Category: IFA

With respect to Mr. Loya Dominguez’s claim under section 96, the Board appears to have reached a negative determination on the basis that “there is no corroborative evidence to determine definitely the agent of persecution” (emphasis added). Although the Board stated this conclusion somewhat differently in paragraph 23 of its decision, where it observed that it did “not have enough corroborative evidence before [it] to make these connections [between Mr. Loya Dominguez and the La Linea cartel]” (emphasis added), a reader can only assume from reading these two statements together that the word “enough” meant “sufficient to determine definitively”. This was too high a burden. Mr. Loya Dominguez merely had to establish, on a balance of probabilities, a serious possibility of being persecuted in Mexico City by that agent of persecution (Rasaratnam, at 710). [23] The Board also erred by appearing to reject Mr. Loya Dominguez’s claim on the basis of insufficient “direct evidence as to the agent of persecution” (emphasis added). In my view, the Board should have specifically addressed whether the circumstantial evidence adduced by him was such as to establish a serious possibility of persecution at the hands of the La Linea cartel, or its alleged affiliate, the Los Zetas cartel. [24] Moreover, the Board erred by failing to address important evidence that was contrary to its conclusion on this point, namely, the fact that masked men visited Mr. Loya Dominguez’s wife in late 2009, five days after her return to Mexico, and searched her residence looking for him. This evidence corroborated Mr. Loya Dominguez’s testimony that the La Linea cartel is still interested in him, because he “mocked them by not doing what they wanted [him] to do.” It therefore should have been addressed by the Board (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35; Canada (Minister of Citizenship and Immigration) v Ryjkov, 2005 FC 1540; Ahmed v Canada (Minister of Citizenship and Immigration), 2004 FC 1076, at paras 13-15; Surajnarain v Canada (Minister of Citizenship and Immigration), 2008 FC1165, at paras 6 and 7; Uluk v Canada (Minister of Citizenship and Immigration), 2009 FC 122 at paras 16 and 32). [25] It was unreasonable for the Board to fail to consider this evidence, together with: (i) the alleged links between the police in Mexico City and the La Linea/Los Zetas criminal network; and (ii) the circumstantial evidence that supported Mr. Loya Dominguez’s fear of persecution and future torture at the hands of that criminal network on grounds that at least in part related to his political opinions. [26] Had the Board considered this evidence and concluded, on a balance of possibilities, that there was a serious possibility that the La Linea cartel has a continuing interest in pursuing Mr. Loya Dominguez, it would then have had to assess whether Mr. Loya Dominguez likely would be able to avail himself of adequate state protection in Mexico City (Cosgun v Canada (Minister of Citizenship and Immigration), 2010 FC 400, at paras 44-52). [27] The points made in paragraphs 25 and 26 above are equally applicable to the Board’s assessment of Mr. Loya Dominguez’s claims under section 97, except that the test would have been whether there was a likelihood that the La Linea cartel has a continuing interest in pursuing Mr. Loya Dominguez.

The Court set aside an IFA finding the agents of persecution were judicial police and they would have access to the information on the applicants through government databases.

The Court set aside an IFA finding for an elderly woman in Colombo noting that the woman had no family and the PRRA officer had erroneously concluded he had family.

The Court set aside an IFA finding [26] Finally, notwithstanding the RPD’s analysis that the Applicant has an internal flight alternative in the megalopolis of Bogota, the personal history of the Applicant suggests otherwise. The Applicant’s narrative involves three different towns and cities where the FARC was involved in his life: Puerto Berrio, where he lived with his family and received death threats by phone, Medellin, where he moved to but continued to receive death threats, and San Jose de Nus, where he had been driving and forced off the road. These are three different areas in Colombia, one of which is Medellin, which has a population of over a million people. The Applicant’s personal history would suggest that the FARC may be able to track him wherever in Colombia.

The court found not embellishment in the testimony. The court concluded that the credibility findings were in error and that the finding of state protection was made without regard for the evidence.

The Court set aside a decision that had found an internal flight alternative. The court held that there was no requirement that the person actually go and live in the IFA prior to seeking refugee protection

The Court set aside an IFA finding noting: 28 The only issue decided by the Board in the case at bar was the existence of the IFA in San Pedro Sula. The Board correctly identified the IFA to be determinative of both a claim for protected status pursuant to section 96 as well as section 97 of the Act. To the extent that the Board uses its conclusion that a risk of maras gang violence is a generalized risk to refute the applicant's assertion that she would be persecuted in the proposed IFA, the reasoning in Pineda, supra, illustrates such assumed generalization to be faulty. This is not to say that the applicant faces a particular risk of violence which is equivalent to a positive determination on the first branch of the IFA. Rather, it undermines one of the premises the Board uses to get to its ultimate conclusion that there is no serious possibility of persecution in San Pedro Sula by the maras.

The Court set aside a decision based on IFA where the tribunal held that the applicant had to actually attempt to relocate in the IFA. This was held to be reviewable error.

The Court set aside an IFA finding. The tribunal failed to consider the evidence of the mental state of the applicant and his son.

The Court concluded that although the absence or presence of relatives is relevant to the reasonableness of an IFA, an IFA could only be considered to not be reasonable if the persons life or safety would be at risk there. Humanitarian factors that fall short of this are not sufficient to render the IFA not reasonable.