Date: 20100513
Docket: IMM-4547-09
Citation: 2010 FC 530
Ottawa, Ontario, May 13,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
CARLOS CASTILLO MEJIA
MARIA CRISTINA HUERTA TORRES
CARLOS JESUS
CASTILLO HUERTA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of the decision (the decision) of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 13,
2009. The Board determined that the Applicants were neither convention refugees
nor persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S. 2001, c. 27 (IRPA).
[2]
For
the reasons below the application is allowed.
I. Background
[3]
The
Applicants are Carlos Castillo Mejia (the principle Applicant), his wife Maria
Cristina Huerta Torres, and their 11 year old son. The Applicants are citizens
of Mexico who entered
Canada in 2007 and made an application for refugee protection on the basis that
they feared extortion and violence at the hands of corrupt police officers in Mexico. The wife
and son’s applications are based primarily on that of the principle Applicant,
and a fear of the son being kidnapped.
[4]
The
principle Applicant was the operator of a tourist transportation business and
the wife was the part-owner of a local school. The principle Applicant was
abducted and beaten by federal police officers and had to pay money for his
release. In addition, the principle Applicant had to pay extortion money at
various times. At one point he had a physical conflict with one of the
extortionists which was witnessed by his son, who later developed behavioural
problems. The Applicants moved to several different locations, but eventually
the husband came to Canada. He was joined by his wife and son after the
wife received phone threats that the son was going to be kidnapped.
[5]
The
principle Applicant made a report to the police and followed up on this report
several times, but no action was taken by the authorities. The principle
Applicant also attempted to make a report in the different locations to which
he moved but was told he could not do so for a lack of jurisdiction.
[6]
The
Board rejected the Applicants’ claim on the basis that there was no link
between the claim and any Convention ground and that there was adequate state
protection.
[7]
The
Board held that the Applicants were victims of corrupt police officers and not
a corrupt state apparatus and, therefore, their fears are not linked to race,
nationality, religion, real or imputed political opinion, or membership in a
particular social group.
[8]
The
Board also concluded that, based on the totality of the evidence, Mexico was
making serious efforts to contain crime in order to protect its citizens and
that the Applicants’ had not provided clear and convincing evidence of the state’s
inability to protect them. At paragraph 24 of the reasons, the Board stated
that while the principle Applicant had approached the Public Ministry on a
number of occasions with no success, the documentary evidence indicates that
there are a number of state authorities or agencies where he could have sought
redress to report the corruption. The Board concluded that the Applicant had
options that he did not exercise.
II. Issues and Standard of
Review
[9]
The
Applicant raised the following issues:
(a) Did
the Board err by introducing the issue of an Internal Flight Alternative (IFA)
in Guadalajara but failing
to address this issue in its reasons?
(b) Did
the Board err with respect to the availability of state protection and in
finding that the Applicants did not rebut the presumption of state protection?
(c) Did
the Board err by finding a lack of nexus to the definition of Convention
refugee?
[10]
Issues
of IFA, state protection and nexus to a convention group are issues of fact and
are reviewable on a standard of reasonableness (see Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R.
339; Sanchez v. Canada (Minister of Citizenship and Immigration) [2008]
F.C.J. No. 886; 2008 FC 696; Hinzman v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 171; 282 D.L.R. (4th) 413; Marquez v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1727; [2005] F.C.J. No.
2156).
III. Analysis
[11]
For
the reasons below it is only necessary to address issue (b).
[12]
The
Applicants argue that the Board erred by applying the wrong test to overcome
the presumption of state protection set out in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689; [1993] S.C.J. No. 74.
[13]
The
Respondent takes the position that the Board’s decision is reasonable as the
Applicants failed to take sufficient measures to seek state protection in Mexico prior to
making a refugee claim and therefore did not rebut the presumption of state
protection.
[14]
The
crux of the issue seems to be whether it was reasonable for the Board to
determine that the principle Applicant had not availed himself of the state
protection available. The Applicants argue that in cases of developing
democracies such as Mexico, where corruption and drug trafficking are prevalent
and involve some government officials, the corruption should be sufficient to
overturn the presumption of state protection and that efforts by the government
should not be equated with providing adequate state protection.
[15]
It
is well established that individuals claiming refugee status must provide clear
and convincing confirmation of their state's inability to protect and that the
protection afforded by the state need not be perfect (Mendez v. Canada
(Minister of Citizenship and Immigration), 2008 FC 584; [2008]
F.C.J. No. 771). Applicants are also expected to exhaust all courses of action
reasonably available to them and the onus on Applicants to avail themselves of
state protection is linked to the level of democracy in the country.
[16]
It
is noteworthy that the agents of persecution in this matter were rogue police
officers. In Lopez v. Canada (Minister of Citizenship
and Immigration), 2007 FC 1341; 68 Imm. L.R. (3d) 81, Justice Danielle
Tremblay-Lamer discussed the distinction between different agents of
persecution and how this relates to the effectiveness of state protection. At
paragraphs 22 to 23, Justice Tremblay-Lamer wrote:
[22] The distinction
between "state agents", "rogue officers" and
"criminals" raises different considerations in evaluating the
effectiveness of state protection. Where the alleged persecutors are state
agents, the claimant may be faced with an official policy of persecution, such
that state protection may not reasonably be forthcoming. On the other hand,
where the assailants are "rogue officers" the analysis will focus on
whether the state is in a position to effectively police itself, including the
effectiveness of oversight and accountability mechanisms. However, where purely
criminal elements are the agents of persecution; the above considerations will
be irrelevant in evaluating the effectiveness of state protection.
[23] In its analysis of state
protection against rogue officers, the Board highlighted the existence of
anti-corruption measures in Mexico. While extremely laudable,
the efforts of any government to investigate and punish instances of corruption
are not in and of themselves determinative of the effectiveness of those
efforts at an operational level. The Board highlighted the number of
corruption-related investigations carried out by the Attorney General's Office,
new training initiatives aimed at combating police and judicial corruption, and
the existence of a mechanism for filing complaints against public officials as
indicative of the government's ability to protect the applicant, but it did not
indicate how those initiatives have affected the level of corruption on the
ground, and the lives of the civilian population in general. I note, for
example, that the ability to make ex post facto complaints and commence ex post
facto investigations of corruption and ill-treatment does not automatically
constitute effective protection.
[17]
The
effectiveness of state protection from the agents of persecution was a central
issue in this matter. Where evidence that relates to a central issue is
submitted the burden of explanation increases for the Board when it assigns
little or no weight to that evidence or when it prefers specific documentary
evidence over other documentary evidence. While I recognize that in the present
case, the Board did consider the existence of state protection in Mexico and
acknowledged that corruption remains a serious issue, it failed to consider the
actual effectiveness of that protection. The Board did not discuss why it
preferred some evidence on state protection over documentary evidence
supporting the position that state protection was not available for the
Applicants.
[18]
The
decision was not reasonable.
[19]
The
parties did not raise an issue for certification and none arose.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1. this
application is allowed. The decision is quashed and the application for
protection is remitted back to be reconsidered by a different Board in accordance
with these reasons; and
2. there
is no order as to costs.
“ D.
G. Near ”
Email this Content