Date: 20100301
Docket: IMM-2158-09
Citation: 2010 FC 238
Ottawa, Ontario, March 1,
2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
EUSEBIO FRIAS MUNOZ
CLAUDIA FLORES SOTO
VIVIAN AUDREY FRIAS FLORES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
The
applicants are a family and citizens of Mexico. They
challenge the April 8, 2009 decision by a member of the Refugee
Protection Division (the tribunal or the RPD) who determined the applicants
were not Convention Refugees and are not persons in need of protection.
[2]
I
note this is their second appearance before the Refugee Division. The first
negative finding they received was set aside by Justice Dawson, then of this
Court, in Munoz v. Canada
(Minister of Citizenship and Immigration), 2008 FC 995 on
the basis the then tribunal had relied on the case of Xue v. Canada
(Minister of Citizenship and Immigration), 195 F.T.R. 229 for its state
protection finding, a case which was subsequently impugned by the Federal Court
of Appeal. In
present case, I also note the
tribunal did not make a finding on the availability of state protection despite
the fact the principal applicant did not complain to the police.
[3]
Counsel for
the applicants raises three principal issues in their challenge to the decision:
1. It erred in
law by applying the wrong test for what constitutes a generalized risk under
section 97 of the Immigration and Refugee Protection Act (IRPA) and
misconstrued the nature of the risk faced by the applicants.
2. It erred in
finding the applicants had a viable IFA in Tijuana, Monterrey and Guadalajara. She argues
such finding was unreasonable being made without regard to the evidence and moreover
having applied an erroneous heightened standard of proof in its IFA analysis.
3. It made an
unreasonable plausibility finding in the light of the evidence, erred by
requiring the applicants to provide corroborating evidence and denied them
procedural fairness by effectively preventing Mr. Munoz from providing a proper
explanation.
Background
[4]
In
his Personal Information Form (PIF), Mr. Munoz writes he is an accountant by
profession and worked for almost 6 years as a manager in a Volkswagen
dealership in Mexico
City.
[5]
He
fears returning to Mexico because he experienced extortion at the hands
of Gerardo Garcia, a Judicial Police Officer and a member of a large criminal
gang. He claims this person has threatened his life and that of his wife and
daughter.
[6]
Mr.
Garcia, Mr. Munoz asserts, was part of a group of people who came on several
occasions to the dealership to buy used and sometimes new cars. They were
always together; they were armed and some of them wore the badge of the
Judicial Police. They rode in Judicial Police vehicles.
[7]
Mr.
Munoz’s problems began in August 2004 when Mr. Garcia told him he and
his friends had been good customers of his dealership and would remain so
provided they were remunerated for past sales. Mr. Munoz said he refused the
extortion. Mr. Garcia then threatened him. The demands for money continued with
Mr. Munoz always refusing, but not reporting the extortions to the Public
Ministry, as he feared Mr. Garcia would find out and would exact retribution.
Nor did he report the extortion to the owner of the dealership he was a senior
officer of.
[8]
In
September 2005, Mr. Munoz indicates Mr. Garcia came to the dealership
asking for a free new car. He refused and moved his family to his aunt’s home
outside of Mexico
City,
fleeing that country on November 16, 2005 leaving his family behind;
they eventually joined him on March 31, 2006.
[9]
In
his testimony, Mr. Munoz acknowledged he did not seek state protection i.e.
make a complaint about the extortions he had undergone because his persecutor
being a member of the judicial police, protection would not be reasonably
forthcoming.
The tribunal’s decision
[10]
The
tribunal first ruled on a nexus finding his fear of persecution is a fear
of being a victim of crime in Mexico and had no connection with any of the five
grounds of persecution spelled out in the Convention. This conclusion was not
challenged by the applicant. The focus of the tribunal’s decision is on the
applicability of section 97 of IRPA which reads:
|
Person in need of
protection
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. [Emphasis mine.]
|
|
Personne
à protéger
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. [Je souligne.]
|
Credibility
[11]
The
tribunal seemed not to doubt some aspects of Mr. Munoz’s testimony (for example
it believed him about his being extorted) writing: “The panel views Garcia’s
actions of extortions as a rogue policeman no differently from extortions from
criminal gangs on persons perceived to be wealthy.”
[12]
Yet,
under a heading in its decision entitled: “Well-foundedness of the claimant’s
fear” it wrote this was a determinative issue and found “a material aspect of
the claimant’s story hard to believe” for the following reasons: (1) he
never told his boss – the owner of the dealership – about the extortions
nor sought his help, a step the panel views “as a reasonable expectation in
view of the circumstances”; (2) since he never filed a denunciation with the
police or other law enforcement authority regarding the extortions, there is no
documentary corroboration of his story; and, (3) his parents, who were
approached by people looking for their son, did not complain to the police and
did not provide him with corroborating documentation to support the statements.
After emphasizing once again, it found it hard to believe he would not have
sought the advice/assistance of the owners of the dealership because the
dealership was key to the extortions the tribunal concluded:
"On the basis of the foregoing the
panel is not persuaded, on the balance of probabilities, to believe that the
extortions and threats on him by Garcia did occur and even that Garcia is looking
for him and or/his wife and child to this day.” [Emphasis mine.]
Generalized risk
[13]
The
tribunal began by stating: “If the foregoing were not the issue, generalized
risk would be expressing the view paragraph 97(1)(b) of IRPA does not extend
protection to those facing a risk that is generally faced by others in that
country finding Mr. Munoz, and by extension his family, fit this description
for the following reasons: (1) based on the evidence, “being a victim of crime
and violence at the hands of rogue policemen and criminal gangs in the
country is a “prevalent” or “widespread” risk generally faced by residents of
Mexico”, [adding] “as an affluent and successful member of society he would be
perceived as wealthy, and if believed, the reason why he would be victimized by
Garcia for extortion.”; and, (2) it relied on the case of Vickram v. Canada
(Minister of Citizenship and Immigration), 2007 FC 457 (Vickram) for
the propositions: (a) what Mr. Vickram faced was criminal activity; (b) which
was not greater than that faced by the population at large; and, (c) the
perception of wealth did not constitute a particularized risk under section 97.”
It also relied on Prophète
v. Canada (Minister of Citizenship and Immigration), 2008 FC 331 (Prophète)
for the determination “the risk of all forms of criminality is general and felt
by all Haitians” and “while a specific number of individuals may be targeted
more frequently because of their wealth, all Haitians are at risk of becoming
the victims of violence.” The tribunal concluded:
Based
on the foregoing, the panel is of the view that the risk faced by the claimant,
if the story that he was victimized by Garcia were true, is criminal
activity and is a generalized and prevalent risk faced by all those businessmen
perceived to be wealthy and by the population at large. As such, the claimant’s
risk as described is an excluded risk.
[Emphasis mine.]
The existence of an internal flight risk alternative
(IFA)
[14]
According
to the tribunal, the availability of an IFA was also conclusive against the
claimants. The tribunal’s focus was on Mr. Munoz’s claim Mr. Garcia would have
access to the updated information on their Voter Registration Cards (VRC) to
trace him. Relying on documentary evidence, the tribunal concluded there was no
substantial evidence of VCR database use to trace individuals.
[15]
As
for the three named cities where the Munoz family could seek refuge, the
tribunal wrote:
As
for the possible internal flight alternative cities, either of Guadalajara or Monterrey or Tijuana, each have thriving populations with
civic services to assist inhabitants with their social and security needs.
Taking into consideration the two-pronged test in Rasaratnam and Thirunavukkarasu,
the claimants could easily blend into the mass of people in the possible
internal flight alternative city, with the potential to live comfortably
without having to hide.
The
panel is, therefore, satisfied that it is not more than likely that the
claimants would be found by Garcia, if he was pursuing them, in the proposed
internal flight alternative and finds that conditions in the alternative city
are such that it would not be unreasonable, in all the circumstances, for the
claimants to seek refuge there. [Emphasis mine.]
The Arguments
(a) From the applicants
(1) The implausibility finding
[16]
Counsel
for the applicant first focuses on the single implausibility finding from which
the tribunal inferred it did not believe “that the extortions and the threats
on him by Garcia did occur and in any event that Garcia is looking for him or his
wife and child to this day”. The tribunal drew this implausibility finding
because his story it found it hard to believe for the factors set out in
paragraph 12 of these reasons.
[17]
Counsel
for the applicant submits this implausibility finding is unreasonable in the
light of the evidence and specifically: (1) the tribunal did not refer to the
explanation why he did not inform the owner of the dealership about the
extortion or seek help. His explanation was not inherently implausible; (2) it
erred in making the implausibility by basing it upon a lack of corroborating
evidence; (3) the inference drawn is unreasonable in the light of the evidence
– the facts and the evidence on the record; and, (4) the applicant was denied
natural justice when he was prevented from explaining further why he did not
approach the owners of the dealership.
(2) Generalized risk
[18]
The
applicant submits the tribunal erred by misreading the law when it relied on Vickram and Prophète.
The facts before it showed his targeting by Garcia was not random but
specific to him.
(3) The IFA
[19]
The
applicants submit the IFA finding is flawed because: (1) it applied the wrong
standard of proof by requiring the applicant to demonstrate it was “more than
likely” the applicants would be found by Garcia; and, (2) the tribunal’s
conclusions are erroneous: (a) that although Garcia would have access to
information through government databases, due to the volume of information
contained in such, “it would be impractical to search within the database for
information on a specific individual given the current limits of data
processing technology”; and (b) in the three named cities in Mexico “each have
thriving populations with civic services to assist inhabitants with their
social and security needs”. The applicants submit these findings are made
without regard to the documentary evidence.
(b) From the respondent:
[20]
Counsel
for the respondent in written argument, submits the tribunal’s finding the
applicants’ claims were not well founded was entirely reasonable particularly
in the context there was no documentary proof of the extortions and of the allegation
that the principal applicant was sought. The respondent submitted referring to all
of the evidence is not a requirement and cited Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875 “reasons are not to
be read microscopically; it is enough they show that they have a grasp of the
issues”.
[21]
There
is no basis for the argument natural justice was breached. A reading of the
transcript shows the tribunal or the tribunal officer did not attempt to limit
the principal applicant’s testimony but was trying to get him to focus on his
answers.
[22]
On
the issue of generalized risk, counsel for the respondent submits the
applicants faced “a generalized risk faced by those businessmen perceived to be
wealthy and by the population at large”, a finding which was open to it on the
evidence since it was shown Mr. Garcia belonged to a large organized criminal
gang and was part of a large group that came to the dealership. Based on his
own evidence, his job at the dealership was a successful one, the tribunal’s
finding he would be perceived to be wealthy was justified. She pointed to
recent judgments of this Court that support the proposition indiscriminate at
random are not preconditions to a finding of a generalized risk.
[23]
Lastly,
counsel argued the IFA finding was reasonable. The respondent submitted
“although the Board may have articulated the wrong standard of proof in the
fourth paragraph at page six of its reasons, a review of the reasons
demonstrate – it did not hold the applicant to a higher burden than the balance
of probabilities. Counsel stressed the fact there was no evidence of concrete
examples where Voter Registration cards had been used to trace an individual.
Counsel did acknowledge, however, the applicants had pointed out to contrary
evidence but argued that should not sway the Court because it appeared the
applicants were dissecting the evidence and using only those which favoured its
side.
[24]
In
its further memorandum of argument, the respondent argues the correct test was
used to gauge the IFA. Counsel for the respondent writes: “The Board uses this
phrase not to articulate any kind of test but rather to comment on something
else – an absence of reliable evidence in relation to the Applicant’s assertion
that Garcia would find the Applicants anywhere in Mexico. The Board makes this
point clear when it states: “….. the panel is not persuaded that it [referring
to government databases] can be used by Garcia, if he were even inclined to do
so, to track down the claimants within Mexico and finds on a balance of
probabilities, that it cannot be or is not used for that purpose.”” Counsel
for the respondent adds when the decision as a whole is read, it is clear the
Board applied the correct test for an IFA and the tribunal’s decision is
reasonable.
The Standard of Review
[25]
Questions
of breach of natural justice or applying the right legal test raise questions
of law which must be considered on the basis of correctness.
[26]
Where
the question before the Court involves findings of fact, the standard is
reasonableness taking into account what Justice Binnie said in Canada (Citizenship and
Immigration) v. Khosa,
2009 SCC 12 that paragraph 18.1(4)(d) of the Federal Courts Act provides
legislative precision to the reasonableness standard namely a high degree of
deference.
Analysis and Conclusions
(1) Unreasonable implausibility finding
[27]
In
its written and oral submissions, counsel for the respondent did not seriously
engage the Court on this point and, in substance, abandoned the point to
concentrate on the issue of the wrong test for the assessment of the
generalized risk under paragraph 97(1)(b) of IRPA and the wrong standard of
proof in addition to the correctness of the IFA finding.
[28]
In
any event, I find the applicants’ arguments compelling on this issue as set out
in counsel’s written representations. Counsel correctly stated the law on
implausibilities and applied it fairly to evidence. I agree with counsel for
the respondent, however, in her written representations, there was no breach of
natural justice in the manner the tribunal handled the issue of the cut-off by
the Tribunal Officer of the principal applicant’s explanation why he did tell
the owners of the dealership about the extortions. The applicants’ objection to
the implausibility finding is therefore sustained.
(2) Generalized risk
[29]
The
tribunal relied on the Vickram and Prophète
cases in support of its finding the risk the applicants were facing was
“generally faced by other individuals in Mexico”.
[30]
The Vickram case
involved an Indo-Guyanese claimant whose refugee claim was refused. He had
testified he believed he had been targeted because of his wealth. The tribunal
held the acts of violence he suffered were “random criminal acts faced
generally by civilians.”
[31]
In
Vickram, my colleague Justice de Montigny pointed to Mr. Vickram’s
testimony he was a well-established business man with a big home and was making
lots of money. Justice de Montigny held the tribunal correctly instructed
itself on the law “which says the risk faced must not be indiscriminate or
random and one faced generally by the entire population. The panel concluded
the risk Mr. Vickam faced was of criminal activity, and that the risk was no
greater than that faced by the population at large.” [Emphasis mine.]
[32]
I
agree with counsel for the applicants, the extortion and threats which Mr. Munoz
alleges were not random. Mr. Munoz was specifically and personally targeted by
Mr. Garcia because of his unique position – the head of sales at a car
dealership which is why Garcia and his friends came there. If returned, Mr.
Munoz does not fear being subject to random acts of violence by unknown
criminal gangs. He fears Mr. Garcia.
[33]
The
tribunal’s reliance on Prophète is also misplaced. There is no evidence
on the record Mr. Garcia extorted Mr. Munoz because he was wealthy. In fact,
the last demand he made was for a free new car. I could find no evidence in
which Mr. Munoz testified he was a wealthy man. Being successful does not mean
that person is wealthy.
[34]
Prophète is of no assistance to
the respondent. At the Federal Court of Appeal, cited Prophète v. Canada (Minister of Citizenship and Immigration), 2009 FCA 31, [2009] F.C.J. No. 143, that
Court held a section 97(1) claim requires an individualized inquiry to
be conducted on the basis of the evidence by a claimant “in the context of a
present or prospective risk for him” which supports the applicants’
submission of specificity and uniqueness. The applicants’ objections are
sustained on this point.
(3)
The IFA
[35]
Counsel for the
respondent argued the three findings made by the tribunal were in the
alternative and if the applicants failed on one of them, this Court
could not intervene. The IFA was the finding which the respondent emphasized
was unimpeachable. Counsel for the respondent submitted the tribunal’s IFA
finding was reasonable; it was basically a finding of fact which is owed great
deference. Its further memorandum of argument is limited to the IFA. In that
memorandum, counsel characterizes the applicants’ submission “as nothing more
than a game of semantics” presumably referring to the issue of the correct
standard of proof. As noted, the nub of this argument is whether the tribunal
required a higher standard of proof than the balance of probabilities to enable
the applicants to discharge their onus.
[36]
The tribunal’s
finding was expressed in this way:
The
panel is, therefore, satisfied that it is not more than likely that the
claimants would be found by Garcia,
if he was pursuing them, in the proposed internal flight alternative and finds
that conditions in the alternative city [sic] are such that it would not
be unreasonable, in all the circumstances, for the claimants to seek refuge
there. [Emphasis mine.]
[37]
In Rasaratnam v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, Justice
Mahoney speaking for the Federal Court of Appeal noted the concept of an IFA is
inherent in the definition of Convention refugee which led him to formulate the
first proposition of the IFA test as: “I would, accordingly, restate the first
proposition: the Board must be satisfied on a balance of probabilities that
there is no serious possibility of the claimant being persecuted in the part of
the country to which if finds an IFA exists.” [Emphasis mine.]
[38]
Even
accepting the respondent’s argument that “not more than likely” means in the
balance of probabilities the tribunal still erred. Restated his finding is to
this effect “the panel is satisfied on the balance of probabilities (more
likely than not) the claimants would be found by their persecutor Garcia”. This
is not the proper test. The test is serious possibility of being found.
[39]
With
respect, this is not a matter of semantics but goes to the hearth of the
distinction between sections 96 and 97 of IRPA. In Rasaratnam, the Court makes it clear the concept
of IFA is associated with section 96 and not 97 where the risks are indeed
tested on the balance of probabilities.
[40]
I
find another error, even assuming the tribunal was correct in its analysis of
the VRC issue. The tribunal erred in providing no analysis on the second branch
of the IFA test – whether it would be unreasonable for the claimants to move to
one of those cities. The tribunal simply expressed a conclusion. This lack of
analysis is particularly egregious in the absence of a finding of adequate
state protection in Mexico. The applicants’
objection on this issue succeeds
[41]
For
these reasons, this judicial review application must be allowed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
judicial review application is allowed. The tribunal decision is quashed and
the applicants’ claim is to be reconsidered by a differently constituted
tribunal. No certified question was proposed.
“François Lemieux”
____________________________
Judge
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