Date:
20130508
Docket:
IMM-9359-12
Citation:
2013 FC 487
UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec,
May 8, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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OSCAR MARIO GAMILLO
VEGA
PATRICIA VILLA
RODRIGUEZ
OSCAR IVAN GAMILLO
VILLA
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
existence of an internal flight alternative (IFA) cannot be evaluated in the
abstract; it must be determined in relation to the specific narrative as
related by the refugee claimant to the decision-maker. While it is the
claimant’s obligation to provide actual, concrete evidence of the circumstances
that would put his or her life in danger, the failure of the Refugee Protection
Division of the Immigration and Refugee Board (Board) to consider the specific
risks feared by a claimant in an IFA analysis is an error of law (Velasquez
v Canada (Minister of Citizenship and Immigration), 2010 FC 1201 at paragraphs
15-22 and Amit v Canada (Minister of Citizenship and Immigration), 2012 FC
381 at paragraphs 2-4).
II. Judicial Procedure
[2]
The
principal applicant, Oscar Mario Gamillo Vega, his spouse, Patricia Villa
Rodriguez, and their minor son, Oscar Ivan Gamillo Villa, seek judicial review
of a decision by the Board, dated August 9, 2012, rejecting their refugee claim
filed under sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), on the ground that the applicants’ fear of persecution constituted
a generalized risk faced by the Mexican population as a whole, and that,
furthermore, the applicants had an IFA that was open to them in either the
Campeche region or in Mexico City.
III. Facts
[3]
The
applicants are citizens of Mexico who formerly resided in the state of
Chihuahua. The claims of the spouse and minor child are founded on the
principal applicant’s claim.
[4]
The
principal applicant alleges that he is at risk and that he received death
threats for refusing to pay an extortion demand of one thousand dollars to a
group belonging to the La Linea cartel. The extortion demands and threats
apparently began in September 2009. Tensions later increased to the point where
the applicant’s mother died in March 2010, due to the stress she was under in
these circumstances, which had seriously affected her physical condition.
[5]
The
principal applicant, who was living in the United States at the time, returned
to Mexico for his mother’s funeral. When he was in Chihuahua, La Linea tried to
extort money from him, but he refused to pay.
[6]
The
principal applicant phoned police twice to seek their assistance, but no action
was taken to follow up on his denunciation. The principal applicant did not,
however, file a complaint out of that his life would be in danger if members of
La Linea were to find out that he had gone to the police.
[7]
The
applicants returned to the United States on March 18, 2010. They claimed
refugee protection in Canada in November 2010.
IV. Decision subject to this
application for judicial review
[8]
The
Board began by noting that the principal applicant’s testimony was credible,
that he clearly described the situation he had faced, and that, for the most
part his narrative was entirely credible.
[9]
However,
the Board indicated that, objectively, the situation faced by the applicants is
the same one that is faced by most people in Mexico generally, and in
particular those from the applicants’ region, where organized criminal gangs are
more numerous and more entrenched. The Board determined that the risk to which
the principal applicant was subjected was not sufficiently personalized to fall
within subsection 97(1) of the IRPA.
[10]
Furthermore,
the Board briefly mentioned that the applicants had an IFA that was open to
them if they moved from Chihuahua to the state of Campeche, which is located on
the Yucatan peninsula, and with which La Linea was unfamiliar, according to the
documentary evidence. The Board, however, did no analysis of the proposed IFA
under the circumstances, nor did it provide any reference to the documentary
evidence in question.
[11]
As
for the alleged fear of persecution under section 96 of the IRPA, the Board did
not specify whether there was a nexus to a Convention ground.
V. Issues and applicable
standard of review
[12]
The
applicants presented no arguments to dispute the Board’s finding with respect
to the generalized risk of extortion by criminal gangs in Mexico. Rather, they
raised the following two issues in their application for judicial review.
(1) Is
the impugned decision unreasonable with respect to the IFA assessment?
(2) Is
the impugned decision tainted by a breach of procedural fairness, the Board
having failed to give adequate reasons for its decision?
[13]
It
is not disputed that the issue concerning the Board’s determination regarding
the viability of the proposed IFA is a question of mixed fact and law to be
determined on a reasonableness standard (Gonzalez v Canada (Minister of
Citizenship and Immigration), 2012 FC 231 at paragraph 22). The same
standard applies to the interpretation of the exclusion of generalized risks of
violence in paragraph 97(1)(b) of the IRPA (M.A.C.P. v Canada (Minister
of Citizenship and Immigration), 2011 FC 81 at paragraphs 28-29).
[14]
It
goes without saying that reasonableness is concerned with "the existence
of justification, transparency and intelligibility in the decision-making
process" and with “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[15]
In
addition, the Court agrees with the respondent that, according to Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, any challenge to the reasoning/result of
the decision should therefore be made within the reasonableness analysis; a
separate analysis of the adequacy of the reasons is not required. Accordingly,
“reasons must be proper, adequate and intelligible and
include considerations of the parties’ substantial points of argument” (Herman
v Canada (Minister of Citizenship and Immigration), 2012 FC 863 at
paragraphs 31-32). In this sense, a reviewing court must look “into
the qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes” (Newfoundland
and Labrador Nurses’ Union at paragraph 14; also, Rahal v Canada (Minister
of Citizenship and Immigration), 2012 FC 319 at paragraphs 22-40).
VI. Analysis
[16]
It
should be recalled at the outset that according to well-established case law,
the fact of having been a victim of extortion does not meet the criterion set
out in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, for being
considered as members of a “particular social group” within the meaning of
the Convention (see Justice Barbara Reed’s analysis in Valderrama v Canada (Minister
of Citizenship and Immigration) (1998), 153 FTR 135, [1998] FCJ No 1125
(QL/Lexis)).
[17]
In
this case, the Board acknowledged that the applicants were victims of an
organized criminal gang and that they lived in a region where criminal gangs
are more active, but without determining whether, with regard to all of the
evidence, the applicants were targeted for their membership in a particular
social group. It is not, however, for the Court to rule on the issue and, in
any event, the applicant’s arguments are limited to the Board’s analysis under
subsection 97(1) of the IRPA, even though the Board rejected the claim under
the two provisions.
1) Is the
impugned decision unreasonable with respect to the IFA assessment?
[18]
When
an IFA is raised, a two-pronged test must be applied: the burden is on the
applicant to prove, on a balance of probabilities, that there is a serious possibility
of persecution in the proposed IFA, and that in all the circumstances, it would
be objectively unreasonable for the applicant to seek refuge there (Thirunavukkarasu
v Canada (Minister of Employment and Immigration, [1994] 1 FC 589 (CA); Chevarro
v Canada (Minister of Citizenship and Immigration), 2010 FC 1119). Applicants
are required to demonstrate this by providing actual and concrete evidence of
conditions jeopardizing their life and safety (Ranganathan v Canada
(Minister of Citizenship and Immigration), [2] FCJ No 2118 at paragraph 15,
FC.
[19]
But
in this case, this analysis is entirely absent from the impugned decision. The
Board merely designated two cities, namely, Campeche and Mexico City, as IFAs,
without proceeding with the rest of the analysis. The case law holds that the
Board’s failure to consider the specific risks faced by a claimant in an IFA
analysis constitutes an error in law (Velasquez, above, at paragraph 17
and Amit, above, at paragraphs 2-4).
[20]
In
this case, it is worth repeating the comments of Justice James O’Reilly in Velasquez,
above, regarding the need to justify the proposed IFA in light of the
claimant’s personal circumstances:
[14] As noted, the Board made no findings about
Ms. Orozco’s experiences in Colombia. It appears to have accepted all of her
evidence relating to her fear of FARC. The Board’s decision is confined
to an analysis of country condition documents from which it concluded that
she could live safely in Bogota.
[15] The concept of an IFA is an inherent part
of the Convention refugee definition because a claimant must be a refugee from
a country, not from a particular region of a country (Rasaratnam v Canada
(Minister of Employment and Immigration) [1992] 1 FC 706, at para 6). Once
an IFA has been proposed by the Board, it must consider the viability of the
IFA according to the disjunctive two part test set out in Rasaratnam.
The claimant bears the onus and must demonstrate that the IFA does not exist or
is unreasonable in the circumstances. That is, the claimant must persuade the
Board on a balance of probabilities either that there is a serious possibility
that he or she will be persecuted in the location proposed by the Board as an IFA,
or that it would be unreasonable to seek refuge in the proposed IFA given his
or her particular circumstances.
[16] There may, however, be an overlap between
the Board’s consideration of an IFA and its analysis of state protection. The
first branch of the IFA test is met where there is no serious possibility of
persecution in the particular location. That finding may flow either from a low
risk of persecution there or the presence of state resources to protect the
claimant, or a combination of both. But, in either case, the analysis can
only be carried out properly after the particular risk facing the claimant has
been identified.
[17] Indeed, the Board’s failure to consider
the specific risks feared by a claimant in an IFA analysis will constitute an
error of law (Gutierrez v Canada (Minister of Citizenship and
Immigration), 2010 FC 1010). It is an error, therefore, for the Board to
make a blanket finding that an IFA is available to a refugee claimant, without
reference to the type of persecution feared by the claimant or that person’s
particular circumstances. Again, the first question the Board must answer when
a proposed IFA is in issue is whether, on a balance of probabilities, there is
a serious possibility that the claimant will be persecuted in the location
proposed by the Board. Generally speaking, that question cannot be answered if
the nature of the person’s fear has not been specifically identified.
]18] Similarly, in the context of a state
protection analysis, it is an error of law for the Board to conclude that state
protection is available if it fails to make any findings about the applicant’s
personal circumstances (Moreno v Canada (Minister of Citizenship and
Immigration), 2010 FC 993). In Moreno, the Board found that the
applicant, a native of Bogota, would not be targeted by FARC in that city, contrary
to his testimony. That conclusion necessarily implied that the Board did not
accept the applicant’s account of events, yet it made no explicit adverse
credibility findings. Therein lays one of the dangers in assessing state
protection or IFA without analyzing the applicant’s particular allegations –
adverse credibility findings may creep into the analysis without explanation.
[19] Here, having raised IFA as the
determinative issue, the Board was required to determine whether, on a balance
of probabilities, there was a serious possibility that Ms. Orozco would be
persecuted in Bogota. The Board was further required to consider whether
relocation to Bogota was unreasonable given Ms. Orozco’s particular
circumstances.
[20] I find that the Board’s failure to
identify the particular risk Ms. Orozco claimed to fear resulted in a faulty IFA
analysis … [Emphasis added.]
[21]
The
principles set out in Velasquez, above, are entirely applicable in this
case. The Board could not confine itself to simply stating that, according to
(non-cited) documentary evidence, La Linea [translation]
“does not have much of a presence” in the proposed cities. It should have
inquired as to whether there was a serious risk that the applicant, and not any
random person who happened to be a victim of extortion in Chihuahua, would once
again be persecuted in the locations proposed by the Board.
[22]
The
respondent refers the Court to evidence in the Package to argue that the
activities of La Linea are confined to northern Mexico and to the Federal
District. It is not the role of the Court to reweigh documentary evidence in
order to determine whether the applicants risk persecution in this or that part
of Mexico. It is sufficient to say that the three pages of the Board’s reasons
do not contain an adequate IFA analysis, they simply enumerate the reasons for
rejecting the applicant’s claims with regard to the serious possibility of
being persecuted in the proposed IFA, as explained in Velasquez, above.
[23]
The
Court concurs with the respondent that the existence of a generalized risk is,
in principle, insufficient to conclude that paragraph 97(1)(b) of the
IRPA does not apply, and justifies the rejection of the claim (Fuentes v
Canada (Minister of Citizenship and Immigration), 2012 FC 218 at paragraphs
20 et seq.).
[24]
However,
although the applicants did not specifically challenge the Board’s finding
regarding the generalized nature of their risk, the Court noted that the Board
did not conduct an analysis of the applicants’ particular circumstances (especially
the fact that the principal applicant’s mother died while under constant threat
from members of La Linea and that the applicant was subject to more of these
threats upon his return to Mexico), to determine whether the risk to the
applicants was sufficiently personalized, beyond the risk faced by the population
as a whole.
[25]
The
case law is consistent on the fact that the risk faced by a claimant resulting
from criminal activity cannot rule out the possibility that the protection
provided for in section 97 could be granted, and that a personalized assessment
must be conducted in each case (Lovato v Canada (Minister of Citizenship and
Immigration), 2012 FC 143 at paragraph 9; Portillo v Canada (Minister of
Citizenship and Immigration), 2012 FC 678, 409 FTR 290 at paragraphs
26-36). In the words of Justice Donald Rennie in Lovato:
… If any risk created by 'criminal activity' is
always considered a general risk, it is hard to fathom a scenario in which the
requirements of section 97 would ever be met. Instead of focusing on whether
the risk is created by criminal activity, the Board must direct its attention
to the question before it: whether the claimant would face a personal risk to
his or her life or a risk of cruel and unusual treatment or punishment, and
whether that risk is one not faced generally by other individuals in or from
the country ...
VII. Conclusion
[26]
Accordingly,
there is no need to address the second issue with respect to the adequacy of
the reasons of the decision. The flawed IFA analysis and the failure to address
the specific risk the applicants’ would face if they were to return to Mexico
are sufficient for the Court to set aside the impugned decision and refer the
matter back to the Board for redetermination by a different member of the
Refugee Protection Division.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial
review be allowed and that the matter be referred back for redetermination by a
different member of the Refugee Protection Division. There is no question of
general importance to be certified.
“Michel M.J. Shore”
Certified
true translation
Sebastian
Desbarats, Translator
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