Date: 20061220
Docket: IMM-1143-06
Citation: 2006 FC 1534
Ottawa, Ontario, December 20, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MORALES AGUILAR RENEIR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Reneir
Morales Aguilar is a citizen of Mexico who claims refugee protection. He claims
that he has a well-founded fear of persecution and that he faces a danger of
torture, or a risk to his life, or a risk of cruel and unusual treatment or
punishment in Mexico. These fears flow from his membership in the Zapatista
Front of National Liberation and his involvement assisting the indigenous
people of Chiapas state in Mexico.
[2] The
Refugee Protection Division of the Immigration and Refugee Board (Board)
dismissed his application for protection. While the Board accepted that Mr.
Morales may have been apprehended by people who did not want him to assist the
indigenous peoples, it found that he had failed to rebut, with clear and
convincing evidence, the presumption of state protection.
[3] On
this application for judicial review of that decision, Mr. Morales asserts
that:
(i) The Board made perverse and capricious findings of fact
without regard to the evidence before it.
(ii) The Board failed to conduct an analysis of the availability
of state protection in Mexico.
[4] In
my view, the determinative issue is the reasonableness of the Board's decision
with respect to state protection. This is because even if the Board erred in
some of its findings of fact as Mr. Morales alleges, none of those
findings relate to the availability of state protection. For the reasons that
follow, I have concluded that the Board did not err in finding that Mr. Morales
had failed to rebut the presumption of state protection.
[5] Before
setting out the applicable legal principles, it is necessary to describe the
agents of persecution that Mr. Morales fears. In his Personal Information
Form, Mr. Morales stated that he feared a certain named person who is the
leader of a group working for the "local authorities". In his oral
testimony before the Board, Mr. Morales stated that he feared the persons who
had previously attacked him and the rich land owners of his state.
[6] Where
the agents of persecution are not state actors, settled principles of law
relevant to the issue of state protection, are:
·
A refugee claimant will generally be expected to seek protection
from the state.
·
Where the state apparatus has not broken down, a claimant faces a
heavy burden to rebut, with clear and convincing evidence, the presumption of
state protection.
·
The presumption of state protection may be rebutted by evidence
of similarly situated individuals who were unable to obtain protection, or by
evidence of past incidents where the claimant sought protection, but it did not
materialize.
·
There is no requirement for a claimant to seek such protection
where the evidence establishes that protection will not be forthcoming.
See: Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[7] Turning
to the evidence before the Board, Mr. Morales testified that when his sister
(who had also assisted indigenous people) was murdered a number of years
previously, a report was made to the police and the specific group leader that
Mr. Morales fears was arrested and detained for between five and seven months
(although the matter ultimately did not proceed to trial). Mr. Morales
also testified that at no time did he report any of the problems he encountered
to the police in Chiapas, or to the police in Mexico City. In oral argument,
counsel for Mr. Morales conceded that there was no evidence before the Board of
persons similarly situated to Mr. Morales who had unsuccessfully sought
state protection.
[8] On
that evidence, the Board could reasonably conclude, as it did, that Mr. Morales
failed to rebut the presumption of state protection with clear and convincing
evidence. The application for judicial review is therefore dismissed.
[9] Counsel
posed no question for certification, and I agree that no question arises on
this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
FEDERAL COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: IMM-1143-06
STYLE OF CAUSE: MORALES
AGUILAR RENEIR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: DECEMBER 12, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: DECEMBER 20, 2006
APPEARANCES:
RYAN S. PERSAD FOR
THE APPLICANT
LEANNE BRISCOE FOR
THE RESPONDENT
SOLICITORS OF RECORD:
RYAN S. PERSAD FOR
THE APPLICANT
BARRISTER & SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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