Date: 20050510
Docket: IMM-2985-04
Citation: 2005 FC 649
Toronto, Ontario, May 10th, 2005
Present: The Honourable Madam Justice Layden-Stevenson
Between:
NORLAN MARTIN VALLADARES CANTARERO and
ERICKA ARMIDA VALLADARES CANTARERO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Let the attached edited version of the transcript of my Reasons for Order delivered orally from the bench at Toronto, Ontario, on April 11, 2005, be filed to comply with section 51 of the Federal Court Act.
"Carolyn Layden-Stevenson"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2985-04
STYLE OF CAUSE: NORLAN MARTIN VALLADARES CANTARERO and ERICKA ARMIDA VALLADARES CANTARERO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: APRIL 11, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: Layden-Stevenson J.
DATED: MAY 10, 2005
APPEARANCES BY:
No appearance FOR THE APPLICANTS
Karen Dickson FOR THE RESPONDENT
SOLICITORS OF RECORD:
no one FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Toronto, Ontario
--- Upon commencing on Monday, April 11, 2005
at 9:59 a.m.
DECISION FROM THE BENCH
THE COURT: This is an Application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board, the RPD, wherein the RPD rejected, on March 11, 2004, the Applicants' refugee claims.
The Application for leave and judicial review was filed on March 30, 2004 and the Applicants' Record was filed April 28, 2004. Leave to apply for judicial review was granted January 11, 2005.
The Applicants did not appear at the hearing. The Court records indicate that Registry attempted to contact the Applicants at the telephone number provided on file to inform them of the Order granting leave and setting the date for the hearing, but the telephone number was not in service. A Registry officer searched the 411 directory, but found no address and no telephone number for the Applicants. No notice of change of address was filed by the Applicants.
A copy of the Order granting leave and setting the date for the hearing was sent by registered mail to the Applicants' last-known address, which is 450 Northcliffe Boulevard, Toronto, Ontario. That registered mail was sent on January 11, 2005; the correspondence was not returned to the Court.
Counsel for the Respondent informs the Court that the Respondent's Memorandum of Argument was personally served on the Applicants on April 3, 2004, at 450 Northcliffe Boulevard, Toronto.
Therefore, I am satisfied that 450 Northcliffe Boulevard, Toronto, is in fact the last-known address for the Applicants and that the registered mail was forwarded to that last-known address.
Rule 140(1)(b) of the Federal Courts Rules provides that:
"Service on a party may be effected by mailing the document to the party's address for service."
Rule 141(1) provides that:
"Service of a document by ordinary mail is effective on the tenth day after it was mailed."
By virtue of those Rules, the Applicants are deemed to have had notice of the hearing. In the circumstances, it would be futile to require any further mailings.
Rule 38 of the Federal Court's Rules provides that:
"Where a party fails to appear at a hearing, the Court may proceed in the absence of the party if the Court is satisfied that notice of the hearing was given to that party in accordance with these Rules."
I have determined that notice was given in accordance with the Rules.
I therefore propose to deal with the matter on the basis of the Applicants' written submissions.
The Applicants are brother and sister and citizens of Nicaragua. They fled Nicaragua in order to escape a former boyfriend of the female Applicant.
The former boyfriend was obsessively fixated on the female Applicant and subjected her to sexual and emotional abuse. The sexual abuse was not confined to interaction between the female Applicant and the boyfriend; it additionally involved the selling of the female Applicant's services to tourists at various hotels and clubs in Nicaragua.
The RPD believed that the female Applicant suffered from abuse at the hands of the boyfriend, but the panel rejected the Applicants' refugee claims on the basis of the availability of an internal flight alternative, IFA -- namely, Bluefields, an area some 200 miles from Matagalpa and Managua, in Nicaragua.
The RPD found credible the Applicants' evidence that the boyfriend has friends among the local police and that the boyfriend possessed considerable financial means. Notwithstanding, the RPD found on a balance of probabilities that the boyfriend did not have sufficient sway with the police in Nicaragua to enable a nationwide manhunt and that the boyfriend did not possess the resources to take on the manhunt himself.
The female Applicant's assertion that she provided sexual services to high-ranking police officers who might assist the boyfriend in locating her if she moved back to Nicaragua was rejected by the panel. That statement was not contained in the PIF, which the RPD found was very specific with regard to her time as a prostitute, and the female Applicant was not able to provide any explanation at the hearing for the omission of this detail from her PIF.
The RPD further considered whether it was unreasonable for the Applicants to relocate to Bluefields, and considered in particular the guidelines on women refugee claimants fearing gender-related persecution.
Based on the testimony of the Applicants at the hearing the RPD found, apart from their fear of the boyfriend, there was no other reason why the Applicants could not move to Bluefields.
The panel found that there was no reason to believe that the Applicants could not travel safely and that there was no linguistic, social or cultural obstacle that would make it unduly harsh for the Applicants to relocate to Bluefields.
The Applicants argue that the RPD erred by assuming that there was a sufficient level of state protection in Nicaragua, and claim that the RPD imposed upon them an impossible burden of proof.
Thus, the sole issue in the written submissions is whether the RPD erred in determining that the Applicants have an IFA. The standard of review applicable to that determination is patent unreasonableness; the authority for that is Sivasamboo v. Canada (the Minister of Citizenship of Immigration), [1995] 1 FC 741 (TD).
The test with respect to an IFA is two pronged and is articulated in Rasaratnam v. Canada (the Minister of Employment and Immigration), [1992] 1 FC 706 (CA) and Thirunavukkarasu v. Canada (Minister of Citizenship and Immigration), [1994] 1 FC 589 (CA):
"The RPD must be satisfied on a balance of probabilities that there is no serious possibility of the Applicant being persecuted in the proposed IFA and that in all the circumstances, including the circumstances particular to the Applicants, the conditions in the proposed IFA are such that it is not unreasonable for the Applicants to seek refuge there."
Here, the Applicants have failed to identify any portion of the panel's reasons that impose an impossible burden upon them and they do not provide any evidence to support their contention.
The arguments do nothing to refute the availability of an IFA in Nicaragua and they additionally fail to point to any portion of the record in support of their contention that the RPD erred.
I have reviewed the transcript of the hearing, I have reviewed the portion of the transcript where the Applicants were questioned in relation to the IFA. In my view, the determination that an IFA exists was reasonably open to the panel; the panel did not err in concluding that an IFA existed.
Hence, the existence of an IFA being integral to the definition of Convention refugee, the panel was bound to dismiss the claim and I in turn dismiss the application for judicial review.
--- Whereupon the excerpt was concluded at 10:17 a.m. on Monday, April 11, 2005
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