Docket: IMM-1295-14
Citation:
2014 FC 1158
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, December 3, 2014
Present: The Honourable Mr. Justice Noël
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BETWEEN:
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BRANDON NAZARETH GARRIDO PALMA
AND
JORGE FLORES LEAL
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application
for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA) of a decision made
on February 4, 2014, by Gilles Crête of the Immigration and Refugee Board of
Canada, Refugee Protection Division (RPD) dismissing the applicants’ refugee
claim under section 96 and subsection 97(1) of the IRPA.
II.
The facts
[2]
The applicants, Jorge Flores Leal (Jorge), 42 years,
and Brandon Nazareth Garrido Palma (Brandon), 23 years, are both Mexican citizens.
[3]
Brandon was sexually
assaulted by Andres Villalever, director of the home Las Fuentes Pauxim where
he was a resident. Mr. Villalever was also his taekwondo instructor. Jorge, the
co-applicant, was a caregiver and instructor in this orphanage.
[4]
The applicants reported the sexual assaults of Mr.
Villalever.
[5]
Jorge received death threats from Mr. Villalever
in February 2008. Brandon and Jorge both received death threats from this same
person in November 2008. The purpose of threatening Brandon was to pressure him
so that he would recant by writing to Jorge Huguenin, president of Pauxim
foundation, who manages the home, regarding the sexual assaults that he
apparently experienced.
[6]
Mr. Huguenin then threatened the applicant Jorge
on April 10, 2009. He also warned both applicants to leave Mexico if they wanted to live.
[7]
On April 13, 2009, Jorge went to the Human
Rights Commission of the city of Guadalajara with child victims of sexual
assaults by Mr. Villalever, including Brandon, but they were told that it would
do no good to file a report regarding the sexual assaults.
[8]
The applicants arrived in Canada on April 23, 2009, and claimed refugee protection.
III.
Impugned decision
[9]
The identity of the applicants is not under
dispute.
[10]
The RPD made findings on the truthfulness of the
allegations advanced by the applicants and on the subjective fear advanced by the
applicants.
[11]
The RPD also accepted the expert report of Dr.
Pelletier dated April 2013 and the psychologist’s report dated April 9, 2013. However,
the RPD is of the view that the applicants did not provide information that
they allegedly did not have access in Mexico to the same care relating to their
physical and emotional well-being.
[12]
The RPD then assessed the applicants’ Internal
Flight Alternative (IFA) and the profile of the applicants’ agents of
persecution.
[13]
The applicants explained to the RPD that they have
not received threats since they arrived in Canada on April 23, 2009, and that
they did not know whether their persecutors knew that they were in Canada.
[14]
The RPD questioned Jorge as to whether he had received
threats when he lived in Hidalgo, between February 2008 and April 2009, where
he has family. He replied no, supposing that his persecutors did not know where
he was. Brandon also resided for some time in Hidalgo from January 2009 to April
2009, where he did not work and only lived with Jorge’s parents. Jorge also stated
that his family had not heard of Mr. Villalever or Mr. Huguenin since the arrival
of the applicants in Canada.
[15]
In response to the question posed to Jorge by
his counsel as to why he did not stay in Hidalgo, Jorge answered that the
reason was that he was sick and that he was causing a risk for his family, because
his persecutors could contact him at any time. He added that he was staying
hidden and was having his anxiety treated. The RPD did not believe that Jorge was
staying hidden given that he travelled regularly between his residence and his
workplace.
[16]
The RPD questioned the applicants as to why they
could not establish themselves in Hidalgo or in other cities in Mexico, such as Monterrey and Santiago de Querétaro. The applicants answered that these cities were
still in Mexico and their persecutors allegedly had ways to find them.
[17]
After examining the IFA, the RPD is of the view
that the applicants did not receive threats from the persecutors when they were
in Hidalgo and they did not show that their situation would be different if they
moved to other cities, such as Pachuca, Santiago de Querétaro or even Monterrey. The RPD added that even today, Jorge’s family has not received threats from the persecutors.
[18]
In considering the documentary evidence submitted,
the RPD was of the view that the interest of the persecutors in wanting to initiate
contact with the applicants is close to nil. Further, although the persecutors have
the means, the applicants have not established that they indeed could have had
access to their social insurance numbers or any other documentation that could
track them in the entire State of Mexico.
[19]
Therefore, the RPD found that the applicants did
not meet their burden of proving that there was more than a mere possibility
that the persecutors continue to seek revenge on the applicants, as they allege.
[20]
The RPD found that an IFA exists for the
applicants in the cities noted above. The applicants did not show that they
would be persecuted by the persecutors there. The applicants also did not show
that, on a balance of probabilities, a threat to their lives or a risk of cruel
and unusual treatment or punishment exists in one of the previously-noted
cities. The RPD was of the view that it is not objectively unreasonable for the
applicants to seek refuge in one of these cities.
[21]
Given the IFA, the applicants are therefore not “Convention refugees” or “persons
in need of protection”, under section 96 and subsection 97(1) of the IRPA.
IV.
Parties’ submissions
[22]
The applicants first advanced that they never
mentioned the city of Savon in their testimony, particularly when Jorge discussed
his stay in Hidalgo and his travel between his residence and his workplace. From
this error flowed other errors regarding the IFA assessment. The respondent answered
that this error does not invalidate the RPD’s reasoning.
[23]
The applicants also alleged that the RPD voluntarily
neglected to provide adequate reasons for its refusal to consider their
argument that it is unduly harsh to consider the IFA given that they are considered
to be vulnerable persons and by considering the medical report and the psychologist’s
report submitted. The respondent replied that, contrary to what the applicants
alleged, the RPD provided reasons for its refusal to accept this argument at
paragraphs 35 and 36 of its decision.
[24]
The applicants also argued that the RPD indirectly
considered the issue of State protection in its decision, although it had excluded
this protection during oral arguments at the hearing. The applicants alleged
that this is a violation of the theory of legitimate expectations as a principle
of natural justice. The respondent replied that these claims must be rejected
because the RPD had not addressed this protection and that it was right not to
assess the issue of State protection insofar as an IFA is sufficient to consider
the applicants’ application.
[25]
The respondent also advanced that the applicants
did not show that a serious possibility of persecution exists in Mexico because they have an IFA, which is sufficient to reject a refugee claim. The
respondent explained that the RPD correctly applied the following two-part test
that aims to determine whether an IFA exists:
1.
The circumstances in the part of the country
where the applicant could have taken refuge are safe enough to enable the applicants
“to enjoy the basic and fundamental human rights”;
and
2.
The situation in this part of the country must
be such that it would not be unreasonable for the applicant, considering all the
circumstances, to seek refuge there.
[26]
With respect to the first part, the respondent alleged
that the RPD reasonably found that the applicants had not shown, among other
things, that they would face a serious possibility of persecution in the cities
suggested and because the applicants have not received any threats since they arrived
in Canada. Thus, it is improbable that the persecutors are hunting the
applicants in faraway locations. The applicants have also not shown that the persecutors
could track them anywhere in Mexico.
[27]
As for the second part of the test, the
respondent explained that the applicants did not show that it would be
objectively unreasonable to use their IFA, particularly because the applicant
Jorge had worked and lived in several places across Mexico and on numerous
occasions between 1998 and 2009.
[28]
According to the respondent, the applicants’
claims only serve to criticize the reasons for the RPD’s decision and,
therefore, they do not show that the RPD’s decision is unreasonable.
V.
Supplementary reply and memorandum of the
applicants
[29]
The applicants submitted a reply to the respondent’s
first memorandum. The applicants argued here that the respondent, in his memorandum,
does not respond on merit to the arguments raised by the applicants in their memorandum.
The applicants also repeat the arguments raised in their written submissions (sometimes
recopying word-for-word certain passages of their memorandum: paragraphs 12,
14, 17, 19, 20, 43, 45 and 53 of the reply are, in whole or in part, paragraphs
22, 23, 24, 25, 29 49, 50 and 67 of the applicants’ memorandum. Paragraphs 46 to
52 of the reply are an exact copy of paragraphs 51 to 56 of the applicants’
memorandum).
[30]
The applicants submitted a supplementary
memorandum, with the objective of [translation]
“specifying a number of errors committed by the RPD in
its evaluation of the IFA when it had agreed at paragraph 12 (of its decision) that
the co-applicants were credible” (applicants’ supplementary memorandum at
para 1). The applicants repeated essentially the same arguments as those found
in their memorandum. They simply made a few clarifications on some evidence presented
to the RPD. They alleged that this evidence was not considered or noted by the
RPD in its analysis.
VI.
Issues
[31]
The co-applicants presented no issues. They
alleged only that there were factual errors regarding the determination of the reasonableness
of the IFA and errors of law in the assessment of the characterisation of the
applicants as vulnerable persons, in the medical report and the psychologist’s
report.
[32]
The respondent proposes the following question: did
the RPD commit a reviewable error in finding that the applicants have an IFA in
Mexico?
[33]
After reviewing the parties’ submissions, the
errors alleged by the co-applicants and the issue submitted by the respondent, I
am of the view that the respondent’s question as worded is the appropriate question
in this case.
VII.
Standard of review
[34]
The question of whether the RPD erred in its analysis
of the applicants’ IFA is a question of mixed fact and law. Therefore, the applicable
standard of review is that of reasonableness (Zamora Huerta v Canada (Citizenship and Immigration), 2008 FC 586, [2008] FCJ No 737 at paras 14-15). Therefore,
this Court will intervene only if the decision is unreasonable, either that it
falls outside of the “range of possible, acceptable
outcomes which are defensible in respect to the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
VIII.
Preliminary remarks
[35]
As submitted by the respondent in his original memorandum,
the applicants’ memorandum is flawed with respect to the form and length of the
memorandums, thereby breaching section 65 of the Federal Courts Rules, SOR/98-106
(Rules). The applicants’ memorandum is also lengthy, breaching section 70 of
the Rules.
[36]
I also agree with the respondent, in his supplementary
memorandum, that the applicants’ affidavits contain several legal arguments. Therefore,
the affidavits should be disregarded, because they must be limited to the facts
of which the affiant has personal knowledge (subsection 81(1) of the Rules). If
a motion had been presented raising these two types of irregularities, it would
most likely have been positively received and the co-applicants would have been
asked to comply with the Rules.
IX.
Analysis
[37]
The RPD reasonably found that the applicants had
an IFA and thus that they are not refugees under section 96 or persons in need
of protection under subsection 97(1) of the IRPA. As it appears from the decision,
the RPD pointed out that it does not question the credibility of the applicants
or the threatening e-mails that Brandon received or State protection (Tribunal
Record (TR) at page 390). It was only the IFA that was called into question and
analyzed in its decision. For this reason, although the RPD did not explicitly
specify the test to be applied with respect to the IFA, its analysis is
adequate.
[38]
The test to determine the IFA contains two parts:
1.
The circumstances in the part of the country
where the applicant could have taken refuge are safe enough to enable the
applicants to enjoy the basic and fundamental human
rights; and
2.
The situation in this part of the country must
be such that it would not be unreasonable for the applicant, considering all
the circumstances, to seek refuge there (Rasaratnam v Canada (Minister of
Employment and Immigration), [1992] 1 FC 706, [1991] FCJ No 1256 at paras
6 to 9).
[39]
In this case, as the respondent demonstrated, with
respect to the first part of the test, the applicants did not show that they
would face a serious possibility of persecution in the cities suggested and
analyzed during the hearing, in particular because the applicants had not received
any threats since their arrival in Canada, because Jorge’s family in Hidalgo have
had no contact with the persecutors since the applicants have been in Canada, because
they lived in Hidalgo for several months without contact with their persecutors
and because Jorge was able to work in Hidalgo without the persecutors knowing
where he was. Therefore, the applicants have not shown that the persecutors could
track them everywhere in Mexico or that the locations where they could find refuge
within Mexico would not be safe.
[40]
Furthermore, the applicants’ agreed statement
attached to the Personal Information Form (PIF) (at pages 27 to 34 of the
original PIF and at pages 155 to 164 of the corrected version of the PIF included
in the TR) noted that a person named Mr. Raymundo supported and helped the
applicant Jorge during several appearances at the Office of the Attorney
General of the State of Jalisco regarding the sexual assaults of Mr. Villalever
(TR at pages 28-29 of the original PIF and at pages 156-157 of the corrected PIF).
Other children are said to have also made complaints against Mr. Villalever (TR
at page 29 of the original PIF and at page 157 of the corrected PIF). However, nothing
was said as to whether they were threatened in any way whatsoever or whether their
lives were put in danger after reporting the sexual assaults by Mr. Villalever.
The corrected version of the PIF only mentions that one of the children that
allegedly made a complaint of sexual assaults, Francisco Ortiz, was kicked out
of the home for disruptive behaviour and that all the documents concerning his
reports, his passport, his visas and certificates disappeared (TR page 159 at
para 31). In addition, I note the RPD’s comments regarding the agents of
persecution. The findings are obvious and tend to show that although they are wealthy
and supported, they do not have the stature of criminal agent of persecution.
[41]
Therefore, the applicants have not fulfilled the
first part of the test.
[42]
As for the second part, the applicants
alleged that the RPD did not take into account the psychologist’s report submitted
in support of the argument that, in this case, it is appropriate to set aside
the IFA given the irreparable scars and trauma of the applicants because of
their experience with the persecutors in Mexico. Specifically, the applicants claimed
that the RPD refused to provide reasons, in its written
decision at paragraphs 35 to 37, for its refusal to follow the legal reasoning
of counsel for the applicants on this matter. I do not agree with this
argument.
[43]
In this case, the RPD’s decision specified that the
RPD took into account the psychologist’s report in its assessment and
considered it to be credible. Indeed, paragraph 13 of this same decision includes
a detailed analysis of Dr. Pelletier’s expert report and the psychologist’s
report, where the RPD accepts the psychologist’s diagnoses, but explained that she
cannot attest to the facts relating to the death threats alleged by the
applicants or that their lives are in danger in Mexico. In response to the psychologist’s
statement that a return to Mexico would compromise the mental health of the
applicants, the RPD explains that there is no information that the applicants cannot
have access to the same treatment that they have received in Canada. In this case, Jorge himself explained during the hearing that when he was in Hidalgo, he was treated by a psychologist (TR at page 359). Further, during the submissions
of counsel for the applicants at the hearing, in response to the question asked
by the RPD as to whether the applicants could be treated in Mexico for their mental health problems, counsel for the applicants replied yes (TR at page 396). Therefore,
the applicants did not demonstrate that it would be objectively unreasonable to
avail themselves of their IFA. The co-applicants would like it if the conclusions
in the reports were sufficient to determine that there is no possible IFA to
consider. I cannot accept this argument. Although the medical and psychological
findings are important, it is up to the RPD’s discretion to assess the situation.
It did so, noting that medical and psychological services were available in Mexico and they will be in the future.
[44]
Finally, although the RPD made an error in referring
to the city of Savon, which was not presented by the applicants during the
hearing, but was noted in the RPD’s decision at paragraph 24, this error is
not determinative. After reviewing the transcript of the hearing, it refers to the
city of “Sudalo” in Sahagun, Hidalgo. The city of “Sudalo” is not noted in the RPD’s decision, but it was referred
to by the applicant Jorge during the hearing in connection with his travel
between his workplace and his residence (TR at page 358). Paragraph 24 in
connection with the start of paragraph 25 of the decision relates directly to
the issue of Jorge’s travel between his residence and workplace. The names
Savon and “Sudalo” have a certain appearance, which
is very likely where the confusion comes from. Therefore, this error is not
significant in the circumstances and I do not accept this argument.
X.
Conclusion
[45]
The RPD’s decision is reasonable. The RPD analyzed
well the IFA and nothing justifies the intervention of this Court. Thus, the RPD’s
decision falls within the range of possible, acceptable outcomes which are
defensible in respect to the facts and law. Therefore, the decision must be
upheld.
[46]
The parties were invited to present questions for
certification, but no question was proposed.
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