must ask whether the decision under review
is reasonable in terms of its “justification, transparency and intelligibility
within the decision-making process” and in terms of “whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir, supra, paragraph 47).
(Navarro
v. Canada (Minister
of Citizenship and Immigration), [2008] F.C. 358
at paragraphs 11-14)
[17]
Accordingly, the
standard of review appropriate to the issue of internal flight alternative is
that of reasonableness.
1.
Did the Board err in finding that state
protection was available?
[18]
First, there is a
presumption to the effect that the state is able to protect its citizens and it
is the responsibility of the refugee claimants to reverse this presumption with
clear and convincing evidence. First, in the absence of a complete breakdown of
the state, there must be a presumption from the outset that the state is able
to protect its nationals: (Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689 (QL), at paragraph 50, Canada
(Minister of Employment and Immigration) v. Villafranca), [1992] F.C.J. No. 1189,
at paragraph 7 (QL)). The protection offered by the state need not be
perfect (Villafranca, supra, at paragraph 7) yet refugee
claimants have the responsibility to exhaust all courses of action available in
their country before seeking international protection (Kadenko v. Canada (Minister
of Citizenship and Immigration), [1996] F.C.J. No. 1376 (QL), at
paragraph 5).
[19]
The applicant in her
memorandum barely touches on the findings bearing on the existence of state
protection.
[20]
Yet, the applicant testified
before the Board that she had received death threats from her ex‑husband
on five occasions and that the seriousness of these threats intensified in 1999. In an attempt to protect herself, the applicant allegedly
lodged a written complaint on October 13, 1998, with a court in trial division.
This complaint, according to the applicant, bore on her ex-husband’s behaviour.
[21]
The Board points out
however that the applicant never followed up on the written complaint that she
lodged in 1998. Further, she never addressed the police to request their
protection.
[22]
Mr. Justice Décary
points out in Kadenko v. Canada (Minister
of Citizenship and Immigration), [1996] F.C.J. No. 1376 (QL), at paragraph 5:
… 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.
[23]
The Board refers to the
steps taken by the applicant in regard to the protection she was seeking:
[The claimant] refers to the one written complaint to the
authorities that she made on October 13, 1998. This is a report for first
instance in which the claimant came to complain about her husband’s behaviour.
[…]
... The claimant did not follow-up this procedure. When asked what she
expected, she answered that she expected the authorities to arrest her ex‑husband.
She added “I do not know how these things are done. I made two phone
calls, the last one being in 2003 not knowing to whom I spoke”
This same first tribunal referred to exhibit P-19. She did not ask
who was speaking or what position they held, nor did she refer to her file
number. She never went to ask for protection from the police. Asked if she
asked for protection from any other government agencies, she said that she did
not know how to do that. Subsequently, she was asked if she considered going to
the police after having received a threat in 2001, her answer was: “I did think
about it but I was terribly frightened that if I complained, he would carry on
his threats”. The claimant subsequently changed her last complaint from 2003 to
2004, but this would have been the last time she ever asked for any protection.
Again, it was the same people that she called in 2001 who are the same people
as in the first instance of judicial proceedings referred to in P‑19. But
again, she did not know or ask who she was speaking to.
[24]
This Court pointed out
that the applicant never filed a police report and did not follow up on the
report she had filed in 1998 before a Mexican court in trial division before
requesting international protection in Canada.
[25]
In attempting to
explain her reason for not going to the police, the applicant alleged before
the Board that Mexico was corrupt.
[26]
This Court must however
point out:
To rebut this presumption
[that the State is capable of protecting the claimant], it would not be
sufficient to allege that the police are corrupt or that a police officer did
not follow up on a complaint. From this point of view, I, like many of my
colleagues, am willing to admit that Mexico is able to protect its citizens even though this protection is
far from perfect …
(Espinosa v. Canada (Minister of Citizenship and Immigration), 2005 FC 1393 at paragraph 7, 153 A.C.W.S. (3d) 184)
[27]
This Court is of the
opinion that the applicant did not take the necessary steps to obtain the
protection of the Mexican authorities and that she did not establish the objective
reasonableness of this omission.
[28]
As the applicant did
not exhaust all of her recourse in Mexico before coming to
Canada, she did not establish the lack of state protection
and did not rebut the presumption that protection was available.
[29]
Accordingly, the
applicant did not raise any serious ground that would serve as a basis for the intervention
of this Court.
2.
Did the Board err in determining that
there was an internal flight alternative?
[30]
In addition to its
finding regarding the existence of state protection in Mexico, the Board determined
that the applicant could, if need be, avail herself of an internal flight
alternative, inter alia in Mexico City, F.D., Monterrey, Guadalajara and
Veracruz.
[31]
The very definition of
“Convention refugee” and “person in need of protection” necessarily implies
that it is impossible for the claimants to seek the protection of their country
anywhere in that country’s territory. The internal flight alternative is inherent to the very
notion of “refugee” and “person in need of protection.” The Federal Court of
Appeal has repeatedly determined that a refugee claimant must establish that there
is a well-founded fear of persecution everywhere in the claimant’s country for
the claimant to be recognized as a refugee.
[32]
Subsection 97(1) of the Act requires that
refugee claimants establish that there is a danger of torture everywhere in
their country for them to be recognized as “persons in need of protection.” This
requirement is based on the wording of subparagraph 97(1)(b)(ii) of
the Act, according to which there is a removal to “country or countries” (“tout
pays”). This section reads as follows:
|
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
…
(b) to a
risk to their life or to a risk of cruel and unusual treatment or punishment
if
…
(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,
|
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 :
[…]
b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant :
[…]
(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,
|
[33]
Based on the evidence filed before it, the Board
determined that there was no serious possibility of persecution for the
applicant in large cities like Mexico City, F.D., Monterrey, Guadalajara and Veracruz, with populations exceeding one million habitants. In making this
determination, the Board relied on the fact that the applicant is now divorced
and that the fact that her ex-husband was able to find her when she was living
with her brother does not reasonably suggest that he could not locate her if she
chose not to live with her family members.
[34]
In countering these submissions, the applicant
was able to do little more than offer vague allegations of the risks of being
located arising from the state’s inability to protect her; however, she did not
avail herself of this protection before leaving her country to seek protection
in Canada. In addition, she did
not file any genuine, concrete evidence of existing conditions preventing her
from relocating in her country. Under these circumstances, the Board could
reasonable find that there was an internal flight alternative in Mexico.
[35]
Further, expecting the applicant to move to
another region of the country to live elsewhere with a family member cannot be
considered undue hardship or even be qualified as unreasonable.
[36]
Accordingly, it was reasonable for the Board to
find that the applicant had an internal flight alternative.
[37]
Notwithstanding the emotional problems experienced
by the applicant, this Court is of the opinion, as the Board determined, that
there is no reason to believe that the applicant could not get whatever
protection she may have needed in Mexico.
[38]
It is reasonable if not required that refugee
claimants exhaust all recourse in their country before requesting international
protection. In this case, the Court is of the opinion that the applicant could
easily, based on her education and work experience, relocate to another part of
her country without undue hardship. The application for judicial review must
therefore be dismissed.
[39]
There was
no question of general importance formulated by the parties for certification.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that, for the reasons given above, the application for judicial
review be dismissed.
“Louis S. Tannenbaum”
Certified true
translation
Kelley A. Harvey, BCL,
LLB
Authorities consulted by the
Court
1.
Javaid v.
MCI, (1998) F.C.J. No. 1730
(F.C.T.D.)
2.
Attakora
v. MEI,
(1989) N.R. 168
3.
Djama v.
MEI, Federal
Court of Appeal, 1992
4.
Gracielome
v. MEI, 9 Imm.
Law Report, (2d) 238
5.
Garcia v.
MCI, [2007] F.C.J. No. 118
(QL)
6.
Rasaratnam
v. MEI,
[1992] 1 F.C. 706, 710 (C.A.)
7.
Thirunavukkarasu
v. MEI, [1994]
1 F.C. 589, 592 and 593 (C.A.)
8.
Espinosa
v. MCI, 2005
FC 1393
9.
Ortiz v.
MCI, 2006
FC 1365 (CanLII)
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