Date: 20091116
Docket: IMM-3099-09
Citation: 2009 FC 1164
Vancouver, British Columbia, November
16, 2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ADRIANNA AZNAR ALVAREZ
JUAN MANUEL ROMO AVILA
JUAN ANDRES ROMO AZNAR
MARIA CRISTINA ROMO AZNAR
JOSE ERIC CALVA CABRERA
MARIA FERNANDA AZNAR ALVAREZ
MONSERRAT ERIKA CALVA AZNAR
ANDREA DANIELA MADRAZO AZNAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board of Canada
dated May 15, 2009, wherein it was determined that the applicants were not
Convention refugees and not persons in need of protection.
Background
[2]
The principal applicants,
Adriana
Aznar Alvarez (‘Adriana’) and her sister Maria Fernanda (‘Maria’) Aznar
Alvarez, sought to recover money allegedly defrauded from their mother and
grandmother in 2001 by a cousin, Ernesto Aznar. In doing so, they attempted to
have him arrested and prosecuted. In return, they and their family members
faced death threats which ultimately led them to seek protection in Canada in 2007. On
one occasion, the threat was emphasized by a gun pointed to the head of one of
the applicants. Since coming to Canada, the applicants have
continued to pursue their legal remedies against Ernesto through a lawyer in Mexico.
Decision
Under Review
[3]
The
panel accepted the facts of the claim as credible but found no fear of
persecution on a Convention ground. The applicants were not found to be
persons in need of protection as the member concluded that they had an internal
flight alternative (IFA) in Mazatlan, Sinaloa. Mazatlan is several thousand kilometers away
from Ernesto’s home in Merida and approximately one
thousand kilometers away from the applicants’ former home in Aguascalientes.
[4]
The
member accepted that Ernesto had the means to find the applicants in Mazatlan if he wished to. The
member concluded, however, that Ernesto has no interest in actually harming the
applicants. He had not actually harmed anyone in the family despite their
efforts to have him arrested. Having considered the conditions in Mazatlan and the
circumstances of this case, the member found that it is objectively reasonable
for the applicants to seek refuge in Mazatlan.
Issue
[5]
The
issue is whether the panel member erred in failing to assess whether the death
threats against the applicants made an IFA in Mazatlan objectively unreasonable.
Analysis
[6]
The
applicants submit that questions of law arise in this application in two
respects and that the standard of review for those questions should therefore
be correctness. First, they submit that it is a question of law whether being
subjected to death threats in the IFA constitutes a risk to life, or of cruel
and unusual treatment. Second, they submit that it is a question of law whether
death threats affect the objective reasonableness of the proposed IFA. They
agree that the global standard of review of the panel’s decision should be
reasonableness.
[7]
The
starting point for any analysis of the standard of review is now Dunsmuir v.
New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9 (Dunsmuir). In Dunsmuir, the Supreme
Court of Canada abandoned the patent unreasonableness standard leaving only two
standards of review, correctness and reasonableness. The Supreme Court also
held that a standard of review analysis need not be conducted in every
instance. Where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review.
[8]
Prior
to Dunsmuir, it was settled law that an IFA determination was a highly
fact-driven finding which called for a high degree of deference: see for
example Mohammed
v. Canada (Minister of Citizenship and
Immigration),
2003 FC 954, [2003]
F.C.J. No.1217. The leading authorities were the Federal Court of Appeal
decisions in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, [1991] F.C.J. No. 1256, Thirunavukkarasu
v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 589,
[1993] F.C.J. No. 1172 and Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164, [2000] F.C.J. No.
2118. As set out in Rasaratnam, at paragraph 10, the Board must be satisfied on a balance of
probabilities that (1) there is no serious possibility of the applicant facing
persecution in the IFA; and (2) in all of the circumstances, it is not
unreasonable for the applicant to seek refuge there.
[9]
In
Thirunavukkarasu, at paragraph 2, Linden J.A. clarified the concept of
an IFA in these terms:
…It should first be emphasized that the
notion of an internal flight alternative (IFA) is not a legal defence. Neither
is it a legal doctrine. It merely is a convenient, short-hand way of describing
a fact situation in which a person may be in danger of persecution in one part
of a country but not in another….
And at paragraph 13:
It is not a question
of whether in normal times the refugee claimant would, on balance, choose to
move to a different, safer part of the country after balancing the pros and
cons of such a move to see if it is reasonable. Nor is it a matter of whether
the other, safer part of the country is more or less appealing to the claimant
than a new country. Rather, the question is whether, given the persecution in
the claimant's part of the country, it is objectively reasonable to expect him
or her to seek safety in a different part of that country before seeking a
haven in Canada or elsewhere.
Stated another way for clarity, the question to be answered is, would it be
unduly harsh to expect this person, who is being persecuted in one part of his
country, to move to another less hostile part of the country before seeking
refugee status abroad?
[10]
This
sets a very high threshold for the unreasonableness test, as Létourneau J.A.
observed in Ranganathan at paragraph 15: “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.” To accept
anything less would be to allow persons to seek protection in Canada simply
because they would be better off physically, economically and emotionally
here than in a safe place in their own country: Ranganathan, at
paragraph 16.
[11]
Since
Dunsmuir, it has been held that a Board’s decision concerning questions
of fact is reviewable upon the standard of reasonableness: Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427, [2008] F.C.J. No. 515; see
also Navarro v. Canada (Minister of
Citizenship and Immigration), 2008 FC 358, [2008] F.C.J. No. 463, at
paragraphs 11-15.
[12]
In a
case such as this one, there might be more than one reasonable outcome.
However, as long as the process adopted by the tribunal and its outcome fits
comfortably with the principles of justification, transparency and intelligibility,
it is not open to a reviewing court to substitute its own view of a preferable
outcome (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12,
[2009] S.C.J. No. 12, at paragraph 59).
[13]
In
the context of an IRPA section 97(1)(b)(ii) claim for protection, as in this
case, the applicants must demonstrate that removal to their country would
subject them personally to a risk to their life or to a risk of cruel and
unusual treatment or punishment if 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. The question of whether the risk would be faced by the applicants
in every part of the country is a question of fact. The Court’s review of that
determination by the tribunal calls for a high degree of deference and the
standard is one of reasonableness.
[14]
I
do not think it was necessary in this case, as a matter of law, for the panel
member to analyse whether Ernesto’s death threats amounted in themselves to a risk
to the lives of the applicants or to a risk of cruel and unusual treatment or
punishment. It is clear that the member would have accepted that the applicants
were persons in need of protection but for her finding that the threats were
empty and that Ernesto had no actual intention of carrying them out during the
years in which the applicants had actively sought to have him jailed for fraud.
This was a factual finding that was reasonably open to the member on the
evidence. She did not simply dismiss the threats as unrealistic but considered
the context in which they had been made in the course of the on-going dispute
between the parties. That context had included a threat to Ernesto by one of
the male applicants that he would make it impossible for Ernesto to carry on
his businesses.
[15]
The
question that was determinative was whether it was objectively reasonable for
the applicants to move to another and distant part of Mexico, Mazatlan, before seeking
the protection of Canada from which to continue their legal case against
Ernesto. The member considered that it was, notwithstanding her finding that
Ernesto had the capability to locate the applicants in Mazatlan if he chose
to do so. It would have been speculative to assume that Ernesto would continue
to utter threats against the applicants should they have taken up residence in Mazatlan and to
consider whether such threats, which the member had found to lack substance,
would render the IFA unreasonable. There was no actual and concrete evidence of
conditions which would jeopardize the lives and safety of the applicants in
that area, per Raganathan, above at paragraph 15.
[16]
In
my view, applying a high degree of deference, the process adopted by the
tribunal and its outcome fits comfortably with the principles of justification,
transparency and intelligibility and meets the reasonableness standard. Neither
of the parties proposed a serious question of general importance and none will
be certified.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that:
1. the
application for judicial review is dismissed; and
2. no question
of general importance is certified.
“Richard
G. Mosley”
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