Date: 20120213
Docket: IMM-5522-11
Citation: 2012 FC 195
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Montréal, Quebec, February 13, 2012
PRESENT: The Honourable
Mr. Justice de Montigny
BETWEEN:
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MA DE LOS ANGEL GARCIA
GUEVARA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review based on section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision dated
July 6, 2011, by the Refugee Protection Division of the Immigration and
Refugee Board (the panel) refusing to grant the applicant refugee status on the
ground that she is neither a Convention refugee nor a person in need of
protection under sections 96 and 97 of the IRPA.
[2]
For
the following reasons, the Court is of the view that this application should be
dismissed. Although the merits of the panel’s decision regarding state
protection can be called into question, the same is not true of its findings on
the availability of an internal flight alternative.
Facts
[3]
The
applicant, Maria De Los Angel Garcia Guevara, is 40 years old and is from Ciudad
Juarez in Mexico.
[4]
She
married Octavio Eduardo Gonzalez Perez when she was 17. A child was born of
this union. Unfortunately, her husband was extremely violent throughout the
entire marriage. The applicant was subjected to physical, psychological and
sexual abuse on a number of occasions, and her husband even tried to kill her.
[5]
The
applicant finally asked for a divorce and obtained one on October 10,
2003. However, that did not end her problems with her ex‑husband, who
continued to harass her.
[6]
On
August 10 and December 26, 2004, she filed a complaint against her ex‑husband
with the police. However, no action was taken on these complaints apparently
because her ex‑husband’s brother worked at the police station where she
filed the complaints. Her problems nonetheless diminished for a while because
her ex‑husband was hospitalized for a mental disorder.
[7]
During
this period, the applicant began a new relationship with one Carlos Rojo
Chavez. In 2006, a child was born of this relationship.
[8]
In
2008, the applicant’s life was turned upside down again when her ex‑husband
was released from hospital. She tried to move, but her ex‑husband always
managed to find her.
[9]
Finally,
one of the applicant’s brothers gave her enough money to flee the city of Ciudad
Juarez. The applicant arrived in Canada on April 12, 2009, and claimed refugee status
by reason of her membership in a particular social group, i.e. women.
Impugned decision
[10]
The
panel did not question the applicant’s credibility or her account. However, it
rejected her refugee claim because she had not made sufficient efforts to avail
herself of state protection. The panel also believed that an internal flight
alternative existed in Mexico City.
[11]
With
respect to state protection, the panel commented that the applicant had gone to
the same police station to file her two complaints against her ex‑husband,
knowing full well the second time that her complaint would not be taken
seriously. In the panel’s view, the applicant should have taken other steps to
seek state protection and therefore had not exhausted all her recourses.
[12]
Regarding
an internal flight alternative, the panel stated that the applicant could have
moved to Mexico City. It did not accept the applicant’s argument that she did
not want to move there because she knew no one there even though she came to
Canada seeking its protection, a country where the language and culture are different
from hers. In addition, the panel did not believe the applicant when she stated
that her brothers, who live in the Ciudad Juarez area, were unable to help her
deal with her ex‑husband’s threats and attacks.
Issues
[13]
This
application for judicial review raises two issues:
a. Did the panel
err by finding that state protection was adequate?
b. Did the panel
err by finding that an internal flight alternative existed?
Analysis
[14]
Both
issues are questions of mixed fact and law that fall within the panel’s expertise.
Accordingly, they are both subject to the reasonableness standard (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Huerta v Canada (Minister
of Citizenship and Immigration), 2008 FC 586, 167 ACWS (3d) 968).
(a) Did the
panel err by finding that state protection was adequate?
[15]
The
applicant submitted that the panel erred by imposing an excessive burden on her
in relation to rebutting the presumption in favour of adequate state
protection. In particular, she contends that it is absurd to ask her to exhaust
all her recourses when the documentary evidence describes Ciudad Juarez as the
city with the highest murder rate in the world and where a large number of
women have been killed in recent years. The requirement to exhaust all recourses
can only apply, she argues, in fully democratic countries, not in an emerging
democracy.
[16]
This
argument cannot succeed. In this regard, it is appropriate to review the
principles of state protection. First, there is a presumption that a state is
capable of protecting its nationals unless there is a breakdown of the state
apparatus (Canada (Minister of Employment and Immigration) v Villafranca
(1992), 150 NR 232, 37 ACWS (3d) 1259). However, this presumption may be
rebutted by clear and convincing proof (Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689 (available on CanLII)). As a result, the onus is on the
refugee claimant to adduce evidence and to convince the panel that the
protection of his or her state of origin is inadequate in order to justify
seeking international protection. The applicant must discharge this burden on a
balance of probabilities (Carrillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94 at paragraph 30, [2008] 4 FCR 636 [Carrillo]).
In Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA
171, 362 NR 1, the Federal Court of Appeal wrote (at paragraph 57):
. . . a claimant coming from a democratic country
will have a heavy burden when attempting to show that he should not have been
required to exhaust all of the recourses available to him domestically before
claiming refugee status.
[17]
These
words are not intended to alter in any way the standard applicable in these
matters. In fact, the Federal Court of Appeal stated in Carillo, supra
(at paragraph 26):
. . . I think our colleague, as did La Forest J.
in the Ward case, referred to the quality of the evidence that needs to
be adduced to convince the trier of fact of the inadequate state protection. In
other words, it is more difficult in some cases than others to rebut the
presumption. But this in no way alters the standard of proof.
[18]
In
this case, the applicant is suggesting that there is a variable standard of
proof based on the degree of democracy that exists in the refugee claimant’s
country: a higher standard of proof where the refugee claimant comes from a
country in which democracy has been established for a long time and a less
rigorous standard of proof for countries whose democratic institutions are
still fragile. The applicant is misunderstanding the standard of proof that
applies in state protection matters. In all cases, the standard of proof is that
of a balance of probabilities. Consequently, I cannot agree with the theory
that the panel erred with respect to the applicable standard of proof.
[19]
Having
regard to that standard, was it reasonable to require the applicant to do more
to seek protection from the Mexican state? It is true, as the panel noted, that
filing two complaints at the same police station, despite the fact that her
spouse’s brother worked there and that the first complaint was not acted on,
does not perhaps attest to a major effort to obtain protection from the
authorities. No doubt the applicant could have, at the very least, gone to
another police station, even to another state level. On the other hand, there
is ample documentary evidence that the city of Ciudad Juarez is extremely
violent, to such a degree that perhaps it is unrealistic to expect any
protection at all. The panel appears to have completely ignored this fact and
does not discuss it at all in its reasons. For this reason, I am ready to
consider that this first branch of the decision does not meet the
reasonableness standard.
[20]
On
the other hand, I am of the view that the panel could consider the possibility
of an internal flight alternative for the applicant in Mexico City. It is
settled law that the onus is on refugee claimants to establish that they cannot
find refuge in their country of origin. For the purposes of this analysis, it
is important to apply the two‑stage test developed by the Court of Appeal
in Rasaratnam v Canada (Minister of Employment and Immigration), [1992]
1 FC 706. The applicant therefore had the burden of proving, on a balance of
probabilities, that she faced persecution everywhere in Mexico and that it was
objectively unreasonable for her to avail herself of an internal flight
alternative.
[21]
In
this case, the panel noted that the applicant had always lived in the same city
and that it would not be unreasonable for her to relocate to a large city like
Mexico City. On the other hand, the panel found that there was nothing to
indicate that she could not establish herself there; it is true that she has no
family there, but she does not have any in Canada either. In this respect, it
should be reiterated that it is important to adduce concrete evidence showing
that it would be unreasonable to seek refuge in her own country:
We read the decision of Linden J.A. for this Court as setting up a
very high threshold for the unreasonableness test. It requires nothing less
than the existence of conditions which would jeopardize the life and safety of
a claimant in travelling or temporarily relocating to a safe area. In addition,
it requires actual and concrete evidence of such conditions.
Ranganathan v Canada (Minister of Citizenship
and Immigration),
[2001] 2 FC 164 at paragraph 15.
[22]
The
applicant dealt at some length with her subjective fear of being tracked down
by her ex‑husband but provided no evidence that he could in fact locate
her in a city other than Ciudad Juarez. In the absence of actual solid evidence
of a serious risk of persecution preventing her from settling elsewhere in
Mexico, the panel was correct in finding that the applicant had not discharged
her burden of proof and had not demonstrated that there was no internal flight
alternative.
[23]
In
light of the foregoing reasons, the application for judicial review is
dismissed. No question is certified.
JUDGMENT
THE COURT
RULES that
the application for judicial review is dismissed. No
question is certified.
“Yves
de Montigny”
Certified
true translation
Mary
Jo Egan, LLB
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