Date: 20130926
Docket: IMM-10726-12
Citation: 2013 FC 984
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, September 26, 2013
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
Mauro SANDOVAL
ARAMBURO
Applicant
and
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an application under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27, (Act) for judicial review of a
decision by a member of the Refugee Protection Division of the Immigration and
Refugee Board (RPD), which refused to grant the applicant refugee status.
[2]
Upon reading the memoranda of the parties and the Tribunal
Record and upon hearing the submissions of counsel for the parties on
June 18, 2013, the only issue is whether the applicant would have an
internal flight alternative (IFA) in Mexico City if he had to return to Mexico.
[3]
The RPD’s decision is based essentially on the finding that
the applicant, who is homosexual and suffers from polio, could go to live in
the Mexican capital, Mexico City, thereby benefiting from an IFA. It is
therefore assumed for the purposes of my decision that the harassment and
persecution the applicant suffered could constitute persecution giving rise to
sections 96 and 97 of the Act. If there is a reasonable internal flight
alternative in Mexico, the applicant cannot succeed on his application for
judicial review (Lopez v Minister of Citizenship and Immigration, 2010 FC
990).
[4]
At the very end of its reasons, the RPD questioned whether
the combination of incidents could amount to persecution (paragraph 53 of the
decision). However, all the reasons for the decision deal with the IFA and, in
respect of the determination, the RPD found that there is an internal flight
alternative in Mexico City. Accordingly, it was on that basis that the case was
examined.
[5]
It will not be necessary to review in detail the facts of
this case. The applicant, as he noted many times in his memorandum, is [translation] “a homosexual perceived as
very effeminate and, in addition, disabled”. For a good part of his life, he
was mocked, insulted, ridiculed and was even threatened. The only issue is
whether, having left the city of Guadalajara in the state of Jalisco on
November 10, 2008, for Canada, he could have been relocated in Mexico City.
[6]
The RPD’s decision is subject to review on a reasonableness
standard. It involves mixed questions of fact and law, which call for a
reasonableness standard. The jurisprudence in this regard is extensive and, to
my knowledge, unanimous. In fact, even the interpretation of its home statute
or of a statute connected to its functions that an administrative tribunal is
particularly familiar with will be judicially reviewed on a reasonableness
standard (Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, [2011] 3 S.C.R. 654). In any event, no question of law has
appeared.
[7]
The issue of determining the test to apply to decide
whether there is an internal flight alternative available comes to us from the
Federal Court of Appeal in Rasaratnam v Canada (Minister of Employment and Immigration)
(CA), [1992] 1 FC 706. The test, found at page 710, is the following:
. . . the Board must
be satisfied on the balance of probabilities that there is no serious
possibility of the claimant being persecuted in the part of the country to
which it finds an IFA exists.
The French
version of this passage reads as follows:
. . . la Commission
doit être convaincue selon la prépondérance des probabilités que the applicant
ne risque pas sérieusement d’être persécuté dans la partie du pays où, selon
elle, il existe une possibilité de refuge.
[8]
The second part of the test is presented as
follows at page 709:
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.
[9]
Moreover, it must be remembered that where the issue is
determining what is unreasonable, we are talking about “. . . 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 v Canada (Minister of Citizenship and Immigration) (CA),
[2001] 2 FC 164 at paragraph 15). The law is clear. Before seeking a haven in
Canada, claimants must first seek refuge in their own countries. The Federal
Court of Appeal emphasized this point in Thirunavukkarasu
v Canada (Minister of Employment and Immigration) (CA), [1994] 1 FC 589, at page 598:
[13] Let me elaborate. It
is not a question of whether in normal times the refugee claimant would, on
balance, choose to move to a different, safer part of the country after
balancing the pros and cons of such a move to see if it is reasonable. Nor is
it a matter of whether the other, safer part of the country is more or less
appealing to the claimant than a new country. Rather, the question is whether,
given the persecution in the claimant's part of the country, it is objectively
reasonable to expect him or her to seek safety in a different part of that
country before seeking a haven in Canada or elsewhere. . . .
[10]
Because the applicable test in this matter is the
reasonableness standard, reference must be made to paragraph 47 of Dunsmuir v
New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir], which reads as follows:
[47] . . .
reasonableness is
concerned mostly 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.
[11]
At the hearing, counsel for the applicant gave an excellent
demonstration of the difficulties the applicant would face if he had to return
to Mexico. He reviewed the documentary evidence on Mexico, arguing that the RPD
improperly assessed that evidence, which should have led them to conclude that
the applicant could not find refuge in Mexico and, in particular, in the capital.
Undoubtedly, the applicant would prefer to stay in Canada. But that is not the
test.
[12]
Unfortunately for the applicant, the respondent also
unequivocally demonstrated that the Mexican capital region is a reasonable
alternative. This is not to say that this internal flight alternative is not
without difficulty, or that Mexican society is completely open about
homosexuality. But to succeed, there would have had to be actual and concrete
evidence of conditions
that would jeopardize the applicant’s life and safety.
[13]
The evidence before the RPD supported a finding that the
demonstration had not been done. The conclusion that the RPD reached was
reasonable in the sense that it was one of the possible acceptable outcomes,
considering the facts in the record and the law. In any event, the burden was
on the applicant to establish that there was no IFA (Suarez v Minister of
Citizenship and Immigration, 2011 FC 1474), and he did not discharge that
burden. Not only was the applicant’s burden not discharged, but the documentary
evidence tends to show that the Mexican capital region could receive the applicant.
[14]
My conclusion is consistent with the one that my colleague
Justice James O’Reilly reached in Gomez Nieto v Minister of Citizenship and Immigration, 2010 FC 1202 [Gomez Nieto].
As in this case, that decision was about persecution based on sexual
orientation in a region in Mexico. In that case, the documentary evidence also showed
different aspects. I note that the Court in Gomez Nieto also
observed that the documentary evidence showed that Mexico City protects and
promotes the rights of homosexuals. But it is the administrative tribunal’s
role to weigh the evidence and to make choices that must satisfy the
reasonableness test. As the Supreme Court of Canada recently pointed out, it is
the tribunal’s decision as a whole, in the context of the record, that must be
considered to assess reasonableness, in keeping with Dunsmuir, above (see
Agraira v
Minister of Public Safety and Emergency Preparedness, 2013 SCC 36 at paragraph 53).
[15]
Finally, the applicant relied heavily on the psychological
report that, he says, the RPD did not consider. He finds support on this
subject in Dink v Minister of Citizenship and Immigration, 2003 FCT 334, where our Court criticized the fact that
such a report had been adduced but not dealt with.
[16]
The applicant’s argument is hampered by the RPD’s
decision itself. It weighed this report against the other pan containing the
test that conditions must be such that the claimant’s life and safety would be
jeopardized if he were relocated. The RPD found that this would not be the case
and explained why. In doing so, the administrative tribunal satisfied the reasonableness
test in Dunsmuir, above, as well as the quality of the reasons to be provided according
to Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), [2011] 3 S.C.R. 708:
[17] The fact that there may be an
alternative interpretation of the agreement to that provided by the arbitrator
does not inevitably lead to the conclusion that the arbitrator’s decision
should be set aside if the decision itself is in the realm of reasonable
outcomes. Reviewing judges should pay “respectful attention” to the
decision-maker’s reasons, and be cautious about substituting their own view of
the proper outcome by designating certain omissions in the reasons to be
fateful.
[17]
It is not for this Court to substitute its assessment of
the evidence for that of the RPD. In fact, the administrative tribunal is
authorized to choose one of the reasonable solutions that arise in respect of
the facts and the law. In this case, I see nothing wrong with the RPD’s
decision in its finding that the evidence largely supports the conclusion that
Mexico City is an alternative, having regard to the applicable test, and
specifically that there is no serious possibility that the applicant will be
persecuted in the part of the country where he would be called upon to settle. It
is the serious risk of persecution, as the term is used in immigration law,
that is the yardstick the decision‑maker is to use. Taking the record
into consideration, I cannot find that the RPD applied an erroneous principle
or that it erred in arriving at its conclusion. Its conclusion is part of the
various rational acceptable solutions. As such, the Court cannot intervene.
ORDER
The
application for judicial review of a decision by a member of the Refugee
Protection Division of the Immigration and Refugee Board dated
September 27, 2012, is dismissed. No question of general importance is
certified.
“Yvan
Roy”
Certified true translation
Mary Jo Egan, LLB
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET: IMM-10726-12
STYLE
OF CAUSE: Mauro SANDOVAL ARAMBURO and MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal,
Quebec
DATE OF
HEARING: June 18, 2013
REASONS FOR
ORDER
AND ORDER: Roy
J.
DATED: September
26, 2013
APPEARANCES:
|
Alain Joffe
|
FOR
THE APPLICANT
|
|
Yaël Levy
|
FOR
THE RESPONDENT
|
SOLICITORS OF
RECORD:
|
Alain Joffe
Montréal, Quebec
|
FOR
THE APPLICANT
|
|
William F.
Pentney
Deputy
Attorney General of Canada
Montréal, Quebec
|
FOR
THE RESPONDENT
|
Email this Content