Date: 20120417
Docket: IMM-6268-11
Citation: 2012 FC 443
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa,
Ontario, April 17, 2012
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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CLAUDIA MARGARI OLIVARES
SANCHEZ
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Applicant
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and
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THE 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 from a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated August 22,
2011, which determined that the applicant was neither a refugee nor a person in
need of protection. The two determinative issues are state protection and an
internal flight alternative (IFA).
I. Background
[2]
The
applicant is a Mexican citizen. She arrived in Canada on January
26, 2009, and applied for refugee protection upon her arrival. Her application
is based on the following allegations.
[3]
The
applicant worked as a cashier at the Unicornio bar in the city of Tijuana from
February 2007 to December 19, 2008, the date on which she was dismissed due to
a lack of work. When she was dismissed, her boss apparently confirmed to her
that she would be paid everything she was owed for her earnings and severance
pay. However, the employer refused to pay her all of the money she was owed.
The applicant contacted a lawyer who filed a complaint on her behalf with the
Secretariat of Labour and Social Welfare (Secretariat of Labour) in order to
try and recover the amount she was owed.
[4]
On
January 12, 2009, the applicant went to the bar to deliver to her former
employer a notice to appear at a conciliation and arbitration hearing before
the Secretariat of Labour. On January 15, 2009, the applicant was approached by
three individuals who told her to withdraw the complaint she had filed against
her employer if she valued her life. Fearing for her life, the applicant tried
to withdraw her complaint the following day. She was allegedly informed that
her complaint could not be withdrawn because the process was already underway.
On January 16, 2009, the applicant was approached by two other individuals who
threatened her with death if she did not withdraw her complaint with the
Secretariat of Labour. That same day, the applicant filed a complaint with the
office of the public ministry regarding the threats she had received on January
15, 2009. At that time she was informed that an investigation would be
conducted and the evidence shows that a preliminary investigation was launched.
[5]
The
applicant did not return to the office of the public ministry after she was
threatened
on January 16, 2009. Instead, she made
arrangements to leave Mexico, which she did on January 26, 2009.
II. Impugned decision
[6]
The
Board determined that the claim for refugee protection did not fall under
section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (the Act) and it analyzed the application under paragraph 97(1)(b) of
the Act.
[7]
The
Board did not question the credibility of the applicant. Rather, it found that
she had not rebutted the presumption of state protection and concluded that
there was an IFA available to her.
[8]
The
applicant challenges the Board’s decision on three grounds. She first argues
that the Board erred by failing to consider the application from the
perspective of section 96 of the Act. She further argues the Board’s findings
with respect to state protection and an IFA were unreasonable.
[9]
The
Board’s findings regarding the presumption of state protection and the
existence of an IFA were both determinative, regardless of whether the
application was considered from the perspective of either section 96 or section
97 of the Act. Therefore, it is sufficient for one of these findings to be reasonable
to defeat this application for judicial review.
[10]
For
the reasons that follow, I believe that the Board’s finding with regard to the
existence of an IFA was reasonable and that the Court’s intervention is not
warranted. Given this conclusion, there is no need to proceed with the analysis
of the Board’s finding with regard to state protection.
III. Standard of Review
[11]
It
is well established that standard of review of reasonableness is to be applied
to the findings of the Board with respect to the existence of an IFA (Sanchez
v Canada (Minister of
Citizenship and Immigration), 2011 FC 926 (available on CanLII); Lebedeva
v Canada (Minister of
Citizenship and Immigration), 2011 FC 1165 (available on CanLII)). In
determining whether the Board’s decision was reasonable, the Court will focus
on the justification of the decision, the transparency and intelligibility
within the decision-making process, as well as whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190).
[12]
At
the beginning of the hearing, the Board identified the Federal District of
Mexico and Mérida in the Yucatan peninsula as IFAs.
Later during the hearing, the Board also cited the city of Puebla as an IFA
because the applicant’s mother and son have lived there since 2001 and they did
not have problems related to the applicant.
IV. Analysis
[13]
The
Board analyzed the two parts of the test for determining whether there was an IFA
available.
[14]
With respect
to the first part of the test, the applicant stated that she could not live
elsewhere in Mexico because her agent of persecution, who works for a company
which has bars in other Mexican cities, would end up locating her with the help
of government databases. The Board dismissed this argument and concluded that
the applicant had not established that it was likely that her life would be at
risk in the locations identified as IFAs. The Board concluded from the
documentary evidence that it would be difficult to locate someone in Mexico using government databases
(Tabs 2.4, 3.4 and 3.6). The Board found the allegation of corruption in Mexico insufficient to lead it to
conclude that the applicant’s persecutor had such extensive connections so as
to enable him to gain access to these databases. The Board also determined that
the applicant had failed to show, on a balance of probabilities, that her
persecutor would be able to gain access to the databases or that he would have
an interest in pursuing her.
[15]
With
respect to the second part of the IFA test, the Board determined that the
applicant had failed to demonstrate that it would be unreasonable for her to
move to the locations identified as IFAs. The Board noted that the applicant
was young, that there was nothing preventing her from moving to another part of
the country and that she would likely be able to find work in the locations
identified as IFAs.
[16]
I find the
Board’s decision to be entirely reasonable in light of the evidence.
[17]
The question of whether or not an IFA exists is
integral to the determination of a refugee claim (Rasaratnam v Canada
(Minister of Employment and Immigration) (1991), [1992] 1 FC 706, 31 ACWS
(3d) 139 (CA)). Once an IFA is raised, the applicant bears the burden of
proving that it either does not exist or that it is unreasonable in the
circumstances (Thirunavukkarasu v Canada (Minister of Employment and Immigration)
(1993), [1994] 1 FC 589 at para 12, 109 DLR (4th) 682 (CA)). A decision
with regard to whether or not an IFA exists involves an assessment of the
circumstances with regard to the conditions in the applicant’s country of
origin, but it also requires an assessment of the applicant’s particular circumstances.
The security conditions in the country are certainly elements to consider, but
this assessment should not be carried out in a general and abstract manner; it
must be placed in context with the particular situation faced by the applicant
in order to determine whether, in light of all of the circumstances, there is
an IFA available to the person claiming refugee protection. An IFA assessment is a two-part process. First, the Board
must be satisfied, on the balance of probabilities, that there is no serious
possibility of the person in question being persecuted, subject to a danger of
torture, a risk to life, or subject to a risk of cruel and unusual treatment or
punishment in the proposed IFA. Second, it must be reasonable for the person in
question to seek refuge there, given the conditions in the proposed IFA (Rasaratnam,
above; Thirunavukkarasu, above).
[18]
In
this case, it was entirely reasonable for the Board to find that the applicant
had not discharged her burden, with respect to both parts of the IFA analysis.
[19]
The
applicant’s allegations regarding the likelihood of her agent of persecution
having both the desire and the means to pursue her throughout Mexico are general
and purely speculative. It was clearly insufficient to cite the fact that the
owner of the bar where she had worked owned other bars elsewhere in the country
and that, if he transferred his manager, it was possibly that he might be able
to locate her. Moreover, the applicant does not know what resulted from the complaint
she had filed and claimed that she was unable to contact her lawyer. In this
context, it was pure speculation to claim that her lawyer must have accepted a
bribe from her agent of persecution. It was also pure speculation for her to
allege that her former employer was a vindictive person who had dealings with [translation] “people who do illegal
things”.
[20]
The
threats received by the applicant had been made as a result of the complaint
she had filed and which, in fact, was not successful. The applicant’s agent of
persecution obtained what he wanted (for her not to proceed with the complaint)
and there is no evidence to indicate that he continued to pursue the applicant;
thus, it was entirely reasonable to believe that she could seek refuge in
another part of the country without being persecuted. The evidence shows that
the applicant’s mother and son remained in Tijuana after the
applicant’s departure without incident.
[21]
With
respect to the second part of the IFA analysis, the applicant in no way
discharged her burden of proving that it would be unreasonable for her to
relocate to one of the proposed IFAs. One need only think of Puebla as a place
where the applicant could live with her mother and son. She failed to
demonstrate how it would be unreasonable to believe she could move to that city
and find work.
[22]
In
Ranganathan v Canada (Minister of
Citizenship and Immigration) (2000), [2001] 2 FC 164 at paras 15-16
(available on CanLII) (CA), the Court of Appeal noted that there is a high
threshold with regard to this second part of an IFA analysis:
15 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 that 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. The absence of
relatives in a safe place, whether taken alone or in conjunction with other
factors, can only amount to such condition if it meets that threshold, that is
to say if it establishes that, as a result, a claimant’s life or safety would
be jeopardized. This is in sharp contrast with undue hardship resulting from
loss of employment, loss of status, reduction in quality of life, loss of
aspirations, loss of beloved ones and frustration of one’s wishes and
expectations.
16 There are at least two reasons why it is important not to lower that
threshold. First, as this Court said in Thirunavukkarasu, the definition
of refugee under the Convention “requires claimants to be unable or unwilling by
reason of fear of persecution to claim the protection of their home country in
any part of that country”. Put another way, what makes a person a refugee under
the Convention is his fear of persecution by his home country in any part of
that country. To expand and lower the standard for assessing reasonableness of
the IFA is to fundamentally denature the definition of refugee: one becomes a
refugee who has no fear of persecution and who would be better off in Canada physically, economically and emotionally than
in a safe place in his own country.
[23]
Given
these principles and the evidence in the record, I find that the Board’s
decision contains no errors that would warrant the intervention of this Court.
[24]
No
question for certification has been proposed by the parties and none arises.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed. There is no question for
certification.
“Marie-Josée
Bédard”
Certified
true translation
Sebastian
Desbarats, Translator
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