Date:
20121224
Docket:
IMM-4004-12
Citation:
2012 FC 1543
Ottawa, Ontario,
December 24, 2012
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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HECTOR VERGARA PINEDA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board [the Board] dated April 3, 2012 wherein the Board determined that the
applicant is not a Convention refugee or person in need of protection.
BACKGROUND FACTS
[2]
The
applicant is a 41 year-old citizen of Mexico. He arrived in Canada on September 27, 2008 and claimed refugee protection that same day. He was a member
of the municipal police in Coayucan de Catalan, in the state of Guerrero, since
January 2005. He alleges a fear of persecution from members of the federal
police in Guerrero who are involved in organized crime and who work for the
governor of Guerrero and the mayor of Acapulco. The applicant claims that both
he and his partner were pressured to participate in illegal activities. He
alleges that in June 2008 he and his partner confronted some of their superiors
about what they knew and that subsequently they began to get harassed at work.
[3]
The
applicant claims that on August 8, 2008 he and his partner were threatened and
beaten by some men, including a couple of officers who threatened them and told
them that if they did not become part of their team, they would be considered
enemies and have to face the consequences. The applicant alleges he and his
partner required medical treatment for the beating and sent their resignations
to the police force while at a medical clinic.
[4]
On
August 12, 2008 the applicant and his partner allegedly decided to report what
they had experienced to the state-level Public Ministry. The applicant claims
that when the Public Ministry official showed them their declarations, they
were missing names and facts they had reported. The official and a higher
ranking officer allegedly told the applicant and his partner that they were
doing them a favour by writing that and that they should leave as soon as
possible or some very important people would make them disappear.
[5]
The
applicant and his partner decided to go to Acapulco for safety and file a
report with an agent his partner knew from the Federal Agency of Investigations
[AFI]. A few days later, they allegedly went to hide in Toluca and then in
Cuahutla, and then decided to come to Canada.
[6]
The
applicant arrived in Canada on September 27, 2008 and claimed refugee
protection that same day. He alleges that his partner Jamie was returned to Mexico by the Canadian immigration authorities and he has not heard from him since. The
applicant testified that a friend in the police force in Mexico told him Jamie was arrested when he arrived in Mexico.
THE DECISION
UNDER REVIEW
[7]
The
Board proceeded to find that although the harm the applicant feared did not
fall within one of the five grounds enumerated in section 96 of the Act, the
applicant did fall within the definition of a person in need of protection
under subparagraph 97(1)(b)(ii) of the Act. The Board held that the applicant
faced a personalized risk because he was a police officer who refused to
participate in illegal activities, which is not a risk faced generally by other
individuals in Mexico.
[8]
The
determinative issue for the Board was the issue of state protection. The Board
noted there are many problems faced by citizens and public servants (including
police officers) in Mexico, but preferred to rely on the Board’s country
condition documents which conclude that Mexico offers adequate state protection
for police officers.
[9]
The
Board also found that the applicant did not provide clear and convincing
evidence that state protection would not be forthcoming in Mexico. The Board held that the expectation upon the applicant is that he could have taken
the matter to higher levels of authorities in Mexico if he needed to and that
he could have sought protection from sources other than the police, such as
state-run agencies. The Board found that the effectiveness of the protection
should not be set too high, and that the country condition documents reveal
that Mexico has taken serious and genuine steps to address its problems and
increase protection for its citizens, particularly for police officers.
[10]
The
Board considered the applicant’s testimony that the agents of persecution would
be able to find him anywhere in Mexico, but relied on the documentary evidence
in finding that public access to national registries in Mexico is prohibited by
law, and that even police officers can only gain access to the database of the
Federal Electoral Institute with a court order and the written permission of
the public prosecutor’s office.
[11]
The
Board concluded the applicant had not rebutted the presumption that Mexico is capable of providing state protection. Therefore, the Board rejected the
applicant’s claim for refugee protection.
[12]
The
only issue in the present application for judicial review is whether the state
protection determination is reasonable.
ANALYSIS
[13]
The
applicant claims the Board was overly selective in the evidence it chose to
prefer to support its finding on state protection. The applicant submits that
the more important the evidence that is not mentioned specifically and analyzed
in the reasons, the more willing a court may be to infer an erroneous finding
of fact made without regard to the evidence (Bains v Canada (Minister of
Employment and Immigration), [1993] FCJ No 497).
[14]
I
agree with the applicant that the Board’s state protection determination is not
reasonable.
[15]
First,
the Board erred in law with respect to the nature of state protection to be
considered. The Board stated that “as long as the government is taking serious
steps to provide or increase protection for individuals, then the individual
must seek state protection”. However, the Board failed to consider the adequacy
of that protection.
[16]
When
examining whether a state is making serious efforts to protect its citizens, it
is at the operational level that protection must be evaluated (see Garcia v
Canada (Minister of Citizenship and Immigration), 2007 FC 79 at para 15; Jaroslav
v Canada (Minister of Citizenship and Immigration), 2011 FC 634 at para 75;
EYMV v Canada (Minister of Citizenship and Immigration), 2011 FC 1364 at
para 16 [EYMV]; AAB v Canada (Minister of Citizenship and Immigration),
2012 FC 1181 at paras 26-27). Although state protection must not be perfect, it
must be adequate (EYMV at para 13). The evidentiary burden is on the
claimant to adduce clear and convincing evidence which satisfies the trier of
fact on a balance of probabilities that the state protection is inadequate (Carillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para
38).
[17]
In
the present case, the applicant declared that both he and his partner attempted
to seek protection from the state-level police of the Public Ministry but that
the police told him and his partner to leave as soon as possible or some very
important people would make them disappear. The applicant stated that his
partner also filed a report with the AFI. In the decision, the Board notes that
the applicant’s copy of the police report to the Public Ministry is missing
information and that the applicant had not provided a copy of the AFI report,
but the Board did not make any statement doubting the credibility of the
applicant’s efforts to seek state protection while in Mexico. In the Court’s view, it was therefore not reasonable for the Board to find that the
respondent had not provided “clear and convincing” evidence that state
protection would not be forthcoming.
[18]
Moreover,
given the applicant’s efforts to obtain protection from the state-level police
and their advice that the applicant and his partner leave as soon as possible,
it was entirely unreasonable for the Board to find that the applicant could
have gone to higher levels of authorities in Mexico to seek protection, such as
state-run agencies. The Court’s jurisprudence on this issue is mixed, but as I
held in Zepeda v Canada (Minister of Citizenship and Immigration), 2008
FC 491 at paragraph 25 on the subject of state-run or state-funded
institutions:
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").
[19]
The
Board’s remaining justification for its conclusion on state protection was its
interpretation of the documentary evidence, but I am not convinced that this
evidence alone outweighs the applicant’s assertion that he was told to leave as
soon as possible when he attempted to seek protection from the state-level
police. The Board devoted six pages of the decision to extensive excerpts from
six documents in the Board’s national documentation package on Mexico. The documents refer to avenues for individuals wishing to report police corruption
and also to the traceability of individuals in Mexico, but nothing in the
documents cited by the Board relates directly to whether there is effective
state protection in Mexico for a person in the applicant’s situation.
[20]
Moreover,
the Board did not address documentary evidence that was before it in the
national documentation package related to the adequacy of state protection for
the particular fear of the applicant which contradicted the Board’s finding on
the issue.
[21]
Human Rights
Watch states in its 2011 country report on Mexico that “[t]he criminal justice
system routinely fails to provide justice to victims of violent crime and human
rights violations. The causes of this failure are varied and include
corruption, inadequate training and resources, and abusive policing practices
without accountability”.
[22]
The 2011
Amnesty International Report on Mexico states that “[r]eports of arbitrary
detention, torture, excessive use of force and enforced disappearance by
municipal, state and federal police forces continued” and that “[a]ttempts to
reform the police were undermined by the failure to establish credible
oversight controls or conduct effective criminal investigations into human
rights abuses”.
[23]
The 2010 U.S.
State Department Report on Mexico, which was specifically cited by the Board,
indicates that “President Calderon remarked in speeches in March and October
that corruption was a serious problem in the police forces and a primary reason
for the use of the military in the domestic counternarcotics fight. CNDH [the
National Human Rights Commission] reported that police, especially at the state
and local level, were involved in kidnapping, extortion, and in providing
protection for, or acting directly on behalf of, organized crime and drug
traffickers”.
[24]
The Board in
the present case cited evidence from the year 2006 on the existence of witness
protection programs in Mexico, but it ignored the document entitled “Mexico:
Recourse available to victims of the demand for bribes and other government
corruption federally, in the Federal District, and in the states of Guanajuato,
Jalisco, Mexico, Michoacan, Puebla, Queretaro, Veracruz and Yucatan;
legislation designed to address corruption; agencies to which such corruption
can be reported and protection available” (Research Directorate, Immigration
and Refugee Board of Canada). This document, dated August 11, 2011, reports the
following on the adequacy of anti-corruption legislation and state protection
in Mexico:
In
correspondence with the Research Directorate, a coordinator from the Miguel
Agustín Pro Juárez Human Rights Centre (Centro de Derechos Humanos Agustín Pro
Juárez, CentroProdh), a non-governmental organization that promotes human
rights in Mexico, stated that [translation]
the
anti-corruption legislation is not effective in the country since corruption is
common to many, if not all, levels of government and … has an enormous impact
on the lives of the population, from the collusion and tolerance of authorities
with organized crime, the daily demand for bribes by officials at every level
from across the country, influence peddling for business, and so on. (CentroProdh
29 June 2011)
…
Lilia
Mónica López Benítez, a judge of the Ninth Collegiate Penal Tribunal of the
First Circuit (Magistrada del Noveno Tribunal Colegiado en Materia Penal del
Primer Circuito), affirms in an article published in 2009 in a Federal Judicial
Power journal, that even though Article 34 of the Federal Law against Organized
Crime (Ley Federal contra la Delincuencia Organizada) opens the way for the
protection of witnesses, the wording is [translation] "very vague"
and does not regulate anything (López Benítez 2009, 59). She further states the
following [translation]:
Given
that there is not a real program for the protection of witnesses, this creates
a legal vacuum that impedes us from knowing, with certainty, who are subjects
of protection, what is the assistance provided according to each particular
case, the reach of institutional support, the rights and obligations of the
protected, the limits of protection and the budget assigned for this purpose.
(ibid., 58)
According to the researcher at Amnesty
International-Mexico, complaints can trigger threats against complainants, but
these threats are very difficult to trace back to the authorities (7 July
2011). If the complaints involve organized crime, the researcher contends that
it is difficult to find safety "anywhere across the country"
(Researcher 7 July 2011). If the complaint involves low levels of corruption,
there are still no guarantees that the complainant will be safe from reprisals
since links between corrupt officials and organized crime are difficult to
demonstrate, especially when criminal organizations have national networks
where the "subcontracting of crime, including targeted killings, etc. is
also quite common" (ibid.).
La Jornada reports
that, between 2002 and 2009, the Attorney General has quadrupled the number of
witnesses in protection, from 99 to 411 (La Jornada 7 Dec. 2009). The same
article reports that information about two witnesses has been leaked to
criminal organizations, resulting in their assassination (ibid.). The Middle Tennessee State University professor, speaking to the Research Directorate in a
follow-up telephone interview, said that in Mexico, it is difficult to
ensure the safety of a witness (6 July 2011). [Emphasis added.]
[25]
Given
this evidence, it was unreasonable for the Board to not include in its state
protection analysis an assessment of the operational adequacy of the
government’s efforts in Mexico to protect police officers who refuse to
participate in illegal activities.
[26]
On
the whole, I find that the Board’s state protection determination lacks the
justification, transparency and intelligibility required and is therefore
unreasonable.
[27]
For
these reasons, the application is allowed. The decision is set aside and the
matter is remitted to a differently constituted panel of the Board.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
The application
for judicial review is allowed. The
decision is hereby set aside and the matter is remitted to a differently
constituted panel of the Board.
“Danièle Tremblay-Lamer”
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