Date: 20060928
Docket: IMM-7216-05
Citation: 2006 FC 1156
Toronto, Ontario, September 28,
2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ULISES
ORESTES LOPEZ LOPEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Ulises Orestes Lopez Lopez is a citizen of Mexico. He seeks
judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) wherein it was determined that he was
neither a Convention refugee nor a person in need of protection pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA).
[2]
The
applicant arrived in Canada on June 22, 2003 and initiated his claim
for refugee status on July 21, 2003. The claim was heard on September 26, 2005
and was rejected in an oral decision delivered that same day. The written
version of the oral reasons and decision is dated October 14, 2005.
[3]
The
applicant claimed to be a Convention refugee through the nexus of his
membership in a social group, namely homosexuals. He claimed, for that reason,
to have a well-founded fear of being persecuted by Mexican authorities and
society and of being a person in need of protection.
[4]
Three
incidents were described in the applicant’s testimony. The first is alleged to
have occurred in December 2001 as he left a gay bar in his hometown of Aguascalientes. He stated
that it involved a forced trip to the police station, the theft of personal
belongings, overnight detention and threats of further harm. The second
incident occurred in July 2002 when the applicant was assaulted in a park and
had to be hospitalized for one day. The third incident took place in Guadalajara, where the
applicant had relocated, in August 2002. On this occasion the applicant’s nose
was broken. Following that experience, he decided to flee to Canada.
[5]
The
applicant testified that he had made a formal complaint (“denunciation”) to the
authorities respecting the police officers involved in the first incident. He
did not report either of the other two incidents, involving unknown persons, to
the authorities.
DECISION
[6]
The
Board accepted that the applicant was a homosexual but concluded that there was
insufficient evidence to determine that he was a Convention refugee or a person
in need of protection. The Board noted that there had been no reference to the
formal complaint made to the authorities in the notes made of the interview
conducted with the applicant at the Port of Entry, or in the applicant’s
Personal Information Form (PIF). There was no evidence that he had attempted
to obtain a copy to present to the Board. As a result the Board concluded that
there was reason to doubt the trustworthiness of this evidence.
[7]
In
the Board's view, the applicant's fear that the policeman involved in the
alleged incident would follow him or trace him should he relocate to the Federal
District of Mexico City was not reasonable or objectively well-founded. There
was no evidence that the police had bothered the applicant after December
2001. The subsequent two incidents were also isolated events, each being at
the hands of different unknown persons.
[8]
With
respect to the applicant's generalized fear of persecution, the Board held that
the incidents described in his PIF did not amount to persecution although they
demonstrated discrimination against gays. The applicant had not been denied
education or employment. The incidents of assault were not persistent, nor did
they escalate over time. The Board concluded that it would not be unreasonable
to expect the applicant, given his qualifications, to find work in the Federal District.
Accordingly, it was satisfied that an internal flight alternative (IFA)
existed.
[9]
With
regard to the availability of state protection, the Board observed that the
fact that the applicant was able to make a formal complaint against the police
officers concerning the first incident indicates that state protection was
available to him. The Board noted that the applicant, in his testimony, was not
sure whether the authorities had taken the complaint seriously or not. It
pointed to organizations in the Federal District including the Gay and Lesbian
Human Rights Commission that could lend support should the applicant be required
to make a complaint in the future.
ISSUES
[10]
The
applicant's written submissions raised the following issues:
1. Did the Board err in
making adverse credibility findings?
2.
Did the Board err in
assessing the evidentiary basis of the applicant’s claim?
3. Did the Board err in
concluding that state protection would be available in the event of
repatriation?
4. Did the Board err in
determining that the applicant has an internal flight alternative (IFA)
available?
[11]
In the oral
hearing, counsel for the applicant chose to focus on whether the Board erred in
determining that the applicant has an IFA available in the Federal
District
and did not address the other issues. Nonetheless, I think it necessary to deal
with them, albeit briefly.
ANALYSIS
Standard of
Review
[12]
It
is well
settled that the standard of review of the Board’s findings of fact
including its analysis of the availability of an IFA is patent
unreasonableness: On that standard, the Court will only intervene with the Board's
decision if the applicant can demonstrate that the decision was based on an
erroneous finding of fact or one that was made in a perverse or capricious
manner or without regard for the material before it: Khan v. Canada (Minister
of Citizenship and Immigration), 2005 FC 44, [2005] F.C.J. No. 47 at para. 7
(QL); See also: Fabela v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1028, [2005] F.C.J. No. 1277 at
para. 34 (QL); Chorny v. Canada
(Minister of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No. 1263
at para. 5 (QL).
[13]
The weight of recent authority in this court with respect to a
finding that state protection is available is that the standard is one of
reasonableness as it involves a mixed question of fact and law:
Chaves v. Canada (Minister of Citizenship and Immigration) 2005 FC
193, (2005), 45 Imm. L. R. (3d) 58 (F.C.) at para. 11; Martinez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 403, [2006] F.C.J. No. 589 at para. 13
(QL); Lorne v. Canada (Minister of
Citizenship and Immigration, 2006 FC 384, [2006] F.C.J. No. 487 at para. 7(QL); Garcia
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 611, [2006] F.C.J. No. 767 at para. 8
(QL).
[14]
There
is also considerable support for the conclusion that the identification of
persecution behind incidents of discrimination or harassment is also a question
of mixed law and fact calling for the reasonableness standard: Wickramasinghe v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 470, [2002] F.C.J. No. 601 at para. 10 (QL); Natynczyk v. Canada (Minister of Citizenship and
Immigration), 2004 FC 914, [2004] F.C.J. No. 1118 at para. 63 (QL); Mihajlovics v. Canada (Minister of Citizenship and
Immigration), 2004
FC 215, [2004]
F.C.J. No. 248 at para. 11 (QL).
[15]
A
decision
will only be found to be unreasonable if there is no line of analysis within
the given reasons that could reasonably lead the tribunal from the evidence
before it to the conclusion at which it arrived: Law
Society of New Brunswick v. Ryan, [2003] 1
S.C.R. 247, 2003 SCC 20 at para. 55.
1. Credibility
[16]
While
this was characterized as a credibility issue by the applicant in his written
submissions, the Board’s decision does not expressly contain an adverse
credibility finding. The Board found that there was reason to doubt the
trustworthiness of the applicant’s evidence with respect to the allegation that
he had made a formal denunciation. The Board went on to state however,
that what it considered to be an "embellishment" did not impugn all
of his evidence, and given the benefit of the doubt, there was sufficient
evidence to analyze the claim.
[17]
The
applicant submits that the Board erred in failing to confront the applicant
with this inconsistency between his oral testimony, the Port of Entry interview
notes, and his PIF, and in failing to afford him an opportunity to clarify the
evidence and explain this inconsistency. This is simply incorrect. The fact
that the denunciation was not mentioned in the applicant’s PIF was specifically
drawn to his attention in the course of the proceedings. The applicant
responded that he had "attached the denunciation, but I don't
remember" and when the Board member drew the applicant's attention to the
fact that this was not the case and asked whether he had a copy of the document
he responded "no, I threw it away."
[18]
The
jurisprudence is clear that omissions and inconsistencies in a claimant's PIF
may constitute a basis for an adverse credibility finding: Garcia v. Canada (Minister of
Citizenship and Immigration), 2006 FC 611, [2006] F.C.J. No. 767 at para. 10
(QL); Oyebade
v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 773, [2001] F.C.J. No. 1113 at para. 13
(QL). While the Board in this case did not deem it necessary to make such a
finding expressly, any negative inference that it may have drawn from the
applicant’s failure to refer to the denunciation earlier or to make any effort
to produce a copy is supported by the evidence and is not unreasonable.
2. Evidentiary basis of the applicant’s
claim.
[19]
This
issue was not expressly identified in the applicant’s written submissions nor
was it addressed in oral argument. However, in commenting on the Board’s
treatment of the PIF inconsistency discussed above in his written argument, the
applicant
submits that the Board erred in law by finding that the applicant’s
subjective fear of persecution by reason of his sexual orientation was not
objectively well-founded as it 1) failed to consider the totality of the
objective evidence, specifically the PIF narrative and
2) failed to apply the principle that evidence of past persecution is
one of the most persuasive means of demonstrating that a fear of future persecution
is objectively well-founded: Rajudeen v. Canada (M.E.I.), (1984),
55 N.R. 129 (FCA), [1984] F.C.J. No. 601 (QL).
[20]
To
establish a
well-founded fear of persecution a claimant must prove that they have (1) a
subjective fear of persecution; and (2) that this fear is well-founded in an
objective sense; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689,
[1993] S.C.J. No. 74 at para. 47 (QL) [Ward]. The applicant must
demonstrate on a balance of probabilities that they meet this test: Saverimuttu v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1021, [2002]
F.C.J. No. 1329, at para. 18 (QL). That being said, the applicant does not have
to demonstrate that the persecution would be more likely than not, as noted by
the Court of Appeal in Adjei v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 680 (F.C.A.): “there need not be more
than a 50% chance (i.e., a probability), and … there must be more than a
minimal possibility. We believe this can also be expressed as a
"reasonable" or even a "serious possibility", as opposed to
a mere possibility.”
[21]
For
incidents
of harassment or discrimination to amount to persecution, the applicant must
demonstrate that cumulatively or singly they “constitute a serious, systematic
and repeated violation of core human rights”: Kaish v. Canada (Minister of
Citizenship and Immigration) [1999] F.C.J. No. 1041 at para. 9 (QL). Though
the question of past persecution can be relevant to prospective risk, the test
is forward looking: Arulnesan v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1770, [2004] F.C.J. No. 2178, at para. 10 (QL). Also
relevant is the availability of state protection and an internal flight
alternative.
[22]
It
is clear from the transcript that the
Board explored in detail the root sources of the applicant’s fears with respect
to returning to Mexico, including the alleged incidents of assault, his past
employment, and his general fear of persecution and discrimination. The Board’s conclusion that the incidents were
isolated, not persistent, did not escalate over time, and did not rise to the
level of persecution, was open to it on the evidence. While the Board understood
where the applicant’s subjective fear might come from, it was reasonable for it
to conclude that the objective component of the test had not been met.
3. State
Protection
[23]
The applicant
submitted in his memorandum of argument that the documentary
evidence presented to the Board rebutted the presumption of state protection
for gays, and supported the conclusion that no protection would be forthcoming
should he be repatriated.
[24]
The
respondent submits that
the standard of “clear and convincing evidence” required to rebut the
presumption of state protection has not been met in this case: Ward,
above. The evidence that the applicant was attacked by strangers on two
occasions and once by rogue police officers does not satisfy the test,
especially in light of the fact that the applicant did not report the incidents
of July 2002 and August 2002. It is not enough for a claimant to merely show
that their government has not always been effective at protecting persons in a
certain situation, as no government can guarantee the protection of all of its
citizens at all times; particularly so in a democracy: Canada (Minister of Employment
and Immigration) v. Villafranca (1992), 18 Imm. LR. (2d) 130 (F.C.A).
[25]
The
respondent submits that
the standard of “clear and convincing evidence” required to rebut the
presumption of state protection has not been met in this case: Ward,
above. The evidence that the applicant was attacked by strangers on two
occasions and once by rogue police officers does not satisfy the test,
especially in light of the fact that the applicant did not report the incidents
of July 2002 and August 2002. It is not enough for a claimant to merely show
that their government has not always been effective at protecting persons in a
certain situation, as no government can guarantee the protection of all of its
citizens at all times; particularly so in a democracy: Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 18 Imm. LR. (2d) 130
(F.C.A).
[26]
There
was evidence before the Board that legislation is in place in Mexico to protect the rights
of people regardless of their sexual orientation. The applicant bore the burden
of demonstrating that this legislation is not effective and/or not enforced.
Considering that the applicant did not approach the state for protection in two
of the three alleged incidents, that his evidence that he had made a complaint
in the first incident was not considered trustworthy and that when given the
benefit of the doubt, he could not say whether the complaint was taken seriously
or not, it was reasonable for the Board to conclude that the presumption had
not been rebutted.
4. Internal Flight Alternative (IFA)
[27]
The applicant argues that an
IFA assessment must be based on a distinct evaluation of a region for that
purpose, taking into account the applicant’s identity, and that the Board
failed to do this thereby erring in law: Selvakumaran v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 623, [2002] F.C.J. No. 842 (QL). In
addition, the applicant argues that the IFA should be restricted in its
application to persons who can genuinely access domestic protection and for
whom the reality of protection is meaningful: Hathaway, James C., The Law of
Refugee Status (Toronto: Butterworths, 1991). The applicant further argues that the Board’s
conclusion that the objective evidence in the
standard country package belies the applicant’s subjective fear of being denied
employment in the Federal District because of his sexual orientation was an error
in law in that the Board failed to point to an adequate evidentiary basis to
support this conclusion.
[28]
The assessment of whether an IFA is available to an
applicant is a forward looking analysis. As noted by the Court of Appeal in Thirunavukkarasu
v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 589 (C.A.) at para. 2:
The idea of an internal
flight alternative is "inherent" in the definition of a Convention
refugee [...]; it is not something separate at all. That definition
requires that the claimants have a well-founded fear of persecution which
renders them unable or unwilling to return to their home country. If
claimants are able to seek safe refuge within their own country, there is no
basis for finding that they are unable or unwilling to avail themselves of the
protection of that country.
[29]
In finding
the existence of an IFA, the Board was required to be satisfied, on a balance
of probabilities, that there was no serious possibility of the appellant being
persecuted in the Federal District and that, in all the circumstances including
circumstances particular to the applicant, conditions were such that it would
be reasonable for the applicant to seek refuge there: Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706
(C.A.), [1991] F.C.J. 1256 at
para. 10 (QL).
[30]
The question of “why can’t
you go to the Federal
District”
was put squarely to the applicant by the Board member. The applicant was asked
to explain why he thought the police would either follow him there or know he
was there. In determining the existence of an IFA, the Board member also
clearly considered the education, sexual orientation, and employment
possibilities of the applicant, in addition to the support available in the
Federal District for gays. The Board member’s finding was therefore not patently
unreasonable and will not be disturbed.
[31]
Overall,
I
find that the decision was reasonable and there are no grounds for the Court to
interfere. No serious questions of general importance were proposed and none
will be certified.
JUDGMENT
IT IS HEREBY ADJUDGED
that
the application is dismissed. No questions are certified.
“Richard
G. Mosley”
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