Date: 20100223
Docket: IMM-2477-09
Citation: 2010 FC 197
Ottawa, Ontario, February 23, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
GUILLERMO MARQUEZ ALVAREZ
LAURA DIAZ GARCIA
MARIA SILVANA MARQUEZ GARCIA
(a.k.a. MARIA SILVANA MARQUEZ GARCIA)
CALEI KASANDRA MARQUEZ GARCIA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated April 8, 2009, wherein the Board found the applicants were not refugees
or persons in need of protection.
Factual Background
[2]
Guillermo
Marquez Alvarez (the principal applicant), his wife Laura Garcia Diaz and their
two daughters, Calei Kasandra Marquez Garcia and Maria Silvana Marquez Garcia,
are all citizens of Mexico seeking refugee protection.
[3]
The
applicants fear Los Zetas, drug traffickers who belong to the Cartel del Golfo,
who operate throughout the country of Mexico.
[4]
On
May 1, 2007, the principal applicant was approached by members of Los Zetas who
demanded he use his connection with his friend Juan Luis Calderon, the brother
of the President of Mexico, Felipe Calderon, to act as a messenger between Los
Zetas and the President. The principal applicant was told he would be well paid
if he cooperated, but that he and his family would be harmed if he did not
cooperate. One of the individuals identified the principal applicant’s wife,
the name of the clinic where she worked, the names of their daughters and the
name of the school they attended.
[5]
The
principal applicant has known the President’s brother, who is the Director of
the Potable Water System of the city of Morelia, for 13
years. Juan Calderon was a client of the applicant, who used to sell products
related to drinking water. The applicant was also a taxi driver.
[6]
The
principal applicant approached Juan Calderon and was told he did not get
involved with matters related to his brother’s position as President. The
principal applicant decided it would be too dangerous to approach the police
because he believed individuals from the government are involved with Los Zetas,
and when individuals involved with this group go to the police, they may be
killed.
[7]
The
principal applicant saw Juan Calderon again on June 15, 2007, and on this
occasion, another individual confronted him, demanding to know the answer to
the request. The principal applicant agreed to obtain an answer in two weeks.
Meanwhile, on June 18, 2007, the principal applicant came to his car to find
his windshield broken and a threatening message from Los Zetas. Furthermore, on
July 5, 2007, while accompanying his daughters to school, the principal applicant
was handed an envelope with a video threat from Los Zetas.
[8]
As
a result, the applicants left Mexico and filed refugee claims on July 10, 2007 upon
their arrival in Canada.
Impugned Decision
[9]
The
Board noted the principal applicant’s fear is not linked to race, nationality,
religion, real or imputed political opinion or membership in a particular social
group. The Board concluded that the applicant was a victim of crime, and, while
the conduct of the perpetrators is deplorable, it does not provide the applicant
with a link to a Convention ground. Therefore, the Board found the principal applicant
was not a Convention refugee.
[10]
The
Board accepted the fact that the principal applicant was a friend and business
colleague of the brother of the President of Mexico. His testimony was
forthright and did not contain any contradictions to information contained in
his Personal Information Form (PIF).
[11]
In
considering whether the applicants availed themselves of state protection, the
Board noted that the principal applicant did not approach the police because he
believed he was dealing with a powerful drug cartel, indicating to him that
such an approach could result in his death, due to reports of such deaths in
the past.
[12]
The
Board concluded the individuals were seeking out a connection to the President
of Mexico and they found it in the applicant through his dealings with the
President’s brother. The Board found this was plausible given the fact they
found the principal applicant on one occasion outside the President’s brother’s
office.
[13]
The
Board found the applicant had an obligation to seek redress, assistance or protection
from a state authority but he failed to do this as he thought this would place
him in danger because some people have been killed in the past for doing so. The
Board found the applicant had not provided clear and convincing evidence of the
state’s inability to provide state protection.
Issue
[14]
The
only issue is whether the Board erred in its findings related to state
protection?
Analysis
[15]
The
standard of review applicable to the Board’s conclusions on state protection is
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at par. 55, 57, 62 and 64; Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 362 N.R. 1 at par. 38; Huerta
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 586, 167 A.C.W.S. (3d) 968 at
par. 14).
[16]
There
is a presumption that a state is both willing and able to protect its citizens
and unless there has been a complete breakdown of the state apparatus, it is
presumed there is adequate state protection for refugee claimants in their home
country. Refugee protection is surrogate protection to be invoked only in
situations in which a refugee claimant has been unsuccessful in seeking the
protection of his or her own state (Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, 153 N.R. 321; Hinzman).
[17]
To
rebut the presumption of state protection, the applicants must put forward clear
and convincing evidence of the state’s inability to provide protection. The
evidence must be relevant and reliable and be capable of convincing the trier
of fact that state protection is inadequate (Ward; Carrillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636).
[18]
The
applicants submit the Board’s conclusion that it cannot fault the Mexican
security forces when they do not receive a formal complaint is an error of law.
They allege that in Ward at par. 49, it was found that only in
situations in which state protection might reasonably have been forthcoming
will the applicant’s failure to approach the state for protection defeat his refugee
claim. If the applicant shows it is objectively unreasonable to seek the protection
of his home authorities, he need not literally approach the state (Vidhani
v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60, 96
F.T.R. 313 at par. 15; Zhuravlev v. Canada (Minister of Citizenship and
Immigration), [2000] 4 F.C. 3, 187 F.T.R. 110 at par. 19; Canada
(Minister of Citizenship and Immigration) v. Elbarnes, 2005 FC 70, 136
A.C.W.S. (3d) 929 at par. 14).
[19]
State
protection does not need to be perfect as no government can guarantee the
protection of all its citizens at all times. It is sufficient for state
protection to be adequate. The presumption is not rebutted merely because an
applicant is able to demonstrate the state cannot provide perfect protection (Canada
(Minister of Employment and Immigration) v. Villafranca, (1992), 150 N.R.
232, 37 A.C.W.S. (3d) 1259 (F.C.A.); Ortiz v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1365, 153 A.C.W.S. (3d) 191; Blanco
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1487, 143
A.C.W.S. (3d) 904).
[20]
The
burden of proof that rests on the claimant is 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 (N.K. v. Canada (Minister of Citizenship and
Immigration), (1996), 206 N.R. 272, 68 A.C.W.S. (3d) 334 (Kadenko),
(F.C.A.); Hinzman). Decisions of this Court have held that Mexico is a
democracy with the willingness and ability to protect its citizens, even if
that protection is not always perfect (Sosa v. Canada (Minister of
Citizenship and Immigration), 2009 FC 275, [2009] F.C.J. No. 343 (QL) at
par. 22; Gutierrez v. Canada (Minister of Citizenship and Immigration),
2008 FC 971, 169 A.C.W.S. (3d) 175 at par. 21-22; Velazquez v. Canada
(Minister of Citizenship and Immigration), 2006 FC 532, 148 A.C.W.S. (3d)
291 at par. 6).
[21]
In
the case at bar, the applicants failed to take any steps to seek state
protection. The Court is of the view the applicants were obligated to make
reasonable efforts to seek protection in Mexico before
seeking refugee protection. Even where the protective services of the home
state have gaps or deficiencies, a refugee claimant who alleges a subjective
fear based on criminality must, in the absence of a compelling justification,
take reasonable steps to access those services (Santos v. Canada (Minister
of Citizenship and Immigration), 2007 FC 793, 159 A.C.W.S. (3d) 267).
[22]
The
applicants also argue the Board erred by finding they could have turned to
various other agencies without analyzing these agencies’ actual ability to
protect the applicants. The Court finds it is not sufficient for a claimant who
has failed to take any steps to seek state protection based on subjective fear
to rely solely on documentary evidence of flaws in the justice system of his or
her home state (Zamorano; Cortes v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1487, 154 A.C.W.S. (3d) 450). On the facts of
this case, the applicants had an obligation to seek state protection and to exhaust
all avenues of redress. The principal applicant, by his own admission, did not
inform Juan Calderon of the threats he had received, nor did he make a report
to the police or to any other local or state authority. Thus, in failing to
take measures to seek state protection prior to making a refugee claim, the
principal applicant failed to provide clear and convincing evidence of
inadequate state protection and has not rebutted the presumption of state
protection (Cordova v. Canada (Minister of Citizenship and Immigration),
2009 FC 309, [2009] F.C.J. No. 620 (QL)).
[23]
The
Board listed various options open to the citizens of Mexico who are
concerned with their safety, including the Secretariat of Public Administration
(SFP), the Federal Agency of Investigation (AFI) and the Deputy Attorney
General’s Office of Special Investigations into Organized Crime (SIEDO). This last
organization works closely with the United States of America to control
organized crimes. While it is true the evidence on record demonstrates to some
extent that inefficiency, bribery and corruption remain issues in the Mexican
security forces and within the public sector, the Board was in no position to
fault the Mexican security forces given that the applicants failed to submit a
formal complaint.
[24]
The
Board’s decision was based on the applicant’s testimony as well as on the
documentary evidence on the record. The Board acknowledged there was evidence
of failures on the part of the Mexican government in fighting the drug cartels
and of corruption and delay in the Mexican police and judicial system. The
Board weighed this evidence against other documentary evidence which indicated
that Mexico is a democracy with a relatively independent and impartial
judiciary and a functioning security force and came to the conclusion that there
was nothing in the documentation to suggest that Mexico was in a
state of complete breakdown.
[25]
The
Board considered the applicant’s personal situation and the Court considers the
Board’s decision is reasonable because it is consistent with the jurisprudence.
[26]
The
Board did not make a reviewable error. The decision is justified and the
outcome is defensible in respect of the facts and law.
[27]
The
application for judicial review is therefore dismissed. The parties have not
proposed any questions for certification and none arise in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
“Richard
Boivin”
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