Filigrana v. Canada (Minister of Citizenship and Immigration), 2005 FC 1447

Date: 20051025

Docket: IMM-2440-05

Citation: 2005 FC 1447

BETWEEN:

                                                 FELIPE MORALES FILIGRANA

                         LORENA GUADALUPE SANCHES TORRES VALENZUELA

                                         JIMENA MORALES SANCHES TORRES

                                          MOISES MORALES SANCHES TORRES

                                                                                                                                           Applicants

                                                                         - and -

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

HARRINGTON J.

[1]                Felipe Morales Filigrana, his wife Lorena and their two children seek international protection from Canada, not on the grounds that they are refugees within the meaning of the United Nations Convention, but rather because they are persons otherwise in need of protection within the meaning of section 97 of the Immigration and Refugee Protection Act ("Act"). They allege that they fear a risk to their lives in their homeland, Mexico, and that they are unable, or because of that risk, unwilling to avail themselves of state protection there.

THE FACTS

[2]                The panel of the Refugee Protection Division of the Immigration and Refugee Board dismissed their claim on two grounds, credibility and state protection. This is a judicial review of that decision.

[3]                There are two facts which are not in dispute. Mr. Filigrana was shot at from a passing automobile in early 2000, and later that year his son was struck down by an automobile. The applicants also testified that there had been threatening telephone calls in early 2000. Although their automobile was stolen in 2001, they do not submit that this is a basis for their claim.

[4]                It began again in January 2004 when someone appears to have duplicated Mr. Filigrana's credit card and obtained his PIN number, so as to gain access to his bank account. This was followed by threats of extortion, and the presence of an unidentified automobile which was parked near their house. When they telephoned the police to complain, the car always disappeared before the police arrived.

[5]                Mr. and Mrs. Filigrana believe that the car in question was similar to the car from which Mr. Filigrana was shot at four years earlier. He is an automobile dealer and was of the view that the car was an unmarked police car. Furthermore, why would the car leave when they called the police unless they were tipped off?

[6]                The panel gave a number of reasons why a good part of the story was not believed. Mr. Filigrana arrived here a month before the rest of the family. It was inferred that this was inconsistent with a subjective fear. His answer was that he could not afford to bring his family earlier. This is inconsistent with Mr. Filigrana's own premise that he was a target of extortionists because he was wealthy.

[7]                Furthermore, details lacking from his port of entry interview were filled in when his wife arrived a month later.

[8]                There is only one clear error on the face of the record. In her reasons, the board member said that Mr. Filigrana had informed his employer of the extortion attempts. That is not correct. What he did do was give two weeks' notice as required by law before he quit his job and came to Canada.

[9]                A number of other examples were given as to why the panel considered Mr. Filigrana not to be credible.

[10]            The Court was treated to an exhaustive review of the evidence in an effort to demonstrate a number of errors each of which, if not patently unreasonable in themselves, had to be patently unreasonable in the aggregate. The Minister provided an equally exhaustive review of the evidence in support of the proposition that the findings as to credibility were not unreasonable.

STANDARD OF REVIEW ON CREDIBILITY

[11]            Although the standard of review on findings of fact, including credibility, is patent unreasonableness, it is not sufficient for the fact finder to simply say she did not believe a party. An affiant, or on this case a witness, benefits from a rebuttable presumption that he or she is telling the truth. In this case, a great number of reasons were given as to why credibility was in doubt.

[12]            It is worthwhile to recall that many facts, so called, are not scientifically provable. The facts are inferences. As noted by Lord Wright in Grant v. Australian Knitting Mills Ltd., [1935] All ER Rep 209 (JCPC) at pages 213-214:

...This, however, does not do justice either to the process of reasoning by way of probable inference which has to do so much in human affairs or to the nature of circumstantial evidence in law courts. Mathematical, or strict logical, demonstration is generally impossible: juries are in practice told that they must act on such reasonable balance of probabilities as would suffice to determine a reasonable man to take a decision in the grave affairs of life. Pieces of evidence, each by itself insufficient, may together constitute a significant whole, and justify by their combined effect a conclusion....

[13]            Direct evidence is preferable in that it only contains one possible source of error (fallibility of assertion) while indirect evidence has in addition (fallibility of inference) (Phipson on Evidence, 15^th Ed: 3^rd Supplement, paragraph 1.06).

[14]            Nevertheless, the standard by which a trial judge should be reviewed for inferences of fact is that a finding should not be disturbed unless tainted by a palpable and overriding error (Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraphs 18 and following).

[15]            A "palpable and overriding" error has been compared with the standard of reasonableness simpliciter in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, Iacobucci J. said at page 778:

The standard of reasonableness simpliciter is also closely akin to the standard that this Court has said should be applied in reviewing findings of fact by trial judges. In Stein v. "Kathy K" (The Ship), [1976] 2 S.C.R. 802">[1976] 2 S.C.R. 802, at p. 806, Ritchie J. described the standard in the following terms:

. . . the accepted approach of a court of appeal is to test the findings [of fact] made at trial on the basis of whether or not they were clearly wrong rather than whether they accorded with that court's view of the balance of probability. [Emphasis added.]

[16]            This Court owes more deference to the findings of fact of the Immigration and Refugee Board than a Court of Appeal does to a trial judge since a "palpable and overriding" error has been compared with the standard of reasonableness simpliciter, not the standard of patent unreasonableness.

[17]            As noted by Evans J. (as he then was) in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35:

14. It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence"...

[18]            Taken as a whole, the findings of fact of the Immigration and Refugee Board were not patently unreasonable and should not be disturbed.

STATE PROTECTION

[19]            The panel went on to say: "If I err then I find that the claimants did not exhaust the state protection prior to coming to Canada".

[20]            The applicants rely on authority to the effect that if the agent of persecution is the State itself, then there is no need to explore state protection to its very depths. However, there was no hard evidence, even out of their mouths, that the perpetrators of persecution were associated with the state. The applicants infer the extortionists were policemen because the car parked outside their home had the semblance of an unmarked police car and because it would leave after the police were called, but before they arrived. This inference was not shared by the panel. There was nothing unreasonable as to the panel's finding. Even if the panel inferred that the perpetrators were corrupt police officers, they would have to have been associated with the local police station.

[21]            As underlined by Tremblay-Lamer J. in Chavez v. Minister of Citizenship and Immigration, [2005] FC 193, the appropriate standard of review regarding questions of state protection is reasonableness simpliciter. In this case, regardless of whether the standard of review applied would be reasonableness simpliciter or patent unreasonableness, the Board's decision was not unreasonable.

[22]            As to the question as to whether or not the Applicants exhausted Mexico's protection prior to coming to Canada, if agents of the state are the source of persecution, the threshold of proof is lower than it otherwise would be. As Tremblay-Lamer J. stated in Chavez, supra, at paragraph 15:

In my view, however, Ward, supra and Kadenko, supra, cannot be interpreted to suggest that an individual will be required to exhaust all avenues before the presumption of state protection can be rebutted (see Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (T.D.) (Q.L.) and Peralta v. Canada (Minister of Citizenship and Immigration) (1996), 123 F.T.R. 153 (F.C.T.D.)). 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.

[23]            However, the circumstances in this case do not indicate that the police were the perpetrators of the persecution. First, when the Applicant called the police to report the presence of an unidentified automobile parked near their house, they showed up. Second, although the Applicants alluded to the fact that the car from which Mr. Filigrana was shot may have looked like a police car, there was no evidence of such. As seen in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, at pp. 724-725:

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.

[24]            The Applicants relied on Zhuravlvev v. Canada (Ministry of Citizenship and Immigration), [2000] 4 F.C. 3, to make the argument that refusal to provide protection may not always be overt and that the question of state protection in itself may be evaluated, on the evidence, in degrees. Although the Applicants' argument is substantial, the evidence presented in this case did not allow the Board to conclude that the state was unable to protect them. The Respondent also made reference to Zhuravlvev, supra, at paragraph 24, in which Pelletier J. states:

Refugees are not political scientists (though some may be) who can establish systemic lack of state protection. They are generally persons who fled with little else than what they could carry in their arms. Their knowledge may not extend beyond their own experience and that of others who are similarly placed. On the other hand, the object of the refugee system is to deal with state failure to protect its citizens. If the inquiry is limited to the smallest administrative unit of the state, there is not a country in the world which could not be a refugee generating country. It cannot have been intended that a presumption of state ability to protect, based upon the concept of sovereignty, could be set aside simply upon the proof of the untoward experience of one claimant in one city. The Convention refugee system was designed to deal with the failure of national governments to protect their citizens from persecution. It committed the international community to supply that which the host country could not. The state failure which engages such an extraordinary international commitment must be one commensurate with the commitment. For that reason, one would think that there would be some hesitation about concluding as to the absence of state protection on the basis of local conditions which are amenable to state corrective action.

[25]            The Applicants also relied on Musorin v. Canada (Minister of Citizenship and Immigration), [2005] F.C. 408, in stating that it is not reasonable to expect an applicant to seek protection from the police if they are the perpetrators. Thus, the presumption that they could have benefited from state protection is not open. However, as underlined above, the Board assessed the credibility of the Applicant's claim that the police officers were responsible and ultimately found that that was not the case. I am in agreement with this finding. The best arguable case that the Applicants have is that there were some rogue policemen in the local station. This simply is not good enough. If that were the case, they should have gone further. The Mexican situation was reasonably analysed.

[26]            There is no question to certify.

     "Sean Harrington"

                                                                                                   Judge                      

Ottawa, Ontario

October 25, 2005

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-2440-05

STYLE OF CAUSE:                         Felipe Morales Filigrana et al. v. The Minister of Citizenship and Immigration

PLACE OF HEARING:                    Vancouver, B.C.

DATE OF HEARING:                       October 12, 2005

REASONS FOR ORDER:              HARRINGTON J.

DATED:                                              October 25, 2005

APPEARANCES:

SOLICITORS OF RECORD