Docket: IMM-3514-13
Citation:
2014 FC 183
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario February 26, 2014
PRESENT: The Honourable Mr. Justice Harrington
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BETWEEN:
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MARIA GENOVEVA ACUNA ENRIQUEZ
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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]
How many times must a person flee and hide – and
be tracked down again before an internal flight alternative is no longer
considered to be a viable option? Does that person have to be killed in order
to drive the point home?
[2]
Ms. Acuna Enriquez fled to Canada to escape her violent
husband. It was not the first time she had left her husband. He had already
been imprisoned in Mexico for domestic violence. She fled to various different
parts of Mexico, but her husband always managed to find her, apparently with
the help of the police.
[3]
The Refugee Protection Division (RPD) of the
Immigration and Refugee Board of Canada found the applicant to be credible and
determined that if she were to return to Mexico, it was possible that her
husband would once again attempt to locate her. However, the RPD concluded that
Ms. Acuna Enriquez did not need Canada’s protection because there was an
internal flight alternative available to her in her country of origin, Mexico,
more specifically in the federal district of Mexico (Mexico City) or in
Guadalajara. This is the judicial review of that decision.
I.
Facts
[4]
Ms. Acuna Enriquez is a citizen of Mexico. She
met her husband, Elias Hernandez Garcia, in 1980. They married four years
later. They had two children together, who are 21 and 24 years old today. She
has been a victim of domestic violence since January 1988.
[5]
Her husband became an alcoholic and became
increasingly violent. The applicant left the family home and went to live with
her mother for two years. When her mother passed away in 1993, he came to
persuade her to go back and live with him. He promised her he would change; but
alas, it was a promise that would not be kept. Every time he was drunk, he
would hit her. He would beat her in front of their children.
[6]
She went to the authorities to report him. As a
result, he was held in police custody for about an hour. When he returned home,
he beat her – [translation]
“bragging that he had bribed the police and that they were now on his side…”
[7]
In January 2009, the applicant decided to leave
her husband. She moved to her mother’s village of San Sébastian in the state of
Oaxaca. He was able to find her with the help of the police and beat her once
again. She then fled to her brother’s in San Joaquin in the state of Mexico.
Once again her husband found her a week later with the help of the police. She
returned with her children to live with him.
[8]
Her children advised her to leave the country,
as he was threatening to mutilate or kill her. He was threatening to kill the
children if she did not submit to him. Shortly thereafter the applicant arrived
in Montréal in March 2009.
II.
Panel’s decision
[9]
The RPD found that Maria Genoveva Acuna Enriquez
had not established that there was a serious possibility of persecution on one
of the Convention grounds or that, on a balance of probabilities, she would be
personally subject to a danger of torture or to a risk to her life or a risk of
cruel and unusual treatment or punishment if she were to return to her country.
[10]
The RPD essentially found the applicant to be
credible – a victim of domestic violence. However, it claimed the victim had
failed to discharge her burden of establishing the lack of an internal flight
alternative (IFA).
[11]
According to the RPD, the victim had not
demonstrated that she could not move to and settle in another city in Mexico.
Having taken into consideration the husband’s interest in finding her, and his
ability to do so, and the fact that the couple had been together for over 20 years
and had now been separated for over four years, the RPD was not satisfied that
the applicant’s husband would have the ability to track her down if she moved
to one of the proposed cities, Guadalajara or Mexico City– two large cities
with a population of over eight million in Mexico City and over one million in
Guadalajara.
[12]
The RPD further noted that the applicant had not
persuaded it that internal flight alternatives in Guadalajara or Mexico City
would be unreasonable. An IFA does not become unreasonable by the fact that
moving would be difficult or because there would be financial hardship. The RPD
noted that there are a number of domestic violence prevention and assistance
services in addition to legal, psychological and medical assistance in Mexico
City.
[13]
However, at paragraph 12 of its decision, the RPD
added:
The
panel notes that the claimant was with her husband for more than 20 years;
they were together for a considerable period of time. Therefore, it is possible
that he is still interested in finding her, even after nearly four years
apart.
Furthermore, in her affidavit the applicant
indicated that her husband is friends with the police. He was able to locate
her on numerous occasions with the help of the police.
III.
Analysis
[14]
It is settled law that the applicable standard
of review is that of reasonableness.
[15]
An internal flight alternative reflects the possibility
that the applicant has a reasonable fear of persecution in the part of the
country in which she lives, but that she would not be in danger in another part
of the country. The onus is on the applicant to show, on a balance of
probabilities, that she would be at serious risk of being persecuted in her
country and throughout the entire country. Thirunavukkarasu v Canada
(Minister of Employment and Immigration), [1994] 1 FC 589, [1993] FCJ No
1172 (QL/Lexis)).
[16]
In this case, the Minister argues that Ms. Acuna
Enriquez sought refuge in obvious places such as her mother’s hometown or the
homes of family members. But even if this were true, she was able to be located
quickly because her husband, a trucker who travels throughout Mexico, has contacts
within the police all over the country.
[17]
This fact was completely disregarded by the RPD.
Moreover, the documentary evidence shows that it is easy for one person to
locate another in Mexico if they wish to. Given that the RPD acknowledges that
the husband is likely to want to continue pursuing the applicant and
considering that Ms. Acuna Enriquez is credible, in my view the analysis is insufficient
and unreasonable. There was documentary evidence in the record that supports
the proposition that Ms. Acuna Enriquez can be located in Mexico. Therefore,
the decision maker had a duty to explain this information (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35,
[1998] FCJ No 1425 (QL)).
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