Date: 20120301
Docket: IMM-4533-11
Citation: 2012 FC 279
Ottawa, Ontario, March 1,
2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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HECTOR MENDEZ ESTRADA
NORMA ISABEL LUGO LOPEZ
JENNIFER MICHAELLE MENDEZ LUGO
HECTOR JAHIR MENDEZ LUGO
DIEGO FABIAN MENDEZ LUGO
KEVIN DANIEL MEDEZ LUGO
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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
[1]
This is an
application for judicial review of a decision made by the Refugee Protection
Division of the Immigration and Refugee Board (the Board), rendered orally on May
27, 2011 and written reasons completed on June 15, 2011, wherein it rejected
Mr. Hector Mendez Estrada and his family’s application for refugee protection
in Canada. The Board determined that the applicants were neither Convention
refugees within the meaning of section 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) nor people in need of protection
within the meaning of section 97 of the Act.
[2]
For the
following reasons, this application is dismissed.
I. Background
[3]
The applicants
are citizens of Mexico. On September 10, 2008, while
driving his taxi cab, Mr. Mendez Estrada heard gun shots. Five armed men being
pursued by the police hijacked his taxi and forced him at gunpoint to help them
flee. The assailants took Mr. Mendez Estrada’s wallet and threatened to kill
him and his family if he denunciated them. They forced him out of the taxi and
fled in it. While Mr. Mendez Estrada did not report the incident to the police,
he reported it to his taxi company, which in turn made a denunciation to the
police.
[4]
The
suspects were subsequently apprehended by the police. On September 12, 2008, Mr. Mendez
Estrada was summoned to participate in suspect identification proceedings and he
identified one of his assailants in a line-up. This man was identified as a
member of the organized crime group called “La Familia Michoacana”. He
confessed to the crime shortly thereafter. That same night, two armed men tried
to break into the applicants’ house while Mr. Mendez Estrada’s wife, Ms. Lugo
Lopez, and their children were home. Ms. Lugo Lopez called the police. Police
officers arrived quickly and the men fled.
[5]
Mr. Mendez
Estrada left for Canada less than two weeks later
while the rest of the family stayed with his in-laws. Ms. Lugo Lopez and the children
eventually returned to the family home. However, in October 2008, there was
another break-in attempt at their house. The police were called again and arrived
quickly at the scene which prompted the attackers to flee. Police said that
they could put the house under surveillance for three days but the family chose
to return and stay with Ms. Lugo Lopez’ family. During this time, she received
threatening phone calls on her cellular phone and on the landline at their home.
[6]
Ms. Lugo
Lopez and the children fled to Canada in November 2008, where they
joined Mr. Mendez Estrada.
[7]
Mr. Mendez
Estrada’s assailants continued to pursue him. In September 2010, Ms. Lugo
Lopez’s brother began to live in the applicants’ house. On one occasion, culprits
broke into the house and assaulted him before realizing that they had mistaken
him for Mr. Mendez Estrada. Ms. Lugo Lopez’s father was also approached
about Mr. Mendez Estrada’s whereabouts and was threatened.
[8]
The Board
believed the applicants’ allegations to be credible. It determined that the
applicants were not Convention refugees since their allegations did not have a
nexus to a Convention ground and that being a victim of criminality, alone, could
not form the basis of a particular social group. The Board further assessed the
applicants’ claim under section 97 of the Act and concluded that they were not
persons in need of protection. The determinative issue was the availability of
state protection as the Board concluded that state protection was available to
the applicants.
II. Issue and standard of review
[9]
The
single issue in this case relates to the reasonableness of the Board’s
conclusion regarding state protection. Both parties agree that the issue of state
protection involves questions of fact and law which are reviewable according to
the standard of reasonableness (Hinzman v Canada (Minister of Citizenship and
Immigration),
2007 FCA 171 at para 38, 282 DLR (4th) 413 [Hinzman]).
III. Analysis
[10]
The
applicants argue that the Board made several reviewable errors in its
assessment of the evidence.
[11]
First, they
argue that the Board erred in its assessment of the documentary evidence on
country conditions. More specifically, they contend that the presumption of
availability of state protection should be more easily overturned in a
developing democracy such as Mexico than in a true democracy such
as the United States. They also argue that the
Board based its conclusion that state protection was available on evidence
establishing Mexico’s willingness to protect its citizens
without addressing the effectiveness of the measures put into place. Further,
the applicants contend that the Board ignored compelling evidence that
contradicted its findings without explaining why it discarded that contradictory
evidence. In addition, they argue that the Board erred by placing greater
probative value on the country conditions evidence than on the evidence that the
applicants presented.
[12]
Next, the
applicants submit that the Board ignored compelling elements regarding their
own personal circumstances. More specifically, the applicants contend that the
Board ignored that Mr. Mendez Estrada’s assailant stated that he would
kill the applicants in retaliation for the denunciation, the applicants’
situation worsened after they sought protection from the police, the police said
they could only offer them protection for a limited period of three days, and Ms.
Lugo Lopez’s brother and father were threatened after the applicants’ departure
from Mexico. The applicants argue that the Board erred by ignoring this
evidence and by failing to explain why it was discounted. Further, the
applicants find fault with the Board for relying on the fact that six of the
suspects were apprehended while the evidence is silent as to whether all of the
suspects were imprisoned for their actions.
[13]
With
respect and despite the able submissions of counsel for the applicants, I am of
the view that the Board’s findings and conclusions are reasonable and ought not
to be disturbed.
[14]
First, the
Board applied the appropriate legal principles in its assessment of the
availability of state protection.
[15]
The
applicants bear the burden of rebutting the presumption of state protection by
showing, through relevant, reliable and convincing evidence, that state
protection is inadequate (Carillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at para 30, [2008] 4 FCR 636). Unless they can
establish that protection might not have been forthcoming, claimants are
generally required to show that they made reasonable efforts in their home
state to exhaust local avenues of protection before requesting international
protection (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at para
49, 103 DLR (4th) 1).
[16]
In Hinzman,
above, at para 45, the Federal Court of Appeal reiterated the principle it
enunciated in Kadenko v Canada (Minister of Citizenship and Immigration) (1996), 143 DLR (4th) 532, 68
ACWS (3d) 334 (FCA), that “the more democratic a country, the more the claimant
must have done to seek out the protection of his or her home state.”
[17]
This Court
has extensively discussed the issue of state protection in Mexico (Mendoza v Canada (Minister of Citizenship and
Immigration),
2010 FC 119 at para 32, 88 Imm LR (3d) 81). In some cases, it found that state
protection was adequate while in others it held that it was inadequate. In
analyzing the case law, it is important to keep in mind that the determination
of the adequacy of state protection involves a contextual and fact-specific analysis.
The Board must assess the evidence on country conditions and the extent to
which claimants must seek internal state protection within the context of
circumstances of each case (Avila v Canada (Minister of Citizenship and
Immigration), 2006 FC 359 at para 27, 295 FTR 35; Hurtado-Martinez v
Canada (Minister of Citizenship and Immigration), 2008 FC 630 at para 12,
167 ACWS (3d) 966; Flores v Canada (Minister of Citizenship and Immigration),
2010 FC 503 at para 38 (available on CanLII); C.J.H. v Canada (Minister of
Citizenship and Immigration), 2010 FC 499 at para 10 (available on CanLII);
Torres v Canada (Minister of Citizenship and Immigration), 2010 FC 234
at para 37 [2011] FCR 480).
[18]
In this
case, the Board thoroughly considered the country conditions evidence. While it
acknowledged that the Mexican state faces “serious challenges in terms of
severe crime as well as police corruption and impunity”, it found that the
evidence showed that the state protection in Mexico in the applicants’ circumstances was
adequate. I disagree with the applicants’ statement that the Board did not
address the adequacy of the measures put in place by the Mexican government. Evidence
of remedies is not necessarily evidence of practical effect (Avila, above, at para 34). However,
in this case, the Board did consider the practical effect of the measures taken
by the Mexican government to address corruption. For example, the Board mentioned
that:
a. Public officials are being
indicted for corruption;
b. Police officers in all 2600
police departments are being vetted under a four year initiative;
c. The military is being brought
in where serious concerns about police corruption and organized crime exist;
d. Thousands of police officers have
thus far been dismissed for misconduct or for failing the vetting process;
e. Investigation, arrests and
convictions of criminals do occur;
f.
Police
reform is at the top of the Mexican national agenda and some important advances
have been made;
g. Unprecedented financial
resources have been invested in public security and have allowed for
improvements in equipment and technology;
h. The Federal Government of
Mexico is said to have far greater law enforcement effectiveness than it had 15
years ago;
i.
Mexican Federal
Police officers alone have more than tripled in numbers in the past decade.
[19]
I agree
with the applicants that the Board did not mention every aspect of the country
conditions, but in reading the Board’s reasons and the record, I find that the
Board weighed the evidence available to it in a reasonable manner, including
those aspects that were contradictory to its findings. The Board is not required
to refer to every piece of evidence for the decision to stand (Cepeda-Guttierez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35 at
para 17, 83 ACWS (3d) 264 (FCTD)). In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board),
2011 SCC 62 at para 16, 424 NR 220 [Newfoundland and Labrador Nurses’ Union],
the Supreme Court stated that the decision maker’s reasons must be read
together with the outcome and that the decision cannot be overturned simply
because the reasons do not mention every argument raised by a party:
14 .
. . It is a more organic exercise -- the
reasons must be read together with the outcome and serve the purpose of showing
whether the result falls within a range of possible outcomes. This, it seems to
me, is what the Court was saying in Dunsmuir when it told reviewing
courts to look at "the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes"
(para. 47).
. . .
16 Reasons may
not include all the arguments, statutory provisions, jurisprudence or other
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion (Service
Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses
Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
[20]
It also appears
from the Board’s decision that it thoroughly considered the applicants’
circumstances, including the fact that one of the assailants made a statement to
the police (see para 12 of the Board’s decision) and the fact that Mr. Mendez
Estrada’s assailants continued to pursue him after the applicants left Mexico.
However, the Board found that the state had taken active steps to protect the applicants.
The Board summarized its findings as follows:
[23] I understand your testimony
that you were concerned that with time, police will forget you and criminals
are not afraid of police anyway. I also acknowledge that other members of this
crime group continue to pursue you as evidenced by the problems experienced by
your brother-in-law and father-in-law. Obviously, in no country can police
guarantee protection, but in this case, they pursued suspects, made at least
one arrest, offered assistance, responded to calls causing suspects to flee,
and had success in terms of jail time. This is all sufficient evidence to find
that adequate state protection is available in these circumstances.
[21]
I am
satisfied that the Board considered all of the relevant evidence and I find
that its assessment of the evidence is reasonable. The fact that a different
reasonable conclusion could have been reached is not a reason for the Court to
set aside the decision. As outlined by the Supreme Court in Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190, there may exist more
than one reasonable outcome:
Reasonableness is a deferential standard animated by the principle
that underlies the development of the two previous standards of reasonableness:
certain questions that come before administrative tribunals do not lend
themselves to one specific, particular result. Instead, they may give rise to a
number of possible, reasonable conclusions. Tribunals have a margin of
appreciation within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[Emphasis added]
[22]
In Newfoundland and Labrador Nurses’ Union, above, the Supreme
Court emphasized the need for the reviewing Court to be cautious not to
substitute its own view of the proper outcome:
17 The fact that there may be an
alternative interpretation of the agreement to that provided by the arbitrator
does not inevitably lead to the conclusion that the arbitrator's decision
should be set aside if the decision itself is in the realm of reasonable
outcomes. Reviewing judges should pay "respectful attention" to the
decision-maker's reasons, and be cautious about substituting their own view of
the proper outcome by designating certain omissions in the reasons to be
fateful.
[23]
In sum, I
am satisfied that the Board’s reasoning is reasonable and its conclusion falls
within the realm of reasonable outcomes and is defensible in light of the law
and of the facts. Further, the Board’s reasons are adequate.
[24]
The
parties did not propose any question for certification and none arises in this
case.
JUDGMENT
THIS COURT’S JUDGMENT is
that the
application for judicial review is dismissed. No questions certified.
“Marie-Josée Bédard”
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