Date: 20100308
Docket: IMM-5367-08
Citation: 2010 FC 263
Ottawa, Ontario, March 8,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
SONIA
BLANCAS CALDERON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of the decision (the decision) of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated December
13, 2008. The Board determined that the Applicant is neither a convention
refugee nor a person in need of protection under sections 96 and 97 of the
Immigration and Refugee Protection Act, R.S. 2001, c. 27.
[2]
For
the reasons set out below, this application is allowed.
I. Background
[3]
The
Applicant is a 37 year-old female Mexican citizen. She has two young children
who are in the custody of her ex-husband. The ex-husband and children live in Mexico and are not
parties to this application.
[4]
The
Applicant claimed protection based on a fear of her abusive ex-husband and
because she wanted to regain custody of her children. According to the
Applicant, her ex-husband was abusive prior to their divorce and made threats
after. Initially, the Applicant received custody of her children, but custody
was subsequently reversed to her ex-husband. From the Mexican Court documents it
is clear that a major factor relied on by the Court to reverse custody was the
wishes of the children. It is the Applicant’s position that the ex-husband
“bought” the system and paid off her lawyer. The Applicant also claims that the
ex-husband threatened that if she tried to convince the children to come back
to her, he would not let her see them again and/or he would kill her.
[5]
The
Board held that the issues in the claim were credibility, state protection and
the existence of an Internal Flight Alternative (IFA). In its reasons, the
Board stated that the Applicant was credible and a victim of domestic violence.
However, the Board held that the crux of this case was that the claimant was at
odds with her ex-husband over the custody of their children. The Board
concluded that the Applicant had a viable IFA as she could live safely
everywhere in Mexico “unless she
tries to talk her children into coming back to live with her” (page 3 of the
reasons).
II. Issues
[6]
The
Applicant raises the following issues:
(a) The
Board failed to assess the Applicant’s claim for state protection.
(b) The
Board did not appropriately apply the test to determine the viability of an
IFA.
III. Standard
of Review
[7]
The
issues in this matter will be assessed on a standard of reasonableness (see Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of Citizenship and
Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339; Irshad v. Canada (Minister of
Citizenship and Immigration), 2005 FC 763; [2005] F.C.J. No. 941).
IV. Analysis
A. The
Board Failed to Assess the Applicant’s Claim for State Protection
[8]
The
Applicant argues that the Board accepted her as a credible witness and
concluded that she was a victim of domestic violence. However, she argues, by
focusing on the Applicant’s custody issues, the Board failed to consider her
claim that there was no meaningful state protection.
[9]
The
Respondent argues that as the Board found a viable IFA, it did not need to
consider the issue of state protection.
[10]
The
question of the existence of an IFA is determinative of the matter. As set out
in Irshad, above, at paragraph 21, the concept of an IFA is an inherent
part of the Convention refugee definition. In order to be considered a Convention
refugee, an individual must be a refugee from a country, not from a region of a
country. Therefore, where an IFA is found, a claimant is not a refuge or a
person in need of protection (see Sarker v. Canada (Minister of
Citizenship and Immigration), 2005 FC 353; [2005] F.C.J. No. 435).
[11]
In
this case, having found an IFA, the Board was not required to assess the
Applicant’s claim for state protection. The matter then turns on whether the
Board applied the correct test to its IFA analysis and/or if its conclusions on
the existence of a viable IFA are reasonable.
B. Application
of the Test to Determine the Viability of an IFA
[12]
The
Applicant argues that the Board’s determination that she had a viable IFA was
unreasonable as it failed to consider the importance of the threats by her
ex-husband and the effect these would have on the Applicant’s contact with her
young children.
[13]
The
Respondent argues that findings of a viable IFA are findings of fact and should
be shown deference (see Estrella v. Canada (Minister of
Citizenship and Immigration), 2008 FC 633; [2008] F.C.J. No. 806). It
is their position that the decision and application of the test was reasonable.
[14]
The
Board must consider the viability of an IFA using the two part test set out in Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589;
[1993] F.C.J. No. 1172 (F.C.A.) and Rasaratnam v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No. 1256; [1992] 1 F.C. 706
(F.C.A.). First, the Board must be satisfied, on a balance of probabilities,
that there is no serious possibility that the Applicant will be persecuted in
the proposed IFA. Second, the conditions of the proposed IFA must be such that
it is not unreasonable for the claimants to seek refuge there.
[15]
On
the first part of the test, the Board was satisfied that the Applicant was not
at risk in Mexico as long as
she did not try to convince her children to come back to her. The Board noted
that the Applicant had worked in Pachucas for three years without experiencing
any threats from her ex-husband. This was reasonable.
[16]
On
this second part of the test, the Board determined that the IFA was available
“unless she tries to talk her children into coming back to live with her”.
Therefore, a condition of the viability of the IFA was that the Applicant not
attempt to re-gain custody of her children.
[17]
It
is unduly harsh and unreasonable to expect the Applicant to foreswear any
efforts or attempts to re-secure custody of her young children. Therefore, the
Board’s decision with regard to the second part of the test to assess the
viability of an IFA does not fall within a range of acceptable outcomes that
are defensible in respect of the facts and law.
[18]
In
Thirunavukkarasu, above, Justice Alen M. Linden stated at paragraphs 13
and 15:
13 […] 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.
Stated another way for clarity, the question to be answered is, would it be
unduly harsh to expect this person, who is being persecuted in one part of his
country, to move to another less hostile part of the country before seeking
refugee status abroad?
[…]
15 In conclusion, 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
travelling half-way around the world to seek a safe haven, in another country.
[…]
[Emphasis added]
[19]
The
Court has recognized that the forced separation of families may be
unreasonable. In Ramanathan v. Canada (Minister of
Citizenship and Immigration), 1998 CanLII 8469 (F.C.), the Court found
that an IFA that separated an elderly parent from his children was unduly
harsh. At paragraph 11, Justice James Hugessen stated:
11 […] A test of
whether an IFA is unreasonable or unduly harsh in all the circumstances is
bound to involve the consideration of some factors, at least, which will undoubtedly
be the same sort of considerations that are taken into account in humanitarian
and compassionate relief. I might even go so far as to say that if one were to
exclude every consideration which might arguably be called humanitarian or
compassionate from the second branch of the IFA test, there would be nothing left.
I put the question to respondent’s counsel during argument and she ventured the
suggestion that what would remain would be safety considerations. But, of course,
safety considerations are largely, if not entirely subsumed under the first branch
of the test.
[20]
The
Court has also recognized the special family bond between a parent and young
children. In Sooriyakumaran v. Canada (Minister of
Citizenship and Immigration), 156 F.T.R. 285; [1998] F.C.J. No. 1402
(T.D.), Justice Allan Lutfy held at paragraphs 7 - 9:
7 […] The presence in
Canada of her two children, both minors and Convention refugees, is the kind of
particular circumstance that the tribunal ought to have considered in assessing
whether Colombo was an unduly harsh refuge for her.
8 The relevance of the
children’s situation in this case is unrelated to the principle of family unity
or to an application for humanitarian and compassionate consideration. The
applicant’s family situation is simply a human factor that ought not to be
excluded in applying the second branch of the internal flight alternative test.
[…]
9 […] It was an error in law for
the tribunal to close its mind to the natural bond between a parent and her
minor children […]
[21]
The
Respondent argues that the decision is reasonable as by coming to Canada the
Applicant now no longer sees her children, whereas prior to coming to Canada she saw them
every other weekend and on vacations. However, the test is if the conditions of
the proposed IFA in Mexico are unreasonable or unduly harsh, not a
comparison of the IFA with any other external possibilities. Therefore, this line
of reasoning cannot stand.
[22]
The
Respondent also argues that this is not a case of family members being
separated, but a situation where the Applicant disagrees with a Mexican court
order. However, the basis of the conditions of the IFA being unreasonable are
the threats of the ex-husband to harm the Applicant if she attempts to assert
her legal rights – the right to re-gain custody of her children. The Board held
the Applicant and her claims of abuse and threats by her ex-husband to be
credible. Therefore, while the separation was initiated by the custody order, it
is perpetuated by the Applicant facing threats of violence from her ex-husband
if she attempts to re-gain custody.
[23]
The
Board determined that the crux of this matter was the custody order from the
Mexican courts and that this was beyond its mandate. However, the Board found
that the Applicant had a viable IFA, which determined the claim. For the
reasons set out above, this determination was not reasonable. It is therefore
not necessary for the Court to address any other issue.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application is allowed. The decision is set aside and the matter is referred to
a differently constituted panel for a new determination in accordance with
these reasons.
2. There is no order as to costs.
“ D.
G. Near ”
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