Date: 20040809
Docket: IMM-5776-03
Citation: 2004 FC 1094
Ottawa, Ontario, August 9, 2004
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
ROLANDO DANIEL VILLEGAS FERNANDEZ
ROLANDO JAVIER VILLEGAS SOLDAN
TERESA VIOLETA VILLEGAS ROLDAN
ABEL MATIAS VILLEGAS ROLDAN
SANDRA VIOLETA VILLEGAS
EVELINA ANALIA VILLEGAS ROLDAN
DIEGO SEBASTIAN VILLEGAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") wherein the Board determined that the applicants are not Convention refugees or persons in need of protection as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[2] Rolando Javier Villegas Soldan ("the principal applicant") is accompanied by his father, his mother and his four siblings. The applicants are citizens of Argentina who claim to have a well-founded fear of persecution on the grounds of membership in a particular social group, namely the family.
[3] The applicants base their claim for protection on the principal applicant's experiences as a member of a particular social group, namely as a youth targeted for recruitment by a youth gang affiliated with the police mafia in Mendoza, Argentina.
[4] On April 4th, 2001 the principal applicant was approached by gang members who demanded that he join them in committing crimes in the neighbourhood. When he told them that he did not want to join, they beat and threatened him and stole his bicycle.
[5] In the evening of May 16th, 2001 the principal applicant was going to the store with his friend when the same gang members stopped him and asked whether he had agreed to join. When he said no, a gang member tried to shoot him with a gun but instead, injured his friend in the face. The principal applicant and his father went to report the incident to police. The police did not investigate the incident saying that they were unable to do anything because the gang members are minors. The applicants have been threatened by the gang ever since for having reported them to the police.
[6] On May 17th, 2001 the principal applicant was accosted by gang members who put a gun to his forehead telling him to disappear because he had reported them to police. The trigger of the gun was pulled but it jammed and did not fire. The principal applicant was brutally beaten and he stayed at his grandmother's home thereafter.
[7] On June 11th, 2001 ,the principal applicant and his father fled Argentina through Chile and the United States of America ("USA"). Both arrived in Canada on June 12th, 2001 where they claimed refugee status. Six months later, on December 1st, 2001, the principal applicant's mother and the four remaining children left Argentina through Chile, Ecuador and the USA. They arrived in Canada on December 7th, 2001 where they claimed refugee status.
[8] The Board found that the applicants are not Convention refugees or persons in need of protection because they did not demonstrate that state protection was unavailable to them and because they did not provide evidence to support their claim that there is a reasonable chance or a serious possibility that they will be persecuted in Argentina today. More importantly, the Board found that the applicants had a reasonable Internal Flight Alternative (IFA) in Argentina. In particular, the Board found no objective evidence to support the applicant's claim that they would be targeted by gang members in other parts of the country. Further, it found that it would not be unreasonable in all circumstances for the family to seek refuge in Buenos Aires.
[9] The applicants submit that the Board erred in concluding that there is a reasonable IFA in Argentina. I disagree. The applicants bear the burden of showing that they cannot or that they will not seek an IFA in their country of residence and the existence of a reasonable IFA puts into question the applicants' claim: see Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589 (C.A.) and Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706 (C.A.).
[10] However, in the present case the applicants provided no evidence to support this allegation that the youth gang stationed in Mendoza has any connection anywhere else in Argentina. Thus, I am satisfied that it was reasonable for the Board to determine that the applicants would have an IFA in Buenos Aires, which is a large city and in which there is no objective evidence that the gang operated.
[11] Further, I am also satisfied that it was open for the Board to conclude that "it would not be unreasonable in all circumstances for the family to seek refuge in Buenos Aires". As emphasized by Létourneau J.A. in Ranganathan c. Canada (M.C.I.), [2001] 2 F.C. 164, this Court has set a very high threshold for the unreasonableness test in that "it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area" (para. 15). In this same judgement, Létouneau, J.A. warns against lowering this threshold:
¶ 16 There are at least two reasons why it is important not to lower that threshold. First, as this Court said in Thirunavukkarasu [at page 599], the definition of refugee under the Convention "requires claimants to be unable or unwilling by reason of fear of persecution to claim the protection of their home country in any part of that country". Put another way, what makes a person a refugee under the Convention is his fear of persecution by his home country in any part of that country. To expand and lower the standard for assessing reasonableness of the IFA is to fundamentally denature the definition of refugee: one becomes a refugee who has no fear of persecution and who would be better off in Canada physically, economically and emotionally than in a safe place in his own country.
[12] In my opinion, whether the applicant Teresa was able to sell her home was not a factor which carried enough weight to meet the high threshold for the unreasonableness part of the IFA test. Consequently, I find that the applicant has failed to demonstrate that the Board erred in considering whether they have a reasonable IFA in other parts of Argentina.
[13] Further, I find that the Board did not breach its duty of fairness as it was under no obligation to question the applicant on statements made at the port of entry. The interview notes are part of the documentary evidence and can be relied upon by the Board in its assessment of the applicant's claim.
[14] Consequently, the Board committed no reviewable error in its disposition of this case and the application for judicial review is dismissed.
[15] Counsel for the applicant requested that the following question be certified:
Whether a panel member of the IRB hearing a convention refugee claim is required to inquire into the context of an examination between an immigration officer and an applicant to provide an opportunity to respond to its concerns with such evidence prior to relying on such declarations in its consideration of the second part of the Rasaratnam test to determine whether an IFA exist?
[16] The certification of this question would not be appropriate as there is no serious question of general importance. Therefore, the Court will not certify the question.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5776-03
STYLE OF CAUSE: ROLANDO DANIEL VILLEGAS FERNANDEZ ET AL v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 4, 2004
REASONS FOR ORDER
AND ORDEROF THE HONOURABLE MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
APPEARANCES:
Mr. Alvaro J. Carol FOR THE APPLICANTS
Ms. Aviva Basman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Alex Billingsley
Barrister & Solicitor
2040 Younge Street
Suite 200
Toronto, Ontario
M4S 1Z9 FOR THE APPLICANTS
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT