Date: 20091029
Docket: IMM-625-09
Citation: 2009 FC 1087
Ottawa, Ontario, this 29th
day of October 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Jaime Enrique MAYA GONZALEZ
Maria Silvia GARCIA MENDOZA
Jaime Enrique MAYA GARCIA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review by the applicants pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the
“Act”) of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada (the “Board”), dated January 20, 2009, wherein
Board Member Roslyn Ahara found that the applicants were not Convention refugees
nor persons in need of protection. The Board denied the claim on the basis that
adequate state protection was available and that there was not a serious
possibility that the applicants would face persecution upon removal to Mexico.
* * * * * * *
*
[2]
Jamie
Enrique Maya Gonzalez (the “applicant”) and his wife, Maria Silvia Garcia
Mendoza (the “female applicant”) are citizens of Mexico. The minor applicant, Jaime Enrique Maya
Garcia is a dual citizen of the United States and Mexico. Hereinafter, I will refer to the family as
“the applicants”.
[3]
The applicants
are from the agricultural state of Tamaulipas where the applicant worked as an
agricultural engineer for the Ministry of Agriculture, Cattle, Rural
Development, Fishing and Food (Secretaria de Agricultura, Ganareria,
Desarroll Rural, Pesca y Alimentacion – or SAGARPA). In May 2007, the
government approved a budget of 200 million pesos for a program called Allianza
con el Campo (Alliance with the Countryside).
This was an aid program for poor rural farmers to help them buy machinery, gas,
seeds and technical assistance. The male applicant worked with many farmers who
were approved for funding through this program.
[4]
Funds
were not provided to the farmers. The applicant heard rumors that the money had
been diverted to political officials and their friends. He first approached the
head engineers where he worked and he was told it was none of his business. He
was told that he had not worked there too long but soon he would share the
benefits of keeping quiet about these things. The second person he approached
was State Delegate (the Head of the Ministry), Luis Carlos Garcia Albarrá. At
their meeting he was again told not to get involved. Meanwhile, the farmers
became frustrated that they had not received their money and organized
demonstrations in front of the offices of SAGARPA.
[5]
After
these informal meetings inquiring into the missing funds, the applicant
received threatening phone calls at home telling him to stop investigating. On
July 20, 2007, his wife was assaulted at home and she was hospitalized as a
result. When confronted, the male applicant’s bosses did not deny their
involvement in the assault and told him that this happened because he was
playing investigator and fired him. He realized that he was suspected of
leaking information to the rural communities about the embezzlement of funds.
He again met with the State Delegate who informed him that the mayor was
unhappy with him.
[6]
With
the assistance of a lawyer, the applicant submitted a complaint to the Public
Ministry about the assault on his wife. He was instructed to ratify his
complaint at a later date. Without ratification, no complaints are
investigated. He returned three times and each time he was told his complaint
was not on the list to be ratified yet. After he moved to Monterrey, a city eight hours
away from Tamaulipas, his lawyer continued to follow up on the report.
[7]
On
September 26, 2007, the applicant was assaulted and abducted. He was told by
his assailants that he should not have met with the State Delegate. He was beaten
unconscious and left on the road. A passerby took him to the Red Cross. Again,
he filed a report with the Public Ministry.
[8]
The
family moved again to Poza Rica, which is a city approximately twenty hours
away. Around this time, the applicant’s lawyer in Tamaulipas informed him that
he too was receiving threats and no longer would work on the applicant’s file.
[9]
On
December 16, 2007 the female applicant interrupted an attempted abduction of
the minor applicant. They reported it to the Public Ministry who recorded it as
an attempted kidnapping. The applicants came to Canada on December 31, 2007.
[10]
The
applicant’s brother-in-law has informed the applicant that since his departure,
there have been two incidents where people have come looking for him. On one
occasion they identified themselves as working for the Ministry of Agriculture
and assaulted the caretaker of the home.
[11]
Both
the male and female applicants testified at the Board’s hearing. The Board
member accepted their credibility. The minor applicant did not testify.
* * * * * * * *
[12]
The
Board determined that the applicant fears reprisals as a result of his filing
complaints with the Public Ministry for misuse of Government funds.
Furthermore, the agent of persecution would perceive the applicant’s actions of
denouncing the government as political opinion. The applicant satisfied the
Board that his fear was based on an enumerated Convention ground (section 96 of
the Act). The Board accepted the applicant’s testimony as credible.
[13]
The
determinative issue in this hearing was state protection. The Board concluded
that the applicant had not reasonably exhausted the avenues available to him.
In support of its conclusion, the Board points to the evidence that the
applicant failed to ratify the initial report he submitted to the Public Ministry
regarding the assault on his wife in Tamaulipas. Further to this, the Board notes
that he filed reports with the Public Ministry in two other states but did not
follow up with either. Finally, the Board expressed the view that the applicant
ought to have sought help from non-police and non-judiciary organizations, such
as SIEDO (“Special Investigations into Organized Crime”).
* * * * * * * *
[14]
The
applicants do not suggest an applicable standard of review but argue that the
conclusions reached by the Board are unreasonable because of a deeply flawed
analysis of state protection. The respondent argues that the Board’s findings
of fact of adequate state protection should be given much deference. The
applicable standard of review is reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190).
The Board’s conclusion regarding state protection is reviewable if it does not
pass the justification, transparency and intelligibility requirement articulated
by the Court in that case.
[15]
In
the impugned decision, the Board found that the normal protocol for
denunciation was not followed and the initial complaint was never ratified.
Consequently, an investigation never commenced. I agree with the applicant that
this lack of response is evidence that this process of engaging the state for
protection was not an effective avenue for him. Furthermore, having regard to
the identity of the persecutor, this non-response is more likely than not
evidence that the Public Ministry did not proceed with the denunciation for
political reasons. It is more likely than not that the state is unwilling to
protect the applicant against itself. While the findings of fact suggest the
Board did take a personal approach to the state protection analysis, the
conclusion is nonetheless unreasonable because the Board failed to take into
account the unique identity of the persecutor.
[16]
If
evidence of a timely and/or appropriate response by the police can indicate a
willingness to protect (see Soriano v. Minister of Citizenship and
Immigration, 2008 FC 952, and Alvarez v. Minister of Citizenship and
Immigration, 2008 FC 933), it follows that an absence of police response
tends to show an unwillingness to protect. This, coupled with the identity of
the agent of persecution should have led the Board to conclude that the applicant
was unlikely to expect state protection.
[17]
I
further agree with the applicants’ argument that the Board was unreasonable to
conclude that the applicant did not exhaust the avenues of state protection
available to him. The Board included non-police and non-judiciary
organizations, like SIEDO, as possible other avenues of protection that the
applicant could have sought.
[18]
Indeed,
the context of a high level official orchestrating the persecution necessarily
alters the analysis of relevant agencies and reasonable efforts by the
applicant. At best, the Board surmised that the applicant was having an
administrative problem ratifying his complaint and thus, he should have sought
out help from agencies that assist people making complaints about corruption in
the state. In this context it would be relevant that the Board take notice of
agencies that the applicant did not approach. However, the applicants make a
persuasive argument that the Board erred in failing to consider the applicant’s
reasonable expectation of protection from the state against itself,
specifically from high level political officials.
[19]
The
Board’s finding that SIEDO was a relevant alternative to the police is not
substantiated by the documentary record. The only case cited that suggests
SEIDO is an appropriate agency for protection is Gutierrez v. Minister of
Citizenship and Immigration, 2008 FC 971. But in that case the applicant
was receiving threats from non-state agents in an attempt to coerce him into
organized crime. In the present case, the evidence does not persuade me that
the corruption the applicant was attempting to denounce was in any way
connected to organized crime such that he should have approached this
organization.
* * * * * * * *
[20]
It
is, therefore, apparent that the Board failed to properly engage in a
personalized analysis of state protection and unreasonably required that the
applicants should have approached other non-police agencies. In the
circumstances this makes its decision reviewable.
[21]
Consequently,
the application for judicial review will be allowed and the matter sent back for
reconsideration by a differently constituted panel of the Board.
JUDGMENT
The application for judicial
review is allowed. The decision of the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the “Board”), dated
January 20, 2009, is set aside and the matter is sent back for
redetermination by a differently constituted panel of the Board.
“Yvon
Pinard”
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