Date: 20090324
Docket: IMM-3372-08
Citation: 2009 FC 307
Montréal, Quebec , March 24, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
RICARDO
CAMARENA CASTELLANOS
MARIA NORMA JIMENEZ
KAISER
ALDO CAMARENA JIMENEZ
DANTE CAMARENA JIMENEZ
Applicants
and
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The applicants are seeking a
judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of the decision of the Refugee
Protection Division of the Immigration and Refugee Board dated June 18, 2008,
refusing their application for refugee status because they were not Convention
refugees within the meaning of section 96 or
persons in need of protection under section 97 of the Act.
II. The facts
[2]
The applicant Maria Norma Jimenez Kaiser (applicant), her husband,
Ricardo Camarena Castellanos, and their two sons Aldo Camarena
Jimenez and Dante Camarena Jimenez, all Mexican citizens, claimed
refugee protection alleging persecution based on their membership in a social
group and their political opinions.
[3]
After receiving telephone threats at work and at home, targeting all of
the members of their family, the applicant and her husband allegedly called the
police and were told that these phone calls were normal, not to worry and that
the police could not do anything to stop it.
[4]
After temporarily hiding away in a hotel with their sons to escape these
telephone calls, the applicant and her husband decided to close their daycare,
to recover their passports from their home while escorted by the police, and to
leave Mexico for Canada to seek refugee protection there.
III.
Issue
[5]
Did the panel err in determining in its negative finding that the
applicants had not established that the Mexican State was unable to protect
them?
IV. Analysis
Standard of
judicial review
[6]
Considering that this litigation raises a mixed question of
fact and law, the Court will apply to its analysis the standard of
reasonableness set out by the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9.
State
protection
[7]
The panel determined that the determinative issue in this matter was
whether the applicants, considering the circumstances, did what was necessary
to obtain from the Mexican authorities protection against the telephone threats
against them. The panel, weighing the evidence submitted, determined:
. . . that the testimony of the principal claimant and her
husband, and the documentary evidence . . . do not constitute convincing evidence that can lead to a
presumption that the ability of the Mexican authorities to protect their
citizens has been overturned in their case. The panel is of the opinion that it
is not unreasonable in this case to expect the claimants to take steps, if
necessary, by going to another part of the country to alert the Mexican
authorities and claim protection, particularly informing them that the people
who threatened them were acting on behalf of other people who were affected by
the claimants’ activities. Although threatened, the claimants adduced no
evidence . . . that demonstrates that they took the necessary steps in the circumstances
to obtain state protection in their country. The applicants chose
instead to come to Canada when, in fact, claiming refugee status in a country
that is a signatory to the Convention is to be used as a last resort.
[Emphasis added.]
[8]
The applicants allege that the panel did not consider all of the evidence
that they deemed relevant and which support their claims.
[9]
They point out that their attempt to secure state protection, having
called the police to obtain protection, did not produce any result, except for
a rather discouraging and unsettling reply – when they were informed
that they need not worry because such threatening phone calls were normal and
that in any event the police could not do anything to help them to stop those
calls.
[10]
We point out from the outset that it is not the Court’s
place to substitute its opinion for that of the panel as the applicants are
asking it to do. The Court must only analyze the decision in light of the facts
in evidence and the relevant law to verify whether the findings in the decision
are reasonably justified by the evidence as well as the law. The Court need not
even ask whether the decision would have been the same had it had the
responsibility of hearing the applicants and the facts put in evidence; that is
not the role of this Court in an application for judicial review such as this.
[11]
A careful analysis of the evidence indicates that the
applicants left Mexico barely five days after the first alleged threatening
phone calls, without even filing a written complaint with the police or a formal complaint with the State’s attorney, not giving the
authorities of their country any opportunity to attempt to help them and
without availing themselves of the recourse Mexican authorities put at their
disposal.
[12]
Apart from a short stay in a hotel in their neighbourhood,
to distance themselves from the telephone calls received at home or at their
workplaces and to prepare for their departure, the applicant and her husband
never sought for themselves or for their sons an internal flight alternative
elsewhere in this large country that is Mexico.
[13]
To the contrary, they opted rather to quickly leave their
country to go to Canada to seek protection, even though a refugee claim in a
Convention signatory state must be a last resort solution.
[14]
The applicants had to establish that the State of Mexico was unable to
provide them with the protection that they were entitled to expect before
claiming the status of “Convention refugee” or “persons in need of protection”
within the meaning of sections 96 and 97 of the Act (Canada
(Attorney General) v. Ward [1993] 2 S.C.R. 689). To establish this, it is
first expected that serious and reasonable steps were taken to get this
protection, which was not the case here.
[15]
It was not enough for the applicants to establish that the protection
offered in Mexico was not perfect. This is also the case for any State
professing to have democratic values or human rights protection. No State can
guarantee the protection of each of its citizens at all times (Canada
(Minister of Employment and Immigration) v. Villafranca (1992) 18 Imm.
L.R.(2d) 130 (F.C.A.).
[16]
One would be deluding oneself to believe the contrary; and the best
protection remains the protection that one owes and gives to oneself.
Therefore, since the threats were limited to telephone calls, what obstacle was
there to changing one or more telephone numbers or simply temporarily
cancelling the personal home service or the cellular service? If the applicants
could afford to finance a move to Canada, would it not have been cheaper to
seek a permanent or temporary internal flight alternative that would have
sheltered them from threats while they were pursuing the matter with the
Mexican authorities?
[17]
As noted by the panel in its reasons, in the case of a democratic State
such as Mexico, the applicants had an even greater obligation to seek State
protection. They had to establish that they had reasonably exhausted all of the
recourse available to them in order to obtain the necessary protection while
taking reasonable personal measures to protect themselves (Kadenko v. Canada
(Minister of Citizenship and Immigration), [1996] F.C.J. No. 1376.
In this case, apart from once trying “to contact the police through
the emergency number,” there was practically no attempt to seek protection; no
complaint was filed with the police and/or the State’s attorney. The only
assistance requested that was obtained: a police escort during their short stay
at the hotel to go get the passports they required to leave for Canada.
[18]
Further, there is no credible evidence in the file that would allow the
Court to determine that the lives of the applicants would still be in danger if
they were to return to Mexico.
V. Conclusion
[19]
For all of these reasons, the Court determines at the end of its analysis
that the decision contemplated by this recourse is justified by the facts in
evidence as well as by the law; it was therefore a reasonable decision even if
its effect on the applicants did not meet their expectations.
[20]
The application will therefore be dismissed, no serious question of
general importance was proposed, no question will be
certified.
JUDGMENT
FOR
THESE REASONS, THE COURT:
DISMISS the application for judicial review.
“Maurice E.
Lagacé”
Certified true translation
Kelley A. Harvey, BCL, LLB
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