Docket: IMM-15783-23
Citation: 2024 FC 2000
Ottawa, Ontario, December 10, 2024
PRESENT: Madam Justice Pallotta
BETWEEN: |
MARCELA DEL CARMEN LOPEZ GUTIERREZ
JULIO ALEJANDRO ALVARADO GONZALEZ
GAEL ALEJANDRO ALVARADO LOPEZ BARBARA ALEJANDRA ALVARADO LOPEZ |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The applicants, Marcela Del Carmen Lopez Gutierrez, her spouse, Julio Alejandro Alvarado Gonzalez, and their children, seek judicial review of decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board. The RAD dismissed their appeal and confirmed the Refugee Protection Division’s (RPD) decision that they are neither Convention refugees nor persons in need of protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], because they have a viable internal flight alternative (IFA) in Mexico.
[2] The applicants fear harm by the Los Zetas cartel.
[3] The applicants state that Ms. Lopez Gutierrez, who worked with a group of civil engineers and managed their company’s office, began receiving threatening calls at work in November 2019. These calls were from people claiming to be from the cartel, demanding that engineers at her workplace pay to avoid being kidnapped or harmed. When the engineers refused to pay, the callers told Ms. Lopez Gutierrez that she would face the consequences. Ms. Lopez Gutierrez received further threatening calls in March 2020 and in October 2020, at which time she also received threatening notes at her home. The applicants state that when Ms. Lopez Gutierrez reported these events to the authorities in January 2021, she was told they did not have sufficient evidence to investigate.
[4] The applicants state that one night in February 2021 they noticed unknown vehicles parked outside their home and on another night, a neighbour who resembles Mr. Alvarado Gonzalez was kidnapped. The applicants believe Mr. Alvarado Gonzalez was the intended target. In October 2021, armed men in a campervan confronted the applicants at a gas station, threatened them, and asked why Ms. Lopez Gutierrez failed to relay the message to the engineers. After this, Ms. Lopez Gutierrez took her children to stay with an aunt who lives in another city while her spouse stayed behind to find a solution. At the aunt’s home, Ms. Lopez Gutierrez received threatening calls from men who said they were with her father’s group. She states her father is involved with the cartel and believes he leaked her location. Fifteen days later Ms. Lopez Gutierrez and the children returned to the family home. The family left for Canada in February 2022 and filed a claim for refugee protection in October of that year.
[5] As the alleged harm was criminal in nature, and not connected to a Convention ground of persecution described in section 96 of IRPA, the applicants’ claim for protection was assessed under IRPA section 97.
[6] A person in need of protection under IRPA section 97 must face the identified risk “in every part”
of their country of origin and will not qualify for protection if they have an IFA. A claimant who can safely and reasonably relocate within their country of origin is expected to do so, rather than seek refugee protection in Canada.
[7] The burden of proving that a proposed IFA location is not viable rests with the claimant. In this case, the applicants had the burden of proving that the proposed IFA is not viable, either because they will face a likelihood of harm in the IFA or because the conditions are such that it would be unreasonable for them to seek refuge there.
[8] The RPD rejected the applicants’ claim for protection on the basis that they have a viable IFA. On appeal, the RAD agreed with the RPD’s conclusion and key findings. The applicants had not established that the cartel was motivated to pursue them in a different part of Mexico, including the IFA city, or that it would be objectively unreasonable for them to relocate there. Thus, both prongs of the test for deciding whether the applicants have a viable IFA within Mexico were met.
[9] The sole issue on this application is whether the RAD’s IFA determination was unreasonable, applying the principles for reasonableness review set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. Reasonableness is a deferential but robust standard of review: Vavilov at paras 12-13, 75 and 85. In applying the reasonableness standard, the reviewing court determines whether the decision bears the hallmarks of reasonableness—justification, transparency, and intelligibility: Vavilov at para 99. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain the decision maker: Vavilov at para 85.
[10] The applicants submit that the RAD erred in both aspects of the IFA analysis, rendering the decision unreasonable.
[11] With respect to the risk of harm, the applicants submit that the RAD erred in its analysis of whether the agents of persecution would be motivated to pursue them. They submit the RAD conflated speculation and inference and wrongly characterized their evidence as speculation. The Court in Canada (Minister of Employment and Immigration) v. Satiacum, [1989] FCJ No 505 (FCA) explained the distinction between conjecture and inference. The applicants submit that they relied on inferences.
[12] Specifically, the applicants state the RAD erred when it found there was “no indication in the evidence that the Appellants were in any way actually tracked”
to the aunt’s home, or approached by anyone while they were there. The applicants state their basis of claim narrative explained that the cartel did find them at the new location. They did not speculate that they were tracked, but rather, this was the only reasonable inference to draw from several facts: when Ms. Lopez Gutierrez went to her aunt’s home she started receiving calls from people who said they were from her father’s group; her aunt also began to receive threatening calls after the applicants went to stay with her; the cartel knew Ms. Lopez Gutierrez was no longer at work and told her to return; and, Ms. Lopez Gutierrez’s father belongs to the cartel and the aunt is his sister. The applicants state that the RAD seemed to accept that Ms. Lopez Gutierrez’s father was involved with the cartel—it made no finding to the contrary—and it failed to take this fact and other important facts about the timing of the call and relationship to the aunt into consideration.
[13] Similarly, the applicants contend the RAD erred when it found they had assumed that a personal vendetta would motivate the cartel to track them and provided no evidence to support their declaration that Ms. Lopez Gutierrez’s actions insulted the cartel. The applicants state Ms. Lopez Gutierrez does not merely believe that she and her family will be harmed—she received threatening phone calls that turned to threats of murder. The callers specifically told Ms. Lopez Gutierrez that she and her family would be murdered because she failed to comply with the cartel’s demands and revenge was the clear motivation. The applicants submit the RAD effectively concluded that their narrative should not be believed because they failed to submit corroborative evidence. Absent credibility concerns or doubts about a claimant’s story, it is an error to reject a claim solely based on a lack of corroborative evidence: Dayebga v. Canada (Citizenship and Immigration), 2013 FC 842 at para 28.
[14] With respect to whether it would be unreasonable to move to the IFA, the applicants focus on access to mental health care. They say the RAD (and the RPD) failed to appreciate that returning to Mexico without proper access to mental health services would be extremely detrimental to Ms. Lopez Gutierrez’s health. They submit the RAD’s finding that such services are available and accessible in large, relatively wealthy urban areas, such as the IFA, ignores objective country condition evidence to the contrary. The applicants point to country condition evidence of the relatively high cost of accessing healthcare in Mexico and explain they do not have savings and would be unable to afford the high cost of these services while re-establishing themselves.
[15] I am not persuaded that the RAD’s IFA determination was unreasonable.
[16] Beginning with risk, the RAD identified the RPD’s central finding—that the applicants had not established the cartel was motivated to utilize its resources to locate and harm them in the proposed IFA, regardless of whether it possessed the operational capacity to do so. In coming to this conclusion, the RPD had found it unlikely that the cartel would go out of its way to pursue and harm the applicants in a different part of Mexico, and there was no evidence of a continuing interest. The RPD had noted: there was no evidence the cartel had taken recent steps to locate the applicants, approached or bothered their extended family, or was searching for them; while such organizations often threatened people, the evidence indicated they did not generally track individuals down and follow through with their threats unless the individuals meet a certain profile, which the applicants do not; and the evidence did not establish that the Ms. Lopez Gutierrez’s father was after her or motivated to use his position to locate or harm her.
[17] The RAD noted that the applicants’ arguments on appeal did not address most of these findings related to motivation. Rather, the applicants argued that the cartel’s motivation was demonstrated by all of the actions it had taken in Mexico, and the nature of the cartel’s interest had changed from a financial one to one of revenge due to Ms. Lopez Gutierrez’s failure to comply with their demands.
[18] The RAD was not persuaded by these arguments. In essence, the RAD was not satisfied that the cartel was motivated by revenge or a vendetta, and the RAD was not satisfied that the actions the applicants had pointed to were sufficient to demonstrate motivation on their own. The RAD’s main findings in this regard, after reviewing the evidence (including the recording of the testimony given at the RPD hearing) were that: (i) while the applicants asserted that the cartel was able to locate them at the aunt’s home, the evidence did not establish that the applicants were actually tracked to that location or personally approached by anyone; (ii) the evidence did not establish that Ms. Lopez Gutierrez’s father posed a threat, including because Ms. Lopez Gutierrez had assumed that her father must have told the cartel her location and had no other reason for believing that her father was pursuing them or that he was a threat; and she knew nothing about the association he might have with the cartel; (iii) the applicants’ belief that they face a vendetta was insufficient, and the evidence did not establish that the cartel was so seriously insulted by their actions that it is now determined to harm them.
[19] I am not persuaded that the RAD conflated conjecture and inference, failed to consider important facts (such as the timing of the calls and the father’s relationship with the aunt), or rejected the claim based on a lack of corroborative evidence.
[20] The RAD accepted the applicants’ subjective fear that the agents of harm were motivated to pursue them, but found their subjective fear was not supported by sufficient evidence to establish that they are likely to face an objective risk that the cartel will track and harm them in the IFA city. The RAD summarized the reasons why it concluded that the applicants’ evidence and arguments did not establish, on a balance of probabilities, that the cartel would be motivated to pursue them into the proposed IFA, and instead indicated that this is not the case. The RAD noted:
Ms. Lopez Gutierrez and the children were not personally approached when they were staying with the aunt and Mr. Alvarado Gonzalez, who remained at the family home during that period, was not approached; the applicants were not approached in the four months they were at the family home before leaving for Canada;
while the applicants claimed that Ms. Lopez Gutierrez’s father poses a threat and that he told the cartel that she was at her aunt’s home, upon questioning Ms. Lopez Gutierrez admitted that her belief was based on an assumption that, since she received calls, her father must have told the cartel her location; she had no other reason for believing that her father was pursuing them or was a threat to her, and knew nothing about the association he might have with the cartel;
it was not required to accept Ms. Lopez Gutierrez’s belief that the cartel had taken offense and was now motivated to locate and harm her as a matter of revenge—the applicants’ evidence did not demonstrate that they were the kind of targets the country condition evidence indicates are likely to be pursued;
the evidence was that the cartel was targeting the engineers who used to work with Ms. Lopez Gutierrez, and did not appear to support the contention that her failure to convince the engineers to pay the extortion had so seriously insulted the cartel that they were now determined to harm the applicants for this reason;
there was no evidence of an ongoing interest—for example, there was no evidence the cartel approached the applicants’ families or made any effort to inquire about the applicants over the last few years.
[21] I agree with the respondent that the RAD’s determination was based on the sufficiency of the applicants’ evidence. The RAD found there was insufficient evidence to conclude that the applicants face a forward-looking risk. As this Court noted in Garces Canga v Canada (Citizenship and Immigration), 2020 FC 749 at paragraph 41:
A claimant’s evidence, even if presumed credible and reliable, cannot be presumed sufficient, in and of itself, to establish the facts on a balance of probabilities. This issue must be decided by the trier of fact. Where the analysis identifies gaps in the evidence, it is up to the trier of fact to determine whether the claimant has met the burden of proof. In doing so, the trier of fact does not question the claimant’s credibility. Rather, the trier of fact seeks to determine, assuming the evidence presented is credible, whether it is sufficient to establish, on a balance of probabilities, the facts alleged.
[22] The RAD was entitled to find that the applicants’ evidence did not establish, on a balance of probabilities, that the cartel would be motivated to pursue them in the proposed IFA. The RAD reached its conclusion based on a weighing of the totality of the evidence and a consideration of multiple factors.
[23] The RAD’s reasons need not be perfect: Vavilov at para 91. The Court’s role on judicial review is not to make its own determination, but rather, to decide whether the applicants have established sufficiently serious shortcomings with the RAD’s decision to justify setting it aside. In my view, the applicants have not established a reviewable error in the RAD’s risk analysis that would render its decision unreasonable.
[24] Turning to whether it would be objectively unreasonable for the applicants to relocate to the IFA, I agree with the respondent that the RAD reasonably found that the applicants had not met their onus to establish that relocating to the IFA would be unreasonable in their circumstances. The RAD noted Federal Court of Appeal jurisprudence that there is a high threshold for the unreasonableness test, which requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or relocating to a safe area: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA) at paras 15-16. In addition, the RAD correctly noted that there must be actual and concrete evidence of such conditions: Ibid. While the applicants alleged they would be unable to afford mental health services, the RAD noted they did not provide evidence about the cost. The RAD noted that Ms. Lopez Gutierrez and Mr. Alvarado Gonzalez are university educated and previously had professional careers.
[25] As the respondent correctly points out, in this proceeding the applicants refer to general evidence about the Mexican healthcare system, rather than specific evidence to establish that they would be unable to access mental health services in the IFA. The onus was on the applicants to identify specific evidence they relied on: Singh v. Canada (Citizenship and Immigration), 2020 FC 510 at para 22.
[26] In conclusion, the applicants have not established that the RAD’s decision was unreasonable. Accordingly, this application for judicial review must be dismissed.
[27] No party proposed a question for certification. I find there is no question to certify.
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