Date: 20100309
Docket: IMM-4049-09
Citation: 2010 FC 259
Ottawa, Ontario, March 9, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
I. M. P. P.
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada, dated July
21, 2009, wherein it was determined that the applicant is not a Convention
refugee and is not a person in need of protection.
[2]
This
is a second application for judicial review in the case of the applicant. The
facts at issue concern an alleged sexual assault and whether the applicant has
a viable Internal Flight Alternative (IFA).
[3]
These
are my reasons for dismissing the application.
Background
[4]
The
applicant is a 24-year old citizen of Mexico.
[5]
The
applicant fears violence at the hands of David Antonio Velasco Chedraui
(Antonio) who is presently mayor of her home town of Xalapa, Veracruz. Antonio was
not mayor at the time of the assault.
[6]
On
November 18, 2004, the applicant and her friend Alma met with two men, Andres
and Antonio, at a concert in Xalapa. On their way back from the concert, they
had to stop at Andres’s office. The applicant felt ill and lost
consciousness. When she recovered consciousness, the applicant found Antonio
in the midst of assaulting her. Hearing her friend Alma with Andres in the
office at the end of the hallway, the applicant screamed for help but was
unable to secure assistance.
[7]
When
the applicant reported to the police that Antonio had assaulted her, the
officer taking her complaint told her that Antonio would be arrested. The
perpetrator was never arrested.
[8]
After
having reported the assault to the authorities, the applicant and her family
received threatening telephone calls.
[9]
In
March 2005, the applicant’s brother was beaten by three men who threatened that
the police complaint should be withdrawn. The applicant’s aunt was also
attacked several times on the street.
[10]
Having
hired a lawyer in September 2005, it was found in January 2006 that no
complaint was ever laid against Antonio at the police station and that there
was no medical file on record to document the assault.
[11]
Due
to her complaint against a wealthy, powerful and influential person in her
town, the applicant’s mother and brother were fired from their jobs in July
2006.
[12]
In
February 2007, the applicant’s father was beaten by two men and told him that
the charges must be withdrawn. Both her father and brother were taken to the
police station after a neighbour called to report a domestic fight. They were
released without charges. After this incident, the applicant asked her lawyer
to stop investigating the matter.
[13]
In
June 2007, the applicant received a phone call from Antonio who told her that
he wanted to experience again what had happened on November 18, 2004. The
applicant concluded that Antonio was obsessed with her and would assault her
again. On August 23, 2007, the applicant left Mexico and sought
refugee status in Canada.
[14]
The
applicant’s brother moved to Mexico City in February 2008 in the
hopes of contacting television stations there for help. When Antonio’s name was
mentioned, the television stations refused to help the applicant’s brother.
[15]
While
the applicant’s brother lived in Mexico City, it is alleged that
Antonio’s men were able to locate him. The applicant’s brother therefore left Mexico City in January
2009 and his whereabouts are unknown.
[16]
The
applicant’s initial refugee determination was denied. On January 26, 2009, an
application for judicial review of that decision was granted and the matter
returned to another panel for redetermination. The Court found that there had
been no reference to the Board’s guidelines on women refugee claimants fearing
gender-related persecution. It was also found that the Board’s conclusions as
to credibility and plausibility were unreasonable and that the Board’s reasons
were inadequate considering some of the evidence with respect to state
protection: I.M.P.P. v. Canada (Minister of Citizenship and Immigration), 2009 FC 76, [2009] F.C.J. No. 96.
Decision Under Review
[17]
On
the rehearing of the claim, the determinative issue was the existence of an Internal
Flight Alternative (IFA).
[18]
Before
making its decision the Board indicated that it took into consideration the
guidelines on “Women Refugee Claimants Fearing Gender-Related Persecution.”
[19]
The
Board identified the Mexico City/Federal District for the IFA.
[20]
Considering
that the reason why people associated with the perpetrator may have found the
applicant’s brother in Mexico City was his association with family members
there, the Board found that if the applicant moved to Mexico City, she could live
far away from the relatives since the city is so large.
[21]
The
Board did not dispute the applicant’s testimony that the perpetrator is
wealthy, powerful, influential, and the mayor of Xalapa, Veracruz. The Board
found no convincing evidence that the perpetrator’s influence would extend to Mexico City. The member
was not persuaded to believe that the perpetrator’s influence would help him in
Mexico
City.
[22]
The
member noted that Mexico City is a city of over eight million people, the
largest city in the country, and has made serious efforts to address crime and
corruption and violence against women.
[23]
It
was determined that if by some chance the applicant was located in Mexico City,
which the Board was not persuaded to believe, the documentary evidence
demonstrated that state protection is available to the applicant.
[24]
While
the Board accepted that Mexico does have problems with violence against
women, based on the documentary evidence, it was found that Mexican authorities
are making serious efforts to combat violence against women. Mexico has enacted
civil, administrative and criminal legislation which prohibits gender related violence.
[25]
The
Board noted that there is a new federal law to combat violence against women.
The General Law on Women’s Access to a Life Free of Violence requires “federal
and local authorities to prevent, punish, and eradicate violence against
women. Under article 5 of the Federal District Law, a woman who is a victim of
any type of violence has the right to free and prompt legal assistance. This
law is in effect in the Federal District.
[26]
Taking
into consideration a psychological report prepared in 2008, the Board found
that the applicant would be able to obtain psychological services to help her
in Mexico
City.
[27]
As
the applicant is an educated woman, it was found that she would be able to find
employment as Mexico
City
is a modern metropolis with all of the amenities.
[28]
It
was concluded that it would not be unduly harsh for the applicant to move to Mexico City. Therefore,
the Board found that it was not unreasonable for the applicant to move there.
[29]
As
Mexico City was found to be an available IFA to the applicant, the Board found
that there is not a serious possibility that the applicant would be persecuted
on the ground that she is a member of a particular social group as a victim of
gender based violence or that she would be subjected personally to a risk of
cruel and unusual treatment or punishment or to a danger of being tortured if
she returned to Mexico.
Issues
[30]
The
sole issue is whether the Board member erred in her finding that the applicant
has a viable IFA in Mexico City?
Analysis
[31]
Several
decisions of this Court have held that Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] S.C.J. No. 9, has not changed the law in respect of factual
findings subject to the limitation in paragraph 18.1(4)(d) of the Federal
Courts Act: De Medeiros v. Canada (Minister of Citizenship and
Immigration), 2008 FC 386, [2008] F.C.J. No. 509; Obeid v. Canada
(Minister of Citizenship and Immigration), 2008 FC 503, [2008] F.C.J. No.
633; Naumets v. Canada (Minister of Citizenship and Immigration), 2008
FC 522, [2008] F.C.J. No. 655. It has also been held that a tribunal’s decision
concerning questions of fact is reviewable upon the standard of reasonableness:
Sukhu v. Canada (Minister of Citizenship and Immigration), 2008 FC
427, [2008] F.C.J. No. 515; see also Navarro v. Canada (Minister of
Citizenship and Immigration), 2008 FC 358, [2008] F.C.J. No. 463, at
paras. 11-15.
[32]
The
Board member’s analysis of the evidence and exercise of discretion are central
to the member’s role as a trier of fact. As such, these findings are to be
given significant deference by the reviewing Court. The member’s factual
findings should stand unless the reasoning process was flawed and the resulting
decision falls outside the range of possible, acceptable outcomes which are
defensible in respect of the facts and the law: Dunsmuir, above, at
para. 47.
[33]
In
a case such as this, there might be more than one reasonable outcome. As long
as the process adopted by the member and the outcome fit comfortably with the
principles of justification, transparency and intelligibility, it is not open
to a reviewing court to substitute its own view of a preferable outcome: Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12,
at para. 59.
Internal
Flight Alternative (IFA)
[34]
In
Thirunavukkarasu v. Canada (Minister of Employment and
Immigration) (C.A.), [1994] 1 F.C. 589, [1993] F.C.J. No. 1172, at para.
12, the Federal Court of Appeal held that if there is a safe haven for
claimants in their own country, where they would be free of persecution, they
are expected to avail themselves of it unless they can show that it is
objectively unreasonable for them to do so.
[35]
In
this case, the Board asked the applicant if she could live in Mexico
City/Federal District or in Guadalajara. The applicant stated
that it would be easier to find her in Guadalajara than Mexico City because of
its size. Accordingly, the member used Mexico City/Federal District for the
IFA analysis.
[36]
The
Board considered the two-pronged test in determining if an IFA was viable to
the applicant; as prescribed in Rasaratnam v. Canada (Minister of
Employment and Immigration) (F.C.A.), (1991), 140 N.R. 138, [1991] F.C.J.
No. 1256. The two-pronged test was recently applied in Sokol v. Canada (Minister
of Citizenship and Immigration), 2009 FC 1257, [2009] F.C.J. No.
1606, at para. 38:
(i)
there is
no serious possibility of the claimant being persecuted or subjected, on a
balance of probabilities, to persecution or to a danger of torture or to a risk
to life or of cruel and unusual treatment or punishment in the proposed IFA
area, and
(ii)
conditions
in the IFA area must be such that it would not be unreasonable, in all the
circumstances, for the claimant to seek refuge there.
[37]
Notwithstanding that (a) the Board did not question the
applicant’s testimony that the perpetrator is wealthy, powerful and influential,
(b) that the Board recognized that Mexico does have problems with violence
against women, and (c) that the Board considered that the applicant’s brother
was allegedly found by the perpetrator’s men in Mexico City, based on the
totality of the evidence, it remained open to the member to determine that an
IFA is available to the applicant in Mexico City. I note that the member
considered Guadalajara as an alternate IFA but the applicant indicated that it
would be easier to be found in Guadalajara due to its smaller size.
[38]
Accordingly, I do not find a reviewable error in the Board’s
conclusion that there is not a serious possibility that the applicant would be
persecuted for a Convention ground or would be subjected personally to a risk
of cruel and unusual treatment or punishment or to a danger of being tortured
if she returned to Mexico. I find that conditions in Mexico City make it
reasonable in the circumstances for the applicant to seek refuge there.
[39]
As I have previously explained in Flores v. Canada (Minister of
Citizenship and Immigration), 2008 FC 723, [2008]
F.C.J. No. 969, at para. 10:
10 ...
As noted by the Federal Court of Appeal in Carillo,
the decision of the Supreme Court in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689 stressed that refugee protection is a
surrogate for the protection of a claimant's own state. When that state is a
democratic society, such as Mexico, albeit one facing significant challenges
with corruption and other criminality, the quality of the evidence necessary to
rebut the presumption will be higher. It is not enough for a claimant merely to
show that his government has not always been effective at protecting persons in
his particular situation: Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). [My Emphasis]
[40]
I do not accept the applicant’s argument that the Board erred
in considering Mexico City as an IFA simply because of its size: Reynoso v. Canada (Minister of
Citizenship and Immigration), (1996), 107 F.T.R. 220, [1996] F.C.J. No.
117, at para. 13. In the case at bar, while the member considered the size of
the IFA, she made additional specific findings that the authorities in Mexico
City were making serious efforts to combat violence against women by the
enactment of civil, administrative and criminal legislation. Also, in the case
at bar, the record does not indicate that the applicant was personally targeted
by her perpetrator in Mexico City.
[41]
The
applicant failed to establish that state protection in Mexico City would be
inadequate considering that she would have recourse to the legislated remedies
and a multitude of governmental agencies mandated to protect the rights of
women victim of violence: Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008]
F.C.J. No. 399, at para. 36.
[42]
Acknowledging
that the perpetrator is now the mayor of the town in which the assault
occurred, the evidence
before the member did not clearly establish that Antonio’s wealth, power and
influence was such as to allow him to find the applicant anywhere in Mexico
(including in the Federal District) or that he would be able to corrupt anyone
in his attempts to find the applicant.
[43]
In
her decision on the rehearing of the claim, the member has been careful, not
only to state the applicable law correctly, but also to set out in her Reasons
the various pieces of evidence that were considered in coming to a conclusion
that Mexico City offered an appropriate IFA.
[44]
I
do not think it appropriate for the member to suggest that the applicant should
avoid contact with family members in order to avoid the risk of being located
in Mexico
City.
Nonetheless, this error does not make the determination of a viable IFA
unreasonable as a whole.
[45]
Accordingly,
I find that such a determination was reasonable under the standard of review
established in Dunsmuir, above: Ayala v. Canada (Minister
of Citizenship and Immigration), 2008 FC 1258, [2008] F.C.J. No.
1572, at para. 15.
The
Board’s guidelines on gender-related persecution
[46]
In this
case, contrary to the applicant’s argument, I am of the view that the gender
guidelines were given more than lip service: Njeri v. Canada (Minister of Citizenship and
Immigration),
2009 FC 291, [2009] F.C.J. No. 350, at para. 16. I am unable to find that the
proceeding was not conducted in accordance with the guidelines and I do not
find evidence indicating that the member conducted herself as being unaware of
the principles and cautions in dealing with evidence of sexual assault.
[47]
This Court has recognized that the gender
guidelines are not intended to serve as a cure for deficiencies in a refugee
claim: Karanja v. Canada (Minister of Citizenship and
Immigration), 2006 FC
574, [2006] F.C.J. No. 717, at paras. 5-6.
The
psychological report
[48]
I agree with the
respondent that Dr. Devin’s psychological report was not ignored by the
member. It was open to the tribunal to conclude that the report was not
determinative of the refugee claim.
[49]
I am of
the view that the psychological report goes to support the applicant’s subjective
fear. The report does not assist in relation to the objective issues of the
viability of the IFA in Mexico City and state protection: Canseco v. Canada (Minister of Citizenship and
Immigration),
2007 FC 73, [2007] F.C.J. No. 115, at para. 10.
Conclusion
[50]
Unfortunately for the applicant, recognizing that she is a victim
of gender based violence, and that her brother is alleged to have been found by
the perpetrator’s men in Mexico City after an attempt to go public with the
family’s story, I can only conclude that the member’s decision regarding the viability of
the IFA in Mexico City is reasonable and falls within the range of
possible and acceptable outcomes: Dunsmuir, above, at para. 47.
[51]
Having
found that the decision was a reasonable result in this case, it is not open to
this Court to substitute its own view of a preferable outcome: Khosa, above,
at para. 59.
[52]
Accordingly,
I must dismiss
the application. No questions were proposed for certification.
[53]
The
applicant has requested that a confidentiality order be issued to protect her
identity. I note that the prior decision of this Court concerning the applicant
was issued with her initials substituted for her name in the style of cause and
without any reference to her name in the reasons. I am satisfied that in light
of the facts of this case it is necessary to protect the applicant’s identity
at least to the extent that her name not appear in this set of reasons for
judgment and judgment for publication.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that:
1. the
application is dismissed;
2. the style of
cause of this application is amended to replace the applicant’s name with her
initials;
3. there are no
questions to certify.
“Richard
G. Mosley”
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