A.H.A. ET AL Applicants v. THE MINISTER OF CITIZNESHIP AND IMMIGRATION, 2020 FC 787

Date: 20200724 Docket: IMM-6421-19 Citation: 2020 FC 787 [UNREVISED CERTIFIED ENGLISH TRANSLATION] Ottawa, Ontario, July 24, 2020 PRESENT: The Honourable Mr. Justice Shore BETWEEN:A.H.A. ET ALApplicantsandTHE MINISTER OF CITIZNESHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I.

Preamble [1] The concept of an internal flight alternative [IFA] is inherent in the definition of "“refugee”": a refugee protection claimant must be arefugee from a country, not a region of a country (Rasaratnam v Canada (Minister of Employment and Immigration), (FCA), [1992] 1 FC 706 at p 710 [Rasaratnam]). The two-prong test for determining whether there is an IFA is well established in thecase law. First, the Refugee Appeal Division [RAD] must find that, on a balance of probabilities, there is no serious risk that a claimantwill be persecuted or personally subjected to a risk as defined in

section 97 of the Immigration and Refugee Protection Act, SC 2001, c 27[IRPA], in the area designated as an IFA.

Second, the RAD must be satisfied that, taking into account all the circumstances, includingthose specific to the claimants, the conditions in the IFA are such that it would not be objectively unreasonable for the claimant torelocate there (Thirunavukkarasu v Canada (Minister of Employment and Immigration), (FCA), [1994] 1 FC 589 atpp 593 and 597 [Thirunavukkarasu]). [2] The test for establishing an IFA is disjunctive, and the onus is on the claimant to prove, on a balance of probabilities, that he or shefaces a serious risk of persecution throughout the country.

Thus, once an IFA has been identified, the claimant must show that he or shewould be persecuted or otherwise at risk under

section 97 of the IRPA, or that it would otherwise be unreasonable for the claimant torelocate there. It is sufficient for one of these two elements to be proven to conclude that there is no IFA. II.

Nature of the matter [3] The applicants are seeking judicial review of a decision of the RAD which upheld the decision of the Refugee Protection Division[RPD] rejecting the refugee protection claim of the applicants, citizens of Mexico, on the basis that they had not demonstrated a forward-looking risk and that they had an IFA in Mexico. [4] The principal applicant, A.H.A. [the female applicant], her brother, her spouse and her two minor children [collectively, theapplicants] allege a fear of persecution by E.H.G., the female applicant’s father.

E.H.G. allegedly physically and verbally abused his ownchildren and their loved ones. The applicants allege that E.H.G. has links to criminal organizations and corrupt police officers. [5] In 2009, the mother of the female applicant and her brother fled E.H.G. to claim refugee status in Canada. Before this Court, JusticeHarrington concluded that the RPD’s decision, establishing an IFA, was unreasonable (Enriquez v Canada (Citizenship andImmigration), 2014 FC 183). In his reasons, Justice Harrington notes that E.H.G. is a truck driver who travels throughout Mexico andhas contacts with police across the country.

Twice, the female applicant’s mother had fled E.H.G. only to be subsequently located withthe assistance of the police. She was forced to return with E.H.G. before finally fleeing Mexico for good. [6] On appeal, the RAD essentially upheld the RPD’s conclusion that an IFA was possible.

While noting [translation] "“ambiguities”" inthe RPD’s reasons with respect to the applicants’ credibility and the protection of the Mexican state, the RAD considered that thesefindings were not determinative of the presence of an IFA and therefore it did not need to consider them. [7] The RAD concluded that E.H.G. had no interest in locating the applicants if they relocated to Durango State: the RAD found thatE.H.G.’s threats and assaults against the claimants were primarily aimed at tracing E.H.G.’s ex-wife, the applicants’ mother andgrandmother.

Given that E.H.G. has rebuilt his life and knows that his ex-wife is in Canada, the applicants would not be at any forward-looking risk. This is all the more true since E.H.G.’s employment as a truck driver only takes him to states adjacent to the state ofVeracruz where the whole family lived. III. Analysis

[8] Before this Court, the applicants essentially challenge the reasonableness of the RAD’s findings with respect to the existence of anIFA in the state of Durango, Mexico. [9] According to Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], when reviewing a decision onthe standard of reasonableness, this Court must first examine the reasons given with respectful care and seek to understand the line ofreasoning followed by the decision maker in reaching a conclusion.

A reasonable decision is one that is based on an internally coherentand rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. [10] The decision maker assesses and evaluates the evidence before him or her; unless there are exceptional circumstances, this Courtmust not change its findings of fact (Vavilov at para 125).

That being said, "“the reasonableness of a decision may be jeopardized wherethe decision maker has fundamentally misapprehended or failed to account for the evidence before it”" (Vavilov at para 126). [11] The concept of IFA is inherent in the definition of "“refugee”": a refugee protection claimant must be a refugee from a country, nota region of a country (Rasaratnam at p 710). The two-prong test for determining whether there is an IFA is well established in the caselaw.

First, the RAD must find that, on a balance of probabilities, there is no serious risk that a claimant will be persecuted or personallysubjected to a risk as defined in

section 97 of the IRPA in the area designated as an IFA. Second, the RAD must be satisfied that, takinginto account all the circumstances, including those specific to the claimants, the conditions in the IFA are such that it would not beobjectively unreasonable for the claimant to relocate there (Thirunavukkarasu at pp 593 and 597). [12] The test for establishing an IFA is disjunctive, and the onus is on the claimant to prove, on a balance of probabilities, that he or shefaces a serious risk of persecution throughout the country. Thus, once an IFA has been identified, the claimant must show that he or shewould be persecuted or otherwise at risk under

section 97 of the IRPA, or that it would otherwise be unreasonable for the claimant torelocate there. It is sufficient for one of these two elements to be proven to conclude that there is no IFA. [13] In this case, this Court finds that the RAD’s conclusion is unreasonable in light of the first prong of the test for establishing an IFA.The RAD’s conclusion about E.H.G.’s interest in locating the applicants omits the family dynamics of violence and harassment. Fromthe evidence on the record, it is wrong to conclude that the assaults on the applicants were solely for the purpose of tracing theapplicants’ mother.

From the female applicant’s testimony, it appears that there has been domestic violence since their early childhood.While it has diminished in recent years, there is no reason to conclude that it will not continue. The applicants were found to be credible,and they testified that they feared for their lives, fearing that E.H.G. would abuse them. It should be noted that, in the absence of anyreason to doubt their credibility, their testimony is presumed to be true (Maldonado v Canada (Minister of Employment andImmigration), (FCA), [1980] 2 FC 302, 1 A.C.W.S. (3d) 167).

Their fear had to be taken into consideration. [14] The RAD’s conclusion is all the more unreasonable in that it conveniently omits the events of April 8, 2015. In fact, the RADconsiders it decisive that E.H.G. has been living with another woman since 2011, which alone demonstrates E.H.G.’s change ofmotivation. Four years later, E.H.G. showed up at the applicants’ residence, assaulted them and demanded that they leave the house sothat he could live there. On two further occasions in 2015, E.H.G. came to the applicants, sometimes while intoxicated, always withviolence.

Clearly, E.H.G.’s motivations are multiple and changing, from the applicants’ childhood to the more recent events of 2015,including the period when he was looking for the applicants’ mother. During all these periods, one constant remains: violence towardsthe applicants. The RAD should have taken this into consideration. [15] In any event, as Justice Harrington noted, E.H.G. has the ability to trace the applicants throughout Mexico with the assistance ofcriminal friends or police officers. His job also requires him to travel all over the country.

Whether it is more generally in the statesbordering Veracruz does not change anything. The reality is that he travels throughout the country (confirmed by Justice Harrington’sdecision), and no one knows exactly where he is travelling. Certainly, the applicants would not be safe in Mexico if E.H.G. decided tofind them. Given the decades-long dynamics of domestic violence, this Court considers it unreasonable to conclude that E.H.G. wouldhave suddenly lost interest in the applicants. [16] Given the conclusion above, it is not necessary to analyze the second prong of the IFA test. IV.

Conclusion [17] The application for judicial review is allowed, and the decision is returned for redetermination by a differently constituted RADpanel. [18] The style of cause is amended to make the applicants’ names confidential. [19] No question of general importance is certified. JUDGMENT in IMM-6421-19 THIS COURT’S JUDGMENT is as follows: 1. The application for judicial review is allowed and the decision is returned for redetermination by a differently constituted RADpanel. 2. The style of cause is amended to make the applicants’ names confidential. 3.

No question of general importance is certified. “Michel M.J. Shore”

Judge Certified true translation This 30th day of July 2020. Michael Palles, Reviser FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6421-19 STYLE OF CAUSE: A.H.A. ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: MATTER HEARD BY VIDEOCONFERENCE IN Montréal, QuEbec DATE OF HEARING: JULY 13, 2020 JUDGMENT AND REASONS: SHORE J. DATED: JULY 24, 2020 APPEARANCES : Claudia Molina FOR THE APPLICANTS Suzanne Trudel FOR THE RESPONDENT SOLICITORS OF RECORD : Cabinet Molina Inc. Montréal, Quebec FOR THE APPLICANTS Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT