Date: 20050302
Docket: IMM-6778-04
Citation: 2005 FC 313
Montréal, Quebec, the 2nd day of March 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
ANELA JULIEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division (the panel) dated July 12, 2004, denying Ms. Julien (the applicant) the status of a Convention refugee or a person in need of protection pursuant to sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
RELEVANT FACTS
[2] The applicant is originally from Haiti, where she operated a small shop in Port-au-Prince. In May 2003, the shop was ransacked twice. On June 4, 2003, while the applicant and her husband were getting ready to close up the shop, a man and a woman came into the store and ordered them to hand over the money and keys to the store and their house. The police were able to catch the criminals a few minutes later and nothing was lost.
[3] Between July 12 and 16, 2003, the McDonald station, where the applicant's shop was located, was ravaged by two separate fires, which completely destroyed the applicant's shop. The offenders responsible for the fire were arrested. During July 2003, the applicant took part in two demonstrations against the criminals responsible for the fire.
[4] On October 11, 2003, four police officers went to the applicant's home, stole the money she had hidden in her house and took her and her husband to the police station and beat them. They were released in return for the sum of 16,000 gourds (about C$640).
[5] After this, the applicant and her family had to split up and live in hiding with friends.
[6] On December 3, 2003, with the help of an alien smuggler, the applicant was able to come to Canada and claim refugee status.
ISSUE
[7] Did the panel err in law in finding that the applicant had an internal flight alternative and in dismissing her refugee claim?
ANALYSIS
[8] Although the applicant argued that since the panel determined that in general the applicant was generally credible (see panel's reasons, page 1), it should have granted the refugee claim, it is clear from the panel's reasons for decision that the refugee claim was dismissed since there was an internal flight alternative.
[9] For a refugee claim to be approved under sections 96 or 97 of the Act, there must be an internal flight alternative in the applicant's country of nationality:
As to the third proposition, since by definition a Convention refugee must be a refugee from a country, not from some subdivision or region of a country, a claimant cannot be a Convention refugee if there is an IFA. It follows that the determination of whether or not there is an IFA is integral to the determination whether or not a claimant is a Convention refugee. I see no justification for departing from the norms established by the legislation and jurisprudence and treating an IFA question as though it were a cessation of or exclusion from Convention refugee status. For that reason, I would reject the appellant's third proposition. (Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at paragraph 8.) [Emphasis added.]
[10] The applicant even testified that she would have no problems going to live in Cap Haïtien:
[TRANSLATION]
Q. I will repeat the question, madam: you must answer clearly and if you do not understand, tell me that you did not understand so I can repeat the question. At this time, in June 2004, what makes you think that if you went to live in Cap Haïtien the police would come looking for you to persecute you?
A. I would have no problems going to live in Cap Haïtien, but all my business was in Port-au-Prince, it was not in Cap Haïtien and I do not know . . . I do not know Cap Haïtien, I have no one, and even my husband could not go there.
Q. You could not go to Cap Haïtien because you were not acquainted with it?
A. It is not easy to leave a city and go and settle in another one when you don't know, you . . . you know nothing about . . . about the other city, it isn't easy.
(See pages 18 and 19 of the transcript of June 11, 2004)
[11] The mere fact of not wanting to move, or experiencing difficulties settling in a new city, are not factors which could justify the applicant in not seeking an internal flight alternative in the country where she lives.
Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so. (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), at paragraph 12.)
[12] To this I would add the comments of Létourneau J.A. in Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, for the Court of Appeal:
I agree with Rothstein J., as he then was, in Kanagaratnam v. Minister of Employment and Immigration (1994), 83 F.T.R. 131 (F.C.T.D.), that the decision of our Court in Thirunavukkarasu does not exclude, as a relevant factor on the issue of the reasonableness of the IFA, the absence of relatives in or in the vicinity of the safe area. It makes it obvious though that more than the mere absence of relatives is needed in order to make an IFA unreasonable. Indeed there is always some hardship, even undue hardship, involved when a person has to abandon the comfort of [page 171] his home to live in a different part of his country where he has to seek employment and start a new life away from family and friends. This is not, however, the kind of undue hardship that this Court was considering in Thirunavukkarasu. (Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.), at paragraph 14).
[13] Further, as indicated by the applicant, an Amnesty International document exists indicating that Haitian refugees should not be sent back to Haiti. At the same time, the same document indicates that the Multinational Interim Force was sent into Haiti to restore order, and there were few refugees who decided to leave Haiti.
[14] In conclusion, as an internal flight alternative exists in Haiti and the possibility of refuge in another part of the same country is inherent in the definition of a Convention refugee, the applicant did not persuade the Court that the panel made any error that would justify this Court's intervention.
ORDER
THE COURT ORDERS THAT the application for judicial review be dismissed.
The parties submitted no questions for certification.
|
|
"Pierre Blais"
Judge |
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6778-04
STYLE OF CAUSE: ANELA JULIEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 1, 2005
REASONS FOR ORDER AND ORDER BY: THE HONOURABLE MR. JUSTICE BLAIS
DATED: March 2, 2005
APPEARANCES:
Sylvie Gourd FOR THE APPLICANT
Lynne Lazaroff FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gourd, Marsolais FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec