Date: 20060615
Docket: IMM-7381-05
Citation: 2006 FC 763
Montréal, Quebec, June 15, 2006
Present: The Honourable Mr. Justice de Montigny
BETWEEN:
ERENDIRA HERNANDEZ BENITEZ
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant is a Mexican citizen who is now 28 years old. She claims to have a well‑founded fear of persecution by an individual who allegedly harassed her on several occasions, and she therefore claims the protection afforded by sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] She says that she was harassed the first time in 1993 by a man who, it turned out, was an instructor at a teachers’ college. As a result of that incident, she decided to continue her education in a town 80 kilometres from her home. Over the next 10 years, she never had any further problems with that man. It was not until 2003 that she was assaulted again by the same individual.
[3] The applicant says that she then filed a complaint with the police but left her country a few days later to come to Canada. She claimed refugee status when she arrived at the airport.
[4] The Refugee Protection Division (RPD) found that the applicant was not a Convention refugee and also that she was not a person in need of protection. The RPD essentially based that finding on two grounds: first, she disposed of an internal flight alternative, and second, the Mexican authorities appeared to be capable of protecting her. I have reviewed the record and considered the written and oral submissions made by counsel for the applicant and the respondent, and I find that the RPD made no reviewable error when it found that the applicant could have availed herself of internal flight alternative. It is therefore not necessary for me to determine whether the claim should also have been rejected on the basis of the protection that the Mexican government could have provided.
ISSUE
[5] Did the Refugee Protection Division err in determining that the applicant disposed of an internal flight alternative in her country of origin?
ANALYSIS
[6] It is settled law that an inability to take refuge in another part of the same country goes to the core of the concept of refugee. The reason therefor, as Mr. Justice Létourneau said in Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, is that, under the definition of “Convention refugee”, claimants must “be unable or unwilling by reason of fear of persecution to claim the protection of their home country in any part of that country” (paragraph 16). It is therefore incumbent on a refugee claimant to prove that he or she was unwilling or unable to avail himself or herself of internal refugee in the claimant’s country.
[7] The internal flight alternative issue must be raised expressly at the hearing so that the claimant is able to respond to it and, if necessary, adduce evidence. In order for the RPD to find that there genuinely was such an alternative, it must be satisfied on a balance of probabilities that the claimant is in fact safe from persecution in some region or city in the country, and that it would not be unreasonable, having regard to the claimant’s personal situation for him, to live in the relevant place. As my colleague Madam Justice Layden-Stevenson wrote in Righi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1351 (at paragraph 6):
The question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. This is an objective test and the onus of proof rests on the claimant. An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. The alternative place of safety must be realistically accessible to the claimant. If it is objectively reasonable to live in these places, without fear of persecution, then an IFA exists and the claimant is not a refugee. It is not a matter of a claimant's convenience or the attractiveness of the IFA, but whether one should be expected to make do in that location, before traveling half-way around the world to seek a safe haven in another country: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)
[8] Having regard to these principles, did the RPD err in finding that the applicant disposed of an internal flight alternative in Monterey? I have to answer in the negative. I have carefully examined the panel’s reasons and I am satisfied that it took into account all of the available evidence and that it made no patently unreasonable error (this being a question of fact) in its assessment of the evidence.
[9] On the first part of the test, the RPD determined that there was no risk to the applicant in Monterey, based on the following facts. First, her assailant had not shown himself to be very eager in that he had not tried to locate Ms. Benitez for ten years, when he could have done so by contacting her family or friends; this is particularly significant in that she was living only 80 kilometres from her home town and went back regularly to visit her parents. Moreover, her assailant is not a person in authority or a member of the police, he is merely a teacher.
[10] The RPD had regard to these factors when it found, first, that the applicant would not be in danger in a city with a population of over a million located more than 10 hours by road from where the assailant lives. He appears to have acted alone, and if he did nothing for 10 years to locate the applicant, when she was living in a city with a population of 50,000 that was relatively close to where he lived, how could it be assumed that he would look for her and find her in Monterey?
[11] In addition, the panel considered the applicant’s personal situation and was satisfied that moving was a reasonable option and did not place an unreasonable burden on her. The factors considered by the panel included the fact that she has lived on her own, without her parents, for several years, that she has 18 years of education and that she has studied architecture.
[12] Having regard to all of this evidence, it was not unreasonable to conclude that the applicant had not met her burden of proving that she could not avail herself of an internal flight alternative in another part of Mexico. On that point, we should also note that the threshold should be set very high in determining what would be unreasonable. To quote Létourneau J. in Ranganathan, supra, again, “ [i]t requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in traveling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions” (paragraph 15).
[13] Given that in any refugee claim it is essential to prove inability to live elsewhere in the claimant’s country of origin, the finding made by the RPD on this aspect of the claim was fatal to the applicant. Accordingly, I need make no finding regarding the validity of the RPD’s other finding, that the applicant had not met her burden of providing clear and convincing evidence that she could not reasonably have been granted the necessary protection in Mexico in the circumstances: Horvath v. Canada (Minister of Citizenship and Immigration), 2004 FC 1503 (F.C.T.D.); Diaz v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 652 (F.C.T.D.).
[14] For all these reasons, the application for judicial review is dismissed. The parties chose not to submit questions for certification, and no such question is raised in this case.
ORDER
THE COURT ORDERS:
The application for judicial review is dismissed.
“Yves de Montigny”
Judge
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE: ERENDIRA HERNANDEZ BENITEZ v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 14, 2006
AND ORDER: The Honourable Mr. Justice de Montigny
APPEARANCES:
|
Anita E. Martinez
|
FOR THE APPLICANT |
|
Patricia Deslauriers
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Anita E. Martinez Montréal, Quebec
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec
|
FOR THE RESPONDENT |