Date:
20121023
Docket:
IMM-1136-12
Citation:
2012 FC 1211
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
October 23, 2012
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
Maria
Isabel RUIZ COTO
Leslye Josefina
MONTERO RUIZ
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 by
Anna Brychcy, a member of the Refugee Protection Division of the Immigration
and Refugee Board (panel), filed in accordance with subsection 72(1) of
the Immigration and Refugee Protection Act, SC (2001), c 27 (Act). The
panel rejected the refugee claim by Maria Isabel Ruiz Coto and Leslye Josefina
Montero Ruiz (applicants), finding that they were not “Convention refugees” or
“persons in need of protection” under sections 96 and 97 of the Act.
[2]
The
principal applicant, Maria Isabel Ruiz Coto, is 32 years old and was born in
the State of Veracruz, Mexico. The second applicant, Ms. Coto’s daughter,
Leslye Josefina Montero Ruiz, is 10 years old. At the hearing before the panel,
the principal applicant was appointed as the designated representative of her
daughter.
[3]
Before
considering the facts and assessing the credibility of the principal applicant,
the panel stated that it carefully assessed the guidelines of the Chairperson
of the Immigration and Refugee Board entitled Women Refugee Claimants
Fearing Gender-Related Persecution.
[4]
After
analyzing all of the evidence in the record, the panel found that the applicant
was not a “Convention refugee” or a “person in need of protection”.
[5]
The
panel accepted the applicant’s claims that she was a victim of violence in the
past. However, the determinative issue was state protection. The panel found
that state protection was available to the applicant in the State of Veracruz, Mexico,
where she lived, and that efforts were made to ensure her protection.
[6]
Both
the applicant and the respondent agree that the standard of review applicable
to the adequacy of state protection is reasonableness given that it is a
question of mixed fact and law (see Hinzman v Canada (The Minister of
Citizenship and Immigration), 2006 FC 420, [2007] 1 FCR 561 at paragraph
199 and Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph
47 (Dunsmuir)).
[7]
I
will add, however, that this Court must show considerable deference (Singh v
The Minister of Citizenship and Immigration, 2006 FC 565) in determining
whether the findings are justified, transparent and intelligible and fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, above). It is not up to this Court to
reassess the evidence that was before the panel (Zrig v Canada (The Minister
of Citizenship and Immigration), 2003 FCA 178, [2003] 3 FC 761 at paragraph
42).
* * *
* * * * *
[8]
Since
the panel accepted that the applicant had been a victim of violence in the
past, the determinative issue was thus strictly state protection in this case.
[9]
In
the absence of a complete breakdown of the state apparatus, there is a
presumption that the state is able to defend its citizens. That “presumption
serves to reinforce the underlying rationale of international protection as a
surrogate, coming into play where no alternative remains to the claimant”. Thus,
the responsibility toward a refugee lies with the state of which the refugee is
a citizen (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at page
726).
[10] I
agree with the respondent’s claims that the Federal Court of Appeal reminded us
in Carrillo v Canada (The Minister of Citizenship and Immigration),
2008 FCA 94, [2008] 4 FCR 636 (Carrillo) that Mexico is a functioning
democracy and that there is a strong presumption of state protection capability.
Even if the situation is not perfect, Mexico is a democratic country that can
provide, at least in certain circumstances, protection to its citizens.
[11] The
applicant therefore had the burden of proving with clear and convincing
evidence, on a balance of probabilities, that the said protection was inadequate
or non-existent. She was required to demonstrate that she had offered her
country the real possibility of intervening before being able to legitimately infer
that it was not capable of providing her with the necessary protection (Hinzman
et al v Canada (The Minister of Citizenship and Immigration), 2007 FCA 171,
362 NR 1).
[12] This
case is different from Capitaine v The Minister of Citizenship and
Immigration, 2008 FC 98, to which the applicant refers, in several
respects. Namely, the applicant in the case at bar did not attempt to move to
another state in Mexico before claiming refugee protection in Canada. Furthermore,
there is no evidence that any other state—or even city—in Mexico would not have
been able to protect her. The applicant even stated that her mother had to move
to another city in Mexico after her attacker, Mr. Valencia, uttered threats,
and that, following that move, her mother did not receive any more threats.
[13] I am
therefore of the opinion that this case more closely resembles Carrillo,
above (see also Martinez v The Minister of Citizenship and Immigration,
2010 FC 1200 and Fuentes v The Minister of Citizenship and Immigration,
2010 FC 457).
[14] Furthermore,
even though the applicant claimed that the Mexican police were corrupt and
accepted bribes, there is no convincing evidence that that was the case here.
[15] It
must be noted that the police’s refusal to act does not in itself make the
state unable to protect its citizens. The applicant was required to do more
than simply raise the police’s inaction (see the Federal Court of Appeal
decision in Kadenko v The Minister of Citizenship and Immigration,
[1996] FCJ No 1376, 206 NR 272).
[16] When
the applicant contacted the competent authorities and refused to attend a
confrontation hearing, she was directed to a shelter for battered women. A
lawyer, a psychologist and a social worker were involved in her case. All of
this shows the Mexican state’s willingness to deal with her case.
[17] The
applicant apparently left the shelter against the advice of the professionals,
a fact she purportedly failed to declare in her Personal Information Form
narrative.
[18] All
of this confirms the well-foundedness of the respondent’s opinion that the
panel was justified in giving more weight to the documentary evidence that
organizations were devoted to protecting women in the State of Veracruz, that
there were laws protecting women in Mexico and that the country is making a
real effort to protect women (Biachi v The Minister of Citizenship and
Immigration, 2006 FC 589 at paragraphs 13-14).
[19] It is
important to recall, as the respondent’s maintains, that assessing the evidence
and the effectiveness of the protection a citizen is able to obtain in his or
her country of origin is up to the panel, as a specialized tribunal. It is not
this Court’s role to take the place of the panel in that respect (Navarro v The
Minister of Citizenship and Immigration, 2008 FC 358 at paragraph 18).
[20] Regarding
the adequacy of reasons, according to Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708:
Reasons need not include all the arguments or
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result. 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.
[21] I am
of the view that this obligation was met in this case. The panel provided
detailed reasons that make it possible to specifically identify which elements
its decision was based on. The applicant’s mere disagreement with the panel’s
factual findings is not equivelent to an error of procedural fairness (Sidhu v The Minister of Citizenship and Immigration, 2012 FC 515).
* * *
* * * * *
[22] For
the above-mentioned reasons, the application for judicial review is dismissed.
[23] I
concur with counsel that there is no question for certification arising.
JUDGMENT
The
application for judicial review of a decision by a member of the Refugee
Protection Division of the Immigration and Refugee Board that Maria Isabel Ruiz
Coto and Leslye Josefina Montero Ruiz were not “Convention refugees”
or “persons in need of protection” under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC (2001), c 27, is dismissed.
“Yvon
Pinard”
Certified
true translation
Janine
Anderson, Translator
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