Date: 20100621
Docket: IMM-3160-09
Citation: 2010 FC 670
Ottawa, Ontario, June 21, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
AGUSTIN SAAVEDRA TALAVERA
MARIA ISABEL SANCHEZ GALVAN
HECTOR SAAVEDRA SANCHEZ
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 dated
May 5, 2009, by the Refugee Protection Division of the Immigration and Refugee
Board (the Board), wherein the Board found the applicants were not Convention
refugees or persons in need of protection pursuant to subsections 96 and 97(1)
of the Act.
[2]
The
applicants did not appear at the judicial review hearing before this Court. The
Court thus delayed the commencement of the hearing and the Registrar tried
unsuccessfully to contact the applicants. The Court then proceeded to the
judicial review hearing absent the applicants. At no time thereafter did the
applicants present themselves to the Registry or the Court. Notwithstanding,
the Court reviewed and took into account the applicants’ submissions as set out
in their memorandum of argument.
Factual Background
[3]
The
principal applicant, Agustin Saavedra Talavera (the applicant), his wife, Maria
Isabel Sanchez Galvan and his nephew, Hector Saavedra Sanchez, are citizens of Mexico. The applicants
claim refugee protection pursuant to sections 96 and 97 of the Act.
[4]
The
main applicant owned a bus company in Queretaro, Mexico. On July 7,
2005, the applicant fired one of his employees, Eduardo Aguillon, due to
absenteeism. The applicant alleges that following this event, Mr. Aguillon
began threatening to kill him and his family if he was not provided with severance
pay meeting his expectations.
[5]
The
applicant also alleges that on July 21, 2005, he was confronted by Mr. Aguillon
and some judicial police officers who told him that if he did not comply with
his demands, they were going to meet up with him again.
[6]
On
August 15, 2005, the applicant received a lawsuit from Mr. Aguillon, which was
to settle on June 30, 2006. According to the applicant, Mr. Aguillon refused
the payment offered by him through his lawyer and left very angry.
[7]
On
July 10, 2005, the applicant’s nephew was driving a bus owned by the
applicant’s company. He was allegedly intercepted by some members of the
judicial police who ordered him to pull over. The applicant’s nephew alleges that
he was beaten up, that more threats were made against him and his family
regarding the money they owed to Mr. Aguillon. He was also allegedly told that
if he went to the police, he and his family would pay with their lives. None of
the applicants reported the event to the police.
[8]
The
applicant’s wife also alleges to have been threatened if they did not comply
with Mr. Aguillon’s demands.
[9]
On
July 15, 2006, the applicant was allegedly attacked by gun shot while he was
driving his bus. He recognized one of the men shooting as Mr. Aguillon but he
managed to flee unharmed. After this event, the applicant went to the police to
file a report but alleges that nothing was done because Mr. Aguillon was well
protected.
[10]
On
July 16, 2006, the applicant and his family moved to Michoacan for refuge. On
July 23, 2006, the applicant alleges that they were located by men. The
applicant believes that these men have ties with Mr. Aguillon because while
they were driving, a car repeatedly tried to get them off the road. On July 24,
2006, the applicant’s wife allegedly was stopped and a knife was put to her
throat. The individual told her that Mr. Aguillon was still waiting for his
settlement.
[11]
Following
his daughter’s advice, the applicant decided it would be safer to leave the
country. The applicant and his family arrived in Canada on August
22, 2008 and applied for protection on September 18, 2008. The applicant claims
that, if he and his family were to return to Mexico, there would
be a risk for their lives and a risk of cruel and unusual treatment.
[12]
On
March 24, 2009, the Board decided that the applicant was not a Convention
refugee or a person in need of protection.
Impugned Decision
[13]
Based
on the totality of the evidence adduced, the Board found that the applicants
were not Convention refugees because they did not establish a well-founded fear
of persecution. The Board also found that the applicants were not persons in
need of protection and that returning to Mexico City would not
subject them to a risk to their lives or to a risk of cruel and unusual
treatment.
[14]
The
Board concluded that the applicant was a victim of a personal vendetta and a
victim of crime which does not provide a link between their fear of persecution
and one of the five Convention grounds.
[15]
In
addition, the Board found that adequate state protection exists in Mexico because it
is a developing and functioning democracy. The Board found the applicants did
not meet the burden of establishing “clear and convincing” proof of a lack of
state protection for people in his situation in Mexico.
[16]
The
Board noted that the applicant’s testimony was not credible because the
applicant failed to provide any substantive documents to strengthen his claim.
The applicant also failed to provide the Board with evidence pertaining to his
ownership of the bus, the event where his wife had a knife to her throat and
the gun shot attack which the applicant alleges are pictures that were taken by
the insurance company.
Issue
[17]
This
application raises the following issue: Did the Board err in finding the applicants
were not Convention refugees or persons in need of protection because they have
not reversed the presumption of state protection in Mexico?
[18]
For
the following reasons, the application for judicial review will be dismissed.
Statutory provisions
[19]
The following provisions of the Act are applicable in these
proceedings:
|
Convention refugee
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.
|
Définition de « réfugié »
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.
|
|
Person in need of protection
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.
Person in need of protection
(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.
|
Personne à protéger
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.
Personne à protéger
(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.
|
Standard of Review
[20]
Since
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Board’s
conclusions on state protection are subject to review under the reasonableness
standard (Hinzman v. Canada (Minister of Citizenship and Immigration),
2007 FCA 171, [2007] F.C.J. No. 584 at para. 38; Huerta v. Canada (Minister
of Citizenship and Immigration), 2008 FC 586, [2008] F.C.J. No. 737 at para.
14; Chagoya v. Canada (Minister of Citizenship and Immigration), 2008 FC
721, [2008] F.C.J. No. 908 (QL) at para. 3; Dunsmuir at paras. 55, 57
,62 and 64). According to the Supreme Court, the factors to be considered are
justification, transparency and intelligibility within the decision-making
process. The outcome must be defensible in respect of the facts and the law (Dunsmuir
at para. 47).
[21]
Reasonableness is also the appropriate standard when reviewing the
Board’s consideration and treatment of evidence. See Y.Z. v. Canada (Minister
of Citizenship and Immigration), 2009 FC 749, [2009] F.C.J. No. 904
at para. 22.
Analysis
[22]
This
case turns around credibility, state protection and internal flight
alternative.
[23]
The
RPD determined that the applicant’s evidence was neither credible nor
trustworthy.
[24]
This
Court notes that the Board is in the best position to assess the explanations
provided by the applicant with respect to the perceived inconsistencies. It is
not up to this Court to substitute its judgment for the findings of fact drawn
by the Board concerning the applicant’s credibility (Singh v. Canada
(Minister of Citizenship and Immigration), 2006 FC 181, [2006] F.C.J. No.
228 at para. 36; Mavi v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1, 104 A.C.W.S. (3d)
925 (QL)).
[25]
In
this case, the Board’s findings were not unreasonable given the multiple
discrepancies in the applicant’s testimony and evidence. The applicant was
unable to provide adequate answers to several questions from the Board,
including why the applicant could not provide any pictures of the bus although
he had made an insurance claim and stated that pictures were taken; no evidence
about the settlement agreement with Mr. Aguillon was provided; no evidence was
provided supporting the allegation that Mr. Aguillon and his family had influential
connections to the federal police. Moreover, this Court finds that the
applicant’s decision to return from Michaocan to Queretaro - the place
where the alleged incidents occurred - is inconsistent with someone having a
subjective fear of persecution.
[26]
This
Court therefore finds that the applicant failed to substantiate his testimony
with pertinent documents and could not corroborate their refugee claim with
credible and trustworthy evidence (Osman v. Canada (Minister of
Citizenship and Immigration), 2008 FC 921, [2008]
F.C.J. No. 1134 at para. 39). As such, the
Board’s finding can be considered rational and acceptable with regard to the
evidence submitted (Dunsmuir, above at paragraph 47).
[27]
The
applicant, as submitted in writing in the memorandum of argument, alleges that the
Board erred in its assessment of state protection and internal flight
alternative.
According to the applicant, the Board failed to consider Mexico’s real capacity to
protect its citizens and simply noted the government’s statements of its good
intentions to improve the situation (Mitchell v. Canada (Minister of
Citizenship and Immigration), 2006 FC 133, [2006] F.C.J. No. 185).
[28]
The
respondent alleges that the Board’s decision is supported by the documentary
evidence. The onus is on the applicant to rebut the presumption of state
protection (Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 134, [2008] F.C.J. No. 182). In
order to rebut this presumption, a claimant must adduce relevant, reliable and
convincing evidence which satisfies on a balance of probabilities that the
state protection is inadequate (Carrillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399).
[29]
From
the outset, there is a presumption that a state is capable of protecting its
citizens and the applicant may rebut this presumption by providing “clear and
convincing proof of lack of state protection” in the country of origin. The applicant
must first approach their state for protection, providing state protection
might be reasonably forthcoming (Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, 153 N.R. 321). Evidence that protection being offered is
“adequate though not necessarily perfect” (Zalzali v. Canada (Minister of
Employment and Immigration) (C.A.), [1991] 3 F.C. 605, [1991] F.C.J. No.
341) is not clear and convincing proof of the state’s inability to protect its
citizens, as no government can guarantee the protection of all its citizens at
all times.
[30]
In
the case at bar, the RPD outlined that there is a well-defined process to be
followed in reporting a crime. While acknowledging that crime and corruption
persist in Mexico, the RPD
also stated that the government is taking steps to address the issue. The RPD
supported its analysis of state protection with documentary evidence (Applicant’s
record at pp. 13-14) and outlined the efforts made by the federal law
enforcement agencies in the current context e.g. the Citizens’ Information and the
Services Network (SIAC) and the Citizens’ Information and Services Centre
(CIAC). The documentary evidence also indicates that results flowing from the
government initiatives are being achieved (Tribunal’s record at pp. 140, 266
and 267).
[31]
The
applicant also submits that he sought protection from the police but his
efforts were unsuccessful. This Court finds that in a democracy like the one in
Mexico, the applicant
has failed to demonstrate that all the courses open to him were exhausted. The
inaction of the police officer is not enough in the present case to discharge
the applicant from his burden of proof. In the decision Arenas v. Canada (Minister of
Citizenship and Immigration), 2006 FC 458, [2006] F.C.J. No. 567, at para. 9, the Court
refers to the observations made by Justice Dawson in De Baez v. Canada (Minister
of Citizenship and Immigration), (2003) 236 F.T.R. 148,
2003 FCT 785 at
para. 16:
Thus, the actions of some police officers does
not obviate the need to seek protection from the authorities. Discrimination by
some police officers is not sufficient proof of the state's unwillingness to
provide, or inability on the part of the applicants, to seek protection.
[32]
In
Kadenko v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1376, 206 N.R. 272, the
Federal Court of Appeal noted that one cannot automatically conclude that a
democratic state is unable to protect one of its citizens because a local
police officer refused to intervene. The applicant has not sought diligently to
obtain protection from his country before coming to Canada. Therefore,
the applicants have not provided clear and convincing evidence to rebut the
presumption that the state of Mexico was able to protect them (Canada
(Minister of Employment and Immigration) v. Villafranca (F.C.A.), [1992]
F.C.J. No. 1189, 150 N.R. 232).
[33]
With
respect to the internal flight alternative issue, the RPD considered Mexico City and found
that it would be viable for the applicants. When asked by the RPD “why not Mexico”? the
applicant answered: “I don’t know” (Tribunal’s record at pp.346-348).
[34]
In
any event, the applicant failed to provide evidence that his safety may be compromised
and how Mexico City could not be a viable IFA for the applicant and his family
(Whenu v. Canada (Minister of Citizenship and Immigration, 2003 FC 1041,
[2003] F.C.J. No. 1310; Kumar v. Canada (Minister of Citizenship and
Immigration, 2004 FC 601, [2004] F.C.J. No. 731). Upon reviewing the
evidence, this Court is of the view that the applicant has failed to meet his
burden of proof that persecution will occur in the entire country and
specifically in Mexico City (Rasaratnam v. Canada (Minister of Employment
and Immigration) (C.A.), [1992] 1 F.C. 706; Thirunavukkarasu v. Canada
(Minister of Employment and Immigration) (C.A.), [1994] 1 F.C. 589); Ranganathan
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No.
2118, 266 N.R. 380).
[35]
This
Court finds that the Board’s decision is reasonable. The Board conducted a full
assessment of the evidence, including the applicant’s testimony and the
totality of the documentary evidence on file. This decision was reasonable in
the circumstances and this Court’s intervention is not justified. Therefore,
this judicial review application will be dismissed. No question was proposed
for certification and there is none in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review be dismissed. No question is certified.
“Richard
Boivin”
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