Docket: IMM-464-11
Citation: 2011 FC 1041
Ottawa, Ontario, September 1, 2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
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SERGIO EDUARDO LOYA DOMINGUEZ
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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 ORDER AND ORDER
[1]
The
Applicant, Sergio Eduardo Loya Dominguez, is a citizen of Mexico. He fears
persecution by persons associated with the National Action Party (PAN) and the La Linea cartel,
which has ties to the PAN. He fled to Canada after being abducted
and tortured for five days by individuals he believes are members of the La Linea cartel. He
believes that those persons were acting on the instructions of a former
candidate for mayor in the municipality in which he lived.
[2]
Mr.
Loya Dominguez’s application for refugee protection was rejected by the Refugee
Protection Division of the Immigration and Refugee Board of Canada on the basis
of the Board’s determination that he has a viable and objectively reasonable Internal
Flight Alternative (IFA) in Mexico City.
[3]
Mr.
Loya Dominguez submitted that this determination by the Board was unreasonable.
[4]
I
agree. For the reasons that follow, this application for judicial review will
be granted.
I. Background
[5]
Mr.
Loya Dominguez
lived in
Gomez Farias, a small town in the Chihuahua district of Mexico. He worked for the
municipality doing paving and pipe installation jobs, and as a large machine
operator.
[6]
In
addition, Mr. Loya Dominguez worked on the mayoral campaign of Benjamin Ortiz,
a candidate of the Institutional Revolutionary Party (PRI), who was elected
mayor in 2007.
[7]
In
October 2008, Mr. Loya Dominguez was assigned to check the drainage system near
the home of Armando Garcia, a member of the PAN who had unsuccessfully run
against Mr. Ortiz in the 2007 election. He alleges that Mr. Garcia came out of
his home and demanded that he and his colleagues cease their work as they were
blocking the entrance to his home. In response, Mr. Loya Dominguez referred Mr.
Garcia to his boss, Rosario Chayo. Shortly thereafter, Chayo was killed.
[8]
Approximately
a week after his encounter with Mr. Garcia, and a few days after
Mr. Chayo’s funeral, Mr. Loya Dominguez was
abducted on his way home from work. He was held for four days and tortured. He
was beaten with a hard blunt object on his head, sustained numerous stab wounds
from a knife and was sexually assaulted. He also heard screams from other rooms
in the building where he was being held and believed that some of the people in
question were being killed. On the fifth day, his abductors demanded that he
kill Mr. Ortiz, or else they would kill him and a member of his family. He was
released after agreeing to comply with that demand.
[9]
After
being dumped in a remote location, Mr. Loya Dominguez made his way home and
sought medical treatment with the assistance of his family. He was hospitalized
for two days and his stab wounds required surgery. After he was released from
hospital, he went to live briefly at his sister’s home, before fleeing to Canada in January
2008.
[10]
Before
his departure, he contacted Mayor Ortiz to alert him about what had happened.
Mr. Ortiz warned him not to return to Gomez
Farias, as he would be in danger there.
[11]
In
November 2008, Mr. Loya Dominguez’s family came to Canada. However,
they had to return to Mexico when their visa expired. Rather than
return home to face a risk of death at the hands of the La Linea Cartel or
others encouraged by Mr. Garcia, Mr. Loya Dominguez stayed in Canada and filed a
refugee claim in January 2010.
II. Decision
under Review
[12]
At
the outset of its analysis, the Board observed that Mr. Loya Dominguez had
“testified in a straightforward manner” and that “there were no material
inconsistencies in his testimony or contradictions between his testimony and
the other evidence” in the certified tribunal record (CTR).
[13]
The
Board then stated that the determinative issue in Mr. Loya Dominguez’s claim is
whether he has an IFA.
[14]
The
Board proceeded to find that it did not have enough corroborative evidence to
establish “a connection between Garcia and the kidnapping and [Mr. Loya
Dominguez’s] work with PRI and La Linea gang.” In addition, the
Board found that “the reason given by the claimant as to why the gang would be
after him today, because he did not kill Ortiz, is no longer an important
factor as Ortiz is no longer in the position of Mayor within the community.”
[15]
After
reviewing a psychological report that was prepared by Dr. Hap Davis, and making
various observations regarding the nature of available health care in Mexico City, the Board concluded
that Mr. Loya Dominguez has a viable and objectively reasonable IFA in Mexico City.
Accordingly, it rejected his claims for refugee protection under sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27
(IRPA).
III. Standard
of Review
[16]
The
Board’s determination that Mr. Loya Dominguez has a viable and objectively
reasonable IFA in Mexico City raises questions of mixed fact and law that are
reviewable on a standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paras 51-55). In short, the Board’s determination
will stand so long as it falls “within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
at para 47), and provided that “the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility” (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 59).
[17]
That
said, in reviewing the Board’s determination with respect to the availability
of an IFA in Mexico City, the Court must be satisfied that the Board applied
the correct legal test for determining the existence of an IFA (Khosa,
above, at para 44).
IV. Analysis
[18]
In
my view, the Board’s decision must be set aside on multiple grounds.
[19]
Most
importantly, the decision does not fit comfortably with the principles of
justification, transparency and intelligibility. The analytical framework of
the decision is very difficult to follow, in part because it is not clear
whether the Board applied the correct legal test for determining the existence
of an IFA, and in part because it is not clear what conclusions the Board
reached in respect of the components of that test (Canada (Minister of Citizenship and
Immigration) v Ragupathy, 2006 FCA 151, [2007] 1 FCR 490, at para 14).
[20]
The
correct legal test for determining the existence of an IFA has two prongs. In a
claim for protection under section 96 of the IRPA, the first prong is whether,
on a balance of probabilities, an applicant has established a serious
possibility of being persecuted in the IFA area. In a claim for protection
under section 97 of the IRPA, the test for that prong is whether the applicant
has established a likelihood of being persecuted in the IFA area. For the
purposes of both sections 96 and 97 of the IRPA, the second prong is whether in
all the circumstances, including circumstances particular to the applicant,
conditions in the IFA area are such that it would not be unreasonable for the
applicant to seek refuge in the IFA area (Rasaratnam v Canada (Minister of
Employment and Immigration), [1992] 1 FC 706, at 711 (CA); Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1994] 1 FC 589, at 597
(CA); Ranganathan v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 164, at paras 14-15 (CA)).
[21]
In
its decision, the Board did not make reference to any specific test in
assessing whether Mr. Loya Dominguez has an IFA in Mexico City, and it did not employ any language to
suggest that it applied the correct test with respect to each of its two
prongs. Indeed, the plain language of the decision suggests that the Board did
not apply the correct test.
A. The First
Prong of the IFA Test
[22]
With
respect to Mr.
Loya Dominguez’s claim
under section 96, the Board appears to have reached a negative determination on
the basis that “there is no corroborative evidence to determine definitely
the agent of persecution” (emphasis added). Although the Board stated this
conclusion somewhat differently in paragraph 23 of its decision, where it
observed that it did “not have enough corroborative evidence before [it]
to make these connections [between Mr. Loya Dominguez and the La Linea
cartel]” (emphasis added), a reader can only assume from reading these two
statements together that the word “enough” meant “sufficient to determine definitively”.
This was too high a burden. Mr. Loya Dominguez merely had to establish, on a balance of
probabilities, a serious possibility of being persecuted in Mexico City by that agent of
persecution (Rasaratnam, at 710).
[23]
The
Board also erred by appearing to reject Mr. Loya Dominguez’s claim on the basis of
insufficient “direct evidence as to the agent of persecution” (emphasis
added). In my view, the Board should have specifically addressed whether the
circumstantial evidence adduced by him was such as to establish a serious
possibility of persecution at the hands of the La Linea cartel, or its alleged
affiliate, the Los Zetas cartel.
[24]
Moreover,
the Board erred by failing to address important evidence that was contrary to
its conclusion on this point, namely, the fact that masked men visited Mr. Loya
Dominguez’s
wife in late 2009, five days after her return to Mexico, and searched her residence looking for
him. This evidence corroborated Mr. Loya
Dominguez’s testimony that the La Linea cartel is still interested in him, because he “mocked
them by not doing what they wanted [him] to do.” It therefore should have been
addressed by the Board (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35; Canada (Minister of Citizenship and Immigration) v
Ryjkov, 2005 FC 1540; Ahmed v Canada (Minister of Citizenship and
Immigration), 2004 FC 1076, at paras 13-15; Surajnarain
v Canada (Minister of Citizenship and Immigration), 2008 FC 1165, at paras
6 and 7; Uluk v Canada (Minister of Citizenship and Immigration), 2009
FC 122, at paras 16 and 32).
[25]
It was unreasonable for the Board to fail to
consider this evidence, together with: (i) the alleged links between the police
in Mexico City and the La Linea/Los Zetas criminal network; and (ii) the
circumstantial evidence that supported Mr. Loya Dominguez’s fear of persecution
and future torture at the hands of that criminal network on grounds that at
least in part related to his political opinions.
[26]
Had
the Board considered this evidence and concluded, on a balance of
possibilities, that there was a serious possibility that the La Linea cartel has a continuing
interest in pursuing
Mr. Loya Dominguez, it would then have had
to assess whether Mr. Loya Dominguez likely would be able to
avail himself of adequate state protection in Mexico City (Cosgun v Canada (Minister of
Citizenship and Immigration), 2010 FC 400, at paras 44-52).
[27]
The
points made in paragraphs 25 and 26 above are equally applicable to the Board’s
assessment of Mr.
Loya Dominguez’s
claims under section 97, except that the test would have been whether there was
a likelihood that the La Linea cartel has a continuing interest in pursuing
Mr. Loya
Dominguez.
B. The
Second Prong of the IFA Test
[28]
The
Board’s conclusion with respect to this prong of the test was that Mr. Loya Dominguez
“will find safety in Mexico
City” and
therefore Mexico
City “is
an objectively reasonable IFA in all the circumstances.” Although this is an
unusual way in which to state the test, it is consistent with the
jurisprudence, which “requires nothing less than [a demonstration of] the
existence of conditions which would jeopardize the life and safety of the
claimant in traveling or temporarily relocating to a safe area” (Ranganathan,
above, at para 15).
[29]
That
said, I find that the application of that test to the particular facts of this
case was unreasonable. In particular, in assessing whether it would be
reasonable for Mr. Loya Dominguez to return to Mexico and
live in Mexico
City, the
Board appeared to place significant weight on the following considerations:
i. “Mexico is a highly developed
country with a large population of well-educated
medical
professionals capable of offering treatment to the claimant”;
ii. “The claimant
could go to live in Mexico
City where
his skills from working abroad
would benefit him
immensely in finding employment and healthcare facilities would be large, most
likely staffed from the university medical programs with students who would be
up-to-date on the latest medical health treatments”;
iii. “The
hospitals would be relatively well-funded as it is [sic] the capital
city and there would be access available to many private health facilities.”
[30]
However,
there does not appear to be any support in the evidentiary record for these
statements. The Board appears to have simply speculated that these things are
true. In my view, at least some of these propositions are questionable and
therefore require support. They are not simply matters in respect of which the
Board is entitled to rely on its own experience and expertise (Tran v Canada (Minister of
Citizenship and Immigration), 2006 FC 1377, at para 31). Given that these
considerations were identified as the only reasons for not accepting the
psychological assessment prepared by Dr. Hap Davis, and for reaching the
contrary conclusion that the Applicant’s safety would be “assured” in Mexico City, this aspect of the
Board’s assessment was unreasonable (Canada (Minister of Employment and
Immigration) v Satiacum (1989), 99 NR 171).
[31]
Finally,
as to the Board’s treatment of Dr. Davis’ report, the Board appropriately
addressed Dr. Davis’ assessment that Mr. Loya Dominguez “would suffer
disproportionately in any return scenario,” that his “symptoms would escalate,”
that “he would not be able to maintain a job” and that “because of his anger he
may be of danger to himself or his family”. The Board also noted that “the
report presents a strong case with respect to the psychological needs of the
claimant.” In my view, this: (i) reflected the most important points in Dr.
Davis’ report; (ii) was not an unreasonable treatment of that report; and (iii)
distinguished this case from the cases relied upon by Mr. Loya Dominguez.
Accordingly, I do not agree with Mr. Loya Dominguez’s submission that the Board
erred by failing to give sufficient consideration to that report.
V. Conclusion
[32]
The
Board’s decision is unreasonable and will therefore be set aside.
[33]
No
question was proposed for certification and none arises.
ORDER
THIS COURT
ORDERS that:
1.
The
application for judicial review is granted. The Board’s decision dated December
24, 2010 is set aside. The matter is remitted to another panel of the Board for
redetermination in accordance with these reasons.
2.
No
question of general importance is certified.
“Paul S. Crampton”
____________________________
Judge
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