Date:
20060615
Docket:
IMM-7381-05
Citation:
2006 FC 763
Montréal, Quebec, June 15, 2006
Present: The Honourable Mr. Justice de
Montigny
BETWEEN:
ERENDIRA
HERNANDEZ BENITEZ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant is a Mexican citizen who is now 28 years old. She claims to have a
well‑founded fear of persecution by an individual who allegedly harassed
her on several occasions, and she therefore claims the protection afforded by
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27.
[2]
She
says that she was harassed the first time in 1993 by a man who, it turned out,
was an instructor at a teachers’ college. As a result of that incident, she
decided to continue her education in a town 80 kilometres from her home. Over
the next 10 years, she never had any further problems with that man. It was not
until 2003 that she was assaulted again by the same individual.
[3]
The
applicant says that she then filed a complaint with the police but left her
country a few days later to come to Canada. She claimed refugee status when she
arrived at the airport.
[4]
The
Refugee Protection Division (RPD) found that the applicant was not a Convention
refugee and also that she was not a person in need of protection. The RPD
essentially based that finding on two grounds: first, she disposed of an
internal flight alternative, and second, the Mexican authorities appeared to be
capable of protecting her. I have reviewed the record and considered the
written and oral submissions made by counsel for the applicant and the
respondent, and I find that the RPD made no reviewable error when it found that
the applicant could have availed herself of internal flight alternative. It is
therefore not necessary for me to determine whether the claim should also have
been rejected on the basis of the protection that the Mexican government could
have provided.
ISSUE
[5]
Did
the Refugee Protection Division err in determining that the applicant disposed
of an internal flight alternative in her country of origin?
ANALYSIS
[6]
It
is settled law that an inability to take refuge in another part of the same
country goes to the core of the concept of refugee. The reason therefor, as Mr.
Justice Létourneau said in Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164, is that, under the
definition of “Convention refugee”, claimants must “be unable or unwilling by
reason of fear of persecution to claim the protection of their home country in
any part of that country” (paragraph 16). It is therefore incumbent on a
refugee claimant to prove that he or she was unwilling or unable to avail
himself or herself of internal refugee in the claimant’s country.
[7]
The
internal flight alternative issue must be raised expressly at the hearing so
that the claimant is able to respond to it and, if necessary, adduce evidence.
In order for the RPD to find that there genuinely was such an alternative, it
must be satisfied on a balance of probabilities that the claimant is in fact
safe from persecution in some region or city in the country, and that it would
not be unreasonable, having regard to the claimant’s personal situation for
him, to live in the relevant place. As my colleague Madam Justice
Layden-Stevenson wrote in Righi v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1351 (at paragraph
6):
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. This is an objective
test and the onus of proof rests on the claimant. An IFA cannot be speculative
or theoretical only; it must be a realistic, attainable option. The alternative
place of safety must be realistically accessible to the claimant. If it is
objectively reasonable to live in these places, without fear of persecution,
then an IFA exists and the claimant is not a refugee. It is not a matter of a
claimant's convenience or the attractiveness of the IFA, but whether one should
be expected to make do in that location, before traveling half-way around the
world to seek a safe haven in another country: Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)
[8]
Having
regard to these principles, did the RPD err in finding that the applicant
disposed of an internal flight alternative in Monterey? I have to answer in
the negative. I have carefully examined the panel’s reasons and I am satisfied
that it took into account all of the available evidence and that it made no
patently unreasonable error (this being a question of fact) in its assessment
of the evidence.
[9]
On
the first part of the test, the RPD determined that there was no risk to the applicant
in Monterey, based on the following facts. First, her assailant had not shown
himself to be very eager in that he had not tried to locate Ms. Benitez for ten
years, when he could have done so by contacting her family or friends; this is
particularly significant in that she was living only 80 kilometres from
her home town and went back regularly to visit her parents. Moreover, her
assailant is not a person in authority or a member of the police, he is merely
a teacher.
[10]
The
RPD had regard to these factors when it found, first, that the applicant would
not be in danger in a city with a population of over a million located more
than 10 hours by road from where the assailant lives. He appears to have acted
alone, and if he did nothing for 10 years to locate the applicant, when she was
living in a city with a population of 50,000 that was relatively close to where
he lived, how could it be assumed that he would look for her and find her in
Monterey?
[11]
In
addition, the panel considered the applicant’s personal situation and was
satisfied that moving was a reasonable option and did not place an unreasonable
burden on her. The factors considered by the panel included the fact that she
has lived on her own, without her parents, for several years, that she has 18
years of education and that she has studied architecture.
[12]
Having
regard to all of this evidence, it was not unreasonable to conclude that the
applicant had not met her burden of proving that she could not avail herself of
an internal flight alternative in another part of Mexico. On that point, we
should also note that the threshold should be set very high in determining what
would be unreasonable. To quote Létourneau J. in Ranganathan, supra,
again, “ [i]t requires nothing less than the existence of conditions
which would jeopardize the life and safety of a claimant in traveling or
temporarily relocating to a safe area. In addition, it requires actual and
concrete evidence of such conditions” (paragraph 15).
[13]
Given
that in any refugee claim it is essential to prove inability to live elsewhere
in the claimant’s country of origin, the finding made by the RPD on this aspect
of the claim was fatal to the applicant. Accordingly, I need make no finding
regarding the validity of the RPD’s other finding, that the applicant had not
met her burden of providing clear and convincing evidence that she could not
reasonably have been granted the necessary protection in Mexico in the
circumstances: Horvath v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1503 (F.C.T.D.); Diaz v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 652 (F.C.T.D.).
[14]
For
all these reasons, the application for judicial review is dismissed. The
parties chose not to submit questions for certification, and no such question
is raised in this case.
ORDER
THE COURT
ORDERS:
The
application for judicial review is dismissed.
“Yves
de Montigny”
Certified
true translation
François
Brunet, LLB, BCL
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