Docket: IMM-2713-11
Citation: 2012 FC 231
Ottawa, Ontario, February 21,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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ISMAEL COLIN GONZALEZ
JUANA SANCHEZ ROSAS
LEONARDO COLIN SANCHEZ
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Applicants
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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
I. Introduction
[1]
This
is an application by Mr. Ismael Colin Gonzalez (Mr. Gonzalez), Ms. Juana
Sanchez Rosas (Ms. Rosas) and their minor son, Leonardo Colin Sanchez (L.
Sanchez) (all together the Applicants), made pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
for judicial review of the decision of the Immigration and refugee Board (the
Board) rendered on March 30, 2011, in which the Board concluded that the
Applicants are neither Convention refugees under section 96 nor persons in need
of protection under section 97 of the IRPA.
[2]
For
the reasons that follow, this application for judicial review is dismissed.
II. Facts
[3]
The
Applicants are citizens of Mexico.
[4]
Ms.
Rosas and her husband, Mr. Gonzalez, claim they are persecuted by the police
because of their political opinions and their active participation in the Partido
Revolucionario Democratico [PRD].
[5]
Ms.
Rosas and her husband became members of the PRD in 2005-2006. The two of them
actively worked to promote their party locally and their candidate for the
presidency of Mexico, Mr. Andres
Manual Lopez Obrador.
[6]
On
February 15, 2006, Ms. Rosas and Mr. Gonzalez, along with 8 other fellow
supporters, were verbally and physically assaulted by police officers in the municipality of Ecatepec while
putting up posters for the upcoming federal election. The police officers also
confiscated their posters. Mr. Gonzalez was physically assaulted and warned by
the officers not to post anymore publicity for the PRD.
[7]
Mr.
Gonzalez tried unsuccessfully to lodge a complaint with the Public Ministry. It
was denied on grounds of insufficient evidence. The Ministry took the position
that Mr. Gonzalez provoked the situation and damaged public property.
[8]
On
April 20, 2006, Ms. Rosas allegedly received a telephone call from Commander
Urbano Lopez Hernandez, warning her to stop supporting candidate Obrador.
[9]
Both
Ms. Rosas and Mr. Gonzalez actively worked in the political campaign, even
though their life was at risk.
[10]
Although
candidate Obrador lost his election, Ms. Rosas and Mr. Gonzalez were involved
in the movement protesting the results of the election.
[11]
A
march took place on November 20, 2006, in support of the nomination of Mr.
Obrador as President of Mexico. 80 to 100 people marched from Ecatepec towards
the Federal district. The march was interrupted by police officers who
assaulted the demonstrators and dispersed them with tear gas. Mr. Gonzalez was again
forced in a police car where he was physically assaulted. 15 to 20
demonstrators were arrested. Ms. Rosas allegedly recognized Commander Hernandez
as the head of the operation.
[12]
Ms.
Rosas and Mr. Gonzalez subsequently communicated with a director at the
National Democratic convention who suggested they file their own complaint with
the police. However, Ms. Rosas did not file a complaint since she did not have
the support of the other demonstrators.
[13]
Six
months later, Ms. Rosas and Mr. Gonzalez were involved in the organization of a
national protest against the electoral results of July 2, 2006. The protest
took place in Mexico
City
on July 1st, 2007. Mr. Gonzalez was hired to do the publicity.
[14]
On
May 24, 2007, five armed men entered Mr. Gonzalez’ business in his absence. They
assaulted the workers and confiscated some material. The men told Mr. Gonzalez’
brother Commander Hernandez was sending a message. Both Mr. Gonzalez and Ms.
Rosas believe that Commander Hernandez was acting further to instructions from
the state prosecutor, Mr. Abel Villicana Estrada, who is actively involved in
the Partido Revolucionario Institucional [PRI].
[15]
The
next morning, Ms. Rosas saw a police car parked in front of her son’s school.
She quickly left the scene, believing they were looking for her. The Applicants
then decided to leave Mexico for their own safety. Ms. Rosas resigned
from her employment at Ford where she had worked as a credit analyst over 5
years. The Applicants obtained passports and moved to Ciudad Hidalgo in the state
of Michoacan where they resided with Mr. Gonzalez’ uncle. They remained in that
city for approximately 4 months.
[16]
On
August 27, 2007, Ms. Rosas saw Commander Hernandez in Ciudad Hidalgo. She became
very frightened and Applicants decided to leave Mexico. They
arrived in Toronto on September 9, 2007, and claimed refugee protection in Montreal on September
17, 2007.
[17]
The
Board denied the Applicants’ claim, finding they lacked credibility and failed
to provide clear and convincing evidence to rebut the presumption of adequate
state protection in Mexico. The Board also noted that there was a viable
internal flight alternative [IFA] in Veracruz, Acapulco and Cancun.
III. Legislation
[18]
Sections
96 and 97 of the IRPA provide as follows:
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Convention
refugee
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Définition de « réfugié »
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96. A Convention refugee
is a person who, by reason of a well-founded fear of persecution for reasons
of race, religion, nationality, membership in a particular social group or
political opinion,
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96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
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(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
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a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A
person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
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97. (1) A qualité de personne à protéger la personne
qui se trouve au Canada et serait personnellement, par son renvoi vers tout
pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans
lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
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a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
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(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
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b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
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(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
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(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
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(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
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(iii) la menace
ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
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(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
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(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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IV. Issues and standard of review
A.
Issues
[19]
The
Court must answer the following questions:
1.
Did
the Board err in determining that the Applicants were not credible?
2.
Did
the Board err in determining that the Applicants failed to rebut the
presumption that Mexico could provide adequate state protection?
3.
Did
the Board err in determining that there existed a viable IFA in Veracruz, Acapulco or Cancun?
4.
Did
the Board’s conduct raise a reasonable apprehension of bias?
B. Standard of review
[20]
The first issue is a question of fact that is reviewable on a
standard of reasonableness. Both a credibility assessment and treatment of the
evidence are within the Board’s expertise and therefore, deserving of deference
(see Aguebor v Canada (Minister
of Employment and Immigration), [1993] FCJ No 732 (FCA); and Mailvakanam
v Canada (Minister of Citizenship and Immigration), 2011 FC
1422 at para 15).
[21]
The second issue is related to the adequacy of state protection and
is a question of mixed fact and law reviewable on a standard of reasonableness
(see Lebedeva v Canada (Minister of Citizenship and
Immigration), 2011 FC 1165, [2011] FCJ No 1439 at para 32).
[22]
The
third issue related to the Board’s determination regarding the viability of a proposed
IFA is a question of mixed fact and law also determinable on a standard of
reasonableness (see M.A.C.P. v Canada (Minister
of Citizenship and Immigration), 2011 FC 81, [2011] FCJ No 92 at para
29).
[23]
As
for the fourth question, apprehension of bias raises an issue of procedural
fairness. The appropriate standard of review is correctness (see Jaroslav
v Canada (Minister of
Citizenship and Immigration), 2011 FC 634 at para 31).
V. Parties’ submissions
A. Applicants’
submissions
[24]
The Applicants’
contend that their refugee application turns on the degree of depth to which
the Board carried out its assessment on state protection, given the breadth of
materials available concerning this particular issue.
[25]
The
Applicants acknowledge that the Board correctly referred to Justice Lemieux’s
decision in Mendoza v Canada (Minister of
Citizenship and Immigration), 2010 FC 119 [Mendoza] when
assessing the issue of state protection in Mexico. Nevertheless,
they allege the Board omitted to take in consideration the context in which the
assessment of state protection should have been made. In their view, the Board
unreasonably concluded that they failed to exhaust all avenues provided by the
state apparatus.
[26]
According
to the Applicants, the Board erred in law and in fact by failing to address the
highly probative evidence found in the National Binder on Mexico as well as
the evidence they adduced in support of their claim.
[27]
They
submit that the binder contains a plethora of evidence showing the inadequacy of
state protection in Mexico. This evidence, according to Applicants
demonstrates that state protection is not a safe and reasonable solution in the
context of their application.
[28]
Furthermore,
the Applicants produced a letter from Mr. Martin Zepeda Hernandez, Federal Deputy
of the PRD (see Applicant’s record at pages 56 and 57), acknowledging their
participation in political activities. The letter states that “…the corruption
networks and the lack of guarantees for our basic rights bring as consequences
the situation that our country faces nowadays and to take decision as the one
took by my colleagues and many other Mexicans in order to protect their lives
and that of their families”.
[29]
This
letter, according to the Applicants, goes to the heart of their claim and
raises the issue of state corruption and security. The Board inadequately
assessed the evidence adduced and turned its mind from Justice Lemieux’s
decision in Mendoza where he specifies, in paragraph 33, that “10) the
quality of such evidence will be raised in proportion with the degree of
democracy of state [and that] 11) the degree of democracy may be lowered if the
state tolerates corruption in its institutions” (see also Avila v
Canada (Minister of Citizenship and Immigration), 2006 FC 359 [Avila]).
[30]
Additionally,
the Applicants claim the Board should have assessed the role played by the
Mexican security forces in reinforcing democracy. The National Binder raises
deficiencies in policing and draws a link between these deficiencies and the
quality of democracy in Mexico. The Board’s failure to consider this
evidence renders its decision unreasonable and should trigger the intervention
of this Court according to the Applicants.
[31]
The
Applicants submit the Board failed to explain why or how the Federal Electoral
Institute would offer a viable solution to the problem of intimidation and
physical abuse at the hands of the police.
[32]
It
is the Applicants’ position that the Board’s finding, with respect to the
adequacy of state protection in Mexico, is therefore unreasonable
and should be reviewed.
[33]
With
respect to their credibility, the Board wrote: “the Tribunal finds that it is
implausible that on three separate and distinct occasions, there is no
indication of complaints being lodged in circumstances where persons had been
physically abused and terrorized while legally participating in a Federal
Election Campaign” (see paragraph 15 of the Board’s decision). It is submitted
that the Board had no specialized knowledge about how complaints are or were
lodged or vetted by the PRD.
[34]
The
Applicants also contend that the Board created a double standard when it wrote
that “if in fact the claimants actually sustained such abuse and threats to
their lives, so as to be terrified as they declared, it is not credible and that
they would continue to participate openly and actively in support of the PRD
and its presidential candidate Mr. Obrador from April 15th 2006
until they allegedly fled the state of Mexico at the end of May 2007” (see para
15 of the Board’s decision). The Applicants underline that, even though they
participated actively in dangerous political activities, their actions were
consistent with their right to express their political opinions.
[35]
The
Board erred in its finding of a viable IFA. The Applicants submit that the
Board is imposing that they renounce their political beliefs which is
tantamount to asking an applicant who invokes religious beliefs to stop
worshipping. The Applicants also contend that the National Binder is quite
informative about the drug trafficking organizations in the region of Acapulco, Veracruz
and Cancun.
[36]
Finally,
the Applicants argue that the Board raised a reasonable apprehension of bias
which is yet another element to support the intervention of this Court.
B.
Respondent’s
submissions
[37]
Despite
the attacks and the threats received by the Applicants, the PRD refused to
lodge a complaint with the Public Ministry of the state of Mexico, insisting
the militants themselves should have lodged the complaint. The Board found this
complete inaction of the PRD to be implausible.
[38]
At
the hearing, Ms. Rosas acknowledged that, given the refusal of the Public
Ministry to register a complaint, she could have lodged one herself at the Federal
level, with the public prosecutor or the Attorney General of the republic. She
decided not to. The Board found it contradictory that the Applicants were
terrified to file a complaint with the Federal authorities all the while actively
pursuing their political activities.
[39]
The
Respondent denies the Board asked the Applicants to cease their political
activities. Rather, it simply noted that the Applicants’ explanation for not
having filed a complaint is inconsistent with their decision to carry on their
political activities despite the alleged threats.
[40]
The
Respondent alleges that despite physical and verbal abuses, the Applicants
failed to file complaints at the Federal level. According to Respondent, the Board
reasonably concluded that the Applicants’ behaviour was not compatible with the
presence of a subjective fear of persecution at the hands of the police.
[41]
The
Respondent submits that it was reasonable for the Board to find that state
protection would have been reasonably forthcoming if the Applicants had brought
their complaints at the Federal level, notably the public Prosecutor’s Office
and the Attorney general of the Republic of Mexico (see Cordero v
Canada (Minister of Citizenship and Immigration), 2011 FC 603 at para
18).
[42]
The
Respondent claims that Applicants failed to adduce evidence to demonstrate that
a complaint to the federal authorities would have endangered them.
[43]
The
Respondent adds that Mr. Hernandez’ letter does not provide any evidence to
establish that state protection is unavailable in Mexico. The
Applicants also refer to the National Binder which notes the problems of
corruption and inefficiency within the Mexican police. There is no doubt that
such problems exist however, as noted in the case law, this does not mean that
refugee claimants should be exempted from seeking aid from other authorities. In
the case at hand, the Respondent alleges that only one attempt was made to file
a complaint and only to a local authority. That authority refused to intervene.
This is insufficient to demonstrate that the Mexican police is unable or
unwilling to offer its protection or to trigger the substitutive international
protection referred to in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 [Ward].
[44]
As
to the existence of an IFA, the Board must be satisfied that there is no
serious possibility of persecution or risk of torture in the identified area
and that it would not be unreasonable for an applicant to seek refuge there.
There is no indication from the Applicants that they had any fear of persecution
or risk of torture in Acapulco, Veracruz or Cancun.
[45]
The
Respondent alleges that the drug trafficking problems in Mexico are not
relevant to this case and cannot counter the existence of an IFA.
[46]
The
Respondent submits that the presence of an IFA is sufficient to dismiss an
asylum claim (see Calderon v Canada (Minister of
Citizenship and Immigration), 2010 FC 263 at para 10).
[47]
As
to the apprehension of bias, the Respondent notes that the use of a given name
in reasons is not unheard of. Indeed, the Federal Court has used given names of
Applicants in at least one case (see Bajwa v Canada (Minister of
Citizenship and Immigration), 2003 FCT 474).
[48]
The
Respondent finally alleges that notwithstanding the use of given names, the
reasons do not indicate the Board member disrespected the Applicants.
VI. Analysis
1.
Did
the Board err in determining that the Applicants were not credible?
[49]
The
Board found that the Applicants did not have a well-founded fear of persecution
based on the lack of credibility of the principal aspects of their narrative.
[50]
The
Court finds the Board’s assessment on credibility to be reasonable. The Board considered
that if the Applicants were truly terrified, they would have ceased their
political activities in support of the PRD, knowing they were endangered.
[51]
The
Court also finds that it was open to the Board to note the implausibility that
the directors of the national executive of the PRD refused to lodge a complaint
with the Public Ministry of Mexico and insisted that the complaint be lodged
under Mr. Gonzalez’ name. It was also reasonable for the Board to underline the
Applicant’s failure to file a complaint with the Public Prosecutor’s office
within the office of the Attorney General. The jurisprudence of this Court is clear.
Applicants have a duty to avail themselves of all the recourses available to
them in their own country before seeking protection from another country (see Hinzman
v Canada (Minister of
Citizenship and Immigration), [2007] FCJ No 584 at para -46). The Board
reasonably rejected the Applicants’ explanations as being inconsistent with
their actions, thereby leading to the inevitable conclusion and that the
Applicants did not have a subjective fear of persecution at the hands of the
police.
2.
Did
the Board err in determining that the Applicants failed to rebut the presumption
that Mexico could provide adequate
state protection?
[52]
The
Board did not err in determining that the Applicants failed to rebut the
presumption that Mexico could provide them with adequate protection.
[53]
In
Mendoza, Justice Lemieux held, in paragraph 33, that “each case is sui generis so while state
protection may have been found to be available in Mexico, maybe even in a
particular state, this does not preclude a court from finding the same state to
offer inadequate protection on the basis of different facts” (see
also Avila cited above). The Applicant is expected to take all
reasonable steps in the circumstances to seek state protection from his
persecutors (see Ward and Avila). It is
important to note that an Applicant who fails to do so bears the onus of convincing
the Board of the inadequacy of state protection (see Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94).
[54]
Furthermore,
it is important to underline that when a Board finds that an Applicant failed
to take the necessary measures to seek state protection, this finding is fatal
to the claim if the Board concludes the protection would have been forthcoming.
The Board must assess the influence of the alleged persecutor on the capability
and willingness of the state to protect (see Ward and Avila).
[55]
In
Ward, the Supreme Court of Canada held that the testimony of similarly
situated persons, individual experiences with state protection and documentary
evidence can all be adduced to demonstrate that state protection would not have
been forthcoming.
[56]
The
quality of the evidence necessary to rebut the presumption of state protection
will rise in proportion to the degree of democracy of the state involved (see Avila
and Ward).
[57]
The
evidence must also be relevant, reliable and convincing to satisfy the trier of
fact on a balance of probabilities that state protection is inadequate (see Carillo).
[58]
The
Board acknowledged the Applicant’s attempt to file a complaint on April 16,
2006. At the hearing, Ms. Rosas admitted she could have filed a complaint at
the Federal level with the Public Prosecutor’s office within the office of the
Attorney General, but failed to do so because they were terrified. The Board
found that “this behaviour does not constitute having taken all reasonable
steps in the circumstances to seek state protection. Moreover, there is no
evidence to support the contention that the claimants would have put themselves
in danger had they attempted to demonstrate the ineffectiveness of state
protection in Mexico” (see the
Board’s decision at para 17).
[59]
While
the Court cannot ascertain how the Federal Electoral Institute would have assisted
the Applicant nor what the outcome would have been if the Applicants had filed
a complaint at the Federal level, it must nonetheless take note that the Board
correctly weighed the impact of Applicants’ failure. The Board correctly noted the
Applicants’ failure to adduce any evidence to establish that it was dangerous
to lodge a complaint with the Office of the Attorney General. This finding is reasonable
and was open for the Board to make.
[60]
The
Court notes the probative value of the National Binder. The adequacy of state
protection must nonetheless be considered in the context of the facts of each
case. While the binder contains information with respect to deficiencies in
certain Mexican institutions, the Applicant still had the burden to present
relevant evidence to convince the Board that in this particular instance these deficiencies
justified their failure to lodge complaints with the appropriate authorities.
[61]
The
Board reasonably found that the Applicants had failed to rebut the presumption that
Mexico is capable
of protecting them.
3.
Did
the Board err in determining that there existed a viable IFA in Veracruz, Acapulco or Cancun?
[62]
The
Board did not err in determining that there existed a viable IFA in Veracruz, Acapulco or Cancun.
[63]
The Board must consider the viability of an IFA using the two prong
test set out in Thirunavukkarasu v Canada (Minister of
Employment and Immigration), [1994] 1 FC 589, [1993] FCJ No 1172 (FCA)
and Rasaratnam v Canada (Minister of Employment and
Immigration), [1991] FCJ No 1256; [1992] 1 FC 706 (FCA). It
must firstly be satisfied, on a balance of probabilities, that there is no
serious possibility that the Applicant will be persecuted in the proposed IFA.
Secondly, the conditions of the proposed IFA must be such that it is not
unreasonable for the claimants to seek refuge there.
[64]
On the first part of the test, the Board was satisfied that the
Applicants would not be at risk in one of the three destinations identified. It
determined that Ms. Rosas “offered no explanation as to why their lives would
continue to be at risk once they were no longer active with the PRD in the state
of Mexico” (see the Board’s decision at para 18). This conclusion could have been
unreasonable in this instance since their political activism is allegedly at
the heart of their fear of persecution. An IFA should be realistically
attainable. However, the Board concluded that the Applicants suffered from a
lack of credibility that ultimately affected their claim since they had no
subjective fear of persecution at the hands of the police. “In the
context of a state protection analysis, it is an error of law for the Board to
conclude that state protection is available if it fails to make any findings
about the applicant's personal circumstances” (see Velasquez
v Canada (Minister of Citizenship and Immigration), 2010 FC 1201 at para 18 [Velasquez];
and Moreno v Canada (Minister of Citizenship and Immigration),
2010 FC 993). This principle
does not apply in the present case because the Board properly considered the
Applicants’ account of events and, it concluded that both Mr. Gonzalez and Ms.
Rosas were not credible since they both remained actively involved in politics and
failed to take concrete measures to seek state protection. This conclusion is
reasonable since “there may … be an overlap between the Board’s consideration
on an IFA and its analysis of state protection” (see Velasquez cited
above at para 16).
[65]
With respect to the second prong of the test, Ms. Rosas testified
at the hearing that it would have been possible for her to obtain a transfer to
another Ford Company location in Mexico but that it would take some time to be
transferred to one of the three destinations identified as possible IFAs The
Board noted that she and her family spent more than three months in the state
of Michoacán starting in June before departing to Canada. The Board determined
that a transfer could have reasonably been achieved in that timeframe. Such a
conclusion “falls within the range of possible outcomes which are defensible in
respect of the facts and the law” (see Dunsmuir v New
Brunswick, 2008 SCC 9 at para. 47).
[66]
The
IFA is a viable solution and reasonable in this instance.
4.
Did
the Board raise a reasonable apprehension of bias?
[67]
The
Board did not raise a reasonable apprehension of bias. Even though the Board’s
use of first names is discouraged and not commendable, it does not breach its
duty of procedural fairness. This argument is not substantive and must be
rejected.
VII. Conclusion
[68]
The
Board properly concluded that the Applicants are neither Convention refugees
nor persons in need of protection. This application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
This
application for judicial review is dismissed; and
2.
There
is no question of general interest to certify.
"André
F.J. Scott"
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