Date: 20060908
Docket: IMM-6909-05
Citation: 2006 FC 1080
Ottawa, Ontario, the 8th
day of September 2006
Present: the Honourable Mr. Justice de Montigny
BETWEEN:
JOSÉ
ANTONIO MARTIN GARCIA VILLASENOR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, who is 33 years old, is a citizen of Mexico. He alleges that he has
a well‑founded fear of persecution on account of his political opinions
and his membership in a particular social group, in that he believed he had
been threatened by a police officer, which would put his life or his physical
or mental security at risk if he had to return to his country.
[2]
In Mexico,
the applicant worked in a government undertaking, the state commission for
sport and youth, as a legal affairs coordinator. According to his Personal
Information Form (PIF), he has completed 16 years of schooling and studied law
at university for some years. At his manager’s request, he said he dismissed
the mother of a police officer on the ground that she was forging cheques
intended for young athletes. At the time, she allegedly threatened him and told
him he would pay for his actions with his life. She also allegedly said that
one of her three sons was working in the city prosecutor’s office and that he
had connections everywhere.
[3]
The
applicant alleges that, soon after, he received two anonymous death threat
calls at work. He said he was then attacked in the street by three individuals
who hit him on his head and back before fleeing, but a description of them
could not be given by the witnesses at the scene. The following day, one of his
attackers (allegedly one of the sons of the employee he had dismissed) went to
the applicant’s home and shouted that he was looking for the applicant and was
going to kill him to avenge his mother.
[4]
The
applicant claims that, after having sent his wife and children to a safe
location by taking them to the residence of one of his brothers, he tried to
file a complaint with the police about the attack and the threats that had been
made against him. However, someone he knew in the government advised against
filing a complaint as the individual he would be filing it against worked as a
[translation] “godmother”, that
is, as an assistant to a judiciary police officer. After discussing his
problems with his boss, he said he advised him to resign.
[5]
However,
the applicant’s troubles were not over. In the months that followed, he was
convinced that he was still being watched and he said he was followed by a car
two or three times. He was then again attacked in a parking lot by the same
individual, accompanied by three other persons. He claims that the arrival of
another car allowed him to escape with his life. A note was nevertheless left
for him ten days later in which his attackers told him they would get him next
time and they would know where to find him wherever he was in the country.
BOARD’S DECISION
[6]
In a
decision of October 20, 2005, the Immigration and Refugee Board (the Board)
dismissed the applicant’s claim for refugee status. The Board took the view
that the applicant had not been able to establish that the government was
incapable of giving him adequate protection in his country. In view of Mr.
Villasenor’s education, his legal training and the fact that he worked with the
police in the state where he lived, the Board considered that the mere fact of
having gone to the police station was not enough to show that he had tried to
seek protection from the authorities.
[7]
Based on
the documentary evidence, the Board then reviewed a number of steps taken by
the Mexican government to end corruption in the police and to protect human
rights. Although the situation was still not perfect, these reforms showed that
there were internal police controls at various levels of the public security
system. In circumstances where it was not the authorities who were hounding the
applicant, but a single individual, the Board stated that it was his duty to
file a complaint with the authorities of his country and to take the claim
further if he found he was not being given the help he sought. Though it
acknowledged that the presumption that a state is capable of protecting its
nationals can be rebutted, the Board found that the evidence submitted by the
applicant was not sufficient in the circumstances, since he had not tried to
file a complaint.
[8]
The Board
further found that the applicant could have found refuge within Mexico itself
to give the authorities time to act. As the applicant had a good academic
background and spoke Spanish and there were no limitations on his freedom of
movement, he could have settled in the second largest city in the country,
namely Monterey. The applicant’s explanation that he would have been located by
his persecutor by means of his voting card was not found reasonable by the
Board, especially as his parents, who still lived in the city where the
applicant was living, and his wife, who works there, had not been contacted by
the persecutor. In these circumstances, it was, in the Board’s view, not
objectively unreasonable for the applicant to take refuge in the city of
Monterey.
ISSUE
[9]
The only
issue that arises in this application for judicial review is whether the Board
erred in finding that it was not objectively unreasonable for the applicant to
seek state protection and find refuge in the city of Monterey.
ANALYSIS
[10]
The
applicant’s credibility and the truth of the facts alleged by him in support of
his refugee status claim were not questioned by the Board. The only real issue
in the case at bar is whether the Board erred in finding that the applicant had
not rebutted the presumption that the Mexican authorities could provide him
with the protection to which he was entitled and that it was his duty to seek
that protection by filing a complaint with the proper authorities. In the
alternative, the Court must also consider whether the Board erred in finding
that, in the circumstances, the applicant had an internal flight alternative.
[11]
At the
hearing, counsel for the applicant referred several times to recent decisions
rendered by my colleagues Luc Martineau J. in Avila v. Minister of
Citizenship and Immigration, 2006 FC 359, [2006] F.C.J. No. 439 (QL), and
by Michel Shore J. in Monroy v. Minister of Citizenship and Immigration,
2006 FC 588, [2006] F.C.J. No. 754 (QL). There is no denying that those cases
are certainly of great relevance herein, not only because they are very recent
and both concern claimants originating in Mexico, but also, and most
importantly, because they include a thorough and extensive analysis of the
fundamental concept of state protection.
[12]
Like my
colleague Martineau J., I agree with the holding propounded by another of my
colleagues, Danièle Tremblay-Lamer J., as to the standard of review applicable
in such a matter, in Chaves v. Canada (Minister of Citizenship and
Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL). After having
conducted an analysis based on the pragmatic and functional approach, the judge
in that case held that the standard was that of reasonableness. This means that
the Board’s decision will not be overturned unless none of the reasons given in
support of its conclusion can stand up to somewhat probing examination. Of
course, the case will be different if the objection raised against the Board is
based not so much on a misapplication of the legal standard to the facts
revealed by the evidence as on a misformulation of the legal standard itself:
in the latter case, it is the standard of correctness that must be applied.
[13]
Counsel
for the applicant argued that the Board had set too exacting a standard when it
held that the applicant had to exhaust all possible remedies before claiming
that the authorities in his country could not protect him. Further, he
contended that it was not reasonable to require the applicant to file a
complaint in view of the corruption endemic in the police forces in Mexico.
Finally, he dwelt at length on the fact that the Board was simply speculating
when it found that Mexico was in a position to protect its citizens and that it
had disregarded the documentary evidence establishing the corruption prevailing
in that country. Relying in particular on Avila, supra, the
applicant argued that good intentions were not enough and that tangible results
were required.
[14]
What is
the current state of the law exactly? Since the Supreme Court decision in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] F.C.J. No. 74 (QL),
the law is settled: a state is presumed to have the ability to protect its
citizens. However, in certain circumstances such a presumption can be rebutted.
Discussing the point in the aforesaid case,
Gérard V. La Forest J. then wrote, at pages 724 and 725:
The issue that arises, then, is how, in a practical sense, a
claimant makes proof of a state's inability to protect its nationals as well as
the reasonable nature of the claimant's refusal actually to seek out this
protection. On the facts of this case, proof on this point was unnecessary, as
representatives of the state authorities conceded their inability to protect Ward. Where
such an admission is not available, however, clear and convincing confirmation
of a state's inability to protect must be provided. For example, a
claimant might advance testimony of similarly situated individuals let down by
the state protection arrangement or the claimant's testimony of past personal
incidents in which state protection did not materialize. 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.
[15]
This
question subsequently generated much controversy. Although the case law may
have varied on this point, it has become increasingly evident that the state’s
ability to protect its nationals must be tangible, not merely theoretical. In
other words, it will not suffice if a state has such ability and has created
the legislative, administrative and judicial means for ensuring that its
citizens’ rights are observed. It will still have to have the intention to do
so and that intention must be reflected in specific actions and tangible results.
On the other hand, it will not suffice for a refugee status claimant to offer
evidence that one or more police officers refused to act on his complaint, or
that an investigation led nowhere in similar circumstances. If that were the
test, not many countries might be able to pass it. As Robert Décary J.A. of the
Federal Court of Appeal noted in Kadenko v. Canada (Minister of Citizenship
and Immigration), [1996] F.C.J. No. 1376 (QL), at paragraph 5:
When the state in question is a democratic state, as in the case at
bar, the claimant must do more than simply show that he or she went to see some
members of the police force and that his or her efforts were
unsuccessful. The burden of proof that rests on the claimant is, in
a way, directly proportional to the level of democracy in the state in
question: the more democratic the state's institutions, the more the claimant
must have done to exhaust all the courses of action open to him or her.
[16]
It is not
this Court’s role to take the place of the Board in the assessment that it must
make as to the effectiveness of the protection a citizen is able to obtain in
his or her country of origin. As a specialized administrative tribunal assisted
by research services, the Board has greater expertise than this Court when the
time comes to undertake such an analysis. On the other hand, in order to be
credible and reasonable the assessment must be seriously undertaken on a
case-by-case basis, not in a superficial and generic way. Therefore, the
specific situation of the applicant, the reasons that led him to flee his
country and the protection which the Mexican government authorities can
actually offer him in such a case are points which have to be very carefully
considered by the Board. This is what my colleague Martineau J. aptly explained
in Avila, supra. It is particularly relevant to quote paragraph 28 of
that judgment in the instant case:
No government which professes
democratic values or asserts its respect for human rights can guarantee the
protection of each of its nationals at all times. Accordingly, it will not
suffice for the applicant to show that his government was not always able to
protect persons in his position (Villafranca, supra, at para. 7).
Nonetheless, though government protection does not have to be perfect, some
protection must exist the minimum level of which does not have to be
established by the Court. The Board may in the circumstances determine that
the protection provided by the government is adequate, with reference to
standards defined in international instruments, and what the citizens of a
democratic country may legitimately expect in such cases. In my opinion, this
is a question of fact which does not have to be answered in absolute terms.
Each case is sui generis. For example, in the case of Mexico one must
look not only at the protection existing at the federal level, but also at the
state level. Before examining the question of protection, the Board must of
course be clear as to the nature of the fear of persecution or risk alleged by the
applicant. When, as in the case at bar, the applicant fears the persecution of
a person who is not an agent of the government, the Board must inter alia
examine the motivation of the persecuting agent and his ability to pursue the
applicant locally or throughout the country, which may raise the question of
the existence of internal refuge and its reasonableness (at least in connection
with the analysis conducted under section 96 of the Act).
[17]
In the
case at bar, the Board appears to have conducted a thorough analysis of the
situation. Not only did it list several recent sources of information on the
situation currently prevailing in Mexico, but it painstakingly reviewed them
and this led it to find that the applicant should at least have filed a complaint
before he could argue that the state was not able to protect him. Although it
recognized that the reforms initiated by President Fox of Mexico had not yet
been able to eradicate all corruption problems, the Board said that, in its
view, there were now genuine internal police controls at various levels of the
public security system. It also referred to certain steps taken in 2004 by
states and municipalities to punish corrupt police officers, especially in
Mexico City.
[18]
In this
situation, the Board could reasonably find that the applicant should at least
have filed a complaint before trying to seek refuge outside his country,
especially as the applicant said he knew his attacker’s name and was not being
hounded by the authorities in his country in general. In this connection, the
Board also noted that, although the applicant acknowledged that steps had been
taken by the President of Mexico to fight corruption, he explained his failure
to file a complaint by alleging first that the process was long and very costly
and then submitting that he had to leave as quickly as possible. It may also be
noted that the applicant submitted no evidence that could corroborate his
claims that his attacker was in fact an influential man or one able to act with
impunity. Further, counsel for the applicant filed no documentary evidence to
show that a person in the same situation as the applicant could expect no
protection from the state.
[19]
The
situation might have been different if the applicant had at least filed a
complaint and had faced official inaction, as was the case in Badilla v.
Minister of Citizenship and Immigration, 2005 FC 535, (2005), 272 F.T.R.
177 (F.C.), [2005] F.C.J. No. 661 (QL). It may well be that the Board set too
exacting a standard when it wrote that the applicant had to exhaust all his
remedies. Not only should each case be assessed on its own merits, but it has
repeatedly been stated that a claimant is not required to put his life at risk
in order to show that he in fact tried to get protection from his country
before leaving it. On the other hand, it is reasonable to expect that a person
alleging that the authorities were unable to protect him should first have done
something that would usually have resulted in their protection. Save in
exceptional circumstances, it seems inconceivable to the Court that an
applicant should be able to blame the authorities in his country for their
inaction when he did not even make them aware of his position of vulnerability
and never gave them an opportunity to protect him.
[20]
Accordingly,
I find that, although the Board may have formulated the test in language that
was somewhat too rigid and categorical, in the circumstances, it was not
unreasonable to say that the applicant had not discharged his burden of showing
that his country could not provide him with the protection to which he was
entitled. This find seems to be all the more reasonable as the applicant could
have taken refuge elsewhere in Mexico, if only for long enough to give the
authorities time to act. Such a possibility does not impose an unnecessary
burden on the applicant, and in this regard he could provide no satisfactory
explanation to establish that his attacker had the intention and ability to
locate and threaten him in the large city of Monterey where he could have taken
refuge. The applicant’s claim must fail based simply on the existence of such
an internal flight alternative.
For
all these reasons, therefore, I dismiss the application for judicial review. No
certified question was suggested by the parties and I do not certify any.
Email this Content