Date: 20060629
Docket: IMM-6794-05
Citation: 2006 FC 834
Montréal, Quebec, June 29, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
EDUARDO RUIZ
MONROY
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated
October 20, 2005, by which the Immigration and Refugee Board—Refugee Protection
Division (the Board) determined that Eduardo Ruiz Monroy (the
applicant) was not a Convention refugee or a person in need of protection
within the meaning of sections 96 and 97 of the Act.
RELEVANT
FACTS
[2]
The
applicant is a citizen of Mexico. He is claiming refugee protection by reason
of his membership in a particular social group. He alleged a well-founded fear
of persecution at the hands of criminals, namely drug traffickers who are aided
by collaborators within the police. The applicant also alleged that he is a
person in need of protection, such that he would be personally subjected to a
danger of torture, to a risk to his life, or to a risk of cruel and unusual
treatment or punishment.
[3]
The
applicant stated that he began working in a discotheque in September 2004.
In January 2005, the applicant allegedly discovered that his boss was
involved in drug trafficking. The applicant stated that on January 19,
2005, he made a complaint to the Attorney General against his employer for drug
trafficking.
[4]
He alleged
that on January 20, 2005, he was the victim of assaults and death threats
by unknown persons who accused him of having filed a complaint with the police.
Following this attack, he contacted a friend in the judicial police to obtain
help in his dealings with the authorities. The consequences were not long in
coming, and in fact the applicant was the victim of an attempted murder a few
days later.
[5]
Following
that, the applicant was advised by his brother that the police were looking for
him. When he spoke to the manager of the discotheque, he learned that he was
wanted. At that time, he also learned that the owner of the discotheque,
Luis Ariona, was a commander in the judicial police.
[6]
The
applicant then allegedly left the city of Guadalajara. However, the applicant
stated that he was notified that his agent of persecution knew he was in
Tijuana and was actively looking for him.
[7]
Fearing
for his safety, he decided to travel illegally to the United States. At his
cousin’s suggestion, the applicant travelled to Charlotte to contact him. The
cousin allegedly told the applicant that the situation in the United States was
not good and advised him to take refuge in Canada. The applicant illegally
entered Canada in a truck and claimed refugee protection a few days later.
ISSUES
[8]
1. Did the
Board err in concluding that the applicant did not prove the inability of the
Mexican state to protect him?
2. Did the Board err in
drawing negative inferences?
ANALYSIS
1.
Did the Board err in concluding that the applicant did not prove the inability
of the Mexican state to protect him?
[9]
The Board
concluded that the applicant did not meet the burden of proof so as to show in
a clear and convincing manner that the Mexican state could not provide adequate
protection. The standard of review applicable to questions of state protection
is reasonableness simpliciter (Chaves v. Canada (Minister of
Citizenship and Immigration) 2005 FC 193, at paragraphs 9‑11).
[10]
In Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada
stated the following, at paragraph 50:
. . . [C]lear
and convincing confirmation of a state’s inability to protect must be provided
. . . . Absent some evidence, the claim should fail, as nations
should be presumed capable of protecting their citizens. Security of nationals
is, after all, the essence of sovereignty. Absent 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.
[11]
The
Supreme Court affirmed that, in the absence of a complete breakdown of the
state apparatus, it must be presumed that the state is able to protect its
citizens. Moreover, it is up to the applicant to rebut the presumption by
adducing clear and convincing evidence showing that the state is unable to
protect him or her.
[12]
The
applicant alleged that the Board erred in concluding that he did not rebut the
presumption that the Mexican authorities were able to ensure his protection.
The applicant alleged that he undertook reasonable steps to obtain assistance
from the Mexican state. However, every time he took steps, he suffered personal
consequences. He claimed that he cannot be required to undertake other steps if
they entail a threat to his life.
[13]
In
Chaves, supra, Madam Justice Danielle Tremblay-Lamer stated
at paragraph 15 that when a state is the alleged perpetrator of the
persecution, an applicant is not required to exhaust all possible recourses in
the country to meet his burden of proof and show there is an objective fear:
Rather, where agents of
the state are themselves the source of the persecution in question, and where
the applicant’s credibility is not undermined, the applicant can successfully
rebut the presumption of state protection without exhausting every conceivable
recourse in the country. The very fact that the agents of the state are the
alleged perpetrators of persecution undercuts the apparent democratic nature of
the state’s institutions, and correspondingly, the burden of proof. As I
explained in Molnar v. Canada (Minister of Citizenship and Immigration),
[2003] 2 F.C. 339 (T.D.), Kadenko, supra has little
application when the “[...] police not only refused to protect the applicants,
but were also the perpetrators of the acts of violence”; Molnar, supra
at para. 19.
[14]
In
Espinosa v. Canada (Minister of Citizenship and Immigration) 2005 FC 1393, at
paragraphs 7 and 8, Mr. Justice Yves de Montigny adopted the same position as
Tremblay‑Lamer J.:
As a general rule, a
refugee protection claimant must seek protection from his or her country before
requesting international protection. As La Forest J. affirmed in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, page 726,
“The presumption [that the State is capable of protecting the claimant] serves
to reinforce the underlying rationale of international protection as a
surrogate, coming into play where no alternative remains to the claimant”. To
rebut this presumption, it would not be sufficient to allege that the police
are corrupt or that a police officer did not follow up on a complaint. From
this point of view, I, like many of my colleagues, am willing to admit that
Mexico is able to protect its citizens even though this protection is far from
perfect: Velazquez v. Canada (M.C.I.), [1999] F.C.J.
No. 934 (QL); Garcia v. Canada (M.C.I.), [2004]
F.C.J. No. 2058 (QL); Urgel v. Canada (M.C.I.),
[2004] F.C.J. No. 2171 (QL); Valdes v. Canada (M.C.I.),
[2005] F.C.J. No. 123 (QL); Balderas v. Canada (M.C.I.),
[2005] F.C.J. No. 225 (QL); B.O.T. v. Canada (M.C.I.),
[2005] F.C.J. No. 343 (QL).
Having said this, it is
quite different when a representative of the state is the alleged perpetrator
of the persecution or threats of violence. As my colleague Tremblay-Lamer J.
affirmed, “The very fact that the agents of the state are the alleged
perpetrators of persecution undercuts the apparent democratic nature of the
state's institutions, and correspondingly, the burden of proof” (Chaves v.
Canada (M.C.I.), [2005] F.C.J. No. 232, 2005 FC 193; see
also Molnar v. Canada (M.C.I.), [2003]
2 F.C. 339). After all, it would be absurd to require that a claimant
put his life in danger to prove the ineffectiveness of the protection in his
country. This reasoning applies that much more when, as in the present case,
the person allegedly responsible for the persecution is the one who is
ultimately in charge of public safety within the state. The Board did not seem
to take this into consideration in its decision. In fact, the documentary
evidence it cited to show that recourse was possible does not take this part of
the problem into consideration.
[15]
The
situation in the case at bar is different from the one mentioned by
De Montigny J. In this case, the Board took into consideration the fact
that the owner of the discotheque, Luis Ariona, was a commander in the
judicial police. However, even taking into consideration the fact that an agent
of the state could be the cause of the persecution in question, the Board was
satisfied that the documentary evidence showed the applicant did not use all
his recourses and that protection could be obtained from the Mexican state:
The claimant
says that he filed a complaint with the Attorney General on one occasion only,
and he could have also approached the superintendent’s office, which he did not
do. He could have contacted other police stations, which he did not do. He was
living in a big city. It is clear that he could have contacted another office
and laid a complaint there.
Also according
to the documentary evidence, the Attorney General was replaced in 2001 to beef
up the internal fight against corruption and tackle drug trafficking and
organized crime. The persons convicted of corruption within the system were
suspended, dismissed, and in certain cases imprisoned. We understand the police
too often protect each other. Apparently the claimant was hunted down and
attacked by people who identified themselves as being from the police, but this
in itself is not sufficient evidence to justify his lack of perseverance in
obtaining protection from Mexican institutions or other police services.
The RPD is
therefore satisfied that the representatives of the Mexican state have taken
measures to fight against corruption in the police and the judiciary and that
the claimant had no objective reason not to seek state protection and do all
that was reasonable in the circumstances to obtain such protection.
In light of the
documentary evidence, the panel finds that the Mexican government is making
serious efforts to fight crime and protects its victims of crime and that state
protection will be offered to the claimant even if the alleged agent of
persecution is a person of influence or a person working in the justice system.
(Decision of the Board dated
October 20, 2005, at page 5)
[16]
Even
though an agent of the state was the perpetrator of the attacks, the Board
concluded that the Mexican authorities were able to ensure the applicant’s
safety. The applicant did not adduce clear and convincing evidence to the
contrary. The Board took into consideration objective evidence concerning
Mexico. The Board made numerous references to this evidence and even noted
that, in spite of the fact corruption was widespread in the police, including
the judicial police, numerous measures had been taken by the state to fight
crime, mount a more effective attack on internal corruption, and deal with drug
trafficking and organized crime.
[17]
The only
thing the applicant did to seek state protection was to contact his friend in
the police. In spite of the fact that he had been threatened and assaulted, the
Board concluded that he had not undertaken sufficient steps to obtain adequate
state protection.
[18]
The
applicant has not satisfied me that the Board erred in concluding that he had
not succeeded in rebutting the presumption of state protection.
2.
Did the Board err in drawing negative inferences?
[19]
The
applicant alleged that the Board erred in drawing negative inferences from the
fact it had not received a copy of the complaint. Moreover, the applicant
claimed that the Board also erred in drawing negative inferences about the
duration of a certain trip between the American border and Los Angeles.
[20]
I agree
with the position of the respondent, who stated that a mere reading of the
decision shows that the applicant’s claims are unfounded because the Board did
not make any of the inferences to which he referred. The Board did not seem to
doubt the applicant’s testimony concerning the lack of a copy of the complaint.
As far as the trip from the American boarder is concerned, the decision simply
did not deal with it.
[21]
Accordingly,
the applicant did not satisfy me that the Board had made an error that would
warrant the intervention of this Court.
[22]
Therefore,
the application for judicial review will be dismissed.
[23]
The
parties did not submit any question to be certified.
JUDGMENT
·
The
application for judicial review is dismissed.
·
No
question will be certified.
“Pierre Blais”
Certified
true translation
Michael
Palles
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