Date: 20100826
Docket: IMM-6233-09
Citation: 2010 FC 842
Montréal, Quebec, August 26, 2010
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
GABRIELA DE LAS FLORES CAMPOS
MONICA FLORES CAMPOS
NORA ESTELA FLORES CAMPOS
ESTHER CAMPOS JUANILLO
RODOLFO
FLORES CAMPOS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Immigration and Refugee Board, Refugee Protection Division (the panel) dated
November 16, 2009, determining that the applicant and her four adult children
were not Convention refugees or “persons in need of protection” within the
meaning of sections 96 and 97 of the Act, and thus rejecting their claims
for refugee protection.
Factual Background
[2]
The
applicant, Esther Campos Juanillo, and her four adult children,
Gabriela De Las Flores Campos, Monica Flores Campos, Nora Estela Flores Campos and
Rodolfo Flores Campos, are citizens of Mexico.
[3]
Ms. Campos
Juanillo alleged that she was a victim of physical assaults and death threats
made by her former husband, Rodolfo Flores Gutierrez. She stated that she had
stayed with him for the past 30 years out of fear because he had told her
not to do anything or he would kill her.
[4]
On
July 1, 2006, following an incident in which Ms. Campos Juanillo
was violently beaten by Mr. Flores Gutierrez, who also tried to strangle
her, her four children advised her to leave or he would ultimately kill her. At
about midnight, Ms. Campos Juanillo and her four children left their home
in Tutitlan and went into hiding in a rented house in the San Bartolo
neighbourhood of the municipality of Toluca
in Mexico State.
[5]
Ms. Campos
Juanillo stated that on the same day, following that incident, she and her
daughter filed a complaint with the Tutitlan police.
[6]
Ms. Campos
Juanillo stated that nothing was done by the authorities, and because her
husband was still at large, she was afraid for her safety and the safety of her
children.
[7]
One week
later, two of her daughters travelled to Tijuana in California State. On August 5, 2006, Ms. Campos
Juanillo started working for a company in Toluca.
[8]
In about
mid-August 2007, Gabriela left for Canada to protect herself from her father,
because she had allegedly received death threats from him. On October 27, 2007,
her sister Monica also left for Canada to join her, because she was also afraid
of him. Finally, in January 2008, Nora Estela too left for Canada, because
her father had found her in Tijuana and had allegedly also made death threats
against her.
[9]
In July
2008, Mr. Flores Gutierrez allegedly tried to attack his son Rodolfo. In
August 2008, Rodolfo realized that his father had found them, because he
was prowling around the place where he was living with his mother.
[10]
On
September 1, 2008, Mr. Flores Gutierrez went to their home, armed with a
pistol. After Rodolfo called the police, Mr. Flores Gutierrez reiterated
that he was going to kill them and left.
[11]
On
September 2, 2008, Ms. Campos Juanillo and her son went into hiding in a
small rented house in the village of Zacapu in Michoacan State. On September 27, 2008, they
decided to leave Mexico and they arrived in Canada on the same date.
Decision Under Review
[12]
The panel
determined that the applicants were not Convention refugees or persons in need
of protection within the meaning of sections 96 and 97 of the Act because
they had not met the burden of establishing that there was a serious
possibility that they would be persecuted on a ground set out in the Convention
or that if they were to return to Mexico they would be personally subjected to
a danger of torture or a risk to their lives or a risk of cruel and unusual treatment
or punishment.
[13]
The
panel first noted that the determinative issue in this case is state
protection. The panel observed that a refugee protection claimant must seek
help from his or her country before seeking international protection, in this
case from Canada. Citing Luna v. Canada (Minister of Citizenship and Immigration), 2008 FC 1132, [2008] F.C.J.
No. 1501, paras. 17 and 18, the panel noted that Mexico is a
functioning democracy and there is a strong presumption of state protection,
notwithstanding the problems that exist.
[14]
The panel
also reported that the documentary evidence showed that in spousal and familial
violence cases the police are sometimes reluctant to intervene because spousal
violence is a private matter.
[15]
Based on
the testimony relating to the incident that occurred on July 1, 2006, the
panel was of the opinion that Ms. Campos Juanillo was unable to show that
the actions of the police authorities were ineffective because she never knew
what happened afterward, since she never tried to obtain information by
following up on the complaint.
[16]
The panel
also noted that after the children moved, none of them contacted the police to
reactivate the case and inform them that their father had found them and
threatened them again.
[17]
The panel
therefore concluded that it was not sufficient, to rebut the presumption of
state protection, to state that the police had been called and had done
nothing. In addition, the panel noted that when Mr. Flores Gutierrez went
to their door in Toluca and Rodolfo called the police, no official complaint
was made.
[18]
The panel
also stated that the applicants had exhibited a lack of interest in the resources
that might have been available to them in their country, such as consultation
with a lawyer or an organization that assists victims of family violence.
Relevant Legislation
[19]
The following provisions of the Act are relevant in this case:
|
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.
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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.
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Issue
[20]
The only
issue in this application for judicial review is whether the decision by the
panel that the applicants are not Convention refugees or persons in need of
protection within the meaning of sections 96 and 97 of the Act because of
the availability of state protection is reasonable.
Standard of Review
[21]
In Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, at para. 53, the Supreme Court held that when a tribunal examines questions of law
and fact that cannot be easily separated, the reviewing court will accord
deference to the tribunal. Accordingly, the applicable standard of review in
this case is “reasonableness”. At paragraph 47 of that decision, the Supreme
Court stated:
. . . reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[22]
In
addition, it is settled law that this Court recognizes that the Immigration and
Refugee Board, as a specialized administrative tribunal, enjoys expertise in
the matters in which it exercises jurisdiction and the Court must accord it
deference (Acosta
v. Canada (Minister of Citizenship and Immigration), 2009 FC 213 [2009] F.C.J. No. 270 (QL)).
[23]
It is also
recognized that the findings made by the Board in respect of state protection
are reviewable on the reasonableness standard (see 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,
at para. 3).
Analysis
[24]
In
respect of state protection, Justice La Forest stated the
following in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, confirmed in
Mendivil v. Canada (Secretary of State), [1994] F.C.J. No. 2021, at
para. 13: “Absent a situation of complete
breakdown of state apparatus, such as that recognized in Lebanon in Zalzali,
it should be assumed that the state is capable of protecting a claimant.” Unless the
state concedes its inability to protect a claimant, “clear
and convincing confirmation of a state's inability to protect must be provided”.
[25]
In
Carrillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399, at para. 38, the Federal Court of
Appeal stated, with respect to the burden of proof, standard of proof and
quality of the evidence of an allegation of inadequate state protection or lack
of state protection of its citizens:
[38] A refugee who claims that the state protection is inadequate or
non-existent bears the evidentiary burden of adducing evidence to that effect
and the legal burden of persuading the trier of fact that his or her claim in
this respect is founded. The standard of proof applicable is the balance of
probabilities and there is no requirement of a higher degree of probability
than what that standard usually requires. As for the quality of the evidence
required to rebut the presumption of state protection, the presumption is
rebutted by clear and convincing evidence that the state protection is inadequate
or non-existent.
[26]
The
applicants allege that because protection in Mexico is ineffective, it is not
necessary to file a complaint with the authorities. However, in light of the
facts, the testimony of the parties and the evidence submitted, it is apparent
from that evidence that the applicants failed to rebut the presumption of state
protection by clear and convincing evidence that the state protection is
inadequate or non-existent in Mexico. Even if that protection is shown not to
be perfect, the applicants had an obligation to establish that they had done
what was necessary in the circumstances to seek protection from Mexico before
seeking protection from Canada.
[27]
In Sosa
v. Canada (Minister of Citizenship and Immigration), 2009 FC 275, [2009] F.C.J. No. 343, at para. 22, Justice de Montigny stated:
[22] Regardless
of the deficiencies that may exist in the Mexican criminal justice system, the
fact remains that Mexico is a functioning democracy with a state apparatus that
provides a measure of protection for its citizens. The fact that protection at
the local level cannot be ensured does not exempt the applicant from taking
other steps.
[28]
In Luis v. Canada (Minister of Citizenship and Immigration),
2009 FC 352, [2009] F.C.J. No. 444, at para. 17, this Court
decided that “[t]he
applicants’ failure to make any serious or reasonable efforts to avail themselves of their country’s protection does not allow them to rebut this presumption [and] is
fatal to their claim . . .”.
[29]
The
applicants alleged as well that the documentary evidence showed that Mexican
women are defenceless against spousal violence because protection is
ineffective.
[30]
This
Court is of the opinion that in developing its analysis, the panel did not
disregard the documentary evidence and referred specifically to that evidence,
which is that the spousal violence situation is not ideal but certain recourses
and services are still available. In its decision, the panel referred to
Exhibit A‑1: National Documentation Package on Mexico, June 29,
2009, Tab 5.1, Canada, March 2003, Immigration and Refugee Board
(IRB), Mexico: Domestic Violence and Other Issues Related to the Status of
Women (panel’s decision at paras. 11-12).
[31]
In
support of his submissions at the hearing before this Court, the respondent
referred to Claudia Jacqueline Garcia Bautista and Minister of Citizenship
and Immigration, 2010 FC 126, a decision of
Justice Beaudry.
[32]
Although
that case concerns a citizen of Mexico who was a victim of spousal violence,
the facts of the case may be distinguished from the facts in this case and the
parallels drawn by counsel for the applicants are not applicable. More
specifically, the applicant in Bautista had unsuccessfully sought
assistance from the authorities on three occasions.
[33]
In
the case before us, the applicants were not ignored and the authorities
intervened when the complaint was filed. After Mr. Gutierrez tried to
strangle Esther, she filed a complaint with the police. She was seen by two
people who took down her deposition. The authorities also assigned a physician
to look after her physical injuries. Esther also testified that the two people
at the police station told her that [TRANSLATION} “they were going to arrest
him [Mr. Gutierrez], not to worry, he [Mr. Gutierrez] was going to be
arrested” (Tribunal Record at p. 417). The authorities also issued an
appearance warrant against Mr. Gutierrez (Tribunal Record at p. 339).
It is difficult, in the circumstances, to conclude that the authorities refused
to intervene. In terms of follow‑up by the female applicants, the
evidence is that after filing that complaint, the applicants did not pursue
their efforts and no follow-up was done by them (Tribunal Record at pp. 421,
422, 426, 430 and 433).
[34]
In fact,
as the panel observed in its decision, the applicants never followed up on
their complaint and never alerted the authorities to the fact that there was
still an imminent threat to their lives because of the threats made by Mr. Flores
Gutierrez. The evidence is that the applicants simply decided to leave the
country rather than exhaust the other recourses available to them.
[35]
Having
applied the documentary evidence to the facts in this case, this Court is of
the opinion that the decision of the panel is reasonable.
[36]
It is
settled law that it is not sufficient for an applicant to show that state
protection is not “effective” or is not “perfect” to rebut the presumption of
state protection; an applicant in fact has the heavy onus of proving that state
protection is “inadequate” (see Cueto v. Canada (Minister of Citizenship and
Immigration), 2009 FC 805, [2009] F.C.J. No. 917, at paras. 27-28 ;
Cordova v. Canada (M.C.I), 2009 FC 309, [2009] F.C.J. No. 620 (QL)).
[37]
In
conclusion, the decision of the panel holding that the applicants had not
rebutted the presumption of state protection is reasonable and the intervention
of this Court is not warranted.
[38]
For all these reasons, the application for judicial review is
dismissed. The parties did not propose any question for certification and there
is none in this case.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that
the application for judicial review be dismissed. No question is certified.
“Richard
Boivin”
Certified
true translation
Susan Deichert,
Reviser
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