Date: 20110325
Docket: IMM-3665-10
Citation: 2011 FC 369
Ottawa, Ontario, March 25,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ZOILA ANGELICA MARTINEZ DE ARGUETA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, 2001, c. 27 (IRPA)
for judicial review of a June 8, 2010 decision of the Refugee Protection Division
of the Immigration Refugee Board (the Board) in which the Board found the
applicant to be neither a Convention refugee nor a person in need of protection
under sections 96 and 97 of the IRPA. For the reasons that follow, the
application for judicial review is dismissed.
Background
[2]
This
application for judicial review arises from a claim for protection by the applicant,
a citizen of both El Salvador and Guatemala, based on a fear of violence
by her former partner. The Board rejected her claim on the basis of available
state protection and an Internal Flight Alternative (IFA) in Quetzaltenango.
[3]
The applicant
was born in Guatemala and moved to El Salvador when she was five years old. She married
a citizen of El
Salvador
and became a nationalized citizen there. She is a citizen of both countries.
[4]
The applicant’s
former partner was a police officer who later served in the military. The Board
accepted that there had been abusive conduct during the marriage. In 2003, the
applicant left her husband to stay with her father. In 2004, she left El Salvador for the United States, and
then came to Canada in 2008 where she has relatives.
There she claimed refugee status. In her updated Personal Information Form (PIF),
the applicant wrote that her former partner visited her father’s house in
January and June 2009 to look for her, threatening that she would never be able
to leave him and that she would regret her decision to leave.
Decision Under Review
[5]
As
noted, the Board found that the applicant was not a person in need of
protection.
[6]
In
coming to this decision, the Board considered the availability of state
protection in El
Salvador.
The Board noted that El
Salvador
is a constitutional democracy which holds generally free and fair elections and
is in effective control of its territory. Although the judiciary suffers from
inefficiency, corruption and insufficient resources, the Board found that there
was nothing in the documentary evidence before the panel to suggest that El Salvador is in a state of civil
disorder.
[7]
The Board
acknowledged that documentation suggests that violence and discrimination
against women continues to be a real problem, and that spousal rape was not yet
recognized as a crime; however, the Board also noted that El Salvador has introduced national
laws and programs aimed at protecting women from discrimination, domestic
violence, and sexual harassment. This includes the establishment of the
Salvadoran Institute for the Development of Women.
[8]
With
regard to Guatemala, the Board noted that
the country was a multi-party democratic republic ensuring free and fair
elections, and that it had laws criminalizing rape, as well as physical,
economic, and psychological violence. The Board acknowledged that there are
issues with executing these programs and laws. The Board concluded that
despite some inconsistencies in the sources, the preponderance of the objective
evidence suggests that there is adequate state protection in El Salvador and Guatemala and that the police are
both willing and able to protect victims of gender violence.
[9]
The Board
observed that the applicant had only once made a police report which had
nothing to do with the alleged domestic abuse, and found that the applicant had
not taken all reasonable steps in the circumstances to seek protection. Although
the applicant testified that she feared her former partner’s connection with
the authorities as a former police officer, the Board stated that “[t]he
adequacy of state protection cannot rest on the subjective fear of the
claimant.” As such, the Board found that the applicant had failed to rebut the
presumption of state protection.
[10]
The Board
also examined the issue of an IFA, and found that the applicant could live in
the city of Quezaltenango, Guatemala without a serious possibility of being persecuted. The Board
was satisfied that it would be reasonable for the applicant to relocate there.
The Board considered the large population and the applicant’s ability to find
work there. The Board found that her former partner would not be likely to
venture that far from his home state to find the applicant. Although the applicant
stated that she was afraid her former partner would not give up until he found her,
she was unable to provide credible evidence as to why relocation to
Quezaltenango would not be an option, given that her former partner has not
located her in the last seven years. The Board rejected the applicant’s
argument that her former partner could bribe people through his connection with
the military and the police (in El Salvador) to find her. The Board also noted that
the applicant had a sister who also lived in Guatemala, in Guatemala City. The Board concluded that it would not be
unduly harsh for the applicant to relocate there.
[11]
Because
of the availability of adequate state protection as well as a viable IFA, the Board
found that the applicant was neither a Convention refugee nor a person at risk
of harm. The applicant’s claim was therefore rejected.
Issues
[12]
There
are two points in issue. The applicant submits that the Board made a
reviewable error in its findings regarding both the availability of state
protection and the availability of an IFA.
Submissions of the Parties
Standard of Review
[13]
Counsel
for the applicant agreed that in order to succeed, the applicant had to
overcome significant factual and legal hurdles. As a citizen of both El
Salvador and Guatemala, she had to establish a
failure of state protection in both countries and that there was no viable IFA
within either. Moreover, it was undisputed that the Board’s findings of
available state protection and the existence of an IFA are to be reviewed on a
standard of reasonableness: Montalvo v Canada (Minister of
Citizenship and Immigration), 2008 FC 716 at paras 9-12. This means that
deference should be given to the Board’s decision, so long as the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law: Dunsmuir v New Brunswick, 2008 SCC 9 at para
47.
State Protection
[14]
The applicant
argues that the Board’s findings on state protection were unreasonable. The applicant
identified a number of documents in the record which contradicted the Board’s finding
of adequate state protection in El Salvador and Guatemala. The applicant also referred at length to
other evidence that was before the Board but not mentioned by the Board,
describing the problems of violence that women face in El Salvador and Guatemala.
[15]
The applicant
submits that based on the country condition evidence before it, the Board’s conclusion
of adequate state protection was unreasonable. The applicant takes issue with
the fact that the Board mainly relied on the existence of laws and institutions
established to protect women, rather than the effectiveness of these protective
measures. The applicant submits that it is insufficient for a state to possess
institutions designed to provide protection if those institutions do not
provide actual and adequate protection. The applicant cites a number of cases
to support this proposition: Razo v Canada (Minister of
Citizenship and Immigration), 2007 FC 1265; and Avila v Canada (Minister of
Citizenship and Immigration), 2006 FC 359 at para 34.
[16]
The applicant
argues that the Board failed to acknowledge the extent of the concerns about
the lack of protection in these countries, and the applicant points out that
the Board did not explain, for example, how the applicant could obtain
protection from spousal rape, given that it is not recognized as a crime in El Salvador. The Board also did
not explain how protection would be adequate if custodial sentences are not
available in Guatemala for domestic abusers.
The applicant cites Mendoza v Canada (Minister of
Citizenship and Immigration), 2010 FC 119 at para 33 where the Court
outlined the principle that “evidence of the state’s willingness to protect
cannot be imputed as evidence of adequate state protection.”
[17]
The respondent
submits that the onus is on the applicant to rebut the presumption that a state
is capable of protecting its own citizens: Canada (Attorney General) v Ward,
2002 SCC 17; Canada (Minister of
Citizenship and Immigration) v Carillo, 2008 FCA 94 at paras 18-19. It
is also accepted in jurisprudence that the applicants are typically required to
seek protection from their state more than once, and show more than local
failures of the authorities: Canada (Minister of Employment and Immigration)
v Villafranca, [1992] 99 DLR (4th) 334; Kadenko v Canada (Minister of
Employment and Immigration), [1996] 143 DLR (4th) 532 at para 5. The respondent
submits that it was therefore reasonable for the Board to find that the applicant
had not taken all reasonable steps to seek state protection, given that she had
only made one report to the police. According to the respondent it was
reasonable to reject the applicant’s explanation for making only one report, because
an applicant cannot rebut the presumption of state protection based on
subjective reluctance alone: Martinez v Canada (Minister of Citizenship and Immigration),
2005 FC 1050 at para 9; Mejia v Canada (Minister of Citizenship and
Immigration), 2009 FC 354 at para 70.
[18]
Furthermore,
the respondent also submits that the Board is presumed to have considered all
the evidence, and the existence of general documentary evidence pointing in an
opposite direction is not enough to rebut this presumption: Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ No 598 (FCA); Quinatzin
v Canada (Minister of Citizenship and Immigration), 2008 FC 937 at para 20.
Internal Flight
Alternative
[19]
The applicant
advanced a number of reasons why the Board’s finding of an IFA was unreasonable,
including:
·
The applicant has
never lived in Quetzaltenango, has no relatives there, and knows no one there;
·
The applicant has not
been in Guatemala since the age of five (she is now
forty-eight years old);
·
The Board did not
explain why the presence of the applicant’s sister in Guatemala City, who is widowed, sick, and poor, would
make Quetzaltenango a reasonable IFA;
·
The evidence does not
support a conclusion that work would be reasonably available to her in
Guatemala, given the applicant’s testimony that it is very difficult to find
work if one does not know anyone there; and
·
The Board looked at
the applicant’s ability to adjust to new life in the United States and Canada and
concluded that she would be able to adapt to living in Quetzaltenango. However,
the applicant points out that she had relatives to support her in the United
States and Canada, unlike in Quetzaltenango.
[20]
In
response, the respondent submits that the onus is on the applicant to show a
reasonable chance of persecution in the entire country, and specifically in the
potential IFA area: Thirunavukkarasu v Canada (Minister of Employment
and Immigration),
[1994] 1 FC 589 (FCA) at para 5. The respondent argues that it is not enough
for the applicant to show she has no friends or relatives in the IFA, or that
she may not be able to find suitable work. Instead, the applicant must provide
actual and concrete evidence of conditions that would jeopardize her life and
safety in traveling to that area and relocating there. The respondent also
notes that the applicant’s three children live in El Salvador.
Analysis
[21]
In Farias
v Canada (Minister of
Citizenship and Immigration), 2008 FC 1035, Justice Kelen provided a
checklist for the key principles guiding the assessment of whether a viable IFA
exists, which can be summarized as follows:
·
The
applicant bears the burden of proof in demonstrating that an IFA either does
not exist or is unreasonable in the circumstances: Mwaura v Canada (Minister of Citizenship and
Immigration),
2008 FC 748 at para 13; Kumar v Canada (Minister of Citizenship and
Immigration),
2004 FC 601, at para 17;
·
The
threshold is high for what makes an IFA unreasonable in the circumstances of
the refugee claimant: Khokhar v Canada (Minister of Citizenship and
Immigration),
2008 FC 449 at para. 41;
·
Whether an
IFA is unreasonable is a flexible test taking into account the particular
situation of the claimant. It is an objective test: Mwaura, above at
para 16; and Thirunavukkarasu, above at para 12;
·
The IFA
must be realistically accessible to the claimant, i.e. the claimant is not
expected to risk physical danger or undue hardship in traveling or staying in
that IFA. Claimants are not compelled to hide out in an isolated region like a
cave or a desert or a jungle: Thirunavukkarasu, above, para 14;
·
The fact
that the refugee claimant has no friends or relatives in the proposed IFA does
not make the proposed IFA unreasonable; and
·
The fact
that the refugee claimant may not be able to find suitable employment in his or
her field of expertise may or may not make the IFA unreasonable.
[22]
The
Board’s analysis
of the IFA is consistent with these principles and is also reasonable having
regard to the facts. The factors noted by counsel for the applicant indeed constitute
personal challenges, but this does not amount to a finding that the proposed
IFA is unreasonable. The applicant is a citizen of Guatemala and has a
relative there. Quetzaltenango is a large city where she might find
employment. As noted by the Federal Court of Appeal in Montalvo v Canada
(Minister of Citizenship and Immigration), 2008 FC 716 at para 17 the threshold
for the unreasonableness of an IFA is a very high one which 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 and
actual and concrete evidence of such conditions. There was no evidence before
the Board that would have met the test.
[23]
The Board
did not accept as credible the argument that the applicant’s former partner
would travel to Guatemala and track her down in
Quezaltenango, and there is no basis on the evidence to intervene in that
finding. Quezaltenango is a large city, removed from the boarder with El Salvador. Moreover, the
applicant has been living outside of El Salvador since 2004. The Board looked at the
question of an IFA through the lens of the criteria noted and came to the
conclusion that Quezaltongo was a viable IFA. The Court finds this conclusion
to be reasonable.
[24]
The
burden on the claimant is to establish a well-founded fear of persecution. That
burden is not met if the claimant can live safely elsewhere and it is
reasonable to expect the claimant to move to that place. The issue of state
protection and the existence of the IFA are, in this case, discreet. In these
circumstances it is not necessary to consider any error in the state protection
analysis.
[25]
Accordingly,
the application for judicial review is dismissed.
[26]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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