Date: 20100511
Docket: IMM-4817-09
Citation: 2010
FC 515
Toronto, Ontario, May 11, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
oscar hugo trejo
abelar,
carla ruiz
rubio,
carlos emmanuel
trejo ruiz
and
oscar alberto trejo ruiz
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns members of a family, citizens of Mexico, who claim
protection under s.96 and s. 97 of the IRPA on grounds of fear of persecution
due to political opinion and fear of risk due to death should they be required
to return to Mexico.
[2]
In
rejecting the Applicants’ claim, the Refugee Protection Division (RPD) did not
make a negative credibility finding and, thus, the Applicants’ evidence in
support of their claim must be accepted as true. Nevertheless, the RPD rejected
the claim on the basis of a viable IFA in Mexico.
[3]
The RPD’s
findings of fact are as follows:
Oscar Hugo Trejo Abelar (“the claimant”),
Carla Ruiz Rubio (“the female claimant”), Oscar Alberto Trejo Ruiz and Carlos
Emmanuel Trejo Ruiz (“the minor claimants”), citizens of Mexico as established
by certified true copies of their passports, claim refugee protection pursuant
to sections 96 and 97 (1) of the Immigration and Refugee Protection Act (IRPA).
ALLEGATIONS
The claimants alleged the following.
The adult claimants are a
common-law couple who are the parents of the minor claimants. The family
resided in Coacalco, State of Mexico. In July 2002, the claimant
started to do volunteer work for an organization called “Vive sin Drogas”(Lives
without Drugs”), a private youth rehabilitation centre that helps street kids
stay away from drugs. The claimant’s work there included speaking with youth in
the streets, organizing social activities and sports teams, and fundraising. He
came in contact with Victor Aviles Cruz (“Aviles Cruz”), a former member of the
Federal Police who was a drug dealer. On September 17, 2005, Aviles Cruz held a
gun to the claimant’s head and threatened to kill him for taking away
customers. On September 20, 2005, the claimant made a denunciation against
Aviles Cruz, who was charged and was to spend 10 to 13 years in prison for
dealing drugs. The claimant testified against Aviles Cruz in Court on February
23, 2006. At that time he assumed Aviles Cruz was jailed.
In December 2005, the claimant
had filed an application to come to work in Canada to make money to expand his taxi
business. He traveled to Canada on April 9, 2006 and returned
to Mexico on November 28, 2006. In
December 2006, he resumed his volunteer activities with Vive sin Drogas. He did
not see Aviles Cruz at that time. On March 9, 2007, the claimant returned to Canada to work again. He had to
return to Mexico briefly one month later
because his father was very ill. He then travelled back to Canada, where he remained until
September 11, 2007.
In mid-May 2007, the female
claimant reported to the claimant that she was receiving suspicious phone
calls. By the end of May, she left her job and she and the minor claimants
abandoned the family home and went to live with her sister in Prados Sur, about
one hour from Coacalco. They never returned to the family’s house. The minor
claimants stopped going to school in Mexico
at that time as well. When the claimant returned from Canada, he joined his
family in Prados Sur. They soon went to visit the
claimant’s terminally ill father in Puebla.
While he was in Puebla, the claimant learned that
Aviles Cruz had been released from prison and was looking for him in Coacalco.
The family remained in Puebla until on or about October 4,
2007 when they traveled to Mexico
City. The
claimant journeyed to Canada on October 6, 2007. He made
his claim for refugee protection on March 24, 2008.
Two or three days after the
claimant left Mexico, the female and minor claimants went to hide in Veracruz with another of her sisters.
The female claimant traveled to Canada
on April 13, 2008 and made her claim for refugee protection on April 18, 2008.
The minor claimants remained in Veracruz
until they traveled to Canada on November 2, 2008. They
made their claims for refugee protection on November 3, 2008.
[4]
Counsel
for the Applicants argues that the following IFA finding is made in error of
law:
I find the claimants clearly had an
obligation to relocate, in this case to Guadalajara, and if the chance they
were to have problems with Aviles Cruz there, to approach the state before
seeking Canada’s protection.
I note that Aviles Cruz was arrested and jailed for a period of time, and based
on this, find that the police did offer protection to this claimant. There is
no persuasive evidence before me that the police would not offer protection to
the claimant in future, were he to seek it.
[…]
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 to say that claimants have an obligation to at least try to find some
place else to live, work and study in their own country before deciding to
leave it altogether.
I note that the claimant did not make any
attempt to seek an IFA elsewhere in the Republic of Mexico. The female and minor
claimants did move, first within the state of Mexico and then to Veracruz. While in both locations, I note that
they suffered absolutely no harm or threats over a period almost one year in
the female claimant’s case and a year and a half in the minor claimants’ case.
Based on the evidence in these claims, I find that the claimants had the onus
to move to an IFA, in this case specifically in Guadalajara, before leaving the country. The
claimants have not discharged their responsibility of showing that the risk of
harm they fear would be faced in every part of Mexico pursuant to section 97 (1)(b) of the IRPA.
[Emphasis added]
(Decision, paras. 17; 22 and 23)
[5]
There is
no question that Counsel for the Applicants is correct. In Alvapillai v. Canada (Minister of Citizenship and
Immigration),
[1998] F.C.J. No. 1160 at paragraph 3, Justice Rothstein states the law as
follows:
The viability of an IFA is to be
objectively determined and it is not open to an applicant, simply for his own
reasons, to reject the possibility of resettlement in his own country, if he
can do so without fear of persecution; see Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.) at
597-599. However, the way in which the panel has characterized the IFA test
here is not correct. The panel seems to be saying that it is up to an
individual, before he seeks the surrogate protection of Canada, to test the viability of an
IFA in his own country. The logical conclusion of his proposition is that an
applicant is obliged to test the IFA and suffer persecution before making a
refugee claim in Canada. This cannot be correct.
There is no onus on an applicant to personally test the viability of an IFA
before seeking surrogate protection in Canada.
In Victor Manual Martinez et. al. v. The Minister of Citizenship and
Immigration (IMM-3598-08, February 11, 2009), Justice Barnes applies
Justice Rothstein’s decision.
[6]
As a
result, I find the decision under review is made in reviewable error of law. Of
particular importance in the present case is the fact that the evidence
tendered by the Applicants was accepted as true. In my opinion on a
re-determination this element of the Applicants’ claim should not be
re-determined as it would be most unfair to have them prove themselves once
again. Whether an IFA exists for the Applicants in Mexico is the only issue for re-determination,
and, accordingly, in the order which follows, I give directions to achieve this
result.
ORDER
THIS COURT ORDERS that:
The decision under review is
set aside, and the matter is referred back to a differently constituted panel for
re-determination on the following directions:
1. The re-determination be
conducted on the basis that the Applicants’ evidence in support of their claim
for protection already produced before the RPD be accepted as true;
2. The re-determination be
focused solely on the question of whether an IFA is available to the Applicants
in Mexico; and
3. With respect to the IFA issue
only, the Applicants and the Respondent are at liberty to provide further evidence,
but, in any event, the Applicants must be made available for further
questioning on the evidence already provided to the RPD, and any new evidence
provided.
There is no question to
certify.
“Douglas
R. Campbell”
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