Date: 20100917
Docket: IMM-4933-09
Citation:
2010 FC 929
Ottawa, Ontario, September 17, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
JOSE
WALBERTO PINO CRUZ AND
ROSA MARIA FRANCO QUEVEDO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicants, Mr. Jose Walberto Pino Cruz and Ms. Rosa Maria Franco
Quevedo are a married couple who are citizens of Mexico. Upon arriving in Canada in July 2007,
they claimed refugee status based on their fears of death or serious harm at
the hands of Ms. Quevedo’s former husband, Servando Morelos Donnadieu.
[2]
In a
decision rendered in September 2009, a panel of the Refugee Protection Division
(RPD) of the Immigration and Refugee Board determined that the Applicants are
not Convention refugees or persons in need of protection, as contemplated by
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), respectively.
[3]
The
Applicants seek
to have the RPD’s decision set aside on the basis that the RPD erred by:
i. failing to
consider and to properly apply the Board’s Guideline 4, entitled Women
Refugee Claimants Fearing Gender-Related Persecution (Guidelines);
ii. failing to
seriously consider the identity and profile of their agent of persecution; and
iii. failing to
assess state protection at an operational level.
[4]
For
the reasons that follow, this application is dismissed.
I. Background
[5]
Ms.
Quevedo divorced Mr. Donnadieu in November 2001, after a relationship of
approximately 20 years. She met Mr. Cruz in November 2002 and married him in
March 2003.
[6]
Mr.
Donnadieu is a former Major in the Mexican army and served as Director of
Municipal Public Security (police chief) of the city of Acambaro, Guanajuato from
November 2000 until at least October 2003, when he moved to another city in
that state. The Applicants do not know what, if any, official positions Mr. Donnadieu
held after that time. Ms. Quevedo claims that he physically abused her throughout
their relationship.
[7]
The
RPD accepted that Mr. Donnadieu abducted Mr. Cruz on four separate occasions in
an attempt to break up the Applicants’ marriage. On each occasion, Mr. Donnadieu
held Mr. Cruz for between 12 and 30 hours, severely beat him, telephoned Ms.
Quevedo several times and threatened to beat Mr. Cruz further or kill him if he
and Ms. Quevedo did not separate. According to an affidavit submitted by Ms.
Quevedo, those abductions took place on March 20, 2005, October 30, 2005, August 30, 2006, and
April 30, 2007, respectively.
[8]
The Applicants moved
to different cities in Mexico after each of the first three abductions
– to Celaya, Guanajuato, then to Leon, Guanajuato, then to Aguascalientes, Aguascalientes. However, each time, Mr. Donnadieu was
able to find Mr. Cruz and abduct him again.
[9]
In her Personal
Information Form, Ms. Quevedo stated that she tried to file a report with the
police after the first abduction and was subsequently informed that the report
did not proceed due to lack of evidence. However, at the hearing before the
RPD, she testified that she and Mr. Cruz decided against contacting the police
after being advised that their complaint ultimately would find its way to Mr.
Donnadieu. They therefore went to a family services office, where they met the
wife of the Mayor of Acambaro, who arranged for them to meet with her husband.
The Mayor apparently stated that the matter would be handled internally.
[10]
Ms. Quevedo testified
that after the second abduction, she and Mr. Cruz went to a local police
station in Celaya, however, their complaint did not
proceed because they were not able to identify the individuals who were with
Mr. Donnadieu, the location where they took Mr. Cruz, or to provide certain other
details requested by the police. She added that she believed that another
reason why a formal report was not taken on that occasion is that, once again,
it would have ultimately reached Mr. Donnadieu. She stated that she did not
attempt to make police reports after the third and fourth abductions, again because
she believed that they would be referred to Acambaro. In addition, she did not seek
other legal assistance or obtain any medical reports after any of the
abductions. After the fourth abduction, the Applicants fled Mexico.
II.
The decision under review
[11]
The
RPD’s decision focused on whether the Applicants had established a sufficient
objective basis for their claims. In particular, the RPD considered whether
adequate state protection is available to the Applicants in Mexico, and whether
the Applicants had taken all reasonable steps to avail themselves of that
protection.
[12]
With
respect to state protection, the RPD assigned greater probative weight to the
documentary evidence than to the Applicants’ opinions. The RPD recognized that
there were inconsistencies in the documentary record. However, it found that
the preponderance of that evidence suggested that, although not perfect, there
is adequate state protection in Mexico for victims of crime, that Mexico is
making serious efforts to address the problem of criminality, and that the
police are both willing and able to protect victims. The RPD added that, on
balance, the evidence further demonstrated that the issues of corruption and
deficiencies are being addressed by the state of Mexico.
[13]
With
respect to the steps taken by the Applicants to avail themselves of state
protection, the RPD rejected their explanation that they did not follow through
with their reports to the police because their reports would eventually find
their way to Mr. Donnadieu. The RPD also noted that the Applicants did not seek
redress at a higher level, such as the state police, and that they had fled Mexico soon after
the Mayor had apparently obtained an undertaking from Mr. Donnadieu to leave
them alone. The RPD stated: “Doubting the effectiveness of the protection
offered by the state when one has not really tested it does not rebut the
existence of a presumption of state protection.” The RPD then found that there
was no information to suggest that the police would not have made genuine and
earnest efforts to investigate the Applicants’ allegations and apprehend Mr. Donnadieu,
had they made a greater effort to obtain police protection.
[14]
Given
the foregoing, the RPD concluded that the Applicants had failed to rebut the
presumption of state protection with clear and convincing evidence.
III.
The Standard of Review
[15]
The
issue of whether the RPD erred by failing to properly consider and apply the
Guidelines is reviewable on a standard of reasonableness (Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras.
66-67).
[16]
The
issue of whether the RPD erred by failing to seriously consider the identity
and profile of Mr. Donnadieu is also reviewable on a standard of reasonableness
(Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para. 51).
[17]
The
issue of whether the RPD erred by failing to assess state protection at an
operational level is in essence a question of whether the RPD properly applied
the applicable test of whether the Applicants are able to avail themselves of
adequate state protection. As the Applicants conceded, this issue is also
reviewable on a standard of reasonableness (Dunsmuir, above; Hinzman
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, at para. 38).
[18]
In Canada (Minister
of Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at para. 59, reasonableness was articulated
by Justice Ian Binnie as follows:
[…] Where
the reasonableness standard applies, it requires deference. Reviewing courts
cannot substitute their own appreciation of the appropriate solution, but must
rather determine if the outcome falls within "a range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
(Dunsmuir, at para. 47). There might be more than one reasonable
outcome. However, as long as the process and the outcome fit comfortably with
the principles of justification, transparency and intelligibility, it is not
open to a reviewing court to substitute its own view of a preferable outcome.
IV. Analysis
A.
Did the
RPD err by failing to consider and properly apply the Gender Guidelines?
[19]
The
Applicants submit that the RPD erred by failing to exhibit sufficient
understanding and sensitivity to the Applicants, as required by the Guidelines.
In particular, given the gender-related context in which Mr. Donnadieu
perpetrated his violence and made his threats, the Applicants assert that the
RPD should have displayed greater sensitivity and understanding when considering
the Applicants’ willingness and ability to seek protection from the police.
They maintain that while the RPD mentioned that it had taken the Guidelines
into consideration, it failed to demonstrate that it followed the Guidelines.
[20]
I am
unable to agree with the Applicants.
The Guidelines state:
When
considering whether it is objectively unreasonable for the claimant not to have
sought the protection of the state, the decision-maker should consider,
among other relevant factors, the social, cultural, religious, and economic
context in which the claimant finds herself. If, for example, a woman
has suffered gender-related persecution in the form of rape, she may be
ostracized from her community for seeking protection from the state.
Decision-makers should consider this type of information when determining if
the claimant should reasonably have sought state protection.
[21]
The
Applicants’ explanations for not making a greater effort to seek state
protection all related to the fact that such protection would not be afforded
to them because of the identity and profile of their persecutor, Mr. Donnadieu. They had nothing to
do with Mr. Donnadieu’s past abuse of Ms. Quevedo.
[22]
Moreover,
it is not apparent how the RPD could have given greater weight to the Guidelines
when the principal victim of the violence in question was Mr. Cruz, whose
position relative to his persecutor was very different from that of the victims
contemplated by the Guidelines.
[23]
In
any event, in my opinion, the RPD was appropriately sensitive to Ms. Quevedo’s
situation in both its hearing and in its assessment of her testimony and the
documentary evidence. It delicately summarized her history with Mr. Donnadieu
and displayed sensitivity to her explanations for not making greater efforts to
seek police protection. In short, I am unable to agree that the manner in which
the RPD dealt with the Guidelines was unreasonable in any way.
B. Did the RPD err by failing to seriously
consider the identity and profile of the agent of persecution?
[24]
The
Applicants submit that the RPD erred by focusing too much on whether Mr. Donnadieu
continues to hold a position of power and influence in Mexico and by not
understanding that the very people from whom the RPD expected the Applicants to
seek greater protection were directly associated with Mr. Donnadieu. As such, they
assert that it was not reasonable to expect them to make a greater effort to
seek protection from those people, namely, the police.
[25]
I
disagree.
[26]
In
support of their submission on this point, the Applicants referred to Pech
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 83. In my view, that case is
distinguishable, as there was evidence in that case, which this Court accepted,
that (i) no amount of police protection might be able to stop the agent of
persecution from “his fanatical and psychopathic pursuit of the applicant”, and
that (ii) reporting that agent of persecution to the police may not have been a
logical or reasonable option. In the case at bar, no such persuasive evidence was
adduced.
[27]
The
RPD recognized that Mr. Donnadieu “has extensive and high level contacts in
Mexican society.” It also noted that Mr. Donnadieu was able to track the
Applicants down and kidnap Mr. Cruz each of the three times they moved, in an
effort to escape his violence. In this regard, the RPD paid specific attention
to the chronological order of the Applicants’ moves.
[28]
However,
the RPD then appropriately noted that:
i.
the
Applicants did not know whether Mr. Donnadieu was ever reappointed to his position
as Director
of Municipal Public Security, after his initial term expired in October 2003;
ii.
there
was no evidence that Mr. Donnadieu was even a police officer at the time the
abductions and beatings of Mr. Cruz took place;
iii.
Mr.
Donnadieu was not a police officer in the cities to which the Applicants had
relocated, particularly the last city in which they resided (Aguascalientes), which was in a different state from
the state in which Mr. Donnadieu had been employed at the municipal level;
iv.
Mr. Donnadieu had
never worked with the police at the state or federal levels;
v.
one of the main functions
of the Federal Agency of Investigation is to deal with kidnappers;
vi.
according to the
documentary evidence, the Mexican security forces are hierarchical and a complainant
can seek redress at a higher level if dissatisfied with results at a lower
level; and
vii.
no evidence had been
adduced to suggest that the police would not have made genuine and earnest
efforts to investigate the Applicants’ allegations and to apprehend Mr. Donnadieu,
had the Applicants made a greater effort to pursue state protection.
[29]
Based
on the foregoing, I am satisfied that the RPD’s consideration of the identity
and profile of Mr. Donnadieu was not unreasonable. It was certainly within a “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir, above). It was also
appropriately justified, transparent and intelligible (Khosa, above).
C. Did the RPD err by
failing to assess state protection at an operational level?
[30]
The
Applicants submit that the RPD did not assess whether the various initiatives
that the Mexican government has taken in recent years to improve state
protection have actually translated into meaningful protection for persons such
as them. They further submit that it was clear from much objective documentary
evidence that the state would be either unable or unwilling to protect them.
They add that the documentary evidence upon which the RPD relied did not “dig
deep enough into the actual situation a victim of domestic violence in Mexico will and can face when
trying, genuinely, to access and receive real action and protection.”
[31]
I
disagree.
[32]
The
RPD reviewed extensive evidence and concluded that the evidence demonstrated,
among other things, that:
i.
there
are a number of authorities and agencies who will assist members of the
public if they believe they have encountered a corrupt official or if they are
not satisfied with the services of the security forces;
ii.
recent
initiatives to address corruption and bribery reportedly have had a marked
effect; and
iii.
Mexico is making serious
efforts to address the problem of criminality, and the police are both
willing and able to protect victims.
[33]
Contrary
to the Applicants’ submissions, the foregoing findings did in fact address
whether adequate state protection is available to the Applicants at the
operational level in Mexico. Based on the
evidentiary record in this case, these findings and conclusions were not
unreasonable.
[34]
I am
satisfied that, on the particular facts of this case, it was reasonably open to
the RPD to conclude that the claimants had failed to rebut the presumption of
state protection with clear and convincing evidence.
[35]
The
RPD was not required to “detail every piece of evidence provided and every
argument raised”, so long as the decision reached was within the bounds of
reasonableness (Rachewiski v. Canada (Minister of
Citizenship and Immigration), 2010 FC 244, at para. 17).
[36]
The
RPD’s conclusion on this point was well within the range of possible, acceptable outcomes which are defensible
in respect of the facts and law. It was also appropriately justified,
transparent and intelligible.
[37]
The
Applicants’ failure to make greater efforts to obtain state protection was
inconsistent with their obligation to avail themselves of domestic state
protection before seeking international protection (Canada (Attorney General)
v. Ward, [1993] 2 S.C.R. 689, at 724; Santiago v. Canada
(Minister of Citizenship and Immigration), 2008 FC 247, at para. 23; Sanchez
v. Canada (Minister of Citizenship and Immigration), 2008 FC 66, at paras.
11 to 13; Sanchez v. Canada (Minister of Citizenship and Immigration),
2008 FC 134, at paras. 9-10).
V. Conclusion
[38]
This
application is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUGES THAT:
1.
The
application for judicial review is dismissed; and
2.
No
question of general importance is certified.
"Paul S. Crampton"
___________________________
Judge
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