Docket:
IMM-12503-12
Citation: 2013 FC 1255
Ottawa, Ontario, December 16, 2013
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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NICOLAS
JOSE SOSA
JUAN
JOSE SOSA
ROBERTO
JOSE SOSA
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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. Introduction
[1]
This application is for judicial review of a
decision made on October 17, 2012 by the Immigration and Refugee Board [the
Board] finding that the three applicants were not Convention refugees or
persons in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
For the reasons which follow, the application is
dismissed.
2. The Facts
[3]
Mr Juan José Sosa, the principal applicant, was
born in Mexico in 1982. He and his family are visible-minority indigenous
Mixteco speakers from a small village He has seven brothers and two sisters,
born between 1977 and 1994. He and three younger brothers, Roberto (born
1984), Miguel (born 1986), and Nicolas (born 1988), are the current applicants
seeking refuge in Canada. However, Miguel has withdrawn his application.
[4]
The principal applicant has six years of
schooling. He worked on his father’s farm until he left Mexico on August 10, 2000, a few weeks before his 18th birthday, and went to live with
his oldest brother Florencio in the United States. He then worked as a painter
in Florida for seven years. His co-applicant brothers were too young to follow
him in 2000, but joined him in 2002, 2004, and 2007 as they were turning 18.
His two sisters Maria and Rosa had already moved to the United States and were living there without papers, while his youngest brothers, Daniel (born 1990)
and Adolfo (born 1994) still lived in their home village in Mexico at the time when he completed his Personal Information Form [PIF]. As the family had little money,
the brothers’ father borrowed money from his neighbours in order to pay for
each of the brothers and sisters to travel to the United States.
[5]
The brothers did not file refugee claims, but
lived in the United States illegally. At one point Mr José consulted a lawyer
about acquiring status, but was told that it would cost $10,000 and that it was
not possible anyway unless one member of his family was a legal resident. In
2007, learning from the Spanish-language television channel UniVision that
illegals were being deported and that it was possible to claim refugee status
in Canada, all four brothers traveled to Windsor, Ontario, arriving on
September 21, 2007. They submitted a claim for asylum the same day. The
principal applicant found work in Windsor as a mushroom packer. His PIF
indicates that his oldest brothers Florencio (born 1977) and Celestino (born
1979) submitted applications for permanent residence on humanitarian and
compassionate [H&C] grounds from Windsor, but that these were denied.
[6]
The principal applicant and his brothers left Mexico because they were being persecuted by the neighbouring villages of San Juan Mixtepec
and Santo Domingo Yosonama. Groups of 15-20 men were coming to their village,
beating people, and stealing their possessions. The nearest police were in the
city of Tlaxiaco, two hours away, and the police were not sympathetic to
indigenous people, whom they could identify by their accents when speaking Spanish
and from their shorter stature and darker skin. The police never helped them.
[7]
The principal claimant moved to Mexico City in 1999 for about one month but did not find work or shelter and was mistreated
and returned to his village. The applicants claimed that they were often
barred from jobs because they were not allowed to do military service and
employers would not hire them without military identification cards.
3. Contested decision
[8]
In the reasons for decision, the Board first
explained that the brothers’ primary dialect was Mixteco and that only Juan and
Roberto spoke Spanish. The Board member noted that counsel had requested a
Mixteco interpreter and that a Coordinating Member had written to advise that every
effort had been made to secure one but none were available in Canada. A pre-hearing conference with a Mixteco interpreter from California had proved
unsatisfactory. The Board member indicated to counsel that the hearing would
proceed in English and Spanish and that she would allow any extra time
necessary to ensure that the two claimants who did not speak Spanish understood
the nature of the proceedings. As well, she had stated that the
Spanish-speaking brothers could act as designated representatives for the other
two and had instructed the claimants to raise their hands if at any time they
did not understand. The Board member commented in the reasons for decision
that at no time during the hearing had the claimants indicated that they did
not understand.
[9]
The Board member then reviewed the allegations
of persecution and identified the determinative issues as failure to claim
elsewhere, state protection, and internal flight alternative. She commented
that Mr José had made no attempt between 2000 and 2007 to regularize his status
in the US. Counsel had submitted that consideration should be given to the
fact that the brothers were young when they entered the US, had little money
and little education, and were aware of the problems faced by Hispanics in that
country. The Board made some allowances for those points but nonetheless drew
a negative inference, although not a determinative finding, from their failure
to claim asylum in the US.
[10]
The Board member next noted that she had
considered whether a viable IFA existed in Mexico City. She used the
two-pronged test set out in Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706 (FCA) of a place where there was no serious
possibility of persecution and which would be a reasonable place in all the
circumstances to relocate to.
[11]
She found that although the principal claimant
had testified that he could not live safely anywhere in Mexico, being identifiable as an indigenous person from his speech and appearance, he had only
attempted to live in Mexico City once, for a month, 13 years ago. This did not
represent a concerted effort. She also found that while there was documentary
evidence that indigenous people in Mexico had been subject to discrimination,
there was no persuasive evidence before her that this amounted to persecution
or that Mr José would be subject to persecution in Mexico City.
[12]
The claimants had argued that they were not
entitled to serve in the military and could not find work without military
identification cards, but the Board member found that this was not demonstrated
by the evidence before her. She took note of two press articles from 2008
indicating that a number of companies were requiring military cards as a
condition of employment, but commented that these articles were not
corroborated by any information in the Citizenship and Immigration Canada [CIC]
country documentation. She concluded that the claimants had not met the burden
of proving on a balance of probabilities that they were not allowed to serve, and
that the evidence on military cards as a requirement for employment was
inconclusive.
[13]
The Board member then reviewed the evidence on
discrimination against indigenous people in Mexico. She found that although
there was discrimination, there were constitutional protections and
organizations tasked with protecting their rights (such as the National
Commission for the Development of Indigenous Peoples and the Office of the
Public Prosecutor’s Specialized Agency for Indigenous Peoples). As well,
indigenous migrants within the country were mainly attracted to large cities
and especially Mexico City, where the population of indigenous language
speakers was estimated in a 2007 report as 650,000 people, a significant
community.
[14]
She noted that the claimants had been able to
travel to the US and were able to live and work there. She found that there
were avenues for complaints if they moved to Mexico City and that she was not
persuaded that they would not be able to find jobs in that city, or that any
discrimination they might encounter would rise to the level of persecution.
The second prong of the IFA test was therefore not met.
[15]
Since the claimants had a viable IFA, the Board
member found that they were not Convention refugees or persons in need of
protection and rejected their claims.
4. Issues
[16]
The issues are:
a. Did the Board fail to observe the principles of natural
justice by holding the hearing without a Mixteco interpreter?
b. Was
the Board’s IFA finding reasonable?
5. Standard of
review
[17]
The issue of procedural fairness is reviewable
on a standard of correctness; the Board’s finding of an IFA is reviewable on a
standard of reasonableness.
6. Analysis
A. Did the Board fail to observe the
principles of natural justice by holding the hearing without a Mixteco
interpreter?
[18]
Having read the entire transcript, I find that
all four of the applicants were able to participate adequately in the
proceedings without undue difficulties. I am in agreement with the panel member
that there was no indication of their lack of understanding the questions put
to them or any suggestion that responsive answers were not provided. The applicants
fully engaged in the proceedings, including responding appropriately to their
counsel’s many questions. Indeed, after the initial contention that they
required a Mixteco interpreter, the interpreter who acted throughout the
hearing remarked at the conclusion of the evidence as follows: “Maybe may I
say, so perhaps the gentleman understand even better; we have concluded with
you guys [applicants who claimed not to understand Spanish] talking with us.” I
share this view.
[19]
No objections were raised after the fact at the
hearing and no passages from the transcript have been identified that could be
said to have adversely affected their claims for protection. See Bankole v Canada (Minister of Citizenship and Immigration), 2005 FC 1581 at para 21.
[20]
In addition, the same conditions and same facts
apply to all four applicants whose stories were by and large identical.
Moreover, the panel member accepted their basic allegation that as indigenous
persons they were at risk of being killed in their home region of Mexico where they do not have faith in the Mexican government to protect them. Accordingly,
the determinative issue was whether there existed an IFA in Mexico City where
the applicants could safely live without a serious possibility of being
persecuted. The panel considered their limited evidence on this issue, which
amounted mostly to a generalized contention that they cannot live anywhere in
Mexico because of their being identified as indigenous people and the problems
that they had finding work without military service cards.
[21]
I find no basis to criticize the panel member
for proceeding with the Spanish interpreter. The CIC had made several efforts
to locate a Mixteco interpreter without success and the matter had been delayed
on this account, needlessly it turns out, for several years. Given that the
applicants had indicated on their PIF that they could speak Spanish, it was
certainly within the panel member’s authority to evaluate for herself the
capacity of the applicants to communicate in that language. Based on the
transcript of the evidence, it turns out that the applicants were all
sufficiently proficient in Spanish to appreciate and participate in the
proceedings.
[22]
I reject the applicants’ submission of a failure
of natural justice due to the absence of a Mixteco interpreter.
B. Was the Board’s IFA finding reasonable?
[23]
The applicants claim that the Board was
severely insensitive to their background as indigenous people from a rural
area, one of the poorest regions in Mexico, who would face cultural and
financial difficulties in adjusting to living in a big city. I disagree. The
Board acknowledged the existence of discrimination against indigenous people in
Mexico and potentially in Mexico City. Nevertheless, it found the applicants
could not meet the onus of showing that Mexico City was not a reasonable IFA
and that they could not avail themselves of its protection.
[24]
Similar claims were made by the applicants that
the Board failed to address the issue of the difficulty of obtaining a military
service card and employment difficulties resulting therefrom. This matter was
canvassed and, in view of no documentation being provided by the applicants and
in light of other documentary evidence of the serious efforts Mexico was making
to address indigenous problems, it was rejected by the Board on the balance of
probabilities.
[25]
With respect to the IFA issue as a whole, the
applicant failed to address the Board’s findings that indigenous migrants
within the country are mainly attracted to large cities, that in Mexico City
the population of indigenous language speakers is estimated at 650,000, that
since March 2007, indigenous people in Mexico have had access to the Office of
the Public Prosecutor’s Specialized Agency for Indigenous Peoples and that the
government generally was showing respect for the desire by indigenous people to
retain elements of their traditional culture. No evidence was provided to show
that the applicants would find no remedy from the Office of the Public
Prosecutor’s Specialized Agency for Indigenous Peoples to any discrimination
they might experience in Mexico City.
[26]
Furthermore, the principal applicant had last sought
work in Mexico City in 1999, 13 years ago, and only for one month. This did
not suffice to overturn the Board’s finding that an IFA was available in Mexico City.
7. Conclusions
[27]
I am in agreement with the respondent that the
IFA issue merely amounts to disagreement with the Board’s assessment of the
evidence and its application of the correct test for an IFA. The decision was
reasonable, being reached in a transparent and intelligible manner and falling
within the range of possible, acceptable outcomes.
[28]
In light of the above, the application is
dismissed. No certified question has been posed and none is merited.
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