Docket: IMM-3498-11
Citation: 2012 FC 10
Ottawa, Ontario, January
4, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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FRANCISCO GONZALEZ VENTURA,
ROSA MARIA FLORES CASTRO,
FABIOLA GONZALEZ FLORES
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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
INTRODUCTION
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (Act) for judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated 1 May 2011 (Decision), which refused the Applicants’ claim
for protection as Convention refugees or persons in need of protection under
sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant, Francisco Gonzalez Ventura, is a citizen of Mexico. The
secondary Applicants, his wife, Rosa Maria Flores Castro (Rosa Maria), and
their daughter, Fabiola Gonzalez Flores (Fabiola) are also citizens of Mexico. The
Principal Applicant and Rosa Maria also have three sons in Mexico. The
Applicants arrived in Canada on 24 December 2008 and made their claim
for protection on 17 April 2009.
[3]
The
Principal Applicant worked for Scotiabank as a security manager in Puebla, Mexico,
from 1984 to 2005. He says that on 17 February 2005, he was called at his
office by Roman Martinez (Martinez), the Commander of the
Judicial Police at the time, who wanted to discuss something with him. Martinez told the
Principal Applicant he would like to meet him outside the office. The Principal
Applicant says he declined. As he left work that night, Martinez approached
him and insisted on speaking to him about a personal favour. The Principal
Applicant told Martinez he could not handle any matters outside his
work. Martinez did not
pursue it further, so the Principal Applicant went home and did not think about
this conversation any more.
[4]
The
Principal Applicant says that in March 2005, his employer told him that he
would be let go as of 1 April 2005 because of restructuring. The Principal
Applicant says that, after his dismissal, he started his own security
consulting business, which he ran until October 2008.
[5]
In
May 2008, a man named Jose Juan approached the Principal Applicant and said he
was sent by Martinez. Jose Juan
asked the Principal Applicant to give him Scotiabank’s security information to help
him and Martinez rob the bank.
The Principal Applicant says he refused and Jose Juan asked him to think about
it.
[6]
The
Principal Applicant says that Jose Juan contacted him three times in June 2008.
During the third call, Jose Juan said that the Principal Applicant had to help
them because they had his personal information including his family’s address. Jose
Juan told the Principal Applicant that all they needed was a copy of the keys
to the armor-plated van’s back door. He stressed that the Principal Applicant
had nothing to worry about and would be rewarded with one million pesos for his
role in the robbery. When the Principal Applicant refused, Jose Juan threatened
to harm him and his family if he did not cooperate. Jose Juan said that Fabiola
was under surveillance and would pay the consequences for his failure to
cooperate.
[7]
In
an amendment to his PIF, the Principal Applicant wrote that he went to the
Office of the Public Ministry after this phone call to file a complaint. He was
told it would be difficult to file a complaint against Martinez and he would
need to bribe the police to take any action. The Principal Applicant says that he
was afraid the Ministry would tell Martinez that he had tried to
file a complaint, and so he did not go to the police or back to the Ministry.
[8]
The
Principal Applicant and his family moved to the Federal District from their home
in Puebla in July
2008. On one occasion, after they moved, the Principal Applicant noticed he was
being followed by men in a Cavalier, which was the kind of car police officers
drove. He says that he and his family returned to Puebla for a week
in August 2008 to make arrangements to leave the country. The Applicants fled Mexico for Canada on 24 December
2008.
[9]
The
Principal Applicant says that he learned that someone robbed the Puebla Scotiabank
on 26 February 2009. During the robbery, six million pesos were stolen. He says
that this event confirmed his fears about the risk he faces from Martinez.
[10]
The
Applicants’ claims were joined under subsection 49(1) of the Refugee
Protection Division Rules SOR/2002-228 and heard together on 9 March 2011.
The Secondary Applicants relied on the Principal Applicant’s testimony and
narrative, so their claims were determined on that basis. At the hearing, the
Applicants, their counsel, and a translator were present. The RPD made its
decision on 1 May 2011 and gave the Applicants notice on 6 May 2011.
DECISION
UNDER REVIEW
[11]
The
RPD found that the Applicants had established their identities by the official
documents they submitted and their oral testimony. It found that they are
neither Convention refugees nor persons in need of protection. The Applicants are
not Convention refugees under section 96 of the Act because the risk they alleged
was a risk of crime; their fear has no nexus to a Convention ground. The RPD also
found that the Applicants’ story was not credible and that they had not
rebutted the presumption of state protection, so they are not persons in need
of protection under section 97 of the Act.
Credibility and Failure to Establish a Claim
Under Subsection 97(1)
[12]
The
RPD noted the presumption that a claimant’s sworn testimony is true unless
there is a valid reason to doubt its veracity. It then found that the Principal
Applicant had provided confusing and inconsistent evidence and it did not
believe that events had occurred as the Principal Applicant had described. Accordingly,
it found that the Applicants had failed to establish their claim with credible
and trustworthy evidence.
Evidence of Threats and Locations
During Events
[13]
The
RPD found inconsistencies in the Principal Applicant’s testimony about being
followed after the family moved to the Federal District. He claimed that he and
his family had moved to the Federal District in July 2008, but later
said that cars had followed him between June and August 2008. The RPD found
that the Principal Applicant’s answers when he was confronted with this
inconsistency were evasive and confusing. The RPD said it was reasonable to
expect the Principal Applicant to be consistent in this aspect of his testimony
because he had only lived in two places during that period. The confusion showed
that his testimony was embellished. The RPD gave the Applicants the benefit of
the doubt and accepted that the family had moved to the Federal District in
2008, even though they had not mentioned this in their PIFs.
Conduct and Subjective Fear
[14]
The
RPD noted that a lack of subjective fear is sufficient to deny a claim under
section 96. The RPD also said that subjective fear is critical to a
determination under section 97, because it goes to a claimant’s credibility.
Though a lack of subjective fear does not determine a claim under section 97,
it is useful in assessing credibility. The RPD found that concerns about the
Applicants’ conduct, evidence and their lack of subjective fear undermined the
totality of the evidence they had presented.
[15]
The
RPD found that the Applicants’ return to Puebla in August
2008 was inconsistent with the conduct of people who have a subjective fear.
The RPD did not believe that the Applicants would risk their lives to return to
a city where they were in danger in order to complete a business transaction. It
would have been reasonable to expect one of the Principal Applicant’s sons or
partners to complete this business, so that the Applicants would not need to
return to the city where they were in danger, if they actually had subjective
fear.
[16]
The
RPD also noted that Fabiola (whom the RPD confuses with Rosa Maria in this part
of the Decision) continued to study at the university, at the same time the
Principal Applicant had testified that the criminals knew where she was studying
and had threatened her. The fact that she continued to go to university in Puebla, where the
Applicants were threatened, was inconsistent with subjective fear.
Delay in Departure and Delay in Claiming
[17]
The
RPD also found that the Applicants’ delay in departure undermined their
subjective fear. The Principal Applicant testified that his daughter wanted to
finish school and there were no more threats after August 2008; the Applicants
did not leave Mexico until
December 2008. The RPD found that the date of departure was one of convenience
rather than of necessity.
[18]
The
RPD also noted that the Applicants entered Canada as visitors
and did not claim protection until four months after they arrived in Canada. It found
that it was inconsistent for the Principal Applicant to claim that they fled
Mexico because of threats at the same time as he said that he did not think
they needed to claim protection until after the Puebla Scotiabank was robbed in
February 2009. The RPD found that someone who is truly fearful can be expected
to claim protection at the first opportunity, and delay in claiming is evidence
of a lack of subjective fear.
[19]
The
RPD found that the Applicants had not established their claim for protection on
the basis of credible and trustworthy evidence. Although this was sufficient to
dispose of their claim, the RPD also examined the availability of state
protection.
State Protection
[20]
The
RPD found that the Applicants had not rebutted the presumption of state
protection with clear and convincing evidence. The only attempt any of the
Applicants made to seek protection was a complaint the Principal Applicant said
he made to the Public Ministry in Puebla. The Principal
Applicant only made this allegation in an amended PIF he filed on 23 February
2011, two weeks before the hearing. The RPD found that the Principal Applicant
had not approached anyone for assistance after the Applicants moved to the
Federal District. He also did not report to his employer that he was under
pressure to assist in a robbery. At the hearing, he said reporting to his
colleagues would not be prudent. The RPD said that, in G.D.C.P. v Canada (Minister of
Citizenship and Immigration) 2002 FCT 989, Justice Elizabeth Heneghan
held that claimants must take all reasonable steps to seek protection before
they can successfully claim protection in Canada. The
Applicants in this case did not do so, so their claim could not succeed. The
RPD also noted that in Judge v Canada (Minister of
Citizenship and Immigration) 2004 FC 1089, Justice Judith Snider said
that claimants cannot rebut the presumption of state protection in a
functioning democracy by asserting only a subjective reluctance to engage the
state.
[21]
The
RPD also considered the documentary evidence on state protection in Mexico. It
acknowledged that the evidence is mixed, and that there was evidence of
inefficiency, bribery and corruption in the Mexican security forces at all
levels. However, the RPD weighed this against what it found was persuasive
evidence that Mexico acknowledges
its past problems and is making serious efforts to address them.
[22]
The
RPD found that the preponderance of the evidence suggested that, although not
perfect, there is adequate state protection in Mexico for victims
of crime. Among other things, the RPD noted the following evidence in support
of its conclusion:
a.
Criminal
penalties for official corruption, and evidence of indictments under those
provisions;
b.
Reforms to
the security forces, including a new police force to replace the notoriously
corrupt Federal Judicial Police;
c.
The
creation of new agencies to combat crime, drug cartels and organized crime;
d.
New
procedures for the security forces, including drug testing, education, and
sanctions for inefficiency and corruption.
[23]
The
RPD acknowledged the evidence that corruption remained a problem and that
impunity was pervasive and contributed to the reluctance of victims to file
complaints. However, Mexico had made substantial investments in
improving public security, had replaced high-ranking officers to reduce
corruption, and had adopted legislation to reform the police forces. The RPD
also noted examples of the arrest or resignation of corrupt officials and that
the administration of President Felipe Calderon had made significant
investments in security and justice.
[24]
The
RPD noted that the Applicants had adduced evidence of the problems of
corruption and impunity in the police forces, including a report by Judith
Hellman – a professor of Political Science at York University – entitled Report
on Human Rights in Mexico and dated 2007 (Hellman Report), but found that
the RPD package contained more recent information on the current situation in
Mexico.
[25]
The
RPD again acknowledged the inconsistencies in the evidence, but found that the
totality of the evidence that the Applicants had adduced did not rebut the presumption
of state protection. Though the protection available in Mexico may not be
perfect, this was not a basis on which the RPD could conclude that state
protection is not available.
STATUTORY
PROVISIONS
[26]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
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,
(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;
[…]
Person in Need of Protection
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
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care
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Définition de «
réfugié »
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 :
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;
[…]
Personne à protéger
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 :
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;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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,
(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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ISSUES
[27]
The
only issue the Applicants raise is whether the RPD’s finding that state
protection was available in Mexico was reasonable.
STANDARD OF
REVIEW
[28]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[29]
In
Carillo v Canada (Minister of Citizenship and Immigration) 2008 FCA 94,
the Federal Court of Appeal held at paragraph 36 that the standard of review on
a state protection finding is reasonableness. This approach was followed by
Justice Leonard Mandamin in Lozado v Canada (Minister of
Citizenship and Immigration) 2008 FC 397, at paragraph 17. Further, in Chaves
v Canada (Minister of
Citizenship and Immigration) 2005 FC 193, Justice Danièle Tremblay-Lamer
held at paragraph that the standard of review on a state protection finding is
reasonableness. The standard of review on the sole issue in this application is
reasonableness.
[30]
When
reviewing a decision on the standard of reasonableness, the analysis will be concerned
with “the existence of justification, transparency and intelligibility within
the decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
ARGUMENTS
The Applicants
[31]
The
Applicants argue that the RPD’s state protection finding was unreasonable
because it misconstrued the evidence and was based on an erroneous finding that
they did not make sufficient efforts to seek state protection.
The
Board Misconstrued the Evidence on State Protection
[32]
The
Applicants note that the leading case on state protection is Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 which held that when a claimant is
persecuted by non-state agents, the claimant must establish that the state is
unable or unwilling to protect. The Applicants also note that claimants are
obligated to seek state protection unless it is objectively reasonable not to
do so. They say that, in some cases, a state may be able to protect citizens
but it may be reasonable for claimants not to seek protection.
[33]
The
Applicants rely on Villicana v Canada (Minister of Citizenship and
Immigration) 2009 FC 1205, at paragraphs 69 to 71, where I discussed the
adequacy of state protection in Mexico:
In
the case of a fully developed democracy, these excuses for not approaching the
authorities would not have availed the Applicants, but Mexico has problems that require a fuller
assessment and a contextual approach to state protection. The state of Mexico certainly wants to protect
its citizens, but is it able to protect them?
In
the present case, the Applicants placed before the Board reputable evidence not
only that the Mexican authorities cannot protect ordinary Mexicans who lack
wealth and influence, but that it is those very authorities (the police, the
judiciary and the government) who pose the greatest danger to the normal
citizen.
This evidence suggests that all police
forces in Mexico are riddled with corruption and are operating outside the law,
that the National Human Rights Commission acknowledges that the very
institutions who are supposedly there to protect ordinary Mexicans are the ones
most likely to violate their human rights, and that the wealthy and the
well-connected operate outside the law with impunity in a context where the
police and government are infested by drug traffickers and other organized
criminals.
[34]
The
Applicants say that Villicana teaches that the RPD must conduct a fuller
assessment of state protection in claims against Mexico. The RPD
must also consider whether the state’s genuine intention to protect translates
into the availability of adequate protection in practice.
[35]
The
RPD’s analysis of the evidence in this case was selective and self-serving. The
Applicants say that there was compelling evidence that corruption is rampant in
the Mexican police forces and Mexicans fear the police. They point to:
a.
The
Hellman Report which describes the pervasiveness of corruption in the police
forces;
b.
A 2007
Amnesty International report on human rights violations and impunity in the
security and criminal justice systems in Mexico;
c.
A 2009 report
from the Miguel Agustín Pro Juárez Human Rights Center on Mexico’s violation of
civil and political rights, which discusses the gap between existing laws and
their enforcement, and the pervasive impunity of the police forces;
d.
A 2008 report
from the Miguel Agustín Pro Juárez Human Rights Center that discusses the escalating
violence and crime rates in Mexico;
e.
A 2009 report
from Human Rights Watch, on Mexico, which states that the
criminal justice system routinely fails to provide justice to victims of crime.
[36]
This
evidence shows that Mexico’s efforts have not translated into adequate
protection. Although the RPD’s findings are entitled to deference, its findings
based on the evidence in this case were unreasonable and require the Court’s
intervention.
[37]
The
Applicants rely on Gilvaja v Canada (Minister of Citizenship and
Immigration) 2009 FC 598, to say that it was an error for the RPD to limit
its analysis to the existence of initiatives and efforts, rather than
considering whether they have had a real impact on protection in practice.
Justice John O’Keefe had this to say at paragraph 39 in Gilvaja:
Having laws on the books does not equate
with actual, experienced state protection for citizens. It has been held that
when examining whether a state is making serious efforts to protect its
citizens, it is at the operational level that protection must be evaluated […]
[38]
The
Applicants also rely on Lopez v Canada (Minister of Citizenship and
Immigration) 2010 FC 1176 where Justice Roger Hughes quoted the following
passage from paragraph 10 of Justice Michel Beaudry’s decision in Bautista v
Canada (Minister of Citizenship and Immigration), 2010 FC 126:
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 […]
[39]
The
Applicants say that the RPD committed the same error in this case, referring
repeatedly to the efforts of the Mexican government to protect its citizens.
The test for state protection is not whether the state is making efforts to
provide protection, but whether the protection offered is adequate.
[40]
In
further support of their position, the Applicants point to Park v Canada (Minister of
Citizenship and Immigration), 2010 FC 1269 where Justice O’Keefe wrote
at paragraphs 56 and 57:
This Court has held that democracy and legislation
alone does not ensure adequate state protection and the Board is required to
consider any practical or operational inadequacies of state protection (see Zaatreh
v. Canada (Minister of Citizenship and
Immigration),
2010 FC 211 at paragraph 55; Jabbour v. Canada (Minister of Citizenship and
Immigration),
2009 FC 831, 83 Imm.L.R. (3d) 219 at paragraph 42). As Mr. Justice Yves de
Montingy [sic] held in Franklyn v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1249 at paragraph 24:
. . . the mere fact that the government
took steps to eradicate the problem of domestic violence does not mean that the
fate of battered women has improved.
The applicant pointed to a significant
amount of documentary evidence before the Board which addressed the actual
response and conduct of the police in South Korea.
This evidence discussed a lack of intervention by police in domestic violence
due to the belief that it was a family problem, it noted that police often
blame victims and expose them to physical danger, it mentioned the rarity of
men being taken into custody or charged with domestic violence, as well as the
lack of understanding and awareness in the police of the serious nature of
domestic violence. This evidence on the practical reality of state protection
in South Korea, which emanated from a
variety of sources, was not addressed by the Board. This amounted to a
reviewable error.
[41]
In
this case, there was compelling contradictory evidence that state protection
was inadequate for people like the Applicants. They say that the following
passage from Lopez, above, at paragraph 9, is applicable to their case:
As to the reasonableness of the findings,
the evidence is overwhelming in the present case that Mexico has failed to provide adequate
protection. The evidence shows ineptitude, ineffectiveness and corruption in
the state agencies that the Member suggested could offer protection.
[42]
The
RPD’s analysis was superficial and contained no meaningful consideration of
protection at the operational level, so the Decision must be quashed.
The
Board Erred by Finding that the Applicants did not Make Sufficient Efforts to Seek
Protection
[43]
The
RPD also made an unreasonable finding on state protection when it failed to
consider the fact that the agent of persecution was a former Commander of the
Judicial Police. The Applicants also say that the RPD did not consider that,
when the Principal Applicant approached the authorities, they asked for a
bribe, and he was afraid the agent of persecution would find out he had tried
to file a report.
[44]
In
light of these circumstances, it was unreasonable for the RPD to conclude that
they made insufficient efforts to seek protection.
The
Respondent
[45]
The
Respondent says that the Applicants failed to establish their claim based on
credible and trustworthy evidence. Even if their allegations were accepted,
they failed to rebut the presumption of state protection, which is fatal to
their claim. The Applicants have only challenged the RPD’s state protection
findings, which is an inadequate basis on which to challenge the RPD’s Decision,
since the RPD found their testimony was not credible. The Respondent also says
that the RPD’s state protection analysis was reasonable, so there is no basis
for this Court’s intervention.
Credibility
Findings are Determinative
[46]
The
determinative issue in the Applicants’ claim was credibility. The RPD found
their story lacked credibility because of inconsistencies, contradictions and
implausiblities. It was open to the RPD to reject the claims on this basis. See
Sheikh v Canada (Minister of Employment and Immigration), [1990] 3 FC
238 (FCA) at paragraph 244.
[47]
In
clear and unmistakeable terms, the RPD gave extensive reasons for finding the
Applicants to be lacking in credibility. The RPD noted the following unresolved
concerns about the Principal Applicant’s evidence:
a.
His
testimony regarding the timing of the family’s move from Puebla to the Federal District, and when he was followed by
the Cavalier;
b.
The fact
that the family returned to Puebla to complete a business
transaction, despite claiming they had to flee for their safety;
c.
The fact
that Fabiola continued to attend university, despite the Principal Applicant’s
claim that she was directly threatened and the criminals knew where she was
studying;
d.
The
Applicants’ delay in fleeing Mexico;
e.
The
Applicants’ delay in claiming refugee protection once they arrived in Canada;
f.
The
Principal Applicant’s inconsistent, incoherent and evasive testimony.
[48]
The
Applicants have not challenged any of these findings, so they must be presumed
to stand. The Respondent relies on Cienfuegos v Canada (Minister of
Citizenship and Immigration), 2009 FC 1262 at paragraphs 25 to 26 for
this proposition. Following Rahaman v Canada (Minister of Citizenship and
Immigration), 2002 FCA 89 at paragraph 29, the Respondent says that, where
a claimant is found not to be credible, country documents alone are insufficient
to uphold the claim.
[49]
The
RPD’s findings on state protection were clearly in the alternative, so they do
not provide a sufficient basis to impugn the Decision. The application must be
dismissed on this basis alone.
Applicants
Failed to Rebut the Presumption of State Protection
[50]
Even
if the Court were to review the RPD’s state protection findings, those findings
were reasonable. The RPD did not accept the Principal Applicant’s testimony, but
rather found that, even if the testimony were true, the Applicants had not
established that state protection was inadequate.
[51]
The
onus was on the Applicants to demonstrate with clear and convincing evidence
that the state was unwilling or unable to protect them and they failed to do. The
Respondent notes that a claimant is expected to approach the state for
protection where it would be reasonably forthcoming (see Ward, above, at
pages 725, 709, and 724). The RPD reasonably found that the Applicants had not
presented clear and convincing evidence to rebut the presumption of state
protection.
[52]
The
RPD acknowledged Mexico’s problems with corruption, so it did not ignore
the evidence before it going to the adequacy of state protection. There was
evidence before the RPD of measures to address these problems which it weighed
and reasonably concluded that the Applicants had failed to discharge their
burden of showing that state protection was inadequate.
[53]
The
RPD’s analysis included consideration of protection at the operational level. In
addition to legislative changes, the RPD considered the improved operations of
police forces and public agencies. The Respondent notes that the Court has
repeatedly held that the fact that a state is not always successful at
protecting citizens does not rebut the presumption of state protection. (see Villafranca,
above.)
[54]
The
Respondent further says that numerous avenues of recourse were available to the
Applicants. The RPD reasonably found that the Applicants’ efforts to seek
protection were insufficient to show that protection would not be reasonably
forthcoming. Local failures to provide protection are insufficient to
demonstrate an absence of state protection. The Applicants’ arguments in this
case amount to nothing more than a disagreement with the weight the RPD
assigned to the evidence. It is not open to the Court to re-weigh the evidence
and reach a different conclusion; the RPD’s findings were reasonably open to
it, so there is no basis for this Court to intervene.
ANALYSIS
[55]
The
Applicants have chosen to impugn the Decision from the perspective of the RPD’s
state protection analysis. They raise arguments that have been raised before
this Court on many occasions:
1.
The
RPD committed a reviewable error by conducting a self-serving reading of the
documentary evidence and by preferring evidence supporting its pre-conceived
review of state protection in Mexico over compelling contradictory evidence;
2.
The
RPD did not have regard to what is actually happening in Mexico and relied
instead on what the state is endeavouring to put in place.
[56]
The
Decision, however, was based upon two determinative issues and the Applicants
have left out of account crucial findings of the RPD that impact the state
protection analysis.
[57]
Most
importantly, the RPD did not believe that the Applicants were in danger from Martinez, and this is
the only risk that the Applicants alleged. The RPD just did not believe that
the Applicants had been threatened by Martinez, or that they faced a
future risk from him. The RPD gave full reasons as to why it did not believe
the Applicants were under threat from Martinez. The Applicants do not
challenge these findings.
[58]
What
they do say is that the RPD’s state protection analysis reveals that is was
pre-disposed to find adequate state protection in Mexico which
tainted its credibility analysis.
[59]
There
is simply no evidence to support this argument. The Decision shows that
credibility was determinative and the negative findings in this regard were
based upon solid evidence and full and clear reasoning. The Applicants do not
challenge any of the specific reasons or grounds related to the negative
credibility findings and there is no evidence that the state protection
analysis clouded or tainted the RPD’s approach to credibility.
[60]
As
Justice Michel Shore pointed out
in Cienfuegos, above,
at paragraphs 24 to 26:
In fact,
the applicants disputed only one of the Board's negative credibility findings
(Applicants' Record (AR) at pp. 19-20, para. 6-12).
The
negative credibility finding is determinative per se,
and the failure to prove that it is unreasonable is sufficient to defeat this
application (Salim v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1592, 144 A.C.W.S. (3d) at
para. 31; Chan v. Canada (Minister of Citizenship and Immigration) [1995] 3 S.C.R. 593, 58
A.C.W.S. (3d) 287, at para. 147).
The
findings that were not challenged must be presumed to be true and constitute a
sufficient basis for justifying the dismissal of this application for judicial
review.
[61]
Justice
Maurice Lagacé addressed a very similar situation to the present in Ortiz v Canada (Minister of
Citizenship and Immigration) 2008 FC 1326 at paragraph 22:
The
Board made the alternative finding that the applicants did not rebut the
presumption of Mexican state protection. Since it did not believe the
applicants' account, and therefore found that they were neither refugees nor
persons in need for protection, it was superfluous and unnecessary for the
Board to address the presumption of protection by their government, which they
had not rebutted. However, the Board did not err simply by ruling on this
point.
[62]
As
these authorities show, the negative credibility finding in the present case
was sufficient to dispose of the claim. Even if I were to accept the Applicants’
position on the unreasonableness or incorrectness of the state protection
analysis, this would not vitiate the Decision. Hence, there is no point in
dealing with the state protection issue.
[63]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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