Date: 20051013
Docket: IMM-1804-05
Citation: 2005 FC 1393
Montréal, Quebec, October 13, 2005
PRESENT:
THE HONOURABLE MR. JUSTICE de MONTIGNY
BETWEEN:
SELENA ANGELICA RUIZ ESPINOSA
ERUBEY REYES RUIZ
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DE MONTIGNY J.
[1]
On March
3, 2005, the Refugee Protection Division of the Immigration and Refugee Board
(the “Board”) dismissed the claim for refugee protection presented by Selena
Angelica Ruiz Espinosa and her son Erubey Reyes Ruiz because of the lack of
credibility of their narrative and of the protection that could be offered to
them by Mexico, the country of which they are citizens. The applicants are
contesting this decision by way of an application for judicial review, which
was authorized last July 15 under section 72 of the Immigration and Refugee
Protection Act.
[2]
The
applicants arrived in Canada on August 13, 2004, and applied for refugee
protection on August 19, 2004. They based their application on the fear of
being persecuted by reason of their belonging to a particular social group.
They also claimed to be “persons in need of protection,” to the extent that
they would be subjected personally to a danger of torture and to a risk to
their lives or to a risk of cruel and unusual treatment or punishment.
[3]
The
applicant alleges having been the secretary and mistress of the Director of
Public Safety of the State of Michoacan, Juan Jose Villanueva Toscano.
Following a disagreement about holidays they were supposed to spend together,
he supposedly slapped the applicant. On January 10, 2004, Villanueva Toscano
supposedly used a revolver to threaten some youngsters who were looking at the
applicant in a restaurant. Finally, on February 28, 2004, Mr. Villanueva
Toscano allegedly forcibly kidnapped the applicant to have sexual relations
with her and locked her in a room, from which she managed to escape.
[4]
The
applicant allegedly sought shelter at her mother’s home and told Mr. Villanuevo Toscano’s daughter everything.
When she learned that Mr. Villanuevo Toscano was looking for her with his
guards, the applicant sought refuge at the home of an aunt. Mr. Villanuevo
Toscano allegedly called her on her cell phone and threatened to torture and
kill her son. Then, on August 9, 2004, after having received death threats
from Mr. Villanuevo Toscano, a friend of the applicant revealed where she
was hiding. The friend then immediately notified the applicant, who fled to
Canada four days later, with her son.
[5]
For
essentially two reasons, the Board reached the conclusion that the applicant
and her son were not Convention refugees or persons in need of protection
within the meaning of sections 96 and 97 of the Act. While admitting that
the applicant was the secretary of the Director of Public Safety and had an
intimate relationship with him, the Board was of the opinion it was highly
improbable that he would contact the applicant’s friend five months after the
last incident to obtain her address. The time elapsed suggested that he was not
really interested in her, and, considering his position, he would have had
other means to trace her. Accordingly, the Board considered that the applicant
was not really in danger in Mexico. Moreover, the application was also
dismissed because the applicant did not discharge her burden of proving that
Mexico was unable to protect her, as she never complained to the authorities in
that country.
[6]
In his
oral and written submissions, the applicant’s counsel only dwelt on the
conclusions reached by the Board concerning state protection. Relying on the
documentary evidence, he submitted that the situation of women in Mexico who
are victims of violence and sexual harassment was far from pleasant and that
the Board performed selective reading of the objective evidence. He also
insisted that it was unreasonable to expect that a woman who was threatened and
vulnerable could complain about her abuser when he holds high office within the
government. Finally, he submitted that it would be a much too stringent burden of
proof to require that a person seek protection from the state when that person
believes he or she is in danger as a result of the actions of someone who is a
member of the forces of public order.
[7]
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).
[8]
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. 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.
[9]
Accordingly,
I am willing to consider that the Board was mistaken in concluding the
applicant did not prove that her country of origin was unable to protect her
because she had not complained to the authorities. Considering the dysfunction
and corruption which is rampant in the Mexican police forces, the culture of
impunity which seems to dominate this country when dealing with violence of
which women are often victims, and especially the position of authority held by
the person who was threatening her, it was quite understandable that the
applicant did not seek protection from her country.
[10]
However,
this mistake does not seem to be decisive, insofar as state protection was only
an alternative argument in the Board reasons. In fact, the Board dismissed her
claim first and foremost because it did not believe that Mr. Villanueva
Toscano continued to stalk the applicant until she left Mexico. The Board felt
that he would not have waited for such a long time to try to trace her and that
he would have taken other steps to do so if he really did want to attack the
applicant, especially considering the fact that he was married, had children
and did not want to cause a scandal.
[11]
The
assessment of the plausibility of a narrative is clearly the Board’s
responsibility, and it is not up to the Court to replace the Board’s opinion
with its own unless the conclusions drawn from the evidence are completely
unreasonable. This Court’s case law is replete with precedents that illustrate
this principle: Augebor v. M.E.I. (1993), 160 N.R. 315
(F.C.A.); Gonzalez v. Canada (M.C.I.), [1999]
F.C.J. No. 805 (QL); Khan v. Canada (M.C.I.), 2005 FC 403.
[12]
Applying
recognized principles of judicial review, a question of fact may be subject to
review only to the extent that the Court has committed a patently unreasonable
error (Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R.
982). This is especially the case with matters of credibility: R. K. L. v.
Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162
(F.C.T.D.) (QL); Akinlolu v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 296 at paragraph 13 (F.C.T.D.) (QL); and Moyo
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1297
at paragraph 4 (F.C.T.D.) (QL).
[13]
Because
the Board’s error in its assessment of the protection the applicant could have
hoped for in her country was not material, I reach the conclusion that this
application for judicial review must be dismissed. No question will be
certified for the Federal Court of Appeal.
ORDER
THE COURT ORDERS THAT the application for judicial
review be dismissed. No question is certified.
“Yves
de Montigny”
Certified
true translation
Michael
Palles
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