Date: 20051220
Docket: IMM-282-05
Citation: 2005 FC 1654
BETWEEN:
LUIS ANGEL TREJO SOTO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated January 6, 2005, wherein the Board found that the applicant was not a Convention refugee or "a person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Luis Angel Trejo Soto ("the applicant") is a citizen of Mexico who alleges a well-founded fear of persecution by Mexican law enforcement officials due to his anti-government political opinion. He also claims to be a person in need of protection.
[3] The Board concluded that the applicant is not a Convention refugee or a "person in need of protection" because he had not rebutted the presumption of State protection.
[4] The applicant alleges that the Board ignored evidence showing that State protection was inadequate, and erroneously faulted the applicant for failing to seek protection in a situation where the police were the persecutory agents.
[5] The Convention refugee system was designed to deal with the failure of national governments to protect their citizens from persecution (Zhuravlvev v. Canada (M.C.I.), [2000] 4 F.C. 3 (T.D.)). Absent a situation of complete breakdown of State apparatus, it should be assumed that the State is capable of protecting a claimant. In order for the appellant to overcome the presumption that the State is capable of protecting him or her, he or she has to advance clear and convincing confirmation of the State's inability to do so (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). Also, State protection need not be perfect protection (Canada (M.E.I.) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.) (QL), leave to appeal to the Supreme Court of Canada denied (1993), 19 Imm.L.R. (2d) 263).
[6] The Board found that the applicant has not rebutted the presumption of State protection, as he had not made any effort at any level to obtain redress for his problems or to avail himself of State protection prior to seeking asylum abroad.
[7] It is true that it is not in every case that a person need approach the State for protection. When the evidence indicates that such protection would not be forthcoming, there is no requirements that the person seek the protection of the authorities. A claim should not be rejected based on a person's failure to seek State protection if the evidence supports the conclusion that no protection would be forthcoming (Ward, supra).
[8] It is also true that such proof might consist of testimony that similarly situated individuals were let down by the State protection arrangement or of past personal incidents in which the State protection did not materialize. The applicant alleges that the Board erred by ignoring such documentary evidence. However, there is a presumption that the tribunal considered all of the evidence that was presented to it (Taher v. Canada (M.C.I.), [2000] F.C.J. No. 1433 (T.D.) (QL)), and the Board specifically acknowledged that corruption is an ongoing problem in Mexico. The reality is that there was documentary evidence that indicated both that corruption is an ongoing problem in Mexico and that the Mexican government is making efforts to ameliorate such problems.
[9] Therefore, I do not agree with the applicant's argument that the Board erred in law in failing to have regard to the totality of the evidence.
[10] The applicant also submits that where the State is shown to be the agent of persecution, one need not inquire into the extent or effectiveness of State protection, because the protection is absent (Zhuravlvev, supra).
[11] However, in this situation, the Board did not find that the State was the agent of persecution. This is not a patently unreasonable conclusion, as the actions of individual police officers do not necessarily make the State the agent of persecution, nor does it inherently show that there has been a complete breakdown of the State's ability to protect (see Minister of Citizenship and Immigration v. Kadenko et al. (October 15, 1996), A-388-95 (F.C.A.), Kioreskou et al. v. Minister of Citizenship and Immigration (March 22, 1995), IMM-1860-94 (F.C.T.D.) and Illangakoon et al. v. Minister of Citizenship and Immigration (October 24, 1995), IMM-3792-94 (F.C.T.D.)).
[12] The applicant cites Molnar v. Canada (M.C.I.), [2003] 2 F.C. 339, and submits that the Board erred in law by faulting the applicant for failing to seek redress from human rights organizations.
[13] It is true that in Molnar, my colleague Justice Tremblay-Lamer asserted that once applicants sought assistance from the police and they refused, there was no obligation on them to seek redress through other sources.
[14] However, in Pal v. Canada (M.C.I.), [2003] F.C.J. No. 894 (T.D.) (QL), as the jurisprudence was conflicting, Justice Simpson chose to follow Nagy v. Canada (M.C.I.), [2002] F.C.J. No. 370 (T.D.) (QL), Zsuzsanna v. Canada (M.C.I.), [2002] F.C.J. No. 1642 (T.D.) (QL) and Szucs v. Canada (M.C.I.), [2000] F.C.J. 1614 (T.D.) (QL) instead of Molnar. These cases specifically place a duty on the applicant to seek protection from the State, even if the agent of persecution is a police officer.
[15] Just as in Carrillo v. Canada (M.C.I.), [2004] F.C.J. No. 1152 (T.D.) (QL), and Sangaravelu v. Canada (M.C.I.), [2004] F.C.J. 176 (T.D.) (QL), it is my opinion that it was not unreasonable for the Board to expect claimants to have approached domestic authorities with respect to the abusive conduct of the State actors. As the Board's findings of fact were reasonable and the Board's analysis of the democratic state's political and judicial institutions was not patently unreasonable (it was supported by the evidence before the Board), the Board did not err in imposing an obligation to seek protection on the applicant.
[16] The applicant submits that the Board erred by faulting him for not providing clear and convincing evidence that the democratic government is dysfunctional or in disarray.
[17] It is my opinion that the Board was referring to the principle that absent a situation of complete breakdown of State apparatus, it is assumed that the State is capable of protecting a claimant. In articulating that the applicant had not provided evidence that the democratic government was dysfunctional or in disarray, it was finding that the presumption that a State can protect its citizens was still in effect.
[18] The Board committed no patently unreasonable error in using the above language.
[19] For the above reasons, I do not find that the Board erred in concluding that the applicant failed to rebut the presumption of State protection. Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
December 20, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-282-05
STYLE OF CAUSE: LUIS ANGEL TREJO SOTO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 9, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: December 20, 2005
APPEARANCES:
Mr. Loftus Cuddy FOR THE APPLICANT
Mr. Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robert Gertler & Associates FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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