Date: 20060317
Docket: IMM-3662-05
Citation: 2006 FC 343
Ottawa, Ontario, March 17,
2006
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
LUIS AMADO CONTRERAS MARTINEZ
CLAUDIA MORAN SANCHEZ
LUIS FRANCISCO CONTRERAS MORAN
MARINIEVES CONTRERAS MORAN
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) with respect to a
decision of B. Wong of the Refugee Protection Division (RPD) denying the claim
for refugee protection of Luis Amado Contreras Martinez (Applicant), Claudia
Moran Sanchez (Ms. Sanchez), Luis Francisco Contreras Moran and Marinieves
Contreras Moran (Applicants). In its decision dated May 26, 2005, the RPD
determined that the Applicants are neither Convention refugees nor persons in
need of protection as per section 96 and 97 of the IRPA. The RPD found that the
Applicants did not have a well-founded fear of persecution in Mexico as state protection is
available in this country.
I. Issues
[2]
The present
matter raises the following issues:
- Did
the RPD err in finding that state protection is available for the Applicants in
Mexico?
- Did
the RPD err in failing to address Ms. Sanchez’s psychological assessments in
the decision?
- Did
the RPD err in refusing to allow the Applicants to stay in Canada for “compelling reasons” (sub.
108(4) IRPA)?
II. Facts
[3]
In
December 2001, the Applicants partnered with Comunicon to bid for a government
contract with respect to a data system. Alejandro Segura Walls (Segura) and Anselmo Pardo Lorencez
were the co-owners of Comunicon. Comunicon was awarded the contract, but later allegedly
conspired with the Government agency to terminate the Applicant’s contract. The
Applicants, as per a sub-contracting agreement with Comunicon, was expecting to
get 80% of the proceeds.
[4]
The
Applicants tried to enforce his contractual rights, but he and his family
became targets of threats and assaults. Upon his Counsel’s advice, the
Applicants moved to different locations in Mexico and changed
his cell phone number, but the persecutors kept finding and threatening him. The
Applicant’s lawyer finally abandoned the civil actions that he undertook in the
Applicant’s name, as he was also threatened.
[5]
The
Applicants left Mexico on October 11, 2003 and claimed refugee
protection in November 2003.
III. Analysis
A. State Protection
[6]
The
Applicants’ counsel submitted that when the agents of persecution are agents of
the state, state protection should be considered unavailable in most instances.
In the Respondent’s view, it was neither alleged in the Applicant’s affidavit
nor in his Personal Information Form (PIF) that the persecutors were state
agents.
[7]
The
RPD determined that the Applicants did not disprove the presumption of state
protection. The standard of review applicable to the question of whether the
presumption of state protection has been rebutted is reasonableness simpliciter
(Chaves v. Canada (Minister of Citizenship and
Immigration), 2005 FC
193, [2005] F.C.J. No. 232, at para. 11).
[8]
In
Carrillo v. Canada (Minister of Citizenship and
Immigration), 2004 CF
944, [2004] A.C.F. No. 1152, at para. 6 to 8, Justice Snider explained the
applicable test where the alleged persecutor is one or several state agents:
In Ward, supra
at 724, the Supreme Court of Canada held that, when state protection
"might reasonably have been forthcoming", the Board is entitled to
draw an adverse inference based on a claimant's failure to approach state
authorities for assistance:
Like Hathaway,
I prefer to formulate this aspect of the test for fear of persecution as
follows: only in situations in which state protection "might reasonably
have been forthcoming", will the claimant's failure to approach the state
protection defeat his claim. Put another way, the claimant will not meet the
definition of "Convention refugee" where it is objectively
unreasonable for the claimant not to have sought the protection of his home
authorities; otherwise, the claimant need not literally approach the state.
In my view,
whether it is objectively unreasonable for the claimant not to have sought the
protection of home authorities invites the Board to weigh the evidence before
it and make a finding of fact. For example, although the agent of persecution
might be a stage agent, the facts of the case might suggest that purely local
or rogue elements are at work and that the state in question is democratic and
offers protection to victims similarly situated to the claimant. It might,
therefore, be objectively reasonable to expect a claimant to seek protection.
In other instances, the identity of the state agent and documentary evidence of
country conditions might mean that state protection would not be reasonably
forthcoming and, therefore, the claimant is not expected to have sought
protection.
In short, in Justice Snider’s opinion, the
availability of state protection is to be assessed on a case-by-case basis.
[9]
This
contrasts, in the Applicant’s view, with the following passage from Zhuravlvev
v. Canada (Minister of
Citizenship and Immigration), [2000] 4 F.C. 3, at para. 19:
Where the
state is shown to be the agent of persecution, one need not inquire into
the extent or effectiveness of state protection; it is, by definition, absent
[my emphasis].
[10]
In
my view, there are no inconsistencies between the two above passages. The issue
to address in every instance where state protection is at stake is whether
state protection might reasonably have been forthcoming if the refugee claimant
had sought such protection. The evidence must then be weighted to decide if the
presumption of state protection is rebutted on a case-by case basis. If, as
mentioned in Zhuravlvev, the state is shown to
be the agent of persecution, then the effectiveness of state protection is
pointless. However, a conclusion that the state, as a whole, is the agent of
persecution in a given case should not be reached in an expedite manner. Where the
persecutors are purely local or rogue elements of the state apparatus, an
assessment of the availability of state protection should be conducted, as
highlighted by Justice Snider. The question remains whether it is objectively
reasonable for the claimant to seek protection, taking all relevant
circumstances into consideration.
[11]
In
the present matter, the RPD noted that the Applicants was allegedly threatened and
harassed by Mr. Segura’s henchmen, but also mentioned that Segura is, according
to the Applicants, very well connected to the police (RPD decision, p. 5). In
the Applicant’s narrative (p. 29, tribunal’s file), the Applicant mentioned
that “certain government official were co-operating with Comunicon to get rid
of [him]”. There is no evidence to support these allegations. Further, I
understand from the Applicant’s narrative that the threats were more likely to
be originating from private parties, namely Comunico and Mr. Segura, who had a
personal pecuniary interest in excluding the Applicant from the deal with the
Mexican government. Having read the evidence, it is hard for me to believe that
the Mexican police and government as a whole collaborated to threaten and
harass the Applicants. In addition, the RPD cited the documentary evidence on
the reliability of the system in place in Mexico and the
failure of the Applicant to take any reasonable steps to seek protection. It
appears from the evidence that the only remedies sought were of civil nature,
not criminal. The lawyer’s letter mentions that “related complaints” were made
in September 2003, but no details are provided as to the nature of these
complains (p. 284 to 291). There is no evidence that any action was taken or
any complaint made to the Mexican authorities to prevent violent reprisal
against the Applicants.
[12]
Given
all the above, the conclusion of the RPD as to the availability of state
protection is not unreasonable. The RPD found that the state protection
presumption has not been rebutted, and the mere fact that the Mexican judicial system
has some insufficiencies is not enough to exempt the Applicants from the
requirement of seeking protection.
B. Psychological
Assessments
[13]
The
Applicants claim that the RPD ignored the psychological report (tribunal’s
file, p.
277 to 281) and
the letter (p.
330 to 332) submitted
regarding Ms. Sanchez.
[14]
In J.C.C.
v. Canada (Minister of Citizenship and Immigration), 2005 FC 534, [2005]
F.C.J. No. 660, this Court had to deal with a RPD decision where a refugee
claim was rejected solely because state protection was found to be available.
In that case, as in the present matter, the RPD failed to explicitly address
the content of a psychological report. Justice Layden-Stevenson made a
distinction between the objective issue of state protection and the subjective
fear of persecution that the psychological report emphasized. At para. 18, she
wrote:
I also find no
error regarding the board's treatment of the psychological report. The report
concluded that the applicants would be "at a high risk for
retraumatization" should they be forced to return to Costa Rica. However,
I agree with the respondent that the report does not deal with the applicants'
ability to access state protection in Costa Rica. In my view, the report speaks
to the applicants' subjective fear, but it does not assist in relation to the
objective issue of state protection.
[15]
The same distinction
was made in Guerrero v. Canada (Minister of citizenship and
Immigration), 2004 FC
104, [2004] F.C.J. No. 120, at para. 22. In
Varga v. Canada (Minister of Citizenship and
Immigration),
2005 FC 617, [2005] F.C.J. No. 765, at para. 27 to 30, Justice Mactavish found
a psychological report irrelevant to the issue of state protection and noted
that it is the RPD’s jurisdiction to weight the evidence:
Ms. Varga also
submits that the Board erred in failing to give adequate reasons for placing
little weight of a psychological report prepared by Dr. J. Pilowsky. Dr.
Pilowsky concluded that Ms. Varga suffers from Post-traumatic Stress Disorder
as a consequence of her experiences. According to the doctor, Ms. Varga would
suffer a "complete psychological breakdown and retraumatization" if
she were forced to return to Hungary.
In its
reasons, the Board noted that it had reviewed Dr. Pilowsky's report, but stated
that it preferred to place greater weight on the documentary evidence,
observing that it came from a variety of sources with no interest in the
outcome.
The question
of how much weight should be ascribed to individual pieces of evidence is one
for the Board. Moreover, in this case, the issue before the Board was whether
adequate state protection would be available to Ms. Varga if she were to return
to Hungary. It is difficult to see how evidence of a psychologist practising in
the City of Toronto could shed any light on this question, and indeed, Dr.
Pilowsky does not purport to do so.
While Ms.
Varga's psychological condition could potentially justify favourable
consideration under other provisions of the Immigration and Refugee Protection
Act, the central question for the Board was whether Ms. Varga's fear of
persecution in Hungary was objectively well-founded. Dr. Pilowsky's report was
simply not relevant to this inquiry. As a consequence, there is no merit to Ms.
Varga's submissions in this regard.
[16]
In sum, state protection is an
objective issue that has to be assessed regardless of the subjective fear of
persecution that refugee claimants might experience. The weighting of the
material before the RPD is within its purview, and psychologists’ opinion have
no relevance with respect to the issue of state protection. The RPD rejected
the Applicant’s refugee claim because they failed to rebut the presumption of
state protection, and this conclusion is not affected by the psychological
assessments submitted. Finally, I give no credit to the Applicants argument
that the RPD ignored the psychological report, as the RPD explicitly stated
that it was taken into consideration (decision, p. 9).
C. Compelling
Reasons
[17]
Finally,
the Applicants contends that the RPD failed to provide adequate reasons for rejecting the
alternative “compelling reasons” application made by their counsel under sub.
108(4) of the IRPA.
[18]
The
relevant parts of s. 108 reads:
|
Cessation of Refugee Protection
108. (1) A claim for
refugee protection shall be rejected, and a person is not a Convention
refugee or a person in need of protection, in any of the following
circumstances:
[...]
(e) the reasons for which
the person sought refugee protection have ceased to exist.
[...]
(4) Paragraph (1)(e) does
not apply to a person who establishes that there are compelling reasons
arising out of previous persecution, torture, treatment or punishment for
refusing to avail themselves of the protection of the country which they
left, or outside of which they remained, due to such previous persecution,
torture, treatment or punishment.
|
Perte de l’asile
108. (1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de
personne à protéger dans tel des cas suivants :
[...]
e) les raisons qui lui ont
fait demander l’asile n’existent plus.
[...]
(4) L’alinéa (1)e) ne
s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses,
tenant à des persécutions, à la torture ou à des traitements ou peines
antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté
ou hors duquel il est demeuré.
|
[19]
In
my view, sub. 108(4) of the IRPA is not applicable in the present matter. The
RPD should not undertake a sub. 108(4) evaluation in every case. It is only
when para. 108(1)(e) is invoked by the RPD that a “compelling reasons”
assessment should me made, i.e. when the refugee claimant was found to be a
refugee but nevertheless had been be denied refugee status given the change of
circumstances in the country of origin. In Kalumba c. Canada
(Ministre de la Citoyenneté et de l’Immigration), 2005 CF 680, [2005]
A.C.F. No. 879, at para. 18 and 19, Justice Shore provided a
succinct summary of the applicable principles:
[MY
TRANSLATION] As per the wording of the section, before considering the
application of subsection 108(4) of the Act, the Commission must conclude that
the person would have been granted refugee status notwithstanding the change of
circumstances which occurred in the country. In the matter at hand, the
Commission determined that M. Kalumba had an internal flight alternative in his
country of origin and therefore concluded that Mr. Kalumba was neither a
refugee nor a person in need of protection as per sections 96 and 97 of the
Act.
Secondly, the
Commission never mentions in its reasons such a change of circumstances in the
RC that would have an effect of depriving the grounds for his fear of
persecution. As such, the Commission did not have to conduct a “compelling
reasons” analysis pursuant to subsection 108(4) of the Act.
[20]
Justice
Shore went on and
referred to the authoritative Federal Court of Appeal case, Hassan v. Canada (Minister of
Citizenship and Immigration), [1992] F.C.J. No. 946. In this case, the
Federal Court of Appeal dealt with subsections 2(2) and 2(3) of the former Immigration
Act, R.S.C. 1985, c. I-2:
It is clear,
as the appellant suggests, that subsections 2(2) and 2(3) of the Immigration
Act speak to the loss of status as a Convention refugee because of, inter alia,
a change in material circumstance in a refugee's home nation. But
those provisions in no way alter the test used to initially determine a
claimant's status. It is trite law that to establish status as a
Convention refugee within the meaning of the Immigration Act, one has to meet
both a subjective and objective threshold. One must have a "well-founded
fear of persecution". One cannot get to the point of
possibly losing one's status as a Convention refugee, i.e. subsections 2(2) and
2(3) cannot be applicable, unless one first falls within the statutory
definition contained in subsection 2(1) [my emphasis].
[21]
It
is clear from the wording of sub. 108(4) that it is not aimed at creating a
broad obligation for the RPD to assess the existence of “compelling reasons” in
every refugee claim. If a refugee claimant is neither a refugee nor a person in
need of protection because the conditions of the general definition of section
96 and 97 of the IRPA are not met, then no “compelling reasons” assessment need
be performed by the RPD. It is only necessary where the rejection of the claim
is based on 108(1)(e).
[22]
In
the present matter, the claim of the Applicants was rejected because the RPD
found that State protection was available. Their claim was rejected as they did
not meet the necessary conditions in order to be considered refugees or persons
in need of protection. The exception enacted at para.108(1)(e) was not applicable.
Therefore, the RPD was under no obligation to perform any assessment of “compelling
reasons”.
[23]
For
these reasons, the application for judicial review is dismissed.
[24]
Both
counsels were invited to submit a question for certification but no question
was submitted.
JUDGMENT
THE COURT HEREBY ORDERS
THAT:
- The
application for judicial review is dismissed and no questions are certified.
“Simon
Noël”
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