Toronto, Ontario, September 28, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Ulises Orestes Lopez Lopez is a citizen of Mexico. He seeks judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) wherein it was determined that he was neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2] The applicant arrived in Canada on June 22, 2003 and initiated his claim for refugee status on July 21, 2003. The claim was heard on September 26, 2005 and was rejected in an oral decision delivered that same day. The written version of the oral reasons and decision is dated October 14, 2005.
[3] The applicant claimed to be a Convention refugee through the nexus of his membership in a social group, namely homosexuals. He claimed, for that reason, to have a well-founded fear of being persecuted by Mexican authorities and society and of being a person in need of protection.
[4] Three incidents were described in the applicant’s testimony. The first is alleged to have occurred in December 2001 as he left a gay bar in his hometown of Aguascalientes. He stated that it involved a forced trip to the police station, the theft of personal belongings, overnight detention and threats of further harm. The second incident occurred in July 2002 when the applicant was assaulted in a park and had to be hospitalized for one day. The third incident took place in Guadalajara, where the applicant had relocated, in August 2002. On this occasion the applicant’s nose was broken. Following that experience, he decided to flee to Canada.
[5] The applicant testified that he had made a formal complaint (“denunciation”) to the authorities respecting the police officers involved in the first incident. He did not report either of the other two incidents, involving unknown persons, to the authorities.
DECISION
[6] The Board accepted that the applicant was a homosexual but concluded that there was insufficient evidence to determine that he was a Convention refugee or a person in need of protection. The Board noted that there had been no reference to the formal complaint made to the authorities in the notes made of the interview conducted with the applicant at the Port of Entry, or in the applicant’s Personal Information Form (PIF). There was no evidence that he had attempted to obtain a copy to present to the Board. As a result the Board concluded that there was reason to doubt the trustworthiness of this evidence.
[7] In the Board's view, the applicant's fear that the policeman involved in the alleged incident would follow him or trace him should he relocate to the Federal District of Mexico City was not reasonable or objectively well-founded. There was no evidence that the police had bothered the applicant after December 2001. The subsequent two incidents were also isolated events, each being at the hands of different unknown persons.
[8] With respect to the applicant's generalized fear of persecution, the Board held that the incidents described in his PIF did not amount to persecution although they demonstrated discrimination against gays. The applicant had not been denied education or employment. The incidents of assault were not persistent, nor did they escalate over time. The Board concluded that it would not be unreasonable to expect the applicant, given his qualifications, to find work in the Federal District. Accordingly, it was satisfied that an internal flight alternative (IFA) existed.
[9] With regard to the availability of state protection, the Board observed that the fact that the applicant was able to make a formal complaint against the police officers concerning the first incident indicates that state protection was available to him. The Board noted that the applicant, in his testimony, was not sure whether the authorities had taken the complaint seriously or not. It pointed to organizations in the Federal District including the Gay and Lesbian Human Rights Commission that could lend support should the applicant be required to make a complaint in the future.
ISSUES
[10] The applicant's written submissions raised the following issues:
1. Did the Board err in making adverse credibility findings?
2. Did the Board err in assessing the evidentiary basis of the applicant’s claim?
3. Did the Board err in concluding that state protection would be available in the event of repatriation?
4. Did the Board err in determining that the applicant has an internal flight alternative (IFA) available?
[11] In the oral hearing, counsel for the applicant chose to focus on whether the Board erred in determining that the applicant has an IFA available in the Federal District and did not address the other issues. Nonetheless, I think it necessary to deal with them, albeit briefly.
ANALYSIS
Standard of Review
[12] It is well settled that the standard of review of the Board’s findings of fact including its analysis of the availability of an IFA is patent unreasonableness: On that standard, the Court will only intervene with the Board's decision if the applicant can demonstrate that the decision was based on an erroneous finding of fact or one that was made in a perverse or capricious manner or without regard for the material before it: Khan v. Canada (Minister of Citizenship and Immigration), 2005 FC 44, [2005] F.C.J. No. 47 at para. 7 (QL); See also: Fabela v. Canada (Minister of Citizenship and Immigration), 2005 FC 1028, [2005] F.C.J. No. 1277 at para. 34 (QL); Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No. 1263 at para. 5 (QL).
[13] The weight of recent authority in this court with respect to a finding that state protection is available is that the standard is one of reasonableness as it involves a mixed question of fact and law: Chaves v. Canada (Minister of Citizenship and Immigration) 2005 FC 193, (2005), 45 Imm. L. R. (3d) 58 (F.C.) at para. 11; Martinez v. Canada (Minister of Citizenship and Immigration), 2006 FC 403, [2006] F.C.J. No. 589 at para. 13 (QL); Lorne v. Canada (Minister of Citizenship and Immigration, 2006 FC 384, [2006] F.C.J. No. 487 at para. 7(QL); Garcia v. Canada (Minister of Citizenship and Immigration), 2006 FC 611, [2006] F.C.J. No. 767 at para. 8 (QL).
[14] There is also considerable support for the conclusion that the identification of persecution behind incidents of discrimination or harassment is also a question of mixed law and fact calling for the reasonableness standard: Wickramasinghe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 470, [2002] F.C.J. No. 601 at para. 10 (QL); Natynczyk v. Canada (Minister of Citizenship and Immigration), 2004 FC 914, [2004] F.C.J. No. 1118 at para. 63 (QL); Mihajlovics v. Canada (Minister of Citizenship and Immigration), 2004 FC 215, [2004] F.C.J. No. 248 at para. 11 (QL).
[15] A decision will only be found to be unreasonable if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20 at para. 55.
1. Credibility
[16]
While
this was characterized as a credibility issue by the applicant in his written
submissions, the Board’s decision does not expressly contain an adverse
credibility finding. The Board found that there was reason to doubt the
trustworthiness of the applicant’s evidence with respect to the allegation that
he had made a formal denunciation. The Board went on to state however,
that what it considered to be an "embellishment" did not impugn all
of his evidence, and given the benefit of the doubt, there was sufficient
evidence to analyze the claim.
[17] The applicant submits that the Board erred in failing to confront the applicant with this inconsistency between his oral testimony, the Port of Entry interview notes, and his PIF, and in failing to afford him an opportunity to clarify the evidence and explain this inconsistency. This is simply incorrect. The fact that the denunciation was not mentioned in the applicant’s PIF was specifically drawn to his attention in the course of the proceedings. The applicant responded that he had "attached the denunciation, but I don't remember" and when the Board member drew the applicant's attention to the fact that this was not the case and asked whether he had a copy of the document he responded "no, I threw it away."
[18] The jurisprudence is clear that omissions and inconsistencies in a claimant's PIF may constitute a basis for an adverse credibility finding: Garcia v. Canada (Minister of Citizenship and Immigration), 2006 FC 611, [2006] F.C.J. No. 767 at para. 10 (QL); Oyebade v. Canada (Minister of Citizenship and Immigration), 2001 FCT 773, [2001] F.C.J. No. 1113 at para. 13 (QL). While the Board in this case did not deem it necessary to make such a finding expressly, any negative inference that it may have drawn from the applicant’s failure to refer to the denunciation earlier or to make any effort to produce a copy is supported by the evidence and is not unreasonable.
2. Evidentiary basis of the applicant’s claim.
[19] This issue was not expressly identified in the applicant’s written submissions nor was it addressed in oral argument. However, in commenting on the Board’s treatment of the PIF inconsistency discussed above in his written argument, the applicant submits that the Board erred in law by finding that the applicant’s subjective fear of persecution by reason of his sexual orientation was not objectively well-founded as it 1) failed to consider the totality of the objective evidence, specifically the PIF narrative and 2) failed to apply the principle that evidence of past persecution is one of the most persuasive means of demonstrating that a fear of future persecution is objectively well-founded: Rajudeen v. Canada (M.E.I.), (1984), 55 N.R. 129 (FCA), [1984] F.C.J. No. 601 (QL).
[20] To establish a well-founded fear of persecution a claimant must prove that they have (1) a subjective fear of persecution; and (2) that this fear is well-founded in an objective sense; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 at para. 47 (QL) [Ward]. The applicant must demonstrate on a balance of probabilities that they meet this test: Saverimuttu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1021, [2002] F.C.J. No. 1329, at para. 18 (QL). That being said, the applicant does not have to demonstrate that the persecution would be more likely than not, as noted by the Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.): “there need not be more than a 50% chance (i.e., a probability), and … there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.”
[21] For incidents of harassment or discrimination to amount to persecution, the applicant must demonstrate that cumulatively or singly they “constitute a serious, systematic and repeated violation of core human rights”: Kaish v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1041 at para. 9 (QL). Though the question of past persecution can be relevant to prospective risk, the test is forward looking: Arulnesan v. Canada (Minister of Citizenship and Immigration) 2004 FC 1770, [2004] F.C.J. No. 2178, at para. 10 (QL). Also relevant is the availability of state protection and an internal flight alternative.
[22] It is clear from the transcript that the Board explored in detail the root sources of the applicant’s fears with respect to returning to Mexico, including the alleged incidents of assault, his past employment, and his general fear of persecution and discrimination. The Board’s conclusion that the incidents were isolated, not persistent, did not escalate over time, and did not rise to the level of persecution, was open to it on the evidence. While the Board understood where the applicant’s subjective fear might come from, it was reasonable for it to conclude that the objective component of the test had not been met.
3. State Protection
[23] The applicant submitted in his memorandum of argument that the documentary evidence presented to the Board rebutted the presumption of state protection for gays, and supported the conclusion that no protection would be forthcoming should he be repatriated.
[24] The respondent submits that the standard of “clear and convincing evidence” required to rebut the presumption of state protection has not been met in this case: Ward, above. The evidence that the applicant was attacked by strangers on two occasions and once by rogue police officers does not satisfy the test, especially in light of the fact that the applicant did not report the incidents of July 2002 and August 2002. It is not enough for a claimant to merely show that their government has not always been effective at protecting persons in a certain situation, as no government can guarantee the protection of all of its citizens at all times; particularly so in a democracy: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. LR. (2d) 130 (F.C.A).
[25] The respondent submits that the standard of “clear and convincing evidence” required to rebut the presumption of state protection has not been met in this case: Ward, above. The evidence that the applicant was attacked by strangers on two occasions and once by rogue police officers does not satisfy the test, especially in light of the fact that the applicant did not report the incidents of July 2002 and August 2002. It is not enough for a claimant to merely show that their government has not always been effective at protecting persons in a certain situation, as no government can guarantee the protection of all of its citizens at all times; particularly so in a democracy: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. LR. (2d) 130 (F.C.A).
[26] There was evidence before the Board that legislation is in place in Mexico to protect the rights of people regardless of their sexual orientation. The applicant bore the burden of demonstrating that this legislation is not effective and/or not enforced. Considering that the applicant did not approach the state for protection in two of the three alleged incidents, that his evidence that he had made a complaint in the first incident was not considered trustworthy and that when given the benefit of the doubt, he could not say whether the complaint was taken seriously or not, it was reasonable for the Board to conclude that the presumption had not been rebutted.
4. Internal Flight Alternative (IFA)
[27] The applicant argues that an IFA assessment must be based on a distinct evaluation of a region for that purpose, taking into account the applicant’s identity, and that the Board failed to do this thereby erring in law: Selvakumaran v. Canada (Minister of Citizenship and Immigration), 2002 FCT 623, [2002] F.C.J. No. 842 (QL). In addition, the applicant argues that the IFA should be restricted in its application to persons who can genuinely access domestic protection and for whom the reality of protection is meaningful: Hathaway, James C., The Law of Refugee Status (Toronto: Butterworths, 1991). The applicant further argues that the Board’s conclusion that the objective evidence in the standard country package belies the applicant’s subjective fear of being denied employment in the Federal District because of his sexual orientation was an error in law in that the Board failed to point to an adequate evidentiary basis to support this conclusion.
[28] The assessment of whether an IFA is available to an applicant is a forward looking analysis. As noted by the Court of Appeal in Thirunavukkarasu v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 589 (C.A.) at para. 2:
The idea of an internal flight alternative is "inherent" in the definition of a Convention refugee [...]; it is not something separate at all. That definition requires that the claimants have a well-founded fear of persecution which renders them unable or unwilling to return to their home country. If claimants are able to seek safe refuge within their own country, there is no basis for finding that they are unable or unwilling to avail themselves of the protection of that country.
[29] In finding the existence of an IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in the Federal District and that, in all the circumstances including circumstances particular to the applicant, conditions were such that it would be reasonable for the applicant to seek refuge there: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), [1991] F.C.J. 1256 at para. 10 (QL).
[30] The question of “why can’t you go to the Federal District” was put squarely to the applicant by the Board member. The applicant was asked to explain why he thought the police would either follow him there or know he was there. In determining the existence of an IFA, the Board member also clearly considered the education, sexual orientation, and employment possibilities of the applicant, in addition to the support available in the Federal District for gays. The Board member’s finding was therefore not patently unreasonable and will not be disturbed.
[31] Overall, I find that the decision was reasonable and there are no grounds for the Court to interfere. No serious questions of general importance were proposed and none will be certified.
JUDGMENT
IT IS HEREBY ADJUDGED that the application is dismissed. No questions are certified.
“Richard G. Mosley”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7216-05
STYLE OF CAUSE: ULISES ORESTES LOPEZ LOPEZ v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 27, 2006
APPEARANCES:
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Debra J. Shelly
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Michael Butterfield
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SOLICITORS OF RECORD:
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ROBERT GERTLER, and Associates Barristers & Solicitors Toronto, Ontario |
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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