8. INTERNAL FLIGHT ALTERNATIVE
The question of whether an IFA exists is an integral part of the Convention refugee definition.Note 1 It arises when a claimant who otherwise meets all the elements of the Convention refugee definition in his or her home area of the country never theless is not a Convention refugee because the person has an IFA elsewhere in that country. The key concepts concerning IFA come from two cases: RasaratnamNote 2 and Thirunavukkarasu.Note 3 From these cases it is clear that the test to be applied in determining whether there is an IFA is two-pronged.
- "… the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists."Note 4
- Moreover, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.Note 5
Both prongs must be satisfied for a finding that the claimant has an IFA.
The Court of Appeal in Kanagaratnam,Note 6 was of the view that the determination of whether a claimant has a well-founded fear of persecution in his or her home area of the country is not a prerequisite to the consideration of an IFA.
The concept of an IFA does not require that the safe haven be in another city or province of the state of origin so long as it is truly an area in which the claimant can seek refuge from the experienced persecution.Note 7
The relationship between IFA, change of circumstances and the applicability of "compelling reasons" was considered by the Trial Division,Note 8 and the Court concluded that where an IFA applies to a claimant, that person is not and never could have been a Convention refugee. Accordingly, he or she could not cease to be a Convention refugee on the basis of a change of circumstances.
8.2. TWO-PRONGED TEST
The second prong of the IFA test may be stated as follows: would it be unduly harsh to expect the claimant to move to another, less hostile part of the country before seeking refugee status abroad?Note 9 The test is an objective one: is it objectively reasonable to expect the claimant to seek safety in a different part of the country? ThirunavukkarasuNote 10 sets a very high threshold for what makes an IFA unreasonable in all the circumstances. The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable.Note 11
An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or staying there.Note 12 However, it is not enough for the claimant to say that he or she does not like the weather there, or that he or she has no friends or relatives there, or that he or she may not be able to find suitable work there.Note 13
A distinction must be maintained between the reasonableness of an IFA and humanitarian and compassionate considerations. The fact that a claimant might be better off in Canada, physically, economically and emotionally than in a safe place in his own country is not a factor to consider in assessing the reasonableness of the IFA.Note 14
8.3. NOTICE - BURDEN OF PROOF
Two other general principles that emerge from Rasaratnam and Thirunavukkarasu concern notice and burden of proof. With respect to notice, the issue of IFA must be raised by the panel or the Minister (before or during the hearing). The Immigration and Refugee Protection Act (IRPA) does not automatically put claimants on notice that IFA is an issue in the claim. The principles regarding fair notice expressed in Rasaratnam and Thirunavukkarasu are still relevant under IRPA.Note 15 The notice must be clear and sufficient.Note 16
It is a breach of natural justice to tell the claimant that IFA is not an issue and then, later, make a contrary finding on that issueNote 17. Extensive questioning during the hearing on the subject of IFA can be sufficient notice.Note 18 With respect to burden of proof, once the issue is raised, the onus is on the claimant to show that he or she does not have an IFA.
Even though the burden of proof rests upon the claimant, the Board cannot base a finding that there is an IFA, in the absence of sufficient evidence, solely on the basis that the claimant has not fulfilled the onus of proof.Note 19 A finding of IFA must be based on a distinct evaluation of a region for that purpose taking into account the claimant's identity. It cannot be inferred from earlier findings of fact unconnected to the issue of an IFA.Note 20
There is some debate as to whether a specific location or region must be identified as the potential IFA,Note 21 but a number of cases seem to indicate that it is not an error not to specify specific locations.Note 22
8.4. STANDARD OF REVIEW
IFA is a question of fact and therefore, the standard of review to be applied by the Federal Court to internal flight alternative findings by the RPD is reasonableness.Note 23
8.5. INTERPRETATION AND APPLICATION OF THE TWO-PRONGED TEST
The abundance of case law on the topic of IFA basically concerns the interpretation and application of the two-pronged test. Some factors are relevant to both prongs of the test, some are relevant to one or the other prong.
8.5.1. Fear of Persecution
On the issue of whether there is a serious possibility of persecution in the potential IFA, the considerations are basically the same as when making this determination with respect to the claimant's home area of the country. However, there are some specific points concerning this issue and IFA that are noteworthy:
- In determining whether there is an objective basis for fearing persecution in the IFA, the Refugee Division must consider the personal circumstances of the claimant, and not just general evidence concerning other persons who live there.Note 24
- The Refugee Division must consider the circumstances of those persons in the IFA who are situated similarly to the claimant.Note 25
- In assessing the particular circumstances of the claimant, the Refugee Division may consider the condition of family members who have sought refuge in the IFA.Note 26
- The nature and the agents of the persecution feared ought to suggest that the persecution would be confined to particular areas of the country.Note 27 The fact, however, that the agents of persecution are the central authority in the country does not prevent a finding that there is an IFA.Note 28
- If an individual had to remain in hiding to avoid problems, this would not be evidence of an IFA.Note 29 Similarly, if a person has to hide their sexual orientation in order to be safe, the IFA is not available.Note 30
- According to the Trial Division, the presence of close relatives in the putative IFA, and the duration of previous residence and past employment there, may have a bearing on "whether or not it is 'objectively reasonable' for the claimant to live in … [the IFA] without fear of persecution", rather than being matters merely of personal comfort or convenience.Note 31
- There is some lack of clarity concerning how the concept of cumulative harassment or cumulative grounds applies in the consideration of IFA.Note 32 In Karthikesu, the Court appears to find that experiences in the non-IFA area do not form part of a cumulative assessment when considering the IFA area. In Balasubramaniam, however, the Court suggests that depending on the CRDD's other findings "… it [the CRDD] may or may not have to consider the question of the cumulative effect of all the incidents that occurred to the applicant at the hands of the Sri Lankan armed forces to determine whether these, together with the likelihood of continuing harassment at the hands of the authorities, might constitute persecution on a cumulative basis."(emphasis added). This statement seems to suggest that experiences in the non-IFA area can form part of a cumulative assessment when considering the IFA area.
- Large urban areas cannot be assumed to be an IFA by virtue of their population size alone.Note 33
- The fact that a putative location was "far away", would not, without more, constitute a viable IFA.Note 34
- A determination regarding nexus is equally important in the assessment of whether an IFA exists in a given case.Note 35
8.5.2. Reasonable in All the Circumstances
Regarding the issue of "reasonable in all the circumstances", the Court of Appeal has stated that the circumstances must be relevant to the IFA question. They cannot be catalogued in the abstract. They will vary from case to case.Note 36 However, whether certain factors are relevant to the determination of whether a given IFA would be "objectively reasonable" is an issue that transcends the particular facts of a given case.Note 37 Therefore, the appropriate standard of review is "correctness" in cases where the issue is what factors the CRDD considers in assessing an IFA.Note 38 The Federal Court has provided the following general guidance:
- The test is a flexible one that takes into account the particular situation of the claimant and the particular country involved.Note 39 The evidence, before the Refugee Division, of circumstances in the IFA must be more than general information and must be relevant to the claimant's specific circumstances.Note 40
- There must be some discussion of the regional conditions which would make an IFA reasonable.Note 41
- The presence or absence of family in the IFA is a factor in assessing reasonableness,Note 42 especially in the case of minor claimants.Note 43 However, the absence of relatives in an IFA would have to jeopardize the safety of a claimant before that factor would make an IFA unreasonable.Note 44
- A destroyed infrastructure and economy in the IFA, and the stability or instability of the government that is in place there, are relevant factors.Note 45 Instability alone is not the test of reasonableness,Note 46 nor is a disintegrating infrastructure.Note 47
- An IFA is not reasonable if it requires the perpetuation of human rights abuses.Note 48
- Hardship in accessing the IFA must be assessed.Note 49
- There is no onus on a claimant to personally test the viability of an IFA before seeking protection in Canada.Note 50
- In gender-based claims, the Board must have regard to section C4 of the Gender Guidelines.Note 51
Dealing with specific cases, the Court has indicated it is appropriate for the RPD to consider, in various ways, factors such as: the claimant's age,Note 52 appearance (including gender and race), religion, political profile,Note 53 the employment situation,Note 54 the type of residence available, the ability to speak the language, the ability to raise a family,Note 55 the crime rate, the physical and financial barriers,Note 56 the composition of the "family" unit (it appears this may also go to fear of persecution),Note 57 previous residence in the IFA area,Note 58 familiarity with the IFA area, the capacity of the claimant to re-establish him or herself,Note 59 whether there is a similar group located in the IFA area, race or ethnicity of the claimant (this may also go to fear of persecution),Note 60 having a registration card, being registered with the police,Note 61 ability to move from one residence to another (e.g. legal restrictions),Note 62 and the health and financial situation of the claimant.Note 63
Other factors identified by the Court as being relevant to a determination of this issue include the claimant's business and social contacts in the potential IFA area;Note 64 and medical and psychological reports that provide objective evidence that it would be "unduly harsh" to expect a claimant to move to a potential IFA area.Note 65