Date: 20100218
Docket: IMM-1166-09
Citation: 2010 FC 170
Ottawa, Ontario, February 18, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
REGINA ESTRADA LUGO
TAMARA ITZE CARRASCO ESTRADA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Immigration and Refugee Board’s Refugee Protection Division (RPD
or Board), dated February 16, 2008, wherein the applicants were determined to
be neither Convention refugees nor persons in need of protection under sections
96 and 97 of the Act.
[2]
The
applicants request that the Board’s decision be quashed and that their claims
be referred back to the Board to be considered by a differently constituted
panel.
Background
[3]
The
applicants, Regina Estrada Lugo (the principal applicant) and Tamara
Itze Carrasco Estrada (the minor applicant), are mother and daughter. Both are
citizens of Mexico who lived in Pachuca, in the state of Hidalgo.
[4]
In
May of 2004 the principal applicant divorced the father of the minor applicant,
Adrian Carrasco Tovar. Things were quiet until November 15, 2006 when the principal
applicant alleges she noticed a black car outside her window. The principal
applicant continued to notice the same car following her and parked in front of
her daughter’s school.
[5]
The
principal applicant alleges she then began receiving phone calls from a
Lieutenant Colonel Jose Armendariz (Armendariz) who demand to know the
whereabouts of her ex-husband. The principal applicant responded that she did
not know of her ex-husband’s location. Between late November 2006 and January
2007, persons identifying themselves as being from the Attorney General of the
State of Hidalgo (PRG) would appear at the applicants’ home and threatened
them.
[6]
The
principal applicant alleges she was able to contact her ex-husband, who told
her that he had fled Mexico to escape Armendariz, whose former fiancé
he had become involved with.
[7]
After
a threat by PRG members on January 10, 2007, the principal applicant filed a
complaint with the PRG administration on January 18, 2007. Instead of being
helped, the principal applicant was ordered to go for a psychological
assessment. Armendariz allegedly made a threatening call to her that day,
claiming that she had reported him to the authorities.
[8]
On
January 21, 2007 the principal applicant alleges that while driving her
daughter, herself and friends, they were run off the road by the same black
car. Men from the black car tried to open their doors but witnesses came to the
rescue. At that point, the principal applicant decided to move in with her
brother but continued to receive death threats on her cell phone and saw the
same black car parked near her brother’s home. At that point, the applicants
decided to flee to Canada. The applicants arrived on January 29, 2007 and
claimed refugee protection two days later based on their fear of Armendariz of
the Mexican military.
[9]
The
Board heard the applicants’ claims for refugee protection on November 17, 2008
and December 8, 2008 in Toronto.
Board’s Decision
[10]
The
Board began its decision by reviewing the evidence presented by the applicants.
The Board member then stated that the determinative issue was whether a viable
internal flight alternative (IFA) exists for the applicants in Mexico.
[11]
The
Board stated that the test to be applied in determining whether there is an IFA
is two-pronged: (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 (see Thirunavukkarasu v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C. 589, [1993] F.C.J.
No. 1172 (C.A.) (QL)).
The First Prong
[12]
The Board noted that the issue of an available IFA was raised
during the hearing and determined that a viable IFA would exist for the
applicants in Guadalajara or Monterrey. The Board noted that the principal applicant said she had thought
about relocating within Mexico, but knew she would not be 100% safe because it is very easy to
be found through the minor applicant’s school registration or through the use
of her bank card. The principal applicant also believed police officers would
pass on information to Armendariz.
[13]
The Board took issue with the principal applicant’s submission
that Armendariz could access public databases, noting the 2006 and 2007
documentary evidence which indicates that it would be very hard for an
individual to access such data. The Board noted some 2005 documentary evidence
suggesting that there are problems of confidentiality in the management of some
databases operated by the Federal Electoral Institute (IFE), but noted that
that report also stated that information was kept confidential and protected by
law. In any event, the Board noted that it preferred the more recent 2006 and
2007 documentary evidence from the RPD package because the documentation was
more definitive.
[14]
In the determination that the applicants should have sought
protection within Mexico, the Board took issue with the applicants’ submission that they
could not rely on the police for protection from Armendariz, a member of the
military. The Board noted that the presumption of state protection applies for Mexico and that
civilian authorities generally maintain control of security forces. The Mexican
government normally respects human rights by investigating, prosecuting and
sentencing public officials and members of the security forces. The Board noted
several of the federal government’s initiatives to combat corruption in public
offices and to provide recourse for the victims of crime.
The Second Prong
[15]
The
Board felt that it would not be unreasonable for the applicants to seek
protection in Guadalajara or Monterrey. The Board was strongly
of the view that the applicants had an onus to at least try to seek an IFA
elsewhere in Mexico. The Board
cited the principal applicant’s age and experience as factors that would make
it easier to adjust to life in a new part of her own country, especially since
she had demonstrated an ability to come to a new country like Canada.
[16]
The
Board concluded that the applicants had not discharged their responsibility of
showing that the risk of harm they fear would be faced in every part of Mexico pursuant to
paragraph 97(1)(b) of the Act. While the Board acknowledged that there is
“still room in Mexico to improve the climate of corruption and crime,
these are problems faced by all citizens of Mexico and do not
automatically make one a Convention refugee or a person in need of protection.”
Issues
[17]
The
issues are as follows:
1. What is the standard
of review?
2. Did the Board commit
a reviewable error with respect to its application of the legal test for an
Internal Flight Alternative?
3. Did the Board base
its decision on erroneous findings of fact that it made without regard for the
material before it?
Applicants’ Written Submissions
IFA: Application of the
wrong test
[18]
The
applicants begin by asserting that a refugee claimant must be given proper
notice of the proposed IFA and provided with the opportunity to respond. Then
the decision maker must embark on a two step approach. First, they must assess
whether the claimant has demonstrated on a balance of probabilities that there
is a serious possibility of persecution in the proposed IFA. Then the decision
maker must assess whether in all the circumstances particular to the claimant,
conditions in the proposed IFA are such that it would not be unreasonable for
the claimant to seek refuge there.
[19]
The
applicants submit that they are not obliged to seek out potential IFAs prior to
claiming refugee protection. The relevant question is whether an IFA exists,
not whether the applicants sought out an IFA. Applicants must only demonstrate,
if notified of a particular potential IFA that their fear is objectively
well-founded throughout their country of origin including in the proposed IFA (see
Thirunavukkarasu v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 589, [1993] F.C.J. No. 1172 (C.A.) (QL)). The
requirement that the applicants be given notice of a proposed IFA and the
opportunity to respond (see Thirunavukkarasu), would be incoherent if there
was an obligation to have already sought out that potential IFA.
[20]
The
applicants submit that the question of whether the Board applied the right test
is reviewable on the standard of correctness.
IFA findings
unreasonable and made without regard to the evidence
[21]
The
applicants submit that the Board did not assess specific IFA areas and only
generalized findings regarding presumed protection in Mexico. Moreover,
the Board did not consider that the applicant’s persecutors included members of
the military and other state agents, and that the military had actually been
deployed in Monterrey recently.
Nor did the Board discuss how the identity of the persecutors would impact the
availability of IFAs. The Board only made generalized findings, and even listed
the PRG as a source the applicants could look to for protection in an IFA. The
Board should have turned its mind to the fact that Armendariz is a member of
the military and that the local police may be unable to provide sufficient
protection. Therefore, the Board’s decision that Monterrey was an IFA
lacks intelligibility and justification.
Ignoring Evidence
[22]
The
applicants submit that this Court has repeatedly held that a claimant’s psychological
state is a relevant consideration when assessing the second prong of the IFA
test (see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No.
1425 (F.C.T.D.) (QL), Cartagena v. Canada (Minister of
Citizenship and Immigration), 2008 FC 289, 69 Imm. L.R. (3d) 289, Parrales
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 504, [2006]
F.C.J. No. 624, Javaid v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.
1730, 157 F.T.R. 233 (QL)).
[23]
The
applicants submitted a psychological report indicating that the principal applicant
had post-traumatic stress disorder and detailed the symptoms and anxiety the principal
applicant experiences as a result of her past in Mexico and her fear of returning. The report
concludes that the principal applicant’s condition would deteriorate if
returned to Mexico. The Board did not
refer to or analyze the report at any point in it reasons.
[24]
The
applicants submit that a decision maker must make reference to important
evidence, especially if the evidence directly contradicts the findings made by
the decision maker. Failure to provide assessment of important contradictory
evidence necessarily constitutes an unreasonable decision (see Hassaballa v.
Canada (Minister of Citizenship and Immigration), 2007 FC 489, [2007] F.C.J.
No. 658 (QL) at paragraphs 23 to 26, Nyoka v. Canada (Minister of
Citizenship and Immigration), 2008 FC 568, [2008] F.C.J. No. 720 (QL) at
paragraph 21, Cepeda-Gutierrez above, Ranji v.
Canada (Minister of Public Safety and Emergency Preparedness), 2008
FC 521, [2008] F.C.J. No. 675).
Respondent’s Written Submissions
IFA: Application of the
wrong test
[25]
The
respondent submits that the applicants are using a microscopic analysis of the
Board’s words. A review of the IFA analysis on the whole indicates that the
main point in its decision was that an IFA existed for the applicants in
Guadalajara and Monterrey. The Board heard the applicants’ arguments and
reviewed the evidence before coming to its conclusion.
[26]
Even
if the Board erred by using the words “obligation” or “onus”, sending the
matter back for redetermination would be futile, since the Board’s reasoning on
the existence of an IFA was sound and determinative of the issue (see Cartier v.
Canada (Attorney General), 2002 FCA 384, [2003] 2 F.C. 317 at paragraph
31).
[27]
Furthermore, there is no reviewable error in a finding that a
refugee claimant should relocate to an available IFA. International refugee law
was formulated to come into play only in situations where the protection one
expects from the state in one’s country of nationality is unavailable. If an
IFA is available to someone, they should first avail themselves of this option
(see Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689 at 709, [1993] S.C.J. No. 74 (QL), Thabet v. Canada (Minister
of Citizenship and Immigration), 160 D.L.R. (4th) 666, [1998]
F.C.J. No. 629 (C.A.) (QL)).
IFA findings
unreasonable and made without regard to the evidence
[28]
The respondent submits that the applicants’ argument on this
ground has no merit. The principal applicant’s submission that she would be
found by Armendariz and his men anywhere in Mexico
was insufficient. The Board noted the documentary evidence it used to determine
that it was highly unlikely that she could be found. The Board’s determination
is further substantiated by the principal applicant’s own admission that
Armendariz was only turning to her because he was not able to locate her
husband on his own.
[29]
The respondent submits that there was not sufficient evidence that
the men seeking the principal applicant were police, military or employed by
the PRG, nor was there sufficient evidence that they were acting in any
official capacity. Thus, there was insufficient evidence that her persecutors
could find her due to their positions.
Analysis and Decision
[30]
Issue
1
What is the
standard of review?
A refugee claimant under the
Convention definition, must demonstrate his or her unwillingness or inability
to seek or obtain the protection of his or her state throughout the entire
territory of that state. A refugee claimant is rightly rejected should the
Board determine that an IFA exists. Rebutting evidence of a potential IFA has
become one of the fundamental hurdles to a refugee’s ability to obtain
protection in Canada. Setting out
the basic test for determining IFA existence has become a general matter of law
for which the Board is not entitled to deference.
[31]
The
applicants however, raise issues concerning the Board’s application of the test
for an IFA and the Board’s disregard for evidence in doing so. In my opinion,
once the correct test for an IFA is set out, the Board’s application fo that
legal test to the facts hinges primarily on determinations of fact or mixed
fact and law. Parliament entrusted such determinations to the RPD, not the
courts. As such, these determinations are reviewable on the standard of
reasonableness.
[32]
Issue
2
Did the Board
commit a reviewable error with respect to its application of the legal test for
an Internal Flight Alternative?
The applicants do not take
issue with the Board’s statement regarding the test for an IFA. Rather, the
applicants submit that the Board when applying the test, added an onus on the
applicants to have at least tried to seek refuge in the potential IFAs before
seeking Canada’s
protection. After explaining the second prong of the test the Board stated:
I am of the view that the claimants had
an obligation to at least try to find a safe haven in their own country before
abandoning it altogether and unless it were patently unreasonable for them to
do so, their failure to at least try will be fatal to their claims.
[33]
Later
the Board stated:
I am strongly of the view that leaving
one’s own country and seeking international refugee protection abroad is a
reluctant last resort, and should only be undertaken after other measures, such
as the seeking of an IFA within one’s own country, have been tried
unsuccessfully or are patently pointless. That is not the case in these claims.
It is almost trite law to say that claimants have an obligation to at least try
to find some place else to live in their own country before deciding to leave
it altogether. In this case, I note that the claimants did not make any attempt
to seek an IFA anywhere in the Republic of Mexico. I find that the
claimants had the onus to move to an IFA, in this case specifically in Guadalajara or Monterrey, before leaving the country.
[34]
No
cases were brought to my attention to support the Board’s contention that
refugee claimants have an obligation to have already sought protection in the
proposed IFA location. Thus, I find that the Board’s comments were in error.
[35]
The
test for the existence of an IFA set out in Thirunavukkarasu above, is a
two pronged test, but it is a test in which the refugee claimant need only
defeat one of the prongs. Both prongs can be successfully defeated without a
refugee having lived in or even travelled to the proposed IFA. A refugee
claimant may defeat prong one by establishing that there is a serious
possibility of 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. Alternatively, a claimant
can defeat prong two by establishing that conditions in the IFA are such that
it would be unreasonable in all the circumstances for the claimant to seek
refuge there.
[36]
The
Board must not only state the correct test but it must also apply the correct
test. Adding an additional requirement in the application of the test will
cause the Board to run afoul of the reasonableness standard. Adding the
requirement that the applicants must have tried living in another, safer region
of the country demonstrates a misunderstanding of the legal test for an IFA. As
noted above, this was an error.
[37]
The
respondent submitted that it would not be proper to send the matter back for
redetermination as the Board also applied the proper two prong test for an IFA
and the new decision would necessarily be the same. I do not agree.
[38]
When
the Board’s decision is reviewed, it becomes obvious that the Board considered
the failure to try to live in the IFA a very important factor in denying the
applicants’ claim for refugee protection. I cannot determine whether the
Board’s decision would have been the same had the Board applied only the proper
factors for assessing an IFA. This is a decision to be made by the Board not by
the Court.
[39]
Consequently,
the application for judicial review must be allowed and the matter is referred
to a different panel of the Board for redetermination.
[40]
Because
of my finding on this issue, I need not deal with the remaining issue.
[41]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[42]
IT
IS ORDERED that the application for judicial review is allowed and the
decision of the Board is set aside and the matter is referred to a different
panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27:
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk is
not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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