Date: 20100505
Docket: IMM-5163-09
Citation: 2010
FC 497
Toronto, Ontario,
May 5, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
SALVADOR MONROY NIEVES
INGRID NAOMI MONROY MORELOS
CAROLINA MORELOS FRANCO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a protection claim pursuant to s. 97 of the IRPA
of a husband and wife who fled Mexico for Canada with their daughter to escape risk of
death. Before the Refugee Protection Division (RPD), the credibility of the
principal claimant was not in issue with respect to the evidence he gave in
support of the claim. Thus, quoting from the decision, the RPD found the facts
upon which the claim is based as follows:
[2] Salvador Monroy Nieves is 30
years old and a citizen of Mexico. His wife, Carolina Morelos
Franco, and their daughter, Ingrid Naomi Monroy Morelos, are also citizens of Mexico. Their last place of
residence in Mexico was Acambaro, Guanajuato.
[3] The claimant is a
ten-year-veteran of the Acambara municipal police. On July 4, 2006 he and a
group of police officers arrested Hector Mejia Romero, alias El Piteco. It
turned out that Mr. Mejia, who had links to drug cartels, was wanted on an
outstanding warrant by the Agencia Federal de Investigacion -- Federal
Investigations Agency (AFI). Mr. Mejia offered to pay the claimant to release
him but the claimant refused the bribe and the suspect was escorted to a
maximum security prison.
[4] The claimant began receiving
death threats against himself and his family, and over a period of time, all
the police officers who participated in Mr. Mejia’s arrest and who had received
death threats met violent deaths. Fearing for the safety of his family, the
claimant requested police protection for his family which he received. However,
when a new police director was installed, the protection was removed. The
claimant did not seek further protection. He came to Canada with his family.
[2]
The RPD
rejected the claim for protection on the finding that the principal claimant
did not make sufficient efforts to seek state protection before fleeing Mexico. Key features of the decision
under review with respect to this finding are as follows:
[22] The claimant was asked if, as a
police commander, a civilian had made a report to him similar to the one he now
makes, with the suspect still in prison, what he would have done. He said he
would find a way for the suspect to remain in prison. The claimant was asked to
explain what the difference in his case is, why he did not work to keep the
suspect in prison. He said the difference is he was afraid something would
happen to his daughter. Even if that answer could be considered reasonable, the
panel finds the answer to the following question unsatisfactory. The claimant
was asked why he did not report the matter to the AFI. He said he could not
think straight at the time, he only wanted to protect his family. The
panel notes that the AFI and other agencies like the Policia Federal
Preventiva- Federal Preventive Police (PFP) and the judicial police serve as
the investigative force under the authority and command of the public
ministries and are there to protect the citizens of Mexico, including his wife and daughter.
[Emphasis in the original]
[23] The panel finds that based on
the information provided in the claimant’s testimony and other corroborating
evidenced presented which points to the criminal activities of the suspect, while
still in custody, the claimant’s failure to present all that information to the
appropriate authorities in Mexico means that he did not exhaust all recourses
reasonably available domestically before claiming refugee status.
[24] A claimant’s decision to flee
before police have had an opportunity to properly investigate a crime does not
amount to a lack of state protection.
[25] In this particular case, there
is no information to suggest that the Mexican authorities would not make
genuine and earnest efforts to investigate the claimant’s allegation and
apprehend the claimant’s perpetrator if they had the information the claimant
has presented to the panel. The claimant’s choice to leave Mexico may have
resulted in a renoun [sic] criminal being let out onto the streets of Mexico,
given that he, as a surviving victim, was a key witness. This was an important
consideration in the panel’s finding that the claimant did not make diligent or
reasonable efforts to seek the protection of the state before seeking
international protection.
[26] Further, the Board considered
the claimant’s efforts to report any of this information to any other authority
and finds that the claimant reported the matter to his then boss, Juan Joel
Ruiz Troncoso, the director of municipal police. Mr. Ruiz informed the claimant
that he had information that a prison inmate had overheard during a
conversation between Mr. Mejia, whom the claimant had arrested, and another
prison inmate about killing the claimant and his family.
[27] The claimant requested and was
provided with immediate police protection. He testified that a police car with
two police officers was stationed outside his place of residence. Their only
responsibility was to protect his wife and daughter. However, with the
appointment of a new municipal director, Pedro Gutierrez Avila, on June 14,
2008, the police officers assigned to protect the claimant’s family were
withdrawn. The claimant testified that he requested continued protection for
his family from the new police director, but the request was declined.
[28] The claimant testified that
although he was concerned for his wife’s and daughter’s safety, he did not take
his concern to any other authority. Asked why not, he said that the municipal
police director was the highest member of the municipal force and if he said
no, no one else was going to say yes. The panel notes that according to the
documentary evidence, the Mexican security forces are described as
hierarchical, and a complainant must seek redress at the higher level if
dissatisfied with the services.
[Emphasis added]
[3]
It is
important to note that the death threats were made against not only the
principal claimant but also his wife and daughter; on the evidence presented to
the RPD, this fact was central to the actions the principal claimant took. As a
matter of law, the RPD was bound to consider the principal claimant’s detailed
evidence explaining his actions to determine whether it was objectively
unreasonable for him not to have sought greater protection of his home
authorities (Hinzman v. Canada (Minister of Citizenship and Immigration),
[2007] F.C.J. No. 584 (F.C.A.). In my opinion, the RPD failed to discharge this
obligation. Indeed, in my opinion, the emphasized portions of the passages just
quoted render the decision as manifestly unreasonable.
[4]
With
respect to paragraph 22, the RPD dismissed the Applicant’s answer because the
AFI, for example, was available to protect his wife and daughter. In making
this finding, the RPD neglected to take the Applicant’s full explanation into consideration:
MEMBER: Yes. But the question that I’m
asking you – I just want to make sure in my mind that when you were considering
the safety of your family, when you were thinking of them, was it in the
context that I can’t report it to the AFI because it’s going to take time and
in the meantime my family is in danger. Is that the context that you decided?
CLAIMANT: When I saw that my own director
was not supporting me, I was very disappointed. What went through my mind was I
have to protect my own family.
MEMBER: And so you started from that time
to think about getting out?
CLAIMANT: Yes. It was already in my plans
that I had to be in a safe place with my family.
MEMBER: So seeking assistance from the
AFI or any other agency in Mexico was no longer paramount in
your mind?
CLAIMANT: Many AFI – many people from the
AFI have joined the drug cartel. I was thinking, what was going through my mind
was if I reported this to a person at the AFI who has already been bought by
the cartel.
MEMBER: So you were thinking of reporting
it to AFI?
CLAIMANT: It crossed my mind. Many things
crossed my mind.
(Tribunal Record, pp. 313 – 314)
[5]
With
respect to paragraph 23, if the “appropriate authorities” was the police force
of which the principal claimant was a member, it certainly knew about the risk
of death facing the claimants. If the “appropriate authorities” was the AFI,
why would he report his plight to the corrupt that would be in a position to
make matters worse? The RPD did not supply an answer to this question.
[6]
With
respect to paragraph 25, as a state protection issue, the RPD criticizes the principle
claimant for leaving Mexico and not staying to give
evidence in an effort to have the criminal remain in custody. In my opinion,
this is a remarkably unfair and inappropriate finding given the level of threat
that he and his family were facing. The question is: why would it be
objectively unreasonable for the principle claimant to be focussed on the
safety of his family by fleeing as opposed to staying in Mexico and risking his and their
lives in an attempt to somehow keep the criminal in custody? The RPD was
required to find an answer to this question and to supply cogent reasons for
the answer found. This challenge was certainly not met.
[7]
With respect
to paragraph 28, the expectation that, as a police officer under death threat, the
Applicant would be required to go to a police authority higher than his
superior who had just revoked his protection, is manifestly unreasonable
without concrete reasoning derived from the evidence. No such reasoning is
provided; there is no objective basis provided for rejecting the Applicant’s
statement that no higher authority existed for him, in particular, given the
evidence of police corruption.
[8]
As an
alternative finding, the RPD found that the principal claimant and his family
had an IFA in Mexico
City. With
respect to this issue, the principal claimant testified that Mexico City was not a possible relocation
site because there is a National Registry which contains the names of current
and former police officers with their names and addresses and the criminal
would know how to use it to find him. The RPD did not accept the principal
claimant’s evidence about the existence of the Registry because “there is no
mention of this National Police Registry in the documentary evidence”
(paragraph 38). Given the principal claimant’s evidence that the Registry
exists, I find that this statement constitutes a negative credibility finding
which does not conform to the law which is well established: the RPD is under a duty to give its
reasons for casting doubt upon a claimant’s credibility in clear and
unmistakable terms with clear reference to the evidence (Hilo v. Canada
(Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199
(F.C.A.); and (Leung v. Canada (Minister of Employment and Immigration)
(1994), 81 F.T.R. 303 at paragraph 14). As a result, I find that the IFA finding is made in
reviewable error.
ORDER
THIS COURT ORDERS that:
The decision under review is
set aside and the matter is referred back for redetermination by a differently
constituted panel.
There is no question to
certify.
“Douglas R. Campbell”
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