Date: 20110615
Docket: IMM-5936-10
Citation: 2011
FC 703
Ottawa, Ontario,
June 15, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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TEODORO CORDOVA HERNANDEZ
AMALIA VALLE GARCIA
ERIC CORDOVA VALLE
EDUARDO CORDOVA
EVELYN CORDOVA
ERNESTO CORDOVA VALLE
EMANUEL CORDOVA
ELIZABETH CORDOVA
ERIKA CORDOVA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP &
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, SC 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 September 20, 2010, wherein the Board determined that
the applicants were not Convention refugees or persons in need of protection
under sections 96 and 97 of the Act.
[2]
The applicants request that the decision be set aside and the
claim remitted for redetermination by a different member of the Board.
Background
[3]
Teodoro
Cordova Hernandez (the applicant), born April 1, 1961, is a citizen of Mexico. With his wife, Amalia
Valle Garcia (the female applicant), he has nine children who are all citizens
of the United
States.
[4]
In
August 2007, the applicant returned to Mexico after living in the United States for approximately 27
years. He bought a restaurant in El Limon from Alejandro Jimenez (Mr.
Jimenez). The applicant alleges that several times he saw Mr. Jimenez
unloading drugs from a jeep behind the restaurant in El Limon.
[5]
After
three weeks, Mr. Jimenez locked the applicant out of the restaurant. The
applicant commenced an action against Mr. Jimenez and after he failed to appear
at the courthouse three times, a judge issued an arrest warrant for Mr. Jimenez
and eventually ordered him to pay the applicant for the restaurant.
[6]
The
applicant alleges that Mr. Jimenez also threatened him with a gun and tried to
hit him with his car.
[7]
The
applicant left Mexico in March 2008 and claimed refugee protection in Canada in July 2008. His wife
and children arrived in Canada in July 2009.
Board’s Decision
[8]
The
Board found that the applicants have a viable internal flight alternative (IFA)
anywhere in Mexico outside of a five hour radius from El Limon and, in
particular, in Mexico City.
[9]
The
Board disagreed with the applicant’s characterization of Mr. Jimenez as a powerful
and influential man in El Limon. The Board noted that when Mr. Jimenez did not
attend court three times, a judge issued an arrest warrant against Mr. Jimenez
and then ruled in favour of the applicant. The Board found that this is not
consistent with someone who has influence over the authorities.
[10]
The
Board, however, assessed whether an IFA existed, assuming that Mr. Jimenez is
powerful in El Limon. The Board found that according to the applicant, Mr.
Jimenez’s power does not go beyond a five hour radius of El Limon.
[11]
The
Board found that when questioned on what would happen if the applicant moved to
Mexico
City,
the applicant stated that Mr. Jimenez would know where the applicant was
located because everyone knew him. The Board also found, however, the applicant
admitted that it would be difficult for Mr. Jimenez to find the applicants in Mexico City.
[12]
The
Board concluded that the applicants would not face a serious possibility of
persecution or danger of torture, risk to life or cruel and unusual punishment if
they moved five hours from El Limon, such as to Mexico City.
[13]
The
Board also found that it would not be unreasonable for the applicants to
relocate to Mexico
City.
This was because they both spoke Spanish and had some work experience in Mexico and the United
States.
The female applicant’s entire family lived in Mexico.
Issues
[14]
The
issues are as follows:
1. What is the appropriate
standard of review?
2. Did the Board’s
failure to note the applicant’s illiteracy materially affect the decision?
3. Did the Board err by
basing the refugee determination on a finding of an IFA alone?
4. Was the Board’s IFA
finding reasonable?
Applicants’ Written Submissions
[15]
The
applicants submit that the Board made no negative credibility findings against
them and therefore their allegations are deemed to be true. This includes the
applicant’s testimony in his Personal Information Form (PIF) that Mr. Jimenez
is a member of the organized criminal group “Los Zetas.”
[16]
The
applicants submit that it was unreasonable to find that they would not face
persecution from Mr. Jimenez in Mexico City. The applicant’s
testimony was that there was a failed attempt at mediation in the courts and
that Mr. Jimenez in fact had little fear of the authorities. This is contrary
to the Board’s finding that Mr. Jimenez’s influence over the authorities was
non-existent. The applicants submit that the Board’s finding is speculation and
unreasonable.
[17]
The
applicants take issue with the fact that the Board did not cite any country
condition material and submit that this alone is a reviewable error. The
country documentation shows that Los Zetas are a powerful drug cartel and have
influence in Mexico
City,
including over police forces there.
[18]
According
to the applicants, the Board also erred in failing to address the applicant’s
testimony that he would not be safe anywhere in Mexico. The
applicants submit that the Board erred by finding that they would be safe in Mexico City simply
because of the size of the city.
[19]
The
applicants submit that the Board erred in finding that it would be reasonable
for the applicants to relocate to Mexico City. The Board ignored how
the applicant’s illiteracy would affect relocation. The Board over-exaggerated
the applicants’ work experience. The Board erroneously considered the female
applicant’s family in Mexico as a positive, although her family lives
within the five hour radius from El Limon. Finally, the Board ought to have
considered the best interests of the children in assessing the reasonableness
of the IFA.
[20]
The
applicants also submit that the failure to conduct a separate section 96 and 97
analysis was an error.
[21]
Further,
they argue that there was a breach in procedural fairness because the Board did
not deal appropriately with the applicant’s illiteracy.
Respondent’s Written Submissions
[22]
The
respondent emphasizes that a refugee claimant bears the onus of establishing
risk throughout the country and demonstrating that an IFA does not exist or is
unreasonable. The Board’s IFA finding is reasonable and supported by the
evidence before the Board, including evidence that Mr. Jimenez would have a
difficult time finding the applicants in Mexico City.
[23]
The
respondent submits that the Board’s disagreement with the applicant that Mr.
Jimenez was not a powerful man was based on the applicant’s testimony that a
judge ruled in the applicant’s favour against Mr. Jimenez. In addition, even
if this was unreasonable, the Board considered the possibility of an IFA
accepting that Mr. Jimenez is powerful in El Limon. The Board determined that
Mr. Jimenez did not have power outside of a five hour radius based on the
applicant’s own testimony.
[24]
The
respondent admits that the Board erred in considering that the applicant had
read his PIF, given his admission of illiteracy, but that this error did not
transfer to the IFA finding.
[25]
The
respondent submits that the Board was not required to assess the best interest
of the children because they are U.S. citizens and not claiming protection
against the United
States.
As such, they are not Convention refugees. The interests of affected children
need not be considered in every provision of the Act. The respondent notes that
the Federal Court of Appeal has held that sections 96 and 97 do not contemplate
a broad-ranging consideration of the best interest of the children.
Analysis and Decision
[26]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence has
determined the standard of review applicable to a particular issue, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[27]
Upon
judicial review, it is established that decisions of the Board concerning the
existence of an IFA are reviewed against the standard of reasonableness (see Rueda
v Canada (Minister of
Citizenship and Immigration), 2009 FC 828 at paragraph 58).
[28]
Issue
2
Did the Board’s failure to
note the applicant’s illiteracy materially affect the decision?
The
respondent has conceded that the Board erred in asking the applicant if he had
read and understood his PIF. I agree with the respondent’s submission that this
error did not affect the Board’s analysis on the issue of an IFA, as the
applicant was comfortable with the information he presented and his testimony
remained close to the narrative of the PIF. I do not consider the Board to have
handled the applicant in a manner that was not sensitive to his illiteracy.
[29] Issue
3
Did the Board err by basing
the refugee determination on a finding of an IFA alone?
The applicants submit that the
Board erred in basing the determination of the refugee claim on a finding of an
IFA alone, without assessing the fear of persecution or state protection.
[30]
First,
I disagree that the Board did not consider the applicant’s fear of Mr. Jimenez.
The Board noted the applicant’s belief that Mr. Jimenez was linked to organized
crime and had influence over police officers in El Limon. The Board disagreed with the applicant’s characterization of Mr.
Jimenez as having influence over all authorities because a judge had issued an
arrest warrant for Mr. Jimenez and had ordered Mr. Jimenez to pay the
applicant. This was a transparent assessment of the testimony of the applicant.
Nonetheless, the Board assessed the possibility of an IFA in the alternative,
accepting that the Mr. Jimenez was a powerful and influential man in El Limon.
[31]
Second,
while it may have been preferable for the Board to conduct a full analysis of
the risks alleged, the rejection of a refugee claim may stand alone on a
finding of a viable IFA.
[32]
As
Madam Justice Judith Snider held in Sarker v Canada (Minister
of Citizenship and Immigration), 2005 FC 353 at paragraph 7:
The
question of the existence of an IFA is a separate
component of the Board's analysis that can stand alone
(Tharmaratnam v. Canada (Minister of Citizenship &
Immigration), [1995]
F.C.J. No. 92 (Fed. T.D.)). Put simply, where an IFA is found, a claimant is not
a refugee or a person in need of protection (Zalzali c. Canada (Ministre de l'Emploi & de
l'Immigration), [1991] 3
F.C. 605 (Fed. C.A.), Rasaratnam v. Canada (Minister of Employment &
Immigration) (1991),
[1992] 1 F.C. 706 (Fed. C.A.)).
[33]
Mr. Justice
James Russell agreed with this conclusion in Khokhar v Canada (Minister of Citizenship and
Immigration), 2008 FC
449 at paragraph 39, holding that:
…the Board made a separate and
alternative finding regarding the availability of an IFA and, in my
view, that finding is sufficient to support the Board's overall conclusion that
the Applicant's are not Convention refugees and they are not at risk if
returned.
[34]
Likewise
in Del Real v Canada (Minister of Citizenship and
Immigration), 2008 FC 140 at paragraph 12,
Mr. Justice Michel Shore
held that:
The central issue to examine
in this case bears on the merits of the RPD's finding that the applicant, who
would be at risk in the city of San Juan,
"has a viable IFA in Mexico."
This finding alone was sufficient to dismiss her
refugee claim.
[35]
Consequently,
I do not consider the Board to have committed an error by determining the claim
on the IFA analysis.
[36]
Issue
4
Was the
Board’s IFA finding reasonable?
The legal principles of
IFA determinations are well settled. In applying for refugee status, a claimant
must seek protection from an entire state. If the country in question is able
to provide protection somewhere in its territory, the claimant must seek
protection in that location (see Zalzali c Canada (Ministre
de l'Emploi et de l'Immigration) (1991), 14 Imm LR (2d) 81(FCA)).
[37]
Mr. Justice Richard Mosely aptly summarized the test for an IFA in
Kumar v Canada (Minister of Citizenship and Immigration), 2004 FC
601 at paragraph 20:
In order for the Board to find that a viable and safe IFA exists
for the Applicant, the following two-pronged test, as established and applied
in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992]
1 F.C. 706 (C.A.) and Thirunaukkarasu, supra, must be applied:
(1) the Board must be satisfied on a balance of probabilities that
there is no serious possibility of the claimant being persecuted in the
proposed IFA; and
(2) conditions in the proposed IFA must be such that it would not
be unreasonable, upon consideration of all the circumstances, including
consideration of a claimant's personal circumstances, for the claimant to seek
refuge there.
[38]
Madam Justice Eleanor Dawson
reviewed the additional legal principles pertaining to IFAs in Saldana v Canada (Minister
of Citizenship and Immigration), 2008 FC 1092 at paragraph 22:
The law with respect to the existence of an internal flight
alternative was recently and succinctly reviewed by my colleague Justice Kelen
in Farias v. Canada (Minister of Citizenship & Immigration), 2008 FC 1035 (F.C.) at paragraph 34.
There, he noted that:
• It is the applicant who bears the burden of proof to demonstrate
that an internal flight alternative does not exist or is unreasonable.
• A high threshold must be met in order to establish that an internal flight
alternative is unreasonable.
• The fact that a refugee claimant may not be able to find suitable employment
in his or her field of expertise may or may not make an internal flight
alternative unreasonable.
[39]
The Board’s determination that
the applicant would not face persecution or risk of life, torture or cruel and
unusual punishment in Mexico City was reasonable. As shown below, the applicant stated that he was
not sure whether Mr. Jimenez had any power or influence outside of a five hour
radius surrounding El Limon. He also stated that it would be more difficult for
Mr. Jimenez to find him in Mexico City. The Board based its determination of the existence of an IFA on the
applicant’s own testimony. At page 354 of the certified tribunal record:
Q Do you know if his power is
extended to what levels of the authority?
A Well, here we have a village
called El Limon, then we have another town that is larger called Al Telan
(phonetic) and there’s also Cocula (phonetic).
Q These are towns nearby?
A Yes. That one that is the
farthest away is five hours.
Q Okay.
A All the police officer that
tend to these villages come from Cocula and that’s where his power resides.
Q So with the police force in
that town.
A In all of these towns in this
areas.
Q All the towns within a radius
of five hours.
A This is according to what I
know, but I do not know anything beyond this.
[40]
At pages 357 to 358 of the certified
tribunal record:
Q …What will happen to you if you
move to a city or village in Mexico outside of the five-hour
radius?
A I think that, given time, he
would realize where I was located because everyone there knows him.
Q If you go to Mexico City, a city of 20 million, how
would he know?
A I think that in such situation
or in this case it would be somewhat more difficult.
Q You mean it will be difficult
for him to find you in Mexico
City?
A Yes, it could be that it would
be somewhat more difficult.
[41]
Further, the
applicant stated in his testimony that the reason why he could not return to Mexico
to a different location was his desire to keep his children away from the
dangers of alcohol and drugs in Mexico.
[42]
The
applicant bore the onus to establish that no IFA existed. However, he testified
that he did not know whether his agent of persecution, Mr. Jimenez, had power
or influence farther than five hours from El Limon. He further testified that
he thought it would be difficult for Mr. Jimenez to find him in Mexico City. It was unnecessary for the Board
to refer to the country condition materials after these admissions by the
applicant. The Board considered the personal characteristics of the applicant
and his agent of persecution and reasonably found that this did not meet the
burden of demonstrating that an IFA did not exist.
[43]
The applicant also did not meet
the high threshold of proving that it would be unreasonable to relocate to Mexico City, under
prong two of the IFA test (see Saldana above). The Board did not
exaggerate that the applicant’s wife has some work experience in the United States and Mexico. Further,
the ability to find work in the proposed IFA is not essential to a finding that
the IFA is reasonable (see Saldana above). Nor was it necessary for the
Board to find that the applicant had family in Mexico City for it to
be a reasonable IFA (see Saldana above). In addition, the Federal Court
of Appeal has held that the best interests of the children do not apply to
every provision of the Act, including sections 96 and 97 and, moreover, the
children in this case are American citizens and not claiming protection against
the United States (see Varga v Canada (Minister of Citizenship and
Immigration) 2006 FCA 394 at paragraph 13). The applicant has not
demonstrated that the Board’s finding that the applicants could relocate to Mexico City was
unreasonable.
[44]
The application for judicial
review is therefore dismissed.
[45]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[46]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 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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