Date: 20101117
Docket: IMM-997-10
Citation: 2010 FC 1115
Ottawa, Ontario, this 17th
day of November 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
ROLANDO ANGEL SILVA FUENTES
ORLANDO SILVA FUENTES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”), pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, (the “Act”) by Rolando Angel Silva Fuentes and Orlando Silva
Fuentes (the “applicants”). The Board determined that the applicants were neither
Convention refugees nor persons in need of protection under sections 96 and 97
of the Act.
* * * * * * *
*
[2]
The
applicants are Mexican citizens, from a border town in the north of Mexico. Both were police
officers prior to their departure from Mexico.
[3]
The
principal applicant, Rolando, became a traffic police officer in 2001. In the
summer of that year, as part of a drug investigation, he prevented a vehicle
from entering the investigation area. The vehicle was driven by members of Los
Zetas, a well-known criminal organization. This action angered a gang member
known as Balderas, who was present. Two months later, a car owned by Los Zetas
was being held and searched, and Balderas telephoned the station demanding the
release of the car. When his demand was refused, he came to the station and,
upon recognizing the principal applicant, threatened to kill him.
[4]
Balderas
went to the south of Mexico for several years, and
in the meantime the principal applicant became a member of the tourist police.
The principal applicant was approached several times over the years to join the
cartel, but refused each time. In mid-2006, the applicant heard from a friend
that Balderas had returned to the north, and had risen in the ranks of Los
Zetas. The friend informed the applicant that Balderas wanted to kill him.
[5]
In
October 2006, the other applicant, Orlando, was abducted by cartel members,
questioned about the principal applicant’s involvement with military
intelligence and US authorities, and assaulted and threatened. Following his
release, both applicants went into hiding for several months. The principal
applicant’s common-law wife and children went to Texas, but the principal
applicant alleges that he did not follow them because of his knowledge that
cartel members operate in Texas
as well. The applicants came to Canada on June 1, 2007, and claimed refugee status on
June 15, 2007.
[6]
The
refugee hearing was held on December 11, 2009. The principal applicant
testified, and the other applicant relied on the principal applicant’s
testimony. At the conclusion of the hearing, the Tribunal Officer recommended
that the applicants’ claim be allowed. The Board’s negative decision was
rendered January 12, 2010, and received by the applicants on February 1, 2010.
* * * * * * * *
[7]
The
Board found that the determinative issues in this case were the existence of an
internal flight alternative in Mexico City, and in the alternative, the existence of adequate state
protection in Mexico.
A. Internal
flight alternative
[8]
The
applicants submit that the Board ignored evidence that they would be pursued to
Mexico City by Balderas. The
applicants note that the principal applicant’s Personal Information Form states
that prior to 2006, Balderas did not have sufficient authority within Los Zetas
to order the death of the applicant, but that by 2006, upon his return to the
north, he had risen in the organization’s ranks, and did have this authority.
The applicants argue therefore that the Board’s statement that Balderas was
unlikely to pursue them because he had not done so in the intervening years was
made without reference to this testimony. The applicants also argue that the
Board reached its decision without reference to the extensive power of Los
Zetas, which could be used to pursue the applicants in Mexico City. The applicants cite Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35
(T.D.), at paragraph 17, for the proposition that the Board errs where it
ignores relevant evidence contradicting its conclusion and fails to explain why
this evidence was not accepted. Here, the Board made no reference to this
portion of the evidence at all. The applicants note that they were clearly
being pursued in 2006, following Balderas’ return to the north, as it was at
this point that the principal applicant learned of the threat against him, and
that the secondary applicant was interrogated and assaulted. The principal
applicant also submits that his personal history of refusing to join Los Zetas
is relevant, and was ignored by the Board.
[9]
The
respondent maintains that the Board’s conclusion on an internal flight
alternative in Mexico
City was
within the range of possible acceptable outcomes mandated by Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.
The respondent argues that the applicants must provide “actual and concrete
evidence” of the existence of dangerous conditions in Mexico City, as per Ranganathan
v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164
(C.A.), at paragraph 15. The respondent also submits that the Board is
presumed to have taken into account all of the evidence, whether or not it says
it has done so, as per Florea v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 598 (C.A.), paragraph 1, and that the
reasons given here demonstrate that the Board did consider the totality of the
evidence.
[10]
The
applicants accept the general presumption articulated in Florea, supra,
but counter that this presumption does not cure the failure to refer to
evidence that was highly relevant and directly contradicted the Board’s
conclusions, namely the testimony and documentation on the power of Los Zetas.
[11]
The
applicants argue that the Board’s decision on the existence of an internal
flight alternative was also unreasonable given the documentary and testimonial
evidence of corruption and infiltration of the Mexican state authorities by the
drug cartels. The applicants cite several documents within the documentary
package that describe the levels of corruption and cartel infiltration within
federal, state and local law enforcement. The applicants note that the Board
did not refer to any of this evidence, which contradicts its conclusion that
the applicants would be safe in Mexico City. They submit that the Board again failed
to assess the contradictory evidence and justify its exclusion, and they point
not only to the documentary evidence but to the principal applicant’s testimony
that the applicants could be tracked down via the social security number
database. The Board discussed the voter registration system, but not the social
security database, and the applicants submit that the fact that the system is
not meant to be accessible to outsiders, as the Board stated in its reasons, is
a meaningless conclusion in the face of evidence of extensive corruption.
[12]
In
my opinion, the Board’s finding of an internal flight alternative was
unreasonable in light of its failure to address the evidence concerning the
growing reach of Balderas and of Los Zetas. I agree with the applicants that
the Board’s reasoning that Balderas would not pursue them to Mexico City
because he had not pursued them between 2001 and 2006 was unreasonable given
the evidence presented, and the fact that he clearly had pursued them
subsequent to his return in 2006. In my opinion, the applicants’ personal history
of standing up to the cartel and their testimony (the credibility of which was
not put into question) regarding the reach of Balderas and Los Zetas
constituted “actual and concrete evidence” that should have been dealt with by
the Board in its reasons. As the Board did not do so, I find its decision
unreasonable.
[13]
The
respondent also submits that the Board’s decision was reasonable in light of
the fact that there was no evidence that Balderas had attempted to use the
voter registry to track the applicants, nor that he had attempted to track the
principal applicant’s family in Texas. I agree with the applicants that this
submission cannot be accepted, as the Board member made no such finding in his
decision. According to Xiao v. Canada (Minister of Citizenship and Immigration), [2009] 4 F.C.R. 510,
at paragraph 35, “it is trite law that counsel for the respondent cannot
supplement the reasons given by the decision maker”.
B. State
protection
[14]
The
applicants also argue that the Board’s conclusion on state protection was
unreasonable. The applicants submit that again the Board failed to refer to
contradictory evidence and to address the rejection of such evidence. The
applicants cite Bautista v. Minister of Citizenship and Immigration,
2010 FC 126, where Justice Michel Beaudry held:
[10] I
believe that the Board erred on two grounds in coming to its finding. First of
all, it weighed the evidence of criticisms of the effectiveness of the
legislation against evidence on the efforts made to address the problems of
domestic violence. This is not enough to ground a finding of state protection;
regard must be given to what is actually happening and not what the state is
endeavoring to put in place . . .
[11] Secondly,
although the Board does acknowledge the contradictory evidence, it does not
truly address the reasons why it considers it to be irrelevant . . .
[15]
The
applicants submit that the Board did the same thing in the present case. They
point to numerous excerpts from the documentary evidence before the Board that
make mention of widespread corruption and state that despite government efforts
in the war against drug cartels, violence is increasing and security is
deteriorating.
[16]
Furthermore,
the applicants contend that the Board’s conclusion that Mexico is a democracy,
and therefore that the claimant’s onus to disprove the presumption of state
protection is higher, was unreasonable in light of jurisprudence of this Court that
has called Mexico a “developing democracy” and stated that “the presumption can
be more easily overturned” (De Leon v. Minister of Citizenship and
Immigration, 2007 FC 1307, paragraph 28; see also Gilvaja v. Minister of
Citizenship and Immigration, 2009 FC 598, paragraph 43, and Capitaine v.
Minister of Citizenship and Immigration, 2008 FC 98, paragraphs 20 to 22).
[17]
The
applicants also cite Gilvaja, supra, at paragraph 38:
.
. . the Board had a duty to explain why it preferred the evidence of the
efforts the state is taking over the evidence that corruption and impunity
continue to be a widespread and pervasive reality in Mexico. . . .
[18]
The
respondent argues that the excerpts of the documentary evidence cited by the
applicants show that corruption exists and that state protection is not always
effective or perfect, but that these conclusions were alluded to by the Board,
and they do not necessarily contradict the Board’s ultimate conclusion that the
state would be reasonably forthcoming with serious efforts to protect the
applicants. The respondent submits that the Board weighed the evidence of
criminality and corruption against the serious efforts of the Mexican
government to combat these elements, and that it is not enough for the
applicants to “refer to documentary evidence that, admittedly, paints a mixed
picture about the state response”, as per my colleague Justice Elizabeth
Heneghan in Palomares et al. v. The Minister of Citizenship and Immigration
(June 7, 2006), IMM-5447-05, at paragraph 12.
[19]
The
applicants argue that the Board’s weighing of the documentary evidence was nevertheless
unreasonable, as it relied exclusively on reports published in 2004 in order to
make its finding regarding the state’s “serious efforts”, without adequate
reference to more recent documents containing evidence of further corruption
and the Mexican state’s failed efforts to curb it. The applicants cite in
particular a 2008 U.S. Department of State report stating:
Corruption
continued to be a problem, as many police, particularly at the state and local
level, were involved in kidnapping, extortion, or providing protection for, or
acting directly on behalf of, organized crime and drug trafficking. Impunity
was pervasive and contributed to the continued reluctance of many victims to
file complaints.
[20]
The
applicants also note that the Board listed several non-police organizations
that it suggested could provide redress to the applicants. The applicants argue
that the Board’s reliance on these agencies was not supported by evidence
demonstrating these agencies’ effectiveness, contrary to Avila v. Minister
of Citizenship and Immigration, 2006 FC 359, paragraph 33, and Mendoza
v. Minister of Citizenship and Immigration, 2010 FC 119, paragraph 33.
Furthermore, as the applicants note, the very institutions listed by the Board
in its reasons were all rejected as constituting adequate state protection in Zepeda
v. Canada (Minister of Citizenship and Immigration), [2009] 1 F.C.R. 237,
where Justice Danièle Tremblay-Lamer stated:
[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 . . .
In light of this case, the existence of these
agencies does not provide an alternative basis on which the Board could have
founded its conclusion regarding state protection.
[21]
On
balance, in my opinion the Board’s decision regarding the existence of state
protection was unreasonable in light of the fact that it cited only evidence
from 2004. While it is true that the Board stated that it had canvassed all of
the evidence, and that it acknowledged that corruption continued to be a
problem, in my opinion the Board set the onus on the applicants to disprove the
presumption of state protection too high, and furthermore I find that the
evidence cited by the applicants from the more recent reports contradicts the
Board’s findings to such a point that it should have been addressed. I find the
above-cited excerpt from Gilvaja to be on point in this case.
* * * * * * * *
[22]
For
the above-mentioned reasons, the application for judicial review is allowed and
the matter is referred back for redetermination by a newly constituted Board.
No question is certified.
JUDGMENT
The application for judicial
review is allowed. The decision of the Refugee Protection Division of the Immigration
and Refugee Board, dated January 12, 2010, is set aside and the matter is
referred back for redetermination by a newly constituted Board.
“Yvon
Pinard”
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