Date: 20100922
Docket: IMM-666-10
Citation: 2010 FC 947
Toronto, Ontario, September 22, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
RICARDO RAFAEL MONTAGNER PEREZ
ELODIA VAZQUEZ ALVARADO
PRICILA ALEJANDRA MONTAGNER VAZQUEZ
MARIA JOSE MONTAGNER VAZQUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
RERASON FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 of a decision of the Refugee
Protection Division of the Immigration and Refugee Board that the applicants
were neither Convention refugees nor persons in need of protection.
[2]
The
decision of the Board was made because it found that Ricardo Rafael Montagner
Perez, the principal applicant, had “failed to rebut the presumption of state
protection with clear and convincing evidence.” Despite able submissions from
counsel for the applicants, I cannot find that the Board erred in its
assessment of the availability of state protection or that it ignored,
misconstrued or misapprehended evidence, as was submitted by the applicants.
[3]
The
applicants are a family from Mexico. The principal applicant
owned a store in Veracruz
City, Mexico. In November 2008 members of
Los Zetas, a criminal organization involved in drug trafficking, came to the store
and threatened to kill him. Los Zetas targeted him because they believed that
he had given information about the gang to federal officials.
[4]
Soon afterwards
they kidnapped him at gunpoint, drove him to an unknown location, beat and
tortured him, and then dropped him on the outskirts of town. They warned the principal
applicant not to speak to the police because the police worked for them. The
gang members took his vehicle and forced him to sell his business and to give
them the proceeds. The applicants hid at a friend’s house and then fled to Canada and made a claim for refugee
protection.
[5]
The Board
found that although the principal applicant was a victim of crime, it was a
personal vendetta and there was no link to any of the Convention grounds. That
finding is not challenged.
[6]
The Board
determined that the applicants were not persons in need of protection under section
97 of the Act because they failed to demonstrate that there was not
adequate state protection in Mexico. The applicants made no
attempt to seek state protection before leaving Mexico and seeking protection
in Canada.
[7]
In most
cases a person seeking protection must provide evidence that he sought
protection and that it was not forthcoming; however, he is not required to seek
state protection where it is objectively reasonable to presume that state
protection would not be forthcoming. As was stated in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689
“it would seem to defeat the purpose of international protection if a claimant would
be required to risk his or her life seeking ineffective protection of a state
merely to demonstrate that ineffectiveness.”
[8]
Where the
agent of persecution is not the state but a third party, and the state is a
democratic one, there is a presumption that the protection of the state will be
available to a victim of persecution if that protection is sought. I agree
with Justice Tremblay-Lamer’s observation in Zepeda v. Canada (Minister of Citizenship and Immigration), 2008 FC 491 that there is a spectrum of democracies
and that in the case of Mexico, decision-makers must engage in a full
assessment of evidence that appears to suggest that Mexico may be unable to
protect its citizens. The applicant submits that the Board erred in this
respect and placed
an undue emphasis on the fact that Mexico
is a democracy. I cannot agree.
[9]
The
Board’s reasons make it clear that it did not simply accept that Mexico’s status as a democracy meant
that it could protect its citizens. Rather, the Board engaged in a detailed
analysis of the current situation in Mexico.
While the Board noted that Mexico was a democracy and that
accordingly the burden of proving that it could not provide state protection
would be high, it did not dwell on this point but rather engaged in the type of
fulsome assessment contemplated by Justice Tremblay-Lamer.
[10]
I do not
accept the applicants’ submission that the Board placed too much emphasis on
the principal applicant’s failure to seek alternate state protection. They
rely on Zepeda as well for this submission. However, in Zepeda, although
Justice Tremblay-Lamer disagreed with the Board’s suggestion that alternate
institutions should have been contacted if the applicants were concerned with
police corruption, she did so because the police force was the only institution
mandated with the protection of the nation’s citizens, not the institutions the
Board was proposing. Here the Board properly examined whether the applicants
could have consulted different levels of police, not civilian or administrative
organizations as in Zepeda.
[11]
The principal
applicant submits that the Board erred in failing to properly consider that he
had been warned not to go to the police and failed to appropriately consider
his explanation that he did not think the authorities could help him. In my
view, the Board did take his explanation into consideration. It examined the
evidence before it that there was police corruption and that there had been
some infiltration of the police by Los Zetas. However, the Board found that
the police force was not in a state of collapse, that there was ample evidence
that those corrupted by Los Zetas and other organizations were being weeded out
and that the level of protection the applicants were seeking amounted virtually
to 24 hour armed protection from the police – something that was unavailable
and which was not required in order to show that state protection was available.
[12]
The Board
concluded that the applicants did not make diligent efforts or take all
reasonable steps to obtain state protection, and that it was not objectively
reasonable for the applicants not to approach federal police authorities for
protection.
[13]
I am not
convinced that the Board ignored, misconstrued, or misapprehended evidence in a
manner which rendered the decision unreasonable. In my view, the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and the law. Accordingly, this application must be
dismissed.
[14]
Neither
party proposed a question for certification; there is none.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This
application is dismissed; and
2. No
question is certified.
"Russel
W. Zinn"
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