Date: 20110303
Docket: IMM-1021-10
Citation: 2011
FC 258
Ottawa, Ontario,
March 3, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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JULIAN JAVIER ARTEAGA
SANCHEZ
IRMA GARCIA REYES
HARU AYLANI ARTEAGA GARCIA
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Applicants
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated January 28, 2010, wherein the Board determined that the
applicants were not Convention refugees or persons in need of protection.
[2]
The applicants request an order setting aside the decision of the
Board and remitting the matter back for reconsideration by a different Board
member.
Background
[3]
The
applicants are Julian Javier Arteaga Sanchez (the principal applicant), Irma
Garcia Reyes (his wife) and Haru Aylani Arteaga Garcia (their daughter). They
are all citizens of Mexico seeking refugee protection in Canada.
[4]
According
to the Board decision, the facts are as follows. The principal applicant fears
a distant cousin named Mr. Hernandez, who began to regularly ask the principal applicant
for money in 2007. The principal applicant tried to stop giving his cousin
money when he learned that it was used to purchase illegal drugs. However, the
cousin then used his gang to force the principal applicant to pay extortion
money.
[5]
On
July 18, 2008, the principal applicant’s aunt was abducted by three individuals
who stole her property, insulted her and beat her. According to the principal
applicant, one of the perpetrators was the girlfriend of the cousin that he
fears.
[6]
On
August 29, 2008, the principal applicant’s wife, who had received death threats
over the phone, came to his place of work where some individuals yelled threats
at them. They were able to escape and subsequently filed a denunciation with
the police.
[7]
On
September 30, 2008, the principal applicant was abducted into a car by three
armed men allegedly under the influence of drugs. He was hit, threatened with death
and robbed of clothes, jewellery, money, his debit card and cell phone. He was
warned against reporting the incident to the authorities. He was injured,
requiring medication and two doctor’s visits. He filed a denunciation with the
police on October 1, 2008.
[8]
The
principal applicant’s wife received another death threat by telephone two days
before they left. The applicants arrived in Canada on October
24, 2008 and filed refugee claims on November 18, 2008.
Board’s Decision
[9]
The
Board rejected their refugee claims because there was no nexus with a
Convention refugee ground, because the presumption of state protection had not
been rebutted and because the applicants should have availed themselves of
their available internal flight alternative (IFA).
Nexus with Convention Refugee
Grounds
[10]
Since
the applicants fear a cousin, they argue that as members of a particular social
group, a family, they have a nexus qualifying them for Convention refugee
status. The Board rejected this argument, stating that victims of crime (like
the applicants) do not constitute a particular social group and that the
difficulties of family members of those persecuted for non-Convention reasons –
if those difficulties occur solely by reason of their connection with the
principal target – are not covered by the Convention. The Board cited case law
to support this.
State Protection and Credibility
[11]
Next,
the Board set out the law on state protection, then identified credibility
issues undermining the applicants’ claims to have sought police assistance.
[12]
The
Board acknowledged that the applicants claimed to have gone to the police and
filed denunciations on two occasions. However, the Board had concerns about the
veracity of the denunciations: though the documents bear an original stamp,
they appear to be photocopies and are not signed by the Public Ministry.
Further, the perpetrator was not identified in either denunciation and
information was missing in both the principal applicant’s and his wife’s
denunciations.
[13]
In
addition, the principal applicant says that he had problems with his cousin
since 2005, whereas his Personal Information Form (PIF) describes them as
beginning in 2007. Further, he did not seek help until much later, in August
2008, allegedly because he had no proof of the extortion. Even when he did go
to the police, he failed to identify the supposed perpetrator, allegedly
because of his mistrust of the authorities. As such, based on the scant
information given by the principal applicant, the authorities would have had no
information on which to base an investigation, observed the Board.
[14]
Furthermore,
the Board noted that the principal applicant believed that his perpetrators
were the same individuals who targeted his aunt. However, he claims to have
only learned this after arriving in Canada, although this incident occurred before
he and his wife were targeted in Mexico.
[15]
Finally,
even if the denunciations are authentic, they were filed just prior to the
applicants’ departure, giving the authorities insufficient time to initiate any
action.
[16]
The
Board concluded that these credibility concerns raise doubt as to whether the
applicants truly sought state protection. Even if they did, they did so only
after over a year of alleged extortion and shortly before their departure to Canada.
Internal Flight
Alternative (IFA)
[17]
The
Board began this section with several paragraphs setting out the two-pronged
legal test on IFAs. Then, the Board stated that the applicants had an
obligation to at least try to find a safe haven in Mexico before fleeing and
unless it were patently unreasonable for them to do so, their failure to at
least try would be fatal to their claims. The Board found that a viable IFA
existed for the applicants in Guadalajara, but that they had
never sought to relocate and had thus failed to fulfill their obligation to do
so.
[18]
The
principal applicant says that he did not relocate domestically because he could
be located by his aggressor anywhere in Mexico, either
through the cousin’s connections in the drug world or through his social
insurance number. The Board rejected these concerns because of documentary
evidence showing that aggressors are more likely to contact family members to
locate their prey than to use identifiers such as social insurance numbers or
voting cards. In this case, the only persons aware of the applicants’ location
were the husband’s parents, who know that he did not want his whereabouts
divulged, so ostensibly the applicants should not have feared being located.
[19]
The
Board then discussed the availability of state protection in Mexico, which she
apparently deemed sufficient. The Board explained that Mexico is a
functioning democracy to which the presumption of state protection applies. She
found that civilian authorities promote human rights and generally maintain
effective control of security forces. The Board considered Professor Hellman’s
report (which the applicants submitted to support the claim that adequate state
protection was not available), but rejected its findings because it contained
“blanket statements” rather than “statistics”. The Board went on in some detail
to describe Mexico’s
functioning police system and the resources available for victims of crime.
[20]
Further,
the Board found that it would not be unduly harsh to require the applicants to
seek refuge in another part of the country. They are a young family who was
sufficiently adaptable to move to Canada, so moving to Guadalajara would be
feasible for them. While there are problems of crime everywhere in Mexico, this issue
is faced by all Mexicans, but does not make them all eligible for refugee
protection, said the Board.
Issues
[21]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board commit
a reviewable error with respect to its findings on state protection?
3. Did Board commit a
reviewable error with respect to its application of the legal test for an IFA?
4. Did the Board fail
to provide adequate reasons for rejecting the Hellman report?
5. Did the applicants
receive a fair hearing on the merits of their claim?
Applicants’ Written Submissions
[22]
The
Board member began her IFA discussion by correctly setting out the two-pronged
test from Rasaratnam v. Canada (Minister of Employment and Immigration),
[1992] 1 F.C. 706 (C.A.), which requires an assessment of a) whether a safe
location is available in the home country and b) whether it would be reasonable
in the circumstances to require the applicants to go to this location.
[23]
The
applicants claim that the Board then went on to erroneously apply a third prong
of the test, by stating that they had an obligation to seek safety in Mexico
before fleeing to Canada and that their failure to do so was fatal to their
claims (paragraphs 26 and 38). The applicants submit that these two paragraphs
are a verbatim reproduction of the Board’s reasons in an earlier decision,
which was set aside by the Federal Court in Estrada Lugo v. Canada (Minister
of Citizenship and Immigration), 2010 FC 170.
[24]
In
paragraphs 34 through 40, of Estrada Lugo above, I found that requiring
the applicants to move to a potential IFA location before leaving Mexico was an
error in law that justified setting aside the decision. Although the Board had
correctly applied the first two prongs of the test, the findings on the third
prong appeared to be an important factor in the decision, so it was impossible
to know what would have been decided had only the correct test been applied.
The applicants argue that the decision presently under review constitutes an
analogous situation in that the same error was made and that this decision
should be likewise be set aside.
[25]
The
Board’s treatment of the report by Professor Hellman (the Hellman report) was
also the subject of a previous judicial review. In Villicana v. Canada (Minister of
Citizenship and Immigration) 2009 FC 1205 at paragraphs 72 to 77, Mr.
Justice James Russell analyzed the report and Hellman’s credentials at some
length, finding that “Professor Hellman’s work is authoritative and her
conclusions are startling,” and quoted the following passage, among others:
. . . Mexicans have no recourse to the
police for protection from wrongdoers as we do in Canada. It basically makes no sense to call on
the police to rescue oneself from harm. On the contrary it would create greater
risk for oneself in the situation.
[26]
Mr.
Justice Russell stated that while the Board did not have to accept the conclusions
of the Hellman report, it was at least obligated to review it and explain why
it could be discounted in favour of other reports.
[27]
The
applicants argue that the Board did not meet this obligation in the present
case, where the Board discounted the Hellman report simply because it was
“dated three years ago” and “refers to dated reports”. She also said that it
included “blanket statements” rather than “statistics on which the Board can
assess the merits” (see paragraph 34 of the Board’s reasons). The applicants
argue that these reasons for rejecting the report are neither reasonable nor
logical.
[28]
The
applicants point out that the documentary evidence favoured by the Board is in
fact equally or more dated than the Hellman Report and cites examples.
Furthermore, they note that there is no evidence of an improvement in Mexico’s security
situation since the Hellman report was written. The applicants also remind the
Court that only two months before the delivery of the Board’s decision, Mr. Justice
Russell, in Villicana above, considered the report to be authoritative
and presumably, up to date.
[29]
The
Board’s second reason for rejecting the Hellman report is its lack of
statistics supporting the statement that “Mexicans are less able than ever to
gain protection from the police”. The applicants submit that this justification
is unreasonable, since the Board’s decision contains no indication that it was
statistics in the documents that she preferred to the Hellman report that led
her to consider the documents useful.
[30]
Finally,
the applicants submit that the report was rejected simply because the Board was
predisposed to find that state protection was available. The applicants claim
that the Board’s reasons for rejecting the report betray a lack of attention to
detail that is inconsistent with the gravity of the matter at hand.
[31]
According
to the applicants, the transcript of the first day of the hearing reinforces
the impression that the Board failed to appreciate the gravity of the case
before her. The transcript reveals that while the applicants testified only for
one hour and thirty-five minutes, the Board expressed irritation at the length
of the hearing. She complained that he was “going on and on”, told the participants
to conclude as quickly as possibly because she “was not going to go without
lunch”, showed reluctance to accept written submissions because of the work
entailed and emphasized that any rescheduled hearing had to finish on the
rescheduled afternoon.
[32]
As
such, the applicants submit that their case was not properly heard by the Board
and that justice does not appear to be done, given the “short shrift” accorded
to the applicants’ testimony and evidence.
Respondent’s Written Submissions
[33]
The
respondent submits that contrary to the applicants’ assertions, the hearing was
fair, noting that the applicants were represented by counsel at the hearing.
The applicants did not raise the issue of unfairness or bias or reasonable
apprehension of bias during the hearing. Thus, they waived their right to
complain of unfairness at the judicial review stage.
[34]
The
respondent submits that the applicants have not shown that the hearing was
unfair. The Board conducted a thorough analysis and was reasonable with respect
to accepting written submissions. The transcript shows that the applicants were
given ample time to present their case.
[35]
The
respondent notes that where the standard of review is reasonableness, the Court
should not intervene with respect to reasonable decisions on IFA or state
protection, which fall into the Board’s area of expertise (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190). The Board’s findings on these issues fell
into the range of reasonable outcomes, as is evidenced by her reasons.
[36]
The
respondent submits that it was reasonable for the Board to conclude that the
applicants had not rebutted the presumption of state protection. The
denunciation documents were questionable, the applicants failed to give the
authorities sufficient time or information to investigate and they failed to
complain at all during the first year of the extortion.
[37]
International
refugee protection is available only where domestic state protection does not
exist (see Ward v. Canada (Minister of Employment
and Immigration), [1993] 2 S.C.R. 689 at page 709). To receive refugee
status, the applicants must show that they are unwilling or unable to avail
themselves of domestic state protection. In order to rebut the presumption of
state protection, it is insufficient for the applicants to merely show that Mexico has not
always been effective at protecting its citizens (see Canada v. Villafranca
(1992), 18 Imm. L.R. (2d) 130 (F.C.A.) at paragraph 7). The applicants’
assertion that they avoided approaching the state because they did not trust
the police, does not qualify them for Convention refugee status where it would
have been objectively reasonable for them to have sought that protection (see Canada
(Minister of Citizenship and Immigration) v. Flores Carrillo, 2008 FCA 94).
[38]
The
respondent reiterates that the Board’s finding was compatible with IFA law. In
order to be successful in seeking refugee status in Canada, a refugee
applicant should demonstrate that there was no avenue of redress in his home
country. As such, if an IFA is available, an applicant should first avail
himself of that option before seeking refugee status elsewhere (see Ward
above). The Court must take a holistic look at the entire decision, which
reveals that the Board reviewed the evidence and concluded that because the
applicants had an IFA, their refugee claim should be dismissed.
[39]
Furthermore,
even if it is accepted that the Board did make an error in using the word
obligation, it would nevertheless be futile to send the decision back for
redetermination because there still exists a viable IFA in Mexico. Moreover,
state protection is also available. Thus, reconsideration of the matter would
result in the same finding, which justifies not setting the decision aside (see
Cartier v. Canada (Attorney General), [2003] 2 F.C. 317 at
paragraph 31 (C.A.), citing Mobil
Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board,
[1994] 1 S.C.R. 202 at 228).
[40]
In
its analysis, the Board referred to documentary evidence which supported its
finding that the Mexican criminal justice system is functional. Contrary to the
applicants’ arguments, the Board did consider the contents of the Hellman
report, but decided to give it little weight, giving reasons for this decision.
[41]
The
Board is entitled to prefer other documentary evidence over the evidence
offered by the applicants. Just because the Board disagrees with some of the
evidence does not mean that all of the evidence has not been weighed.
Analysis and Decision
[42]
Issue
1
What is the appropriate
standard of review?
The applicants raise issues concerning
the assessment of evidence, the application of the tests for IFA and state
protection. These determinations are questions of fact and mixed fact and law
which fall into the Board’s area of expertise and are thus reviewable on a
standard of reasonableness (see Dunsmuir above).
[43]
However,
this presupposes that the Board has correctly set out the test for the IFA,
which is a question of law. The Board is not entitled to deference if it fails
to correctly articulate the test (see Estrada Lugo above, at paragraphs
30 and 31; Gonzalez v. Canada (Minister of Citizenship and Immigration) 2010 FC 691
at paragraph 7).
[44]
As
for the issue of procedural fairness, the appropriate standard is correctness
(see Dunsmuir above).
[45]
Issue
2
Did the Board commit a
reviewable error with respect to its findings on state protection?
[50]
The
applicants are correct in saying that the Board relies on evidence that is just
as dated as the Hellman report. For example, the IRB Issue Paper to
which the Board refers repeatedly (page 153 and following of the record) was
published in 2007. Furthermore, it is also true that no evidence suggests that
the security situation in Mexico has improved in the last three years.
[51]
While some of the reports which the Board favours over the
Hellman report, such as the U.S. Department of State’s Country Reports on
Human Rights Practices for 2008 (page 188 and following of the record) do
contain more references to numbers and statistics than does the Hellman report,
I am not convinced that the Hellman report’s more qualitative nature is a
reasonable justification for setting it aside.
[52]
I too find her reasons for rejecting the report to be
unreasonable and agree that they may suggest she was simply predisposed to find
that state protection was available, despite the findings of the report.
However, I would not agree that the transcript suggests that she was unaware of
the gravity of the matter at hand.
According to the applicants,
the Board erred by adding a third prong to the proper two-prong IFA test by
placing an onus on the applicants to actively seek out an IFA before fleeing.
The applicants claim that an identical error was the basis for my decision
setting aside a previous Board decision in Estrada Lugo above.
[55]
My
reading of the cases cited by the respondent is consistent with my description
of the law in Estrada Lugo above. A refugee claimant bears the
burden of showing that he or she is unable to return to the country of
residence. Contrary to the respondent’s suggestions, however, this rule does
not impose a positive obligation on the applicants to have actually attempted
to go to such an IFA location before leaving their country as did the Board.
[56]
I
agree with the applicants that the Board committed the same error in law in
this case that it did in Estrada Lugo above. Factually, on the issue of
IFA, the present case and Estrada Lugo above, appear analogous. The
respective applicants feared a family member and resisted relocating within Mexico because they
believed that they would be located there by their respective perpetrators. As
for the reasons in the respective decisions, much of the Board’s findings in
this case are a verbatim reproduction of the reasons set aside in Estrada
Lugo above. It appears to me that by imposing a positive obligation upon
the applicants to seek an IFA, the Board here has relied on the same faulty
understanding of the law that the Court rejected in Estrada Lugo above.
[57]
The
respondent submits that even if the Board did err in using the word obligation,
it would be futile to send the decision back for redetermination because a
viable IFA in Mexico nevertheless
exists. In paragraph 38 of Estrada Lugo above decision, I rejected an
identical argument made by the respondent in that case. I noted that because
the applicants’ failure to meet the obligation to seek the IFA was an important
factor in the Board’s decision, it was impossible to know how the case would
have been decided had that factor not been (erroneously) considered.
[58]
It
is worth noting that the respondent’s submissions on this issue appear to be the
same as their arguments in Estrada Lugo above, as illustrated by
a comparison of the “No error in alternative finding of IFA in Guadalajara”
section of the respondent’s further memorandum and paragraphs 25 to 27 of the Estrada
Lugo above, Federal Court decision. Given the similar facts and nearly identical
impugned decisions, the respondent’s reasoning, which was rejected in Estrada
Lugo above, should also be rejected here.
[59]
At the
hearing, the applicants’ counsel indicated that she was not relying on the
argument contained in Issue 5.
[60]
The
application for judicial review is allowed and the matter is referred to a
different panel of the Board for redetermination.
[61]
Neither party
wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[62]
IT IS
ORDERED that the
application for judicial review is allowed and the matter is referred to a
different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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.
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