Wednesday, July 11, 2012

Flores Vargas—irrelevant considerations on credibility and wrong test on IFA

Flores Vargas (et al.) v. Canada (Citizenship and Immigration), 2012 FC 129 (CanLII)

Judge: Justice Scott; Date heard: November 28, 2011; Date decided: February 1, 2012; Counsel for Flores Vargas: Noël Saint-Pierre; Counsel for Minister: Anne-Renée Touchette; Place of Hearing: Montréal, Quebec.

This was a review of a decision of the Refugee Protection Division (RPD) in which it denied the application for protection of the applicant family, who were Mexican citizens. 

In summer/fall 2007, the adult female applicant had found evidence of election fraud in her town's municipal election. She reported the evidence (a bag of destroyed ballots) to the mayor, who threatened her. She went to see the opposition party, who said they could not do anything for her. Then the Federal Investigative Agency (FIA) came to her house, stating that they were sent by the mayor.

In December 2007 and January 2008, the family participated in demonstrations against electoral fraud. On January 10, 2008, the adult male applicant and his brother were kidnapped and assaulted by FIA officers, then released. The family attended another demonstration, following which the adult male applicant was once again assaulted by FIA officers. They fled to a relative's house, but were asked to leave when FIA was seen watching the house. They returned home. In March 2008, the FIA attempted to breakdown the applicants' door, but the adult female applicant was able to attract enough attention to drive them off. The family left Mexico in June 2008.

The issues as determined by the RPD were lack of credibility and IFA.

Justice Scott reiterated the case law stating that it is appropriate for the RPD to draw a negative inference on credibility where there are inconsistencies between testimony and other evidence, and quoted Kengkarasa: “‘[t]he Court should not interfere with the findings of fact and the conclusions drawn by the [IRB] unless the Court is satisfied that the [IRB] based its conclusion on irrelevant considerations or that it ignored evidence” (seeKengkarasa v Canada (Minister of Citizenship and Immigration), 2007 CF 714 (CanLII), 2007 CF 714, [2007] FCJ No 970, at para 7’” (para. 41) He then went on to find that the RPD had based its findings on irrelevant considerations and by dwelling on minor considerations (para. 43).

Regarding the issue of IFA, Justice Scott relied on the criteria stated in Rasaratnam v Canada (Minister of Employment and Immigration) (CA), [1992] 1 FC 706 at para. 12:

In my opinion, in finding the 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 [place of IFA] and that, in all the circumstances including circumstances particular to him, conditions in [place of IFA] were such that it would not be unreasonable for the appellant to seek refuge there.

The RPD found that the applicants could find an IFA in Mexico City or Guadalajara, apparently on the basis that the adult male applicant’s brother was living in Puebla. However, Justice Scott found that this was insufficient, as “The case law is clear: a person who seeks refuge elsewhere in the country must be able to live there safely and free from the threat he or she initially faced. Thus, the existence of an IFA appears unreasonable and unrealistic in this case.” (para. 49)

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