Date: 20100429
Docket: IMM-4006-09
Citation: 2010 FC 457
Ottawa, Ontario, this 29th
day of April 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
MARI CRUZ HERNANDEZ FUENTES
(a.k.a. MARICRUZ HERNANDEZ FUENTES),
NATALY NAOMI HERNANDEZ FUENTES
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 the decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
“Board”), dated July 15, 2009. In that decision, Marlene Hogarth, Board member,
rejected the applicants’ claims that they were Convention refugees pursuant to section
96 of the Act.
[2]
Mari
Cruz Hernandez Fuentes, the applicant, is a citizen of Mexico. She was the
designated representative of her minor daughter, Nataly Naomi Hernandez
Fuentes, also a citizen of Mexico.
[3]
The
applicant made a claim for protection on behalf of her minor daughter. She
fears that her daughter will be the target of sexual abuse and exploitation by
the same male relative that targeted the applicant until she left Mexico in 2007.
[4]
The
Board member accepted the applicant is a victim of gender-based violence and is
frightened of her uncle. More specifically, the Board noted that the applicant
is frightened of what the uncle will do to her daughter rather than what he
could do to her in the future.
[5]
Her
minor daughter is a member of her family and therefore the applicants were part
of a particular social group.
[6]
Then,
the Board member identified that state protection and the availability of an Internal
Flight Alternative (“IFA”) were determinative issues in this claim. She held
that the applicant had not provided “clear and convincing evidence” to rebut
the presumption of the state’s ability to protect her and her daughter, and in
the alternative, the applicant had an IFA in Guadalajara.
[7]
The
standard of review applicable to both parts of the Board’s decision is
reasonableness.
[8]
According
to Canadian law, a decision must be justified, transparent and intelligible and
must fall “within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, at paragraph 47). In Dunsmuir, at
paragraph 44, the Supreme Court of Canada recognized that, although the
reasonableness simpliciter and patent
unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”.
[9]
Recently,
the reasonableness standard was further elaborated on in Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, where the Supreme Court stated:
[59] .
. . There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome.
[My emphasis.]
[10]
In
the case at bar, upon hearing counsel for the parties and upon reviewing the
evidence, I am of the view that the Board reasonably determined that the
applicant failed to rebut the presumption of state protection in Mexico. Indeed, the
applicant only went to police on one occasion in 2001 to report the sexual
abuse at the hands of her uncle. The applicant made no other attempts to seek
out state protection, neither approaching other police agencies nor other state
agencies set up to protect women who are at risk of abuse. The Board thoroughly
canvassed the documentary evidence, and determined that the applicant had not
rebutted the presumption of state protection in Mexico, a democracy
with resources set up specifically to assist those in the position of the
applicant. In particular, the panel noted the following documentary evidence
about Mexico:
(a) There are approximately
500,000 officers in the federal, state and municipal police forces.
(b) There is some corruption
within the Mexican authorities, but Mexico is making serious efforts to professionalize
the police. There are many state agencies that address criminality, and public
officials, including members of the police and the army, are punished for their
misconduct.
(c) The state has many
resources to assist women survivors of abuse including the Office of the Attorney
General of the Federal District which provides legal representation for
victims, INMUJERES, a federal government institution that is mandated to
protect women and runs a phone line providing psychological and legal
assistance, and referrals.
[11]
The
applicant submits that the Board failed to address her claim that she could not
get protection from the state because her uncle is a municipal police officer.
This is not the case, as the Board’s findings clearly do state that while there
is corruption within the police forces, police who commit crimes (i.e. her
uncle) are punished for their misconduct. The Board noted, based on the
documentary evidence, that there were resources specifically set up to assist
women in the position of the applicant, but she did not attempt to access them
to protect her and to prosecute her uncle. Further, the Board examined the
state protection available to the applicant in her home of Mexico City and determined that
this area does have more sophisticated laws and adequate protection for women
survivors of violence.
[12]
As
pointed out by counsel for the respondent, the Board member considered the
Guidelines on domestic abuse, and accepted the applicant’s testimony that on
the one single occasion that she attempted to report her uncle to police, the
police did not take a police report. However, the Board found that this
applicant failed to even attempt to access any other levels of police or other
avenues of protection.
[13]
It
is well-established that when the state in question is a democracy, the
applicant must make concerted efforts to seek out state protection before
claiming international protection. In Kadenko v. Canada (Solicitor General), 143 D.L.R. (4th)
532, the Federal Court of Appeal stated:
.
. . Once it is assumed that the state […] has political and judicial
institutions capable of protecting its citizens, it is clear that the refusal
of certain police officers to take action cannot in itself make the state
incapable of doing so. . . .
No
government that makes any claim to democratic values or protection of human
rights can guarantee the protection of all its citizens at all times.
Thus, it is not enough for a claimant merely to show that his government has
not always been effective at protecting persons in his particular situation.
When
the state in question is a democratic state, as in the case at bar, the
claimant must do more than simply show that he or she went to see some members
of the police force and that his or her efforts were unsuccessful. . . .
[14]
Furthermore,
the applicant is required to seek protection from protective agencies other
than police because those agencies are set up to protect women in the position
of the applicant. The law is now settled that local failures to provide
effective policing do not amount to a lack of state protection, and that an
applicant may seek redress and protection from protection agencies other than
police. In The Minister of Citizenship and Immigration v. Maria Del Rosario
Flores Carrillo, 2008 FCA 94, the Federal Court of Appeal, applying the
proper principles to the case before it, stated as follows:
[31] The
Board acknowledged the prevalence of domestic abuse in Mexico. It then reviewed the various steps taken by the
authorities to address the issue: see the Board’s reasons at pages 43 to 49 of
the appeal book.
[32] It
proceeded to review the law governing the presumption of state protection. It
stated that local failures to provide effective policing do not amount to a
lack of state protection. Relying upon the findings of this Court in Kadenko
v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532,
leave to appeal to the Supreme Court of Canada refused on May 8, 1997, it
stated that “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”. It found that Mexico is a fledgling democracy governed by the
rule of law.
[33] The
Board found that the respondent had failed to make determined efforts to seek
protection. She reported to police only once during more than four years of
alleged abuse.
[34] In
addition, the Board concluded based on the evidence before it that the
respondent did not make additional effort to seek protection from the
authorities when the local police officers allegedly did not provide the
protection she was seeking. She could have sought redress through National or
State Human Rights Commissions, the Secretariat of Public Administration, the
Program against Impunity, the General Comptroller’s Assistance Directorate and
the complaints procedure at the office of the Federal Attorney General.
[35] Finally,
the Board noted the respondent’s omission to make a complaint about the
involvement of the abuser’s brother, who allegedly is a federal judicial police
officer, when the evidence indicates that substantial, meaningful and often
successful efforts have been made at the federal level to combat crime and
corruption.
[36] Considering
the principles relating to the burden of proof, the standard of proof and the
quality of the evidence needed to meet that standard defined as a balance of
probabilities against the factual context, I cannot say that it is an error or
unreasonable for the Board to have concluded that the respondent has failed to
establish that the state protection is inadequate.
See also Florea v. Minister of
Employment and Immigration, [1993] F.C.J. No. 598 (C.A.) (QL); Ortiz v.
Minister of Citizenship and Immigration, [2002] F.C.J. No. 1558 (T.D.)
(QL); Pal v. Minister of Citizenship and Immigration, [2003] F.C.J. No.
894 (T.D.) (QL); Nagy v. Minister of Citizenship and Immigration, [2002]
F.C.J. No. 370 (T.D.) (QL); Zsuzsanna v. Minister of Citizenship and
Immigration, [2002] F.C.J. No. 1642 (T.D.) (QL), and Szucs v. Minister
of Citizenship and Immigration, [2000] F.C.J. No. 1614 (T.D.) (QL).
[15]
The
applicant in this case made no timely attempt to seek out the protection of
police or other state authorities before claiming international protection.
[16]
I
find, therefore, that the Board’s conclusion that the applicant had not
rebutted the presumption of state protection in Mexico is entirely reasonable and should not be
disturbed.
[17]
As
this finding is determinative of this application for judicial review, it will
not be necessary to deal with the question of an IFA.
[18]
Consequently,
the application for judicial review is dismissed.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board, dated July 15, 2009, rejecting the applicants’ claims that
they were Convention refugees pursuant to section 96 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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