Date: 20101125
Docket: IMM-1883-10
Citation: 2010 FC 1183
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, November 25, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
RAFAEL ALBERTO AGUILAR SOTO
SANJUANA
CAUDILLO ZAVALA
ANA
PAOLA AGUILAR CAUDILLO
RAFAELA
ZAVALA BARRON
GLORIA
XIMENA AGUILAR CAUDILLO
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
SHORE J.
I. Introduction
[1]
Requiring a person to
seek protection from the state when that person believes he or she is in danger
as a result of the actions of someone who is a member of the forces of public
order and when the state is both persecutor and accomplice is too stringent a
burden of proof for a refugee claimant.
[2]
The Federal Court has
held on a number of occasions that, in seeking protection, a claimant is not
obliged to “seek counselling, legal advice, or assistance from human rights
agencies if the police is unable to help”. According to Justice J. François
Lemieux,
[21] . . .
“[...] Canadian jurisprudence has repeatedly stated that there is no further
burden on an applicant to seek assistance from human rights organizations.” (Balogh
v. Canada
(Minister of Citizenship and Immigration) (2002),
22 Imm. L.R. (3d) 93, at para. 44).
(Malik v. Canada (Minister of Citizenship and Immigration), 2003 FCT 453, 122 A.C.W.S. (3d)
1105; Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339, 2002 FCT 1081, at
paras. 23–24).
[3]
Moreover, the
Immigration and Refugee Board (IRB) ignored evidence favourable to the
applicants concerning the failure of state protection in their particular
situation by disregarding the deficiencies of the system in their regard.
[4]
When analysing the
issue of state protection, the IRB did not specifically refer to the documents
submitted (the Mexico Package, Exhibit A‑1, a package of documents compiled
by the IRB itself).
[5]
Thus, in the “Mexico: State Protection” document, dated May 2004, the
following factors are mentioned:
Nevertheless, various
sources also contend that official statistics do not represent the actual
situation because many citizens were reluctant to report crimes (ICESI 17
Mar. 2005; US 2002; Country Reports 2004 28 Feb. 2005, Sec. 1.c). It has
been estimated that the percentage of crimes not reported, sometimes
referred to as the “black number” (cifra negra), is between 75 (ICESI 17
Mar. 2005) and 80 (US 2002; Freedom House 23 Aug. 2004) per cent,
meaning that only one out of four or five crimes committed is actually reported
to the police. [Emphasis added.]
(Exhibit A-1, Tab 9.2 Canada. May 2005. Immigration
and Refugee Board. Mexico: State Protection).
[6]
Document MEX101376.E
states:
While the federal government
has continued to support and promote initiatives to combat corruption (INCSR
2006 Mar. 2006, Sec. I; Mexico Mar. 2006a, 367-377), corruption-monitoring
organizations maintain that incidents of corruption in Mexico persist (TI 9 Dec. 2005, 11; ibid.14-15,
ibid., 19-23; Transparencia Mexicana 9 May 2006).
. . .
Public surveys
conducted in 2005 in Mexico City showed that police corruption continues to be of concern to
residents (EFE 20 Oct. 2005; El Universal 15 Aug. 2005). “[m]ore
than half of the participants” in an August 2005 survey by the Mexico
City-based newspaper El Universal “said that they had been victimized by
extortion or bribetaking by uniformed police officers” (ibid.). While
several police agencies were deemed corrupt by survey respondents, especially
the local Preventative Police, other policing bodies such as the Federal Agency
of Investigation (Agencia Federal de Investigacion, AFI), were seen as being
somewhat less so (ibid.). According to The Economist, the AFI is
a “relatively clean” police force that “is proving to be more effective than
any other police body has been in the past” (30 June 2005).
. . .
. . . However,
the report concluded, that human rights abuses related to, for instance, law
enforcement misconduct continue to exist, and so government initiatives, “while
ambitious on paper, have largely failed to achieve their principal goals” [Emphasis
added.]
(Exhibit A-1, Tab 7.3. MEX101376.E. 6 June 2006. Government
efforts to combat corruption, including outcomes of investigations into
incidences of corruption; efforts within the Office of the Attorney General of
the Federal District).
[7]
A state’s willingness
to protect its citizens without, for the most part, having implemented any
practical or tangible measures to, in fact, protect them does not suffice. Protection
therefore remains academic for certain individuals in certain situations. As
indicated by Justice Edmond Blanchard in Burgos v. Canada (Minister of Citizenship and Immigration, 2006 FC 1537, 160 A.C.W.S. (3d)
696:
[36] However,
when it considers the issue of state protection, the Court cannot require that
the protection currently available be perfectly effective. The following excerpt written by Mr. Justice James Hugessen in Villafranca
v. M.E.I., [1992] F.C.J. No. 1189 (F.C.A.) (QL), sets out this principle:
On the other
hand, where a state is in effective control of its territory, has military,
police and civil authority in place, and makes serious efforts to protect its
citizens from terrorist activities, the mere fact that it is not always
successful at doing so will not be enough to justify a claim that the victims
of terrorism are unable to avail themselves of such protection.
[37] In
spite of this, the mere willingness of a state to ensure the protection of its
citizens is not sufficient in itself to establish its ability. Protection must
nevertheless have a certain degree of effectiveness (Bobrik v. M.C.I.,
[1994] F.C.J. No. 1364 (T.D.) (QL).
II. Judicial proceeding
[8]
This is an application
for leave and for judicial review (ALJR) against a decision by the Refugee
Protection Division (RPD) of the IRB, according to which the applicants are
neither “Convention refugees”, as defined at section 96 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), nor “persons
in need of protection”, as defined at section 97 of the IRPA.
III. Facts
[9]
The applicants’ refugee
claim was heard by the RPD on October 20,
2009.
[10]
The applicants are
citizens of Mexico.
[11]
Rafael Alberto Aguilar
Soto; his common-law spouse, Sanjuana Caudillo Zavala; her mother, Rafaela
Zavala Barron; and their two minor daughters, Ana Paola Aguilar Caudillo and
Gloria Ximena Aguilar Caudillo, are seeking protection from a person who is the
municipal leader of the Party of the Democratic Revolution (PRD), Enrique Alba
Martinez.
[12]
Mr. Martinez is a
powerful businessman with influence in the PRD.
[13]
Mr. Aguilar Soto
was personally threatened and assaulted on a number of occasions by Mr. Martinez
and his associates, who also threatened his family.
[14]
On December 29,
2006, Mr. Aguilar Soto denounced the behaviour of Mr. Martinez to the
Public Prosecutor of the Attorney General of Justice.
[15]
Mr. Aguilar Soto
and his family nonetheless continued to receive threats from Mr. Martinez
and his associates.
[16]
Indeed, following the
filing of Mr. Aguilar Soto’s complaint and Mr. Martinez’s arrest, the
threats escalated.
[17]
Starting January 25, 2007, Mr. Aguilar Soto received several telephone
calls at home, in which he was told that [translation]
“they” knew of his complaint against Mr. Martinez and that if he did not
withdraw it, he would [translation]
“die”.
[18]
On February 15,
2007, an individual turned up at Mr. Aguilar Soto’s home in the middle of
the night to make further death threats. Mr. Aguilar Soto later saw
vehicles driven by his attackers on several occasions near his workplace.
[19]
The complaint filed
with the Public Prosecutor led to Mr. Martinez’s arrest on February 21, 2007; however, he was released the next day through an amparo
suit.
[20]
On March 30, 2007,
Mr. Aguilar Soto, while driving home, was cut off by a minivan, out of
which jumped two armed individuals who threatened him with their weapons while
telling him that they knew his family’s routine and that they could do what
they wanted since Mr. Martinez was an influential politician.
[21]
Mr. Aguilar Soto
and his family immediately left their home and went to stay with his spouse’s
aunt, Juana Zavala Barron.
[22]
On April 24, 2007,
while his spouse was walking down the street on her way to her parents-in-law,
a black jeep stopped next to her; two individuals came out, and one of them
told her that if they did not drop their case against Mr. Martinez, they
would bitterly regret it. The individuals tried to force Mr. Aguilar Soto’s
wife into their vehicle, but thanks to the intervention of another driver and Mr. Aguilar
Soto’s father, she was able to escape.
[23]
Shortly afterwards, the
applicants hid in a motel just long enough to get their passports and left
Mexico for Canada as soon as possible; in Canada they claimed refugee
protection.
[24]
The applicants claimed
refugee status on May 13, 2007, upon arrival at Dorval airport in Canada.
IV. Issue
[25]
Did the Board err in
its treatment of the evidence concerning state protection in Mexico?
V. Standard of review
[26]
In accordance with case
law, the issue of state protection is reviewed on the standard of
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190; Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, 362 N.R. 1, at para. 38;
Huerta v. Canada (Minister of Citizenship and Immigration), 2008 FC 586, 167 A.C.W.S. (3d) 968,
at para. 14).
VI. Analysis
[27]
The Court agrees with
the applicants’ position.
[28]
The determinative issue
is whether the state of Mexico is able to adequately protect the
applicants from their persecutor, in this case, the municipal leader of the
PRD, who is an authority figure.
[29]
In this case, the
applicant filed a complaint against his attacker before the Public Prosecutor
on December 29, 2006; however, despite this, he was repeatedly attacked
afterwards (on January 25, 2007, February 15, 2007, March 30,
2007, and April 24, 2007), leading him and his family to hide in a motel
before fleeing to Canada.
[30]
The IRB’s statement
that Mexico is a democracy whose government is generally
respectful of human rights within its borders does not change the fact that each
case concerning state protection brought before the IRB must be examined
individually (Arellano v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1265, [2006] F.C.J. No. 1622, at para. 23) and
on its own merits.
[31]
When the IRB considers
the issue of state protection, it cannot require that the protection currently
available be perfectly effective.
[32]
Contrary to what the
IRB states (para. 17), the mere willingness of a state to ensure the
protection of its citizens is not sufficient in itself to establish its
ability. Protection must have a certain degree of effectiveness (Burgos, above, at para. 37).
[33]
On a number of
occasions, the Federal Court has highlighted the challenges Mexican democracy
still faces today. In Zepeda v. Canada (Minister of Citizenship and Immigration), 2008 FC 491, [2009] 1 F.C.R. 237, Madam
Justice Danièle Tremblay-Lamer wrote:
[18] . . .
Recently, Deputy Justice Orville Frenette in De Leon v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1307, at para. 28
indicated that as a developing democracy with problems including corruption and
drug trafficking involving state authorities, the presumption of state
protection applicable to Mexico
is more easily overturned.
[34]
The presumption
of state ability is therefore rebuttable, even when dealing with a
democratic state:
[41] The
Court acknowledges that Mexico
is a democratic state generally able to protect its citizens and that President
Fox is making significant efforts to eliminate corruption. The Court also
acknowledges that it is impossible to expect perfect state protection. Notwithstanding
these findings, case law recognizes that the presumption of state ability is
rebuttable, even when dealing with a democratic state. In fact, Laforest J. stated,
as mentioned earlier, that this presumption must not “render illusory Canada’s provision of a haven for
refugees”. . . . [Emphasis added.]
(Burgos, above.)
[35]
In Capitaine v. Canada (Minister of Citizenship and Immigration), 2008 FC 98, [2008] F.C.J. No. 181
(QL), Madam Justice Johanne Gauthier addressed the issue of state protection
in the context of Mexico’s democracy:
[20] Mexico
is a democracy to which a presumption of state protection applies, even if its
place on the “democracy spectrum” needs to be assessed to determine what
credible and reliable evidence will be sufficient to displace that presumption
(Hinzman, above, para. 45; Carrillo v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 439, para.19; Avila,
above, para. 30; De Leon v. Canada, [2007] F.C.J. No. 1684,
para. 28).
[21] In
developed democracies such as the U.S. and Israel, it is clear from Hinzman (at paras. 46 and 57) that to
rebut the presumption of state protection, this evidence must include
proof that an applicant has exhausted all recourses available to her or him. It
is also clear that, except in exceptional circumstances, it would be
unreasonable in such countries not to seek state protection before seeking it
in Canada.
[22] The
Court does not understand Hinzman to say that this conclusion applies to
all countries wherever they stand on the “democracy spectrum” and to relieve
the decision-maker of his or her obligation to assess the evidence offered to
establish that, in Mexico for example, the state is unable (although
willing) to protect its citizens, or that it was reasonable for the claimant to
refuse to seek out this protection. . . . [Emphasis added.]
[36]
In Zepeda,
above, Justice Tremblay-Lamer stated:
[20] I find
Madam Justice Gauthier’s approach to the presumption of state protection in Mexico to be persuasive. While Mexico is a democracy and generally willing
to protect its citizens, its governance and corruption problems are well
documented. Accordingly, decision-makers must engage in a full assessment of
the evidence placed before them suggesting that Mexico, while willing to protect, may be unable to do so. This
assessment should include the context of the country of origin in general, all
the steps that the applicants did in fact take, and their interaction with the
authorities (Hernandez v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1211, at para. 21; G.D.C.P. v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 989, at
para. 18). [Emphasis added.]
[37]
In this case, an
influential member of a political party was involved in the attacks and threats
against the applicant and used his official position to make the threats and
perpetrate the attacks. As stated by Justice Tremblay-Lamer,
[15] . . . The very fact that the
agents of the state are the alleged perpetrators of persecution undercuts the
apparent democratic nature of the state’s institutions, and correspondingly,
the burden of proof. . . .
(Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, 137 A.C.W.S. (3d)
392; also Molnar, above).
[38]
In this case, the
applicant hired a lawyer and brought his complaint to the Leon office of the Public
Prosecutor on December 29, 2006, without avail, since he was attacked a
number of times after filing the complaints, and, on one of these occasions,
someone even threatened to kill him with a firearm (March 30, 2007, attack).
[39]
Then, on April 24, 2007, his spouse was violently attacked in the street by
some individuals. Given these circumstances, the applicant discharged his
burden of proof in presenting clear and convincing evidence of the inability of
the state of Mexico to protect him. The IRB therefore erred
unreasonably in deciding otherwise.
[40]
By determining that
there was adequate protection in Mexico and that the
applicant should have filed a complaint after the April 24, 2007,
incident, the IRB made an unreasonable decision in that it failed to take into
consideration that the applicant’s situation worsened after he filed his
complaint on December 29,
2006, which finally made him
leave his country.
[41]
As Justice
Tremblay-Lamer points out in Zepeda, above, refugee claimants are not
required to put their lives at risk in order to show that they exhausted all recourses
available from the authorities in their country of origin. This principle flows
from the well-known decision of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[42]
The IRB stated that the
applicant did not exhaust all possible recourses and notes that the applicant
should have contacted other organizations for help if he believed the police to
be corrupt and should have filed a complaint with those other authorities.
[43]
As stated by Justice
Tremblay-Lamer in Zepeda, above, which also involved the issue of the
protection offered by Mexican police and where the applicant had also been
criticized for not having approached public protection agencies other than the
police:
[24] In the
present case, the Board proposed a number of alternate institutions in response
to the applicants’ claim that they were dissatisfied with police efforts and
concerned with police corruption, including national or state human rights
commissions, the Secretariat of Public Administration, the Program Against
Impunity, the General Comptroller’s Assistance Directorate or through a
complaints procedure at the Office of the Attorney General of the Republic
(PGR).
[25] I am
of the view that these alternate institutions do not constitute avenues of
protection per se; unless there is evidence to the contrary, the police
force is the only institution mandated with the protection of a nation’s
citizens and in possession of enforcement powers commensurate with this
mandate. For example, the documentary evidence explicitly states that the
National Human Rights Commission has no legal power of enforcement (“Mexico:
Situation of Witness to Crime and Corruption, Women Victims of Violence and
Victims of Discrimination Based on Sexual Orientation” . . .. [Emphasis
added.]
[44]
Mr. Justice Luc
Martineau came to the same conclusion in Vigueras Avila v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, 295 F.T.R. 35:
[33] . . .
Therefore, the Board could not simply state that if the claimant’s appeal to
the police were made in vain, he could have appealed to the CNDH and the CEDH,
two organizations concerned with human rights. It is not the role of those
organizations to protect the victims of criminal offences; that is the duty of
the police: see Balogh v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 809, at paragraph 44, [2002] F.C.J. No. 1080
(F.C.T.D.) (QL); N.K. v. Canada (Solicitor General) (1995),
107 F.T.R. 25, at paragraphs 44-45 (F.C.T.D.). [Emphasis added.]
[45]
These documents reveal
that corruption is widespread in Mexico.
[46]
The IRB erred when it argued
that “[s]tating that the police are corrupt or ineffective, and that they are
scared are not good excuses” (para. 16).
[47]
It should also be noted
that the facts alleged in support of the applicant’s refugee claim were not
challenged by the IRB.
[48]
Further, the agent of
persecution in this case was an authority figure who had the power to make
threats and who had control over his close and professional entourage through
his influence. He thus had considerable power.
[49]
The IRB therefore had
sufficient evidence to rebut the state protection presumption and therefore
committed an unreasonable error in ignoring the abovementioned documents in its
analysis of state protection and the applicant’s situation in that regard.
[50]
It should be recalled
that counsel for Mr. Aguilar Soto made a request to have the hearing (set
for October 20, 2009) postponed, since, on October 8, 2009, he did
not have the documents necessary for making a full answer and defence on behalf
of his client (see Exhibit B). However, the postponement request was
denied.
[51]
As pointed out by
Justice Sean Harrington in Anand v. Canada (Minister of Citizenship and
Immigration), 2004 FC 302, 248 F.T.R. 189, the right to counsel
is not confined to counsel being physically present on the day of the hearing
but includes counsel having the time required to prepare for the hearing.
[52]
The Federal Court
further ruled as follows in Austria v. Canada (Minister of Citizenship and Immigration), 2006 FC 423, 147 A.C.W.S. (3d)
1048:
[6] . . .
What is absolute, however, is the right to a fair hearing. To ensure that a
hearing proceeds fairly, the applicant must be able to “participate
meaningfully”: . . . [Emphasis added.]
VII. Conclusion
[53]
By determining that
there was adequate protection in Mexico and that the
applicants should have made a complaint to other agencies, the IRB rendered an
unreasonable decision in that refugee claimants are not required to put their
lives at risk in order to show that they exhausted all recourses available from
the authorities in their country of origin.
[54]
The IRB failed to
consider that the applicants’ situation worsened after they complained to the
authorities. In doing so, it failed to consider the applicants’ personal
situation in the context of the factual matrix in which the applicants found
themselves.
[55]
Moreover, the
unreasonableness of the IRB’s decision arises from the fact that the IRB did
not make a balanced review of the documentary evidence concerning the extent of
corruption in Mexico. The IRB’s decision in this specific
case is unreasonable.
[56]
For the reasons cited
above, the application for judicial review is allowed.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be
granted. The panel’s decision that the applicants are neither Convention
refugees nor persons to protect is quashed and referred back for
redetermination by a different panel. There is no question to certify.
“Michel M.J. Shore”
Certified true
translation
Johanna Kratz
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