Date: 20241204
Docket: IMM-2892-24
Citation: 2024 FC 1963
Toronto, Ontario, December 4, 2024
PRESENT: The Honourable Madam Justice Aylen
BETWEEN: |
SILVIA DEL CARMEN HIDALGO CAHUICH |
FELIX ROMAN ORTIZ |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The Applicants, citizens of Mexico, seek judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board, dated January 25, 2024, in which the RAD confirmed the decision of the Refugee Protection Division [RPD] that the Applicants are 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 [IRPA].
[2] The Applicants’ section 97 claim was based on an alleged fear of harm at the hands of the Cartel de Jalisco Nueva Generación [CJNG]. The Applicants’ section 96 claim was based on their association with, and ongoing care of, their granddaughter, who they assert faces a serious possibility of persecution because she is a person with disabilities. The RAD denied their claim on the basis of a viable internal flight alternative [IFA].
[3] The Applicants assert that the RAD’s decision was unreasonable as: (a) the RAD erred in finding that the CJNG would not be motivated to find the Applicants in the proposed IFA location; (b) the RAD erred in finding that it would not be objectively unreasonable for the Applicants to seek refuge in the proposed IFA location; and (c) the RAD erred in finding that the Applicants were not Convention refugees pursuant to section 96 of the IRPA.
[4] For the reasons that follow, I am not satisfied that the Applicants have demonstrated any basis for the Court’s intervention. Accordingly, the application for judicial review shall be dismissed.
I. Background
[5] The Applicants, Silvia Del Carmen Hidalgo Cahuich [Principal Applicant] and Felix Roman Ortiz [Associate Applicant], are married and resided in Playa Del Carmen, Quintina Roo, Mexico before coming to Canada. They operated a small grocery store in Playa del Carmen with their daughter and son-in-law.
[6] The Applicants have a five year old granddaughter who suffers from a significant disability. She has spina bifida (for which she has required dozens of surgeries to date), suffers from seizures, is non-verbal and has cycle mobility problems. She requires assistance for all of her daily tasks, such as feeding and bathing, and will continue to require such assistance for the rest of her life.
[7] In April 2022, the Principal Applicant, her daughter and her granddaughter were approached by men from the CJNG who demanded payment of 10,000 Mexican pesos per month as a “tax”
to keep their business running. These demands for payment, which continued on a monthly basis, were initially paid by the Applicants. However, by October 2022, they could no longer afford the payments and closed their business as a result.
[8] Two weeks after closing their business, two men threatened the Principal Applicant, took 5,000 pesos and warned that they would return for the rest of the money. Fearing for their safety, all five claimants departed for Canada on October 26, 2022.
[9] The Applicants, their daughter, son-in-law and granddaughter applied for refugee status in December 2022. Their claims were jointly heard by the RPD.
[10] On September 26, 2023, the RPD accepted the refugee claims of the granddaughter, daughter and son-in-law. The RPD found that the granddaughter is a Convention refugee due to her disability. The RPD went on to consider the possibility of an IFA for the granddaughter, and by association, for her parents. The RPD found that the granddaughter did not have a viable IFA because she faces a serious possibility of persecution throughout Mexico and that an IFA would be objectively unreasonable for her parents (who were found to be her primary caregivers) because it would entail separation from their daughter.
[11] With respect to the Applicants, the RPD found that they had a viable IFA in one of the proposed IFA locations. The RPD found that the CJNG was not motivated to harm and pursue them beyond their home state of Quintana Roo and that the Applicants had not demonstrated the proposed IFA location to be unreasonable.
[12] The Applicants appealed the RPD’s decision to the RAD, where the RAD confirmed the RPD’s decision.
[13] In dismissing the Applicants’ appeal, the RAD found that the RPD’s determination that the Applicants have a viable IFA was correct. In relation to the first prong of the test, the RAD confirmed the RPD’s finding that the Applicants did not establish that the CJNG is motivated to pursue and harm them in the proposed IFA location. The RAD found that the Applicants submitted insufficient evidence to establish that they had profiles that would motivate the cartel to track them to the proposed IFA location. The RAD also noted that the Applicants’ lack of evidence that they have been targeted since they left Mexico, while not determinative, was a relevant consideration in the context of the evidence as a whole.
[14] In relation to the second prong of the IFA test, the RAD confirmed the RPD’s finding that the proposed IFA location is not objectively unreasonable for the Applicants. The RAD acknowledged the Applicants’ concerns regarding finding employment as older adults. However, in noting the objective evidence, it found that the Applicants’ employment background as business owners and the Associate Applicant’s six-year experience in general maintenance, provides them with skills and experience they can offer to prospective employers or use in self-employment.
[15] The RAD acknowledged their concerns for finding stable housing as older adults. The RAD noted evidence that housing assistance programs are only available to employees working in the formal sector and that Mexico does not have a housing policy for older adults. However, the RAD was not persuaded that the Applicants would be unable to obtain and afford adequate housing. The RAD found that the Applicants had: (a) failed to show they would be unable to find work in the formal sector or that their joint income would be so low that they would require government housing assistance; and (b) failed to submit evidence demonstrating that they would generally have trouble finding housing.
[16] The RAD further noted that although their mental health issues may add to the challenges of relocation, the Applicants did not meet their burden to present actual and concrete evidence that these issues would make relocation to the proposed IFA location unreasonable. The RAD found that the general evidence of gaps in access to treatment for mental health conditions in Mexico was insufficient to establish that the Applicants would not be able to access the treatment they need in the proposed IFA location. The Applicants also had not presented evidence to indicate that the treatment they need would be unavailable therein.
[17] The RAD also considered whether the Applicants had established their claims under section 96 of the IRPA. The RAD noted that the daughter and son-in-law were accepted as Convention refugees because of their relationship to the Applicants’ granddaughter. The RAD accepted, as new evidence, a letter from the occupational therapist about the role the Applicants play as necessary caregivers in their granddaughter’s life. However, it found that their claims could not be established on that basis for various reasons. The RAD noted that there is no inherent right to family unity within Canadian refugee law and also found no evidence that the Applicants face a serious possibility of persecution based on their family relationship to their granddaughter.
II. Issues and Standard of Review
[18] The following issues arise on this application:
Whether the RAD’s determination that the Applicants had a viable IFA was reasonable; and
Whether the RAD’s determination that the Applicants are not Convention refugees under section 96 of the IRPA was reasonable.
[19] The parties agree and I concur that the applicable standard of review for both issues is that of reasonableness. When reviewing for reasonableness, the Court must take a “reasons first”
approach and determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified [see Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 8, 59]. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker [see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 15, 85 [Vavilov]. The Court will intervene only if it is satisfied there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency [see Adeniji-Adele v Canada (Citizenship and Immigration), 2020 FC 418 at para 11].
[20] The Respondent raised, as a preliminary issue, the absence of a personal affidavit from the Applicants and urged the Court to dismiss the application on this basis alone. The Respondent asserts that personal evidence was required from the Applicants to support, for example, the various assertions made about their inability to work or their access to mental health treatment in the proposed IFA location. However, on an application such as this where there are no procedural fairness issues, the Court must determine whether the RAD’s decision was reasonable based on the evidence that was before the RAD. It is not open to the Applicants to bolster the application record with additional evidence by way of a personal affidavit going to the reasonableness of the proposed IFA location.
[21] In essence, the Respondent is effectively arguing that the assertions made by the Applicants before the RAD, and now before this Court, are not supported by the evidence. That is not an argument that requires a preliminary determination.
III. Analysis
A. IFA — Applicable Legal Principles
[22] The test to determine if an IFA is viable is two-pronged: the RAD must be satisfied, on a balance of probabilities, that (i) an applicant will not be subject to a serious possibility of persecution nor to a risk of harm under sections 96 and 97 of the IRPA in the proposed IFA location; and (ii) it would not be objectively unreasonable for them to seek refuge there, taking into account all the circumstances [see Thirunavukkarasu v Canada (Minister of Employment and Immigration) (CA), [1994] 1 FC 589 at 593–597 [Thirunavukkarasu]]. Both prongs must be satisfied in order to make a finding that an applicant has a viable IFA [see Bassi v Canada (Citizenship and Immigration), 2024 FC 910 at para 16, citing Thirunavukkarasu, supra at 597–598].
[23] On the first prong of the test, a claimant bears the onus of demonstrating that the proposed IFA is unreasonable because they fear a possibility of persecution throughout their entire country. In order to discharge their burden, the claimant must demonstrate that they will remain at risk in the proposed IFA from the same individual or agents of persecution that originally put them at risk. The risk assessment considers whether the agents of persecution have both the “means”
and “motivation”
to cause harm to the claimant in the proposed IFA [see Chatrath v Canada (Citizenship and Immigration), 2024 FC 958 at para 20 [Chatrath], citing Singh v Canada (Citizenship and Immigration), 2023 FC 996 at para 8]. This assessment is a prospective analysis and is considered from the perspective of the agents of persecution, not from the perspective of the claimant [see Vartia v Canada (Citizenship and Immigration), 2023 FC 1426 at para 29, citing Adeleye v Canada (Citizenship and Immigration), 2022 FC 81 at para 21 and Aragon Caicedo v Canada (Citizenship and Immigration), 2023 FC 485 at para 12]. The onus is therefore on an applicant to adduce sufficient evidence or facts to discharge their burden of proof and demonstrate, on a balance of probabilities, that the agents of persecution have the means and motivation to locate them in the proposed IFA [see Chatrath, supra at para 20].
[24] For the second prong of the test regarding the reasonableness of the proposed IFA, the threshold is very high and an applicant must present actual and concrete evidence of the existence of conditions that would jeopardize their life or safety if they were to attempt to relocate to that part of the country [see Chatrath, supra at para 21, citing Canada (Minister of Citizenship and Immigration) v Ranganathan , [2001] 2 FC 164 and Jean Baptiste v Canada (Citizenship and Immigration), 2019 FC 1106 at paras 20–21].
B. The RAD’s determination that the Applicants had a viable IFA was reasonable
[25] The Applicants assert that, as there was no direct documentary evidence of the motivation of the CJNG, their testimony is indeed evidence of the risk of persecution in the proposed IFA location. Relying on Maldonado v Minister of Employment and Immigration, [1980] 2 FC 302, the Applicants assert that the presumption of truthfulness concerning their belief of risk of persecution is sufficient to establish a real threat and, accordingly, the RAD should have afforded their evidence more weight.
[26] On the issue of motivation, the Applicants assert that the RAD unreasonably ignored the fact that the CJNG would be motivated to pursue them for economic reasons. The Applicants had previously been targeted for extortion due to their business (which is an economic reason) and notwithstanding that they closed their business, the CJNG would assume that they would set up a new successful business in the IFA as that is the manner in which they have earned a living for many years. As such, the Applicants assert that there remains an economic reason to pursue them in the proposed IFA location. The Applicants further assert that the CJNG would be motivated to locate them in the proposed IFA location for revenge and to assert their dominance by showing extortion targets that they cannot simply escape the cartel’s reach by relocating.
[27] I find that there is no merit to the Applicants’ assertions. The Maldonado presumption is simply that a sworn witness is telling the truth. It is not a presumption that everything the witness believes to be true, but has no direct knowledge of, is actually true. The Applicants only speculate, without pointing to any evidence, that the CJNG has an ongoing interest in pursuing them. While they may believe that the CJNG will pursue them in the proposed IFA location, the Maldonado presumption does not require the RAD to accept their belief as objectively true [see Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at para 25].
[28] The RAD undertook a detailed review of the objective country condition evidence and reasonably concluded that for the CJNG to be motivated to track and locate someone in another region of Mexico, the target “must be ‘someone special’ and ‘typical targets’ include ‘high profile’ persons such as a rival criminal actor, businessperson, or journalist who has privileged information, financial resources, or important contacts that the CJNG perceives to be a threat to its interests”
.
[29] As the Applicants were previously targeted for extortion because of their successful business, the RAD considered whether they might be pursued for economic reasons by the CJNG in the proposed IFA location. However, given that the Applicants no longer have their business, that there was no evidence that they have other assets with which to start a new business and that there was no evidence that the CJNG perceive them as having other assets, I find that the RAD reasonably concluded that it was unlikely the Applicants would be targeted for economic reasons in the proposed IFA. Any suggestion that the CJNG would assume that the Applicants would start a new business in the proposed IFA location is purely speculative. Moreover, the RAD’s determination that the Applicants have no other characteristics that would render them as targets in the proposed IFA location was also reasonable, based on the evidence that was before the RAD.
[30] While the Applicants also assert that little effort would be required to locate them in the proposed IFA due to the CJNG’s connections in the area, this argument is actually one directed at the CJNG’s means (rather than its motivation) to locate the Applicants. The CJNG’s means to locate the Applicants is not at issue on this application as the RAD found the issue of motivation, on its own, to be determinative of the first prong of the IFA test.
[31] With respect to the second prong of the IFA test, the Applicants assert that the RAD failed to properly evaluate their personal circumstances and the current country conditions of Mexico with regard to their advanced age, likelihood of finding adequate employment and housing and the availability of mental health care. Specifically:
With respect to prospective employment, the Applicants assert that the RAD failed to adequately consider their age in the analysis, which they assert is one of the most important factors when assessing a candidate for a job. The Applicants assert that their history as previous business owners would hardly be impressive to prospective employers in the proposed IFA location and that they no longer have the assistance of their daughter and son-in-law, which was critical to their success in running their former business.
The Applicants assert that the RAD erred in finding that they will be able to secure adequate housing, as that finding was predicated on the Applicants securing adequate employment or an adequate joint income in the proposed IFA location to afford such housing.
The Applicants assert that the RAD erred in its analysis of their mental health issues and erred in finding that they would be able to access the treatments they need in the proposed IFA location. The Applicants assert that the RAD ignored contextual country condition evidence in making such a finding. Mexico’s health care system is divided into three streams: private sector services, services funded by social security for the formally employed population, and services funded by government social programs for individuals not covered by social security. The Applicants explain that the public health institutions are resource-strapped and tend to focus on acute care needs for low-income individuals. As such, it is unlikely that the Applicants will be able to access proper mental health treatment in these public hospitals given that their mental health needs are not acute. Moreover, while the RAD acknowledged that the Mexican government enacted new legislation to bolster mental health services, the Applicants assert that it will take time for legislation to be adequately implemented and, given that the proposed IFA location is a small city, it will take a considerable amount of time to rectify the large gap in mental health access in the IFA.
[32] I am unable to find that the RAD made any reviewable error in assessing the second prong of the IFA test. The Applicants, in essence, disagree with the RAD’s weighing and assessing of the evidence and ask the Court to step in, reweigh the evidence and reach a different conclusion, which is not the Court’s role on an application for judicial review [see Munoz Ramirez v Canada (Citizenship and Immigration), 2024 FC 221 at para 24, citing Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1999] 1 FC 52; Vavilov, supra at para 125].
[33] I am not satisfied that the Applicants have pointed to any evidence the RAD failed to consider, or to any evidence that contradicts the RAD’s findings. The RAD properly noted the Applicants’ advanced age, their work experience, their mental health diagnoses and their respective need for at least 10 sessions of cognitive behavioural therapy, and the country condition evidence related to employment, housing and access to mental health services. I find that the RAD’s determination was reasonably grounded in the evidence before it or, in some respects, in the lack thereof. For example, in relation to the Applicants’ need for mental health services, the RAD reasonably noted that the Applicants had not submitted any evidence as to the unavailability of their needed treatments in the proposed IFA location, nor to the cost of such treatments in support of their assertion that they would be unable to pay for the treatments they require. I find that the RAD’s determination was reasonably grounded in the Applicants’ failure to provide actual and concrete evidence of the existence of conditions that would jeopardize their life or safety if they were to attempt to relocate to the proposed IFA location.
C. The RAD’s determination that the Applicants are not Convention refugees pursuant to section 96 of the IRPA was reasonable
[34] The Applicants assert that the RAD erred by failing to consider that the Applicants are not mere family members of their granddaughter, but rather are family members who are necessary caregivers of her because of the extreme disability that she suffers. The Applicants essentially assert that they should be treated no differently than their daughter and son-in-law, as they too are needed to care for their granddaughter.
[35] I find that there is no merit to this assertion. Under section 96 of the IRPA, the Applicants must prove a serious possibility of a well-founded fear of persecution [see Paramananthalingam v Canada (Citizenship and Immigration), 2017 FC 236 at para 17]. While the granddaughter had a well-founded fear of persecution due to her disability, the Applicants did not allege that they, as her family members, fear persecution due to her disability as well.
[36] Rather, the Applicants appear to be urging the Court to find that the RAD erred by not properly considering the need for family unity, by not recognizing that their claims are inextricably bound together with their granddaughter’s claim (like those of the daughter and son-in-law). However, it is well-established in the case law that the principle of family unity is not taken into account at the time refugee status is being determined. A grant of refugee status does not, by itself, entitle the other members of the same family to refugee status. Each family member must establish the right to refugee status individually [see Ly v Canada (Citizenship and Immigration), 2021 FC 379 at para 13; Ekema v Canada (Citizenship and Immigration), 2022 FC 1556 at para 14]. While I am extremely sympathetic to the family’s circumstances, there is simply no basis upon which I can fault the RAD for its determination of this issue.
[37] Moreover, unlike the daughter and son-in-law, the RAD found that the Applicants have a viable IFA in Mexico, which would have rendered moot any alleged error related to their section 96 refugee determination.
[38] Accordingly, I am not satisfied that there is a basis to interfere with the RAD’s section 96 determination.
IV. Conclusion
[39] As the Applicants have not demonstrated that the RAD’s decision was unreasonable, the application for judicial review shall be dismissed.
[40] The parties propose no question for certification and I agree that none arises.
JUDGMENT in IMM-2892-24
THIS COURT’S JUDGMENT is that:
The application for judicial review is dismissed.
The parties proposed no question for certification and none arises.
“Mandy Aylen”
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