Present: The Honourable Mr. Justice Shore
BETWEEN:
RUBEN DARIO MODERNELL GILGORRI
ANA LAURA RODRIGUEZ PADRON
BRIAN DARIO MODERNELL RODRIGUEZ
Applicants
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] In Chan, the Supreme Court of Canada reiterated that a refugee claimant has the burden of establishing that a well-founded fear of persecution exists. This fear has an element that is both subjective and objective and only the existence of both of these elements supports a determination that there is a serious possibility of persecution:
Both the existence of the subjective fear and the fact that the fear is objectively well-founded must be established on a balance of probabilities. In the specific context of refugee determination, it has been established by the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, that the claimant need not prove that persecution would be more likely than not in order to meet the objective portion of the test. The claimant must establish, however, that there is more than a “mere possibility” of persecution. The applicable test has been expressed as a “reasonable possibility” or, more appropriately in my view, as a “serious possibility”.
(Chan v. Canada (Minister of Employment and Immigration) (1995), 187 N.R. 321, [1995] 3 S.C.R. 593, [1995] S.C.J. No. 78 (QL)).
NATURE OF THE JUDICIAL PROCEEDING
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) of the decision by the Refugee Protection Division of the Immigration and Refugee Board (Board) dated August 18, 2005, that the applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the Act.
FACTS
[3] The applicants, Ruben Dario Modernell Gilgorri, his wife Ana Laura Rodriguez Padron, and their son Brian Dario Modernell Rodriguez, are citizens of Uruguay. The family’s application is based on Mr. Modernell Gilgorri’s story.
[4] Ms. Rodriguez Padron worked for a few years in a pharmacy while Mr. Modernell Gilgorri, after having studied in electricity, was a self-employed electrician and sold various products.
[5] In mid-December 2002, Mr. Modernell Gilgorri was elected as a member of the local Community Centre Management. Shortly thereafter, he noticed that members of the executive committee were appropriating funds meant for the community. In February 2003, Mr. Modernell Gilgorri reported this misappropriation of funds. Mr. Modernell Gilgorri alleges that three individuals attacked him, but he did not file a police report because he was not able to identify his attackers.
[6] After this attack, Mr. Modernell Gilgorri stopped attending the Executive Committee meetings but he continued his community work with the underprivileged population of his neighbourhood.
[7] In December 2003, at the general assembly of the Community Centre Management, Mr. Modernell Gilgorri condemned the misappropriation of funds. Several individuals demanded the resignation of the members of the Executive Committee who were, according to Mr. Modernell Gilgorri, members of the Uruguayan Communist Party.
[8] Then, in April 2004, Mr. Modernell Gilgorri met Alejandro Fernandez, a former member of the Executive Committee, who pointed out that he had not forgotten him.
[9] In May 2004, Mr. Modernell Gilgorri was assaulted by four individuals when he was returning home at night. He filed a police report. Following the complaint and the police investigation, Alejandro Fernandez was arrested and detained for assaulting Mr. Modernell Gilgorri.
[10] Nearing the end of May and the beginning of June 2004, Rodriguez Padron was assaulted and their son was threatened repeatedly. In September 2004, Mr. Modernell Gilgorri was threatened in turn; he was told that he would be killed if he did not withdraw the charges.
[11] Mr. Modernell Gilgorri then decided to leave the country with his family. They left Uruguay on October 28, 2004, by bus bound for Canada through Argentine, Chili, Peru, Ecuador, Colombia, Panama, Costa-Rica, Nicaragua, El Salvador, Guatemala, Mexico and finally the United States. They crossed the Lacolle border on November 24, 2004, and claimed protection from Canada.
IMPUGNED DECISION
[12] The Board determined that they were not Convention refugees or persons in need of protection since it did not see a connection with the Convention and since Mr. Modernell Gilgorri did not wait for the Uruguayan police and judicial authorities to do their job.
[13] The Board determined that Mr. Modernell Gilgorri and his family are rather faced with a fear of personal vengeance. It is more a problem of local crime than an issue of persecution. The Board is of the opinion that the authorities acted in accordance with the norms, i.e. that they investigated and brought Alejandro Fernandez to trial following Mr. Modernell Gilgorri ’s complaint.
[14] The Board doubted the validity of the fear of Mr. Modernell Gilgorri and his family. It found that their conduct was inconsistent with the conduct of reasonable persons having a fear of persecution and seeking international protection. In fact, they travelled through 12 countries before arriving in Canada but did not seek protection in any of those countries.
ISSUES
[15] The parties raised the following issues:
1. Did the Board err in determining that the principal applicant was not credible with respect to the alleged fear of persecution?
2. Did the Board err in determining that the applicants did not meet their burden of proof of establishing that they could not benefit from the protection of the State of Uruguay?
3. Did the Board err in determining that the applicants had an internal flight alternative?
ANALYSIS
Standard of review
[16] With its expertise, the Board is the tribunal in the best position to weigh the facts, particularly when it is a matter of assessing the witnesses’ credibility and the evidence filed with regard to the definition of Convention refugee.
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
(Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), [1993] F.C.J. No. 732 (QL), at paragraph 4)
[17] This Court has on numerous occasions reiterated that the principle of patent unreasonableness applies to decisions by the Board (Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (QL), at paragraphs 9-15; Moore v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1772 (QL), at paragraphs 8-9; Tvauri v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1188 (QL), at paragraphs 10-11; Wen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 907 (QL)).
[18] The Board has a well-established expertise with regard to assessing the facts, particularly in assessing the credibility of refugee claimants and the availability of protection offered by the country of origin (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46 (QL)).
[19] The question of whether there is an internal flight alternative is itself also a question of fact. The standard of review is therefore that of patent unreasonableness (Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No. 1263 (QL), at paragraphs 9-10; E.H.S. v. Canada (Minister of Citizenship and Immigration), 2005 FC 1325, [2005] F.C.J. No. 1606 (QL), at paragraph 10; Urgel v. Canada (Minister of Citizenship and Immigration), 2004 FC 1777, [2004] F.C.J. No. 2171 (QL), at paragraph 13; Dillon v. Canada (Minister of Citizenship and Immigration), 2005 FC 381, [2005] F.C.J. No. 463 (QL), at paragraph 7; Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1591, [2004] F.C.J. No. 1912 (QL), at paragraph 18).
Credibility and fear of persecution
[20] Mr. Modernell Gilgorri alleges that he fears that Alejandro Fernandez, member of the Uruguayan Communist Party and former member of the local community centre, will persecute him. Mr. Modernell Gilgorri says that he fears him because of his political beliefs and because he reported him to the police which led to his arrest, charges and a trial.
[21] Apart from fleeing Uruguay because of Fernandez’s threats, Mr. Modernell Gilgorri pointed out at the hearing that his goal was to come to Canada in order to escape the misery existing in his own country.
[22] In this matter, the Board’s determination can be inferred reasonably from the evidence. The simple fact that Mr. Modernell Gilgorri and his family interpret the evidence differently does not at all establish that the Board made a determinative error in its own interpretation of the evidence or in the inferences that it made therefrom.
[23] Further, the Board made a negative finding with respect to the conduct of Mr. Modernell Gilgorri and his family, which was incompatible with the conduct of persons having a well-founded fear of persecution. The Board points out that they left Uruguay for Canada via 12 South American, Central American and North American countries. They did not claim protection from any of these countries.
[24] In Ilie v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758 (QL), at paragraph 2, Mr. Justice Andrew MacKay states the following:
The basis of that conclusion was that his conduct subsequent to leaving Romania in July 1992 was inconsistent with a fear of persecution and his delay in claiming refugee status until he arrived in Canada in February 1993 negated a well-founded fear of persecution.
[25] Similarly, in Assadi v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 331 (QL), at paragraph 14, Mr. Justice Max Teitelbaum states as follows:
. . . Failure to immediately seek protection can impugn the claimant's credibility, including his or her testimony about events in his country of origin . . .
[26] In Leul v. Canada (Secretary of State), [1994] F.C.J. No. 833 (QL), at paragraphs 7 and 12, Mr. Justice Francis Muldoon writes the following:
. . . One might observe that he passed through Amsterdam and that The Netherlands is a convention refugee signatory, but apparently he did not think to claim refugee status there.
. . .
. . . Just as I would not wish to send back to his country a person who stood in jeopardy of a reasonable chance of persecution, so I just do not wish to leave in Canada a person who isn't entitled to be here; a person who passed through a country which was a signatory to the convention and did not think to claim refugee status there.
[27] Referring to several other decisions bearing on this very subject, Mr. Justice Edmond Blanchard states, in Pissareva v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2001 (QL), at paragraph 27:
. . .The fact of passing through a country which is a signatory of the Convention without claiming refugee status as quickly as possible may be one factor in assessing the subjective aspects of her claim.
[28] The Board was entitled to determine that it was a fear characterized by Alejandro Fernandez’s need for personal vengeance. In other words, the alleged fear of persecution is not related to the grounds listed in the Convention. Personal vengeance has no connection with grounds of race, religion, nationality, political opinion or membership in a particular social group, which are the grounds set out in the definition of Convention refugee.
[29] This principle was established inter alia by Madam Justice Danièle Tremblay-Lamer in Marincas v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1254 (QL):
In view of the facts in the record the panel could have concluded as it did that the fear mentioned by the applicant was not connected to any of the five grounds listed in the definition of a Convention “refugee”. The fear of personal vengeance is not a fear of persecution. In these circumstances, I cannot intervene.
[30] In Chan, supra, the Supreme Court of Canada reiterated that a refugee claimant has the burden of establishing the existence of a well-founded fear of persecution. This fear has a subjective and objective element, and a serious possibility of persecution can be found only where both of these elements exist.
[31] On that point, Madam Justice Tremblay-Lamer said the following in Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695 (QL), at paragraph 10:
The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition–subjective and objective–must be met.
[32] Accordingly, Mr. Modernell Gilgorri and his family did not establish that they had a subjective fear of persecution if they were to return to Uruguay. The lack of a subjective fear of persecution signifies that the Board need not identify the objective basis of the alleged fear based on any independent documentary evidence.
State protection
[33] The Board was preoccupied by the fact that Mr. Modernell Gilgorri and his family did not wait for the judicial process initiated by the judicial authorities to be completed. They decided to leave their country and Mr. Modernell Gilgorri did not testify at the trial of Alejandro Fernandez, who was arrested and detained following Mr. Modernell Gilgorri’s report to the police.
[34] It is important to remember the principle established in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 (QL), at paragraph 50, namely that the evidence must be clear and convincing to rebut the presumption that a State is able to guarantee the protection of its nationals:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[35] Further, the Court of Appeal has already stated that no country can guarantee the protection of all of its citizens at all times:
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. . . . On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.
(Canada (Minister of Employment and Immigration) v. Villafranca (1992) 18 Imm. L.R. (2d) 130 (F.C.A.), [1992] F.C.J. No. 1189 (QL), at paragraph 7)
[36] Mr. Modernell Gilgorri and his family did not meet their burden of proof of establishing that they were not being protected by their State.
[37] The determinations made by the Board can reasonably be inferred from the evidence filed. The presumption to the effect that the Board considered all of the evidence in determining that Mr. Modernell Gilgorri and his family are not Convention refugees or persons in need of protection is applicable in this case (Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102; Hassan v. Canada (Minister of Employment and Immigration), (1992), 147 N.R. 317 (F.C.A.), [1992] F.C.J. No. 946).
Internal flight alternative
[38] When there is an internal flight alternative, it is not necessary to determine whether a claimant is able or willing to obtain protection from the State (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), [1993] F.C.J. No. 1172 (QL); Urgel, supra, at paragraph 14).
[39] It is the claimant’s responsibility to establish that there is a serious possibility of persecution in the entire country, therefore that there is no internal flight alternative (Covarrubias v. Canada (Minister of Citizenship and Immigration), 2004 FC 1434, [2004] F.C.J. No. 1747 (QL), at paragraph 17; E.H.S., supra, at paragraphs 13-14).
[40] In E.H.S., supra, at paragraph 12, Mr. Justice Pierre Blais sets out the test for determining whether there is an internal flight alternative:
The Federal Court of Appeal developed a two-part test to determine whether a person claiming refugee status has an IFA in another part of their country. The test was clearly reiterated by Beaudry J. in Dillon v. (Minister of Citizenship and Immigration), [2005] F.C.J. No. 463, at paragraph 11:
In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at paragraph 2, the Federal Court of Appeal listed two elements to be considered when establishing an IFA: the Board must be satisfied on the balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists, and, taking into account all the circumstances, including those specific to the applicant, the situation in the proposed location must be such that it would not be unreasonable for the applicant to seek shelter there.
[41] In this case, the Board determined that there was an internal flight alternative in Uruguay. When Mr. Modernell Gilgorri was questioned on that point, he said that the State was too small for him to find safety elsewhere and that he did not have enough money to move elsewhere in the country. He also said that he had not considered the possibility of moving elsewhere.
[42] Mr. Modernell Gilgorri and his family did not show the Board that they were at risk of being persecuted everywhere across Uruguay. They did not establish that it would be unreasonable for them to go elsewhere in Uruguay to seek refuge. It was therefore reasonable for the Board to determine that there was an internal flight alternative and therefore that it was not justified in granting protection to Mr. Modernell Gilgorri and his family.
CONCLUSION
[43] Considering the foregoing, Mr. Modernell Gilgorri and his family did not establish that the Board made a patently unreasonable error in law or in assessing the facts that would justify the intervention of this Court. This application for judicial review is therefore dismissed.
JUDGMENT
THE COURT ORDERS that:
1. The application for judicial review be dismissed.
2. No serious question of general importance be certified.
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5423-05
STYLE OF CAUSE: RUBEN DARIO MODERNELL GILGORRI
ANA LAURA RODRIGUEZ PADRON
BRIAN DARIO MODERNELL RODRIGUEZ
v. MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 25, 2006
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
|
Lenya Kalepdjian
|
FOR THE APPLICANTS |
|
Diane Lemery
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD :
|
Lenya Kalepdjian
|
FOR THE APPLICANTS |
|
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT |