Date: 20100301
Docket: IMM-2852-09
Citation: 2010 FC 235
Ottawa, Ontario, March 1, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
RAFAEL COMMER MORA
ANA LILIA RODRIGUEZ SALINAS
DAMIAN COMMER RODRIGUEZ
JORGE IVAN COMMER RODRIGUEZ
JUDITH FERNANDA COMMER RODRIGUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant asks the Court to review and set aside a decision by the Refugee
Protection Division of the Immigration and Refugee Board
(Board). The Board determined that Rafael Commer Mora, his wife, Ana Lilia
Rodriguez Salinas, and their children, Damian Commer Rodriguez, Jorge Ivan
Commer Rodriguez, and Judith Fernanda Commer Rodriguez were neither Convention
refugees nor persons in need of protection within the meaning of the Immigration
and Refugee Protection Act,
R.S.C. 2001, c. 27.
[2]
The
determinative issue was whether the applicants had made adequate efforts to
seek state protection prior to availing themselves of refugee protection, and
whether these efforts had rebutted the presumption of state protection.
[3]
For
the reasons that follow, the decision of the Board is set aside.
BACKGROUND
[4]
All
of the applicants are citizens of Mexico.
[5]
Mr. Commer Mora’s sister,
Katharine, and his mother, Irma Elena Mora Lopez, are both Convention refugees
in Canada. They received positive decisions by the Board in 2006 (RPD Decision
TA5-13360) and 2008 (RPD Decision TA7-06660), respectively. Katharine’s claim
was based on domestic violence from her spouse, Raymundo Leonel Serrano
Rodriguez (Raymundo). Irma Elena’s claim was based on harassment and violence
she experienced when Raymundo directed his anger towards her in an effort to
locate Katharine and their daughter. In both cases, the Board determined that Mexico was
either unable or unwilling to provide protection to the women because of the
profile of the agent of persecution.
[6]
Mr. Commer Mora and his family
fear persecution from the same agent of persecution that forced his sister and
mother to flee Mexico, his ex-brother-in-law, Raymundo. Mr. Commer Mora
states that after his sister fled Mexico with her two children, one of which is the child of
Raymundo, Raymundo began harassing him and his mother in an effort to locate
Katharine. He states that the situation got so dangerous for his mother that
she too was forced to flee Mexico and seek refugee protection in Canada.
[7]
On June 30, 2007, Raymundo and his
brother came to Mr. Commer Mora’s house. They physically assaulted him and
demanded to know the whereabouts of his sister and mother. The assailants
warned Mr. Commer Mora not to go to the police because it would be futile.
After Raymundo left, Mr. Commer Mora sought medical attention and then filed a complaint
with the police. Mr. Commer Mora states that the police took his complaint but
told him that there would be no investigation because Raymundo was a Federal
Police Officer. After the June 30, 2007 incident, Mr. Commer Mora began
receiving threatening phone calls from Raymundo, which included death threats.
The family also began spending more time at their in-laws’ house in Coalcalco,
a 90 minute drive from their home.
[8]
Mr. Commer Mora states that on
October 11, 2007, he was driving with his family and that Raymundo attempted to
run them off the road using a police van. Raymundo forced Mr. Commer Mora to
stop, pulled him from the vehicle, handcuffed him, and placed him in the police
van. In the police van was Raymundo’s brother and two other men dressed as
police officers. One of the men then got into the driver’s seat of Mr. Commer
Mora’s vehicle. The two vehicles drove for a period of time while Mr. Commer
Mora was physically assaulted in the back of the police van. Mr. Commer Mora
was told that his family would be next. Mr. Commer Mora offered that he knew
his sister was in Canada, but that he did not know her exact location. After
some time, the vehicles stopped and Mr. Commer Mora was released from the
police van. Mr. Commer Mora immediately went to his in-laws’ house. He again
filed a complaint with the police, but received no response.
[9]
On December 10, 2007, Mr. Commer
Mora’s house was surrounded by Raymundo and three police vans. Through a
loudspeaker, Raymundo ordered Mr. Commer Mora to come outside. When Mr. Commer
Mora came outside he saw a number of men shooting their guns in the air.
Raymundo was also armed and forced Mr. Commer Mora to the ground, sticking his
gun to his head. Mr. Commer Mora states that Raymundo told him he had three
days to tell him the location of his sister or he would kill one of his
children.
[10]
Mr. Commer Mora and his family
immediately went to the home of his in-laws. Not having the money for air
travel for all his family, Mr. Commer Mora fled Mexico on his own on December 13,
2007. He claimed refugee status on April 20, 2008. His family followed on
August 22, 2008 and claimed refugee protection on September 5, 2008. The
claims were joined and heard together on April 8, 2009.
[11]
Ana Lilia Rodriguez Salinas
testified that after her husband left, Raymundo came to her mother’s house, and
that he also made threatening phone calls to her mother. In response, Mrs.
Rodriguez Salinas took the children to her father’s house in a remote village
four hours away. Mrs. Rodriguez testified that Raymundo returned to her
mother’s house on multiple occasions and that this prompted her to arrange for
herself and the children to also leave Mexico.
[12]
The Board drew a negative
credibility inference with respect to Mrs. Rodriguez Salinas’ testimony. The
Board held that inconsistencies in her evidence supported a conclusion that
Raymundo did not follow her to her mother’s house.
[13]
The Board also stated that there
was “inconsistent evidence regarding whether Raymundo was a police officer,
what level of police officer or whether he simply dressed as a police officer,
or had relatives in the police force.” The Board concluded “that Raymundo was
not a police officer but wore a police uniform and had connection to police.”
[14]
The Board reviewed the law on
state protection and provided an analysis on Mexico’s democratic status, its
police apparatus, and the “serious efforts” its government is taking to combat
corruption and to provide state protection. The Board stated:
In this particular
case the claimant reported to the same police station twice. Although, he did
not follow-up on these two reports, he states he has no faith in the
willingness or ability of the police in his country to protect him.
[15]
The Board reviewed the
options that the applicants could have pursued if they felt that the police
response to their complaints was inadequate, and the serious ramifications that
Mexican police face for not doing their job. The Board cited G.D.C.P.
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 989 for the proposition that “claimants are
not required to show they have exhausted all avenues of protection, they have
rather to show that they have taken all steps reasonable in the circumstances.”
The Board held that given the many ways Mexican citizens can address police
corruption, it would have been reasonable for the applicants in this case to at
least attempt to avail themselves of one or more of these avenues. The Board
concluded:
… [I]t was objectively reasonable for the claimants to have sought
state for (sic) protection however they did not do so. Further, the claimants
have not rebutted the presumption of state protection with clear and convincing
evidence of the state’s inability to protect them which they are required to
do.
As we have found that adequate state protection is available to the
claimants, they do not have a well-founded fear of persecution under section 96
and for the same reasons therefore we find that they would not be personally
subjected to a risk to life or a risk of cruel and unusual punishment or a
danger of torture if they were to return to Mexico today.
Consequently, the Board rejected the applicants’ claim
for protection.
ISSUES
[16]
The applicants raise the following
issues:
1. Did the Board commit a reviewable error by ignoring
relevant evidence regarding the Applicants’ ability to obtain adequate state
protection in Mexico?
2. Did the Board commit a reviewable error by ignoring
relevant evidence regarding the Applicants’ ability to avail themselves of an
internal flight alternative in Mexico?
3. Did the Board commit a reviewable error by failing to
explain in clear and understandable terms why it chose to deviate from two
previous decisions of the Board that found that adequate state protection and a
viable internal flight alternative are not available to the Applicant’s sister,
niece, and mother in Mexico?
[17]
The
determinative issue in this case was not the availability of an internal flight
alternative; it was the availability of state protection. The real issue in
this application, and that which was the focus of oral submission was whether
the Board’s state protection finding was reasonable
[18]
The
Board’s negative credibility inference, based on the inconsistency and
implausibility of Mrs. Rodriguez Salinas’ testimony, was made in a transparent
fashion and supported with justifiable reasons. However, this was the only
credibility finding it made. Accordingly, Mr. Commer Mora’s testimony must be
considered to have been accepted by the Board.
[19]
The
Board concluded that the agent of persecution was not a police officer, but
that he had close connections with the police. This conclusion was open to the
Board, particularly in light of the fact that two previous decisions of the
Board had not formed a consensus on Raymundo’s status as a police officer.
[20]
The
Board considered the efforts that Mr. Commer Mora had made to seek state
protection, but the Board completely failed to consider his testimony regarding
the experience of his sister and mother. It failed to consider its previous
positive decisions in the cases of the applicants’ close relatives.
[21]
The
respondent cites four cases for the proposition that another refugee decision
cannot be used as evidence and that each case must be determined on its merits
even if a relative has previously obtained a positive determination before the
Board: Cortes v. Canada (Minister of
Citizenship and Immigration), 2008 FC
254; Noha v. Canada (Minister of Citizenship and Immigration), 2009 FC
683; Rahmatizadeh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 578 (F.C.T.D.) (QL); and Marinova
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 178. The first part of this proposition is without
merit and is not supported by the cases that the respondent cites. The second
part of the proposition is supported by the cases, but in the circumstances of
this case, does not alleviate the error caused by the Board’s failure to
address its earlier decisions.
[22]
In
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724-725, the
Supreme Court explained that one of the ways a claimant can rebut the
presumption of state protection is by providing evidence of similarly situated
individuals for whom the state was unable or unwilling to provide adequate protection.
In appropriate circumstances, there is nothing that prevents a claimant from
citing the experiences of other refugee claimants, and indeed the
determinations made by the Board in those cases. These decisions are not
determinative, but where they are analogous, and made available to the Board, a
burden to consider these decisions may arise. This burden arises when these
individuals are similarly situated and their experience of attempting to seek
state protection is directly relevant to the analysis of what one might
reasonably expect if state protection was sought further by the claimant.
[23]
In
this case, the violence the applicants experienced is comparable to their
relatives and the agent of persecution is the same in all of the cases. Just like
in the case of his mother, Mr. Commer Mora was persecuted by Raymundo who was
seeking to track down his former spouse and child. The Board provides no explanation for its failure to
address its prior decisions or the evidence contained therein, even though the
agent of persecution was the same.
[24]
As I noted in Gonzalez Torres v. Canada (Minister of Citizenship and Immigration), 2010 FC 234, context is
critical in any state protection analysis. One of the factors the Board must
consider is the identity of the agent of persecution. In this case, although
the agent was identified by the Board, it failed to examine how that person’s
identity impacted on the efforts made by the applicants to seek protection.
[25]
The
evidence these applicants placed before the Board that related to the efforts
of the principal applicant’s sister and mother to seek state protection was
follows:
a.
Katherine,
the principal applicant’s sister, had sought police protection against Raymundo
no less than 10 times without success;
b.
Katherine
not only sought police protection but also went to three other organizations to
seek protection, without success; and
c.
The
principal applicant’s mother had sought police protection against Raymundo
three times without success.
[26]
In the case of Mr. Commer Mora’s
sister, the Board, delivering a positive decision orally, stated the following
with respect to state protection:
I recognize
that police corruption continues to be a problem, and documentary evidence
shows that Mexico is making serious efforts to address these problems. I
find that given the alleged profile of Raymundo, in that he has two uncles who
are chiefs in the federal police, two sisters working in the police force, and
that despite the alleged intimidation by Raymundo, when he allegedly told you
that his family was influential, you still went ahead and reported him to the
police I find that you made serious efforts to seek state protection, and, in
this case, I find that state protection in your circumstances inadequate.
[emphasis added]
[27]
In the case of Mr. Commer Mora’s
mother, the Board, delivering a positive decision orally, stated the following
with respect to state protection:
As to state
protection in respect to the claimant’s situation, the panel accepts the
explanation and evidence submitted that as far as this claimant is concerned, there
is no or hardly any state protection effective by virtue of the fact that the
persecutor, Raymundo, is a member of the Federal Preventative Police (Policia
Federal Preventiva, PFP) and has two sisters who held position
places in the Federal Preventive Police as well as other relatives in the
police organization. Therefore, as far as state protection is concerned, there
is hardly any effective protection for the claimant in Mexico. [emphasis
added]
[28]
What is relevant from these
excerpts is not the Board’s conclusion regarding Raymundo’s status as a police
officer (which was a focal point of the Board in the applicants’ decision), but
rather its conclusion that his particular profile meant that state protection
was not available to those claimants, despite the existing police apparatus in
Mexico and the serious efforts that the Mexican government was taking to
address corruption.
[29]
The Board failed to consider that
in this case there was explicit state protection evidence from two similarly
situated individuals that experienced persecution from the exact same agent of
persecution. These decisions do not mean that the applicants did not have to
rebut the presumption of state protection, but they are strong prima facie
evidence that even if the applicants had taken greater efforts to seek state
protection, adequate protection would not have been forthcoming.
[30]
In
the face of this evidence the Board’s decision is unreasonable and is set
aside.
[31]
Neither
party proposed a question for certification and in my view there is none.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This application for judicial review is allowed and the applicant’s
application is remitted back to a hearing by a differently constituted Board;
and
2. No
question is certified.
"Russel
W. Zinn"
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