Date: 20081020
Docket: IMM-4989-07
Citation:
2008 FC 1180
Ottawa, Ontario, October 20, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ALBA
IXTLAXOCHITL PELAYO AGUILAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Alba
Ixtlaxochitl Pelayo Aguilar, the applicant, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, applies for judicial review
of a decision by the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”), dated October 31, 2007, where the Board determined that Ms.
Aguilar had an internal flight alternative (“IFA”) in Mexico City and rejected
her claim.
BACKGROUND
[2]
Ms.
Aguilar is a citizen of Mexico and a resident of Autlan, in the state of
Jalisco. She has claimed an alleged fear of persecution at the hands of her ex-common
law partner.
[3]
She
met Jorge Quintero Ponceano (“Jorge”), an older man, in 2000 when she was 19
years of age. They began a relationship in 2002. Jorge was well off and had
political influence. After they began to live together in 2005, he became verbally
abusive, very possessive and controlling. His abusive behaviour became physically
and sexually violent. She reported his domestic violence to the police but the
police were not interested in acting on her compliant.
[4]
Ms.
Aguilar left Jorge and fled to nearby Nayarit, but he found her within three
days and brought her back. He also located her when she fled to the
neighbouring country of Guatemala. Jorge would use his
gun to pistol whip her. On April 10, 2006, Jorge shot at her when she locked
herself in the bathroom to escape him. She fled to her parents and her father
accompanied her to file a denunciation with the police. Although the police accepted
her denunciation, they took no action on her compliant.
[5]
The
copy of Ms. Aguilar’s April 11, 2006 denunciation, a doctor’s medical
certificate confirming her three attendances at the medical centre and a letter
of confirmation by a neighbour corroborate her testimony. The Board decided that
she was credible witness.
[6]
I
have decided that the application for judicial review will succeed. My reasons
follow:
DECISION UNDER REVIEW
[7]
On
October 31, 2007, the Board determined that Ms. Aguilar had a well-founded fear
of persecution at the hands of Jorge, her common-law partner. However, the
Board concluded that the determinative issues were the availability of state
protection and a suitable IFA in the Federal District of Mexico City.
[8]
The
Board considered the fact that Ms. Aguilar and Jorge were no longer a couple to
be significant in determining whether she had an IFA. The Board found that she
could live safely in Mexico City where there is
protection available for victims of domestic violence.
ISSUES
[9]
The
issue to be determined is if the Board erred in its finding of an IFA in Mexico City?
STANDARD OF REVIEW
[10]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 62
the Supreme Court of Canada stated that the first step in conducting an
analysis for standard of review 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.”
[11]
The
determination of the viability of an IFA is a factual inquiry, and as such, a
deferential standard of review is to be applied. Prior to Dunsmuir the
standard of review for issues related to an IFA were reviewed on the patent
unreasonableness standard (Sivasamboo v. Canada (Minister of
Citizenship and Immigration), [1995] 1 F.C. 741; Ramachanthran v.
Canada (Minister of Citizenship and Immigration), 2003 FCT 673; Ali v Canada (Minister of
Citizenship and Immigration), 2001 FCT 193.
[12]
Most recently,
in Khokhar v. Canada (Minister of Citizenship and Immigration), 2008 FC
449, at paras, 21-22, Justice Russel held that the standard of review for
issues related to an IFA is reasonableness. I would agree. Given the
fact-driven nature of an IFA analysis, this Court should show deference to the
decision maker unless the Board’s decision was made in a perverse or capricious
manner (s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c.F-7), or
was not reasonable having regard to whether the decision fell within a range of
possible, acceptable outcomes which were defensible in respect of the facts and
the law (Dunsmuir at para. 47)
ANALYSIS
Did the Board err in its
finding of an IFA in Mexico City?
[13]
The
test for finding an IFA was set out in Adjei v. Canada (Minister of
Employment and Immigration), [1989] F.C.J. No. 67. The test is
two-pronged: first, the Board must be satisfied on a balance of probabilities
that there is no serious possibility of the claimant being persecuted in the
part of the country in which it finds an IFA exists. Second, conditions in
that part of the country must be such that it would not be unreasonable, in all
the circumstances, for the claimant to seek refuge there.
[14]
Ms.
Aguilar is not from Mexico City. She is from the city of Autlan, in the
state of Jalisco, Mexico. The
Board focussed its evaluation of the adequacy of state protection at an
internal flight alternative and found that Ms. Aguilar had a viable IFA in Mexico City. The Board
based its conclusion that she would have a viable IFA in Mexico City on its
assessment that Jorge was no longer interested in Ms. Aguilar.
[15]
The
Board stated:
“When she went to Nayarit and Guatemala, they were still a couple. He
now has given her sister permission to pick up the claimant’s things which
leaves the panel with the impression that he accepts that she is gone. The
fact that Jorge comes to her parents’ house when he is drunk, from time to
time, does not indicate that he seriously expects to see her again or has an
interest in her.” (underlining added)
[16]
The
Board treats the situation more as simply the end of a relationship rather than
a flight from domestic violence. The Board explains Ms. Aguilar and Jorge were
still a couple when she tried to leave him the prior two occasions but no
longer are because he allowed her sister to pick up her belongings. It draws the
contradictory conclusion, without evidence or analysis that Jorge is no longer
interested in her despite his drunken appearances and threats he has made at
Ms. Aguilar’s parents’ home after allowing Ms. Aguilar’s sister to pick
up her possessions. The Board does not make any reference to her mother’s
letter reporting Jorge’s efforts to locate her whereabouts. It does not assess
Jorge’s threats to Ms. Aguilar of what he would do to her if she left him. Jorge’s
conduct, when examined in the context of the dynamics of an abusive domestic
relationship, indicates a continuing obsession and interest in Ms. Aguilar.
[17]
Ms.
Aguilar asserts that, because Jorge is a wealthy man and has political influence,
he would be able to locate. He was able to easily locate her twice before when
she fled: he found her when she fled to Nayarit and again when she fled to Guatemala. In Issue
Paper 2.4: Mexico: Situation of Witnesses to Crime and Corruption, Women
Victims of Violence and Victims of Discrimination based on Sexual Orientation
of February 2007, the report notes at 4.4 that women fleeing men in positions
of power would face a higher risk of being found. The Board’s analysis of the
state protection available in the Federal District of Mexico City did not
address the possibility that Jorge would try to track her down and bring her
back to Autlan.
[18]
The
Board’s factual conclusion that Jorge is no longer interested in Ms. Aguilar
was made without regard to evidence before it. Its IFA analysis, resting on
factual error, is flawed and therefore I find the Board’s analysis of an IFA in
Mexico
City
is unreasonable.
[19]
The
application for judicial review is granted.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is granted and the matter referred back to a
differently constituted board for reconsideration on the issue of a suitable
IFA.
2.
No
general question of importance is certified.
“Leonard S. Mandamin”
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