Date: 20100408
Docket: IMM-883-09
Citation: 2010 FC 375
Ottawa, Ontario, April 8, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
HUGO
JIMENEZ GOMEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated January 22, 2009, wherein the applicant was determined
not to be a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
[2]
The
applicant requests that the decision of the Board be quashed and the matter be
returned to the Board for redetermination.
Introduction
[3]
The
applicant is a gay man who fled Mexico and came to Canada in 2007
seeking protection from his ex-partner, Ignacio. The Board rejected his claim
based on the existence of adequate state protection in Mexico for the
applicant. The Board found that the applicant was a difficult witness who
provided inconsistent, confusing, implausible and evasive evidence regarding
the central aspects of his claim. Nonetheless, the Board was willing to accept
most of his story for the purposes of analyzing the issue of state protection.
Background
[4]
The
applicant met Ignacio at a party in Cuernavaca, Mexico, in December of
2005 and they began a romantic relationship. The applicant alleges that Ignacio
worked for the Mexican government. The applicant also alleges that they moved
in together in February of 2006, but that Ignacio subsequently became very
abusive and jealous, biting him violently on one occasion.
[5]
In
July of 2006, the applicant tried to report Ignacio to the Mexican authorities
but they did not believe him. The applicant alleges that he had witnessed
Ignacio selling and using false identity documents.
[6]
In
August of 2006, the applicant was robbed, kidnapped and held for three days,
during which he was beaten. He strongly believes Ignacio had organized the
abduction. The applicant alleges that he reported the incident to the police
but they did nothing. The applicant also alleges that he later discovered that
$50,000 US had been advanced on his stolen credit card.
[7]
The
applicant alleges that in November of 2006, he moved to Tulum, some 1,050
kilometres away. On August 23, 2007, he came home from work to see Ignacio
waiting for him. Ignacio was very angry and threatened to kill him with a
knife. In the struggle that ensued, the applicant alleges that his arm was cut
and he was raped. The applicant reported this incident to the police first
thing the next morning. The police came to his apartment to take pictures and
they told the applicant that he should leave the area. Several weeks later, the
applicant fled to Canada.
Board’s Decision
[8]
The
Board rejected the applicant’s claim on the basis that the applicant had not
rebutted the presumption that state protection was available in Mexico.
[9]
After
setting out the relevant law, the Board summarized some general information
from the documentary evidence regarding Mexico’s security
forces, the level of democracy and resources used in the country to combat
corruption. The Board then dealt with the three instances in which the
applicant alleged that he attempted to seek help or protection from the state.
[10]
The
Board found that it was not unreasonable that the police did not conduct an
investigation when the applicant reported to them Ignacio’s dealings with false
identification. The police told him that they would need more evidence in order
to proceed. There was no evidence led at the hearing that the applicant
attempted to provide such additional documentation to the police.
[11]
In
regards to the kidnapping incident, the Board found that the police did not
refuse to help the applicant. Although they said they would investigate, the
applicant had not given them enough information. The applicant could not
identify any of the kidnappers. He told police that his only enemy was Ignacio.
His narrative explained that he had hired a lawyer to follow up on the report
he made to the police, but that the police had done nothing. When questioned,
he said that he made only one phone call to follow up despite his evidence that
his credit card company later informed him that $50,000 US had been advanced by
the kidnappers and did not think it worthwhile to pursue the matter with the
Human Rights Commission. With respect to the $50,000 US, the only evidence
before the Board was his testimony that he had assumed the debt and had
borrowed from friends to pay it off. He did not report it to the police. The
Board did not find this explanation reasonable.
[12]
With
respect to the August 2007 attack in Tulum, the Board found that the police did
provide adequate service and are still investigating. The applicant’s story
regarding what he told the police is unclear. It was not clear whether he told
them Ignacio’s name. The applicant did not have a copy of the denunciation he
made to the police so the Board carefully considered a letter from the
applicant’s friend who had attempted to get it from the police station. The
applicant’s friend was told that the information was confidential, given that
the matter was under investigation.
[13]
The
Board concluded that there was no evidence to suggest that the police are not
making genuine and earnest efforts to investigate and that the applicant’s
choice to leave Mexico might have delayed or stymied the
investigation.
Issue
[14]
The
issues are as follows:
1. What is the standard
of review?
2. Was the Board’s
finding that the applicant failed to rebut the presumption of state protection
reasonable?
Applicant’s Written Submissions
[15]
The
applicant submits that since the Board did not make any adverse credibility
findings, the applicant’s evidence and testimony must be accepted as credible
and trustworthy. Any
credibility issues perceived by the Board are explained by the psychologist’s
report which indicated that the applicant may have difficulty testifying and by
the lack of an interpreter.
[16]
The
applicant submits that the Board’s finding on the first incident was
unreasonable. The Board did not state what further documentation the applicant
could have brought. The applicant did give the authorities Ignacio’s name and
indicated the crime to which he had been an eye witness. An investigation could
have been started upon this evidence.
[17]
Similarly,
the applicant submits that the Board’s finding on the second incident is
unreasonable. The applicant testified that he made three phone calls to the
police to follow up. Furthermore, contrary to the Board’s finding, the
applicant did provide sufficient details in his written denunciation to the
police which identified Ignacio.
[18]
Regarding
the third incident, the applicant submits that the Board erred by inferring
that because an investigation was underway, state protection was forthcoming.
The police advising him to “leave the area” clearly constitutes an admission of
inability to protect. When considering state protection, the Board must
consider whether the state is willing to act.
[19]
The
applicant also submits that procedural fairness was breached when the Board did
not provide an interpreter for the applicant when they saw he was having
difficulty. Finally, the applicant was not informed of the case to meet, since
the issue of state protection was not identified prior to the hearing.
Respondent’s Written Submissions
[20]
While
the applicant contends his account must be deemed credible, the Board simply found
the applicant’s evidence on the adequacy of state protection unconvincing.
[21]
The
respondent submits that the Board’s finding on the first incident was not
unreasonable and reiterates the Board’s reasons. With regard to the second
incident, the evidence shows that the applicant gave incomplete information to
the police. According to his testimony, he spoke with police for only five
minutes and his denunciation omitted the credit card theft and Ignacio’s
whereabouts. Despite this, Mexico considers kidnapping to be a very serious
crime and there was evidence that an investigation is still underway.
[22]
With
regard to the third incident (the August 2007 attack) the respondent supports
the Board’s reasoning as reasonable. Further, it was open for the Board to find
that the applicant had failed to rebut the presumption as he left Mexico before the
police had an opportunity to respond and investigate.
[23]
The
respondent submits that procedural fairness issues have been raised too late in
this proceeding. With regard to the interpretation issue, there was an
interpreter present throughout the hearing. The Board clarified at the
beginning that the applicant wanted to proceed in English. The presiding member
also told the applicant that the interpreter would be available to explain
anything to him he did not understand. Moreover, the applicant was represented
by counsel who never made any objection on the record regarding interpretation
or the order of questioning. With regard to the applicant’s claim that he was
not informed of the case to be met, the screening form provided notice that the
applicant should file evidence and be prepared to testify to “all elements of
the claim”.
Analysis and Decision
[24]
Issue
1
What is the
standard of review?
Questions as to the adequacy of
state protection are questions of mixed fact and law and are reviewable against
a standard of reasonableness (see Hinzman v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 171,
282 D.L.R. (4th) 413, at paragraph 38).
[25]
In this case, however, the applicant challenges precise factual
findings by the Board. The applicant takes no issue with the Board’s statement
or understanding of the relevant law regarding the adequacy of state
protection. Nor does the applicant argue that the law was improperly applied to
the facts found by the Board. Rather, the applicant challenges the Board’s
factual findings themselves. Those findings of fact fall to be reviewed on the
statutorily imposed standard found in paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F-7 which states:
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18.1(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
. . .
(d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
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18.1(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas :
. .
.
d)
a rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
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[26]
The
Supreme Court in Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] S.C.J. No. 12 (QL), recently referred to the impact of these
legislative instructions.
46 More generally, it is clear from
s. 18.1(4)(d) that Parliament intended administrative fact finding to command a
high degree of deference. This is quite consistent with Dunsmuir. It
provides legislative precision to the reasonableness standard of review of
factual issues in cases falling under the Federal Courts Act.
It is with this high standard of deference
in mind that I now turn to review the Board’s findings of fact.
[27]
Issue
2
Was the Board’s finding that
the applicant failed to rebut the presumption of state protection reasonable?
The Board set out the
law regarding state protection which I reproduce below:
A claimant is required to approach the state for protection if
protection might reasonably be forthcoming or, alternatively, if it is
objectively reasonable for the claimant to have sought protection. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724.
The claimant’s (evidentiary) burden of proof 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 courses of action open to them.
M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15,
1996.
Reported: Canada (Minister of Citizenship and
Immigration) v. Kadenko
(1996), 143 D.L.R. (4th) 532 at 536 (F.C.A.).
A claimant from a democratic country will
have a heavy burden when attempting to show that they should not have been
required to exhaust all of the resources available to them domestically before
claiming refugee status.
Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David
v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April
30, 2007; 2007 FCA 171, para. 46.
No state can guarantee perfect
protection. Where a state is in effective control of its territory, has
military, police and civil authority in place and makes serious efforts to
protect its citizens, the mere fact that the state’s efforts are not always
successful will not rebut the presumption of state protection.
Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 at 615 (C.A.).
M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90),
Hugessen, Marceau, Décary, December 18, 1992.
Reported: Canada (Minister of Employment and
Immigration) v. Villafranca
(1992), 18 Imm. L.R. (2d) 130 at 134 (F.C.A.).
[28]
The applicant did not take issue with this statement of the law,
but sought to clarify that a state’s efforts to protect its citizens are to be
evaluated by examining the effectiveness of those efforts at the operational
level (see Garcia v. Canada (Minister of Citizenship and
Immigration), [2007] 4 F.C.R. 385, [2007] F.C.J. No. 118).
[29]
The respondent similarly seeks to clarify that, as affirmed by the
recent judgment of the Federal Court of Appeal in Carillo v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636,
the
burden is on the applicant to adduce relevant, reliable and convincing evidence
which satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate (see Carillo above, at paragraph 30).
[30]
The applicant further clarifies that a claimant need only provide some
clear and convincing evidence to rebut the presumption (see Garcia above,
at paragraph 19).
[31]
While
I find these to be helpful clarifications, I do not believe the Board
misunderstood or misapplied the law.
[32]
In
finding that the presumption of state protection had not been rebutted, the
Board did not find that protection had been provided to the applicant regarding
the first two complaints. Rather, the Board found that the applicant did not
make reasonable efforts to obtain protection.
[33]
The
applicant also asserts that because the Board did not directly challenge the
applicant’s credibility, his evidence and testimony must be accepted as
credible and trustworthy. I disagree. The Board stated that it would accept his
testimony for the purposes of analyzing the issue of state protection. Such a
statement does not bind the Board to accept as true everything the applicant
said. The Board did not state that it was accepting the applicant’s entire
story or the version of the story most favourable to the applicant’s case. The
applicant cannot now in this application seek to refine and clarify what the
central aspects of his story were.
[34]
Despite
accepting the central aspects of his story, the Board was still permitted to
weigh the evidence and consider the reliability of the applicant’s testimony.
For example, when faced with inconsistencies in his testimony, the Board was
permitted to determine which version it saw as more likely.
[35]
Rebutting
the presumption of state protection requires highly probative evidence. The
Board was entitled to determine that the applicant’s evidence, even if
reliable, was not clear enough or convincing enough to rebut the presumption of
state protection.
[36]
The
Court must keep in mind “…it is not sufficient that the evidence adduced be
reliable. It must have probative value. For example, irrelevant evidence may be
reliable, but it would be without probative value.” (see Carillo above,
at paragraph 30). Therefore, the issue of credibility may not be determinative
if the evidence submitted, whether credible or not, would simply not have sufficient
probative value. In the words of Mr. Justice Zinn, it is possible for a PRRA
officer to “neither believes nor disbelieves” an allegation made by an
applicant, but rather to be “unconvinced” (see Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, [2008] F.C.J. No. 1308 (QL) at
paragraph 34).
[37]
In
my view, the Board did not commit a reviewable error in concluding that the
presumption of state protection had not been rebutted.
[38]
With
regard to the applicant’s first encounter with the authorities, the false
identity report, the Board did not find it unreasonable that the police did not
start an investigation because the applicant had not given them any
documentation to support his accusations. It cannot be said that this factual determination
of the Board was clearly wrong. It was reasonable for them to conclude that a
police request for some corroborating evidence before launching an
investigation did not amount to inadequate protection.
[39]
The
Board was not required to speculate as to what evidence the applicant should
have brought in.
[40]
With
regard to the incident where the applicant claimed he was kidnapped and robbed,
the Board determined that his denunciation to the police regarding the incident
was incomplete. In my view, it was open for the Board to conclude that the
applicant’s testimony was not clear or convincing. The applicant could not
identify any of his kidnappers, although he told police he thought Ignacio had
ordered the kidnapping, he did not indicate where the police could find
Ignacio. The applicant also did not report to the police that $50,000 US had
been advanced on his stolen credit card. State police forces can hardly be
expected to effectively investigate when significant components of the crimes
alleged are withheld.
[41]
Similarly,
with regard to the last incident, it was not unreasonable for the Board to
conclude that this did not amount to clear and convincing evidence of a lack of
adequate protection. The police began to investigate after the attack by
Ignacio, but the applicant left Mexico six days later. It was
reasonable for the Board to determine that his leaving may have stymied the
investigation.
[42]
The
applicant finally submits that if any aspects of his testimony were unclear,
this was due to the fact that he was testifying in English without the aid of
an interpreter. However, as stated earlier, the applicant has the burden of
establishing all aspects of his case and was at all times represented by
competent counsel. In any event, the applicant has not pointed to any fact or
aspect of testimony that was omitted or misunderstood, the acceptance of which
would have made a material difference in the Board’s conclusions or this
judicial review.
[43]
In
written argument in reply, the applicant put forward an argument with respect
to a breach of the duty of procedural fairness relating to interpretation and
notice that state protection would be raised. The applicant, in his further
memorandum of argument, stated there was only one issue in the application,
namely, the Board’s finding that the applicant failed to rebut the presumption
of state protection was unreasonable. In addition, the issue of procedural
fairness was not raised in the notice of application for judicial review nor
was it raised at the hearing of this matter. Consequently, I will not deal with
the issue. I might add that had I dealt with the issue, I am not of the opinion
that there was any breach of the duty of procedural fairness based on the facts
of this case.
[44]
As
a result of my conclusions, the application for judicial review must be
dismissed.
[45]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[46]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A person in need of protection is a
person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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