Date: 20040702
Docket: IMM-2908-03
Citation: 2004 FC 928
BETWEEN:
CATHERINE CECILIA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by pre-removal risk assessment officer Linda Parker (the officer), dated March 10, 2003, that the applicant is not a Convention refugee, or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] Catherine Cecilia (the applicant) is a citizen of Malaysia alleging that she fears persecution at the hands of Malay Muslim fanatics because she is Catholic and Tamil. The applicant also alleges that she is a person in need of protection.
[3] According to the officer, the applicant is not facing a personal risk. Further, the officer determined that not only had the applicant failed to rebut the presumption of the State's ability to protect her, but also that she could avail herself of an internal flight alternative in Malaysia.
[4] First, the applicant's submission in her memorandum regarding the officer's lack of jurisdiction is unfounded. Sections 112 to 114 of Act give the Minister the power to assess an application for protection; under subsection 6(2) of the Act, the Minister may delegate this power to any person that he designates; thus, the officer had full jurisdiction to make the decision at issue.
[5] The applicant further submits that the officer erred in finding that the risk that she is facing is not a personal risk. In this respect, the officer noted the inconsistencies between the applicant's testimony and the Personal Information Form (PIF) about where the incident of March 13, 2001, occurred; she further pointed out that the applicant contradicted herself regarding the incident of March 21, 2001, she who stated in her PIF that her son had been beaten with an iron bar and who later testified that it was rather her husband who had been beaten like this. These inconsistencies or contradictions are important, since they call into question the fundamental incidents of the claim. It was therefore reasonable for the officer to determine, considering the documentary evidence as well, that a person such as the applicant would not face a personal risk of persecution in Malaysia.
[6] The officer's notes indicate just as clearly the merits of her analysis regarding the issue of available State protection and internal flight alternatives. First, on the subject of State protection, in my view the officer respected the principles applicable to such matters, as summarized by the Federal Court of Appeal in Mendivil v. Canada (Secretary of State), [1994] F.C.J. No. 2021 (QL):
It has now been established in the case of Canada (Attorney General) v. Ward [[1993] 2 S.C.R. 689] that state's inability to protect is an integral component of the notion of a Convention refugee, particularly in the light of the words "well-founded" [S.C.R. at page 722]. The onus is on the claimant to establish this inability. La Forest J. makes it clear in Ward that "[a]bsent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant" [S.C.R. at page 725]. Unless there is an admission by the state that it cannot afford protection, a claimant must provide "clear and convincing confirmation of a state's inability" [S.C.R. at page 724] to protect him.
[7] On the matter of the issue of the availability of an internal flight alternative, the officer referred to the documentary evidence indicating that the applicant could easily move to another region of Malaysia, such as Sarawak, where there is a large Christian population. The applicant had the burden of establishing that she could not or would not avail herself of an internal flight alternative in Malaysia, as the availability of an internal flight alternative impeded the merits of the claim. In fact, in Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589, the Federal Court of Appeal held as follows at pages 597-598:
. . . IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.
[8] In this case, the officer assessed all of the evidence submitted and determined that the applicant had not established that the available internal flight alternative was unreasonable. Since this is simply a question of assessing the facts, the applicant, in my view, did not discharge the heavy burden on her to establish that the officer's decision was patently unreasonable.
[9] Finally, the applicant sees an error in the following sentence, from the second page of the officer's notes: "The applicant alleged that none of her friends from the church faced the same problems."
[10] For his part, the respondent argues that this was only a clerical error, acknowledging that it is the word "some", instead of the word "none" that should have been used in the sentence at issue, considering what the officer wrote further on, on page seven of the officer's same notes: "The applicant also stated in her PIF that few friends from the church were facing the same problem in their areas."
[11] In view of the evidence as a whole, I agree with the respondent on this point.
[12] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
July 2, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2908-03
STYLE OF CAUSE: CATHERINE CECILIA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 23, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: July 2, 2004
APPEARANCES:
Manuel Antonio Centurion FOR THE APPLICANT
Sébastien Dasylva FOR THE RESPONDENT
SOLICITORS OF RECORD:
Manuel Antonio Centurion FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario