Date: 20090415
Docket: IMM-4509-08
Citation: 2009 FC 376
Ottawa, Ontario, April 15,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SERGIO ROMERO MENDOZA
GUADALUPE DE MONSERRAT MARTINEZ CABRIALES
AIMEE ALEJANDRA ROMERO MARTINEZ
LAURA GUADALUPE ROMERO MARTINEZ
KARINA DE
MONSERRAT ROMERO MARTINEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicants, a father, mother, and three female children, citizens of Mexico,
seek judicial review of a Refugee Protection Division (RPD) decision rejecting
their claims for refugee status (pursuant to s. 96 of the Immigration and
Refugee Protection Act [IRPA]) and for protection (pursuant to s. 97 of
the IRPA).
[2]
Counsel
for the Applicants raises the interesting and potentially important issue of
whether the test of “clear and convincing” evidence to rebut the presumption of
state protection sets a standard of proof inconsistent with the Supreme Court’s
decision in F.H. v. McDougall, 2008 SCC 53. However, as the issue is not
determinative of this judicial review, the question will not be certified in
this case.
II. BACKGROUND
[3]
The
male Applicant claimed that, on June 2, 2007, he witnessed the abduction of his
neighbour by two masked men. The kidnappers allegedly threatened him with a gun
and warned him not to report the incident to the police. The neighbour was
reported as having been murdered.
[4]
Thereafter,
the eldest daughter was told to warn her father that he was being watched. The
father claimed that black trucks were parked near his store and this confirmed
his suspicions that he was under surveillance.
[5]
On
August 6, 2007, the family moved to Tampico from their home city of
Altamira and stayed
with relatives at different locations for approximately one month. The father,
however, left the day after arriving in Tampico to make his way to Canada where he
made his claim.
[6]
The
rest of the family left Tampico after a month and
returned home. Two months later a rock was thrown through their window.
[7]
Finally,
on April 14, 2008, armed men entered the mother’s store and threatened to kill
her unless she told of her husband’s whereabouts. The men left the family
unharmed, and shortly thereafter the family came to Canada and were
added to the husband’s refugee protection claim.
[8]
Despite
all of the incidents cited by the Applicants, not once did they approach the
police. The Applicants’ argument was that they were fearful of the police
because the wife believed that police cars (identified as such by the absence
of licence plates) were present in the three areas she moved to. It was
acknowledged that these were high crime areas.
[9]
The
RPD assessed the central allegation of fear of death threats and mischief from
local criminals and found that there was no nexus to s. 96 grounds.
[10]
As
to the claim for protection, the RPD found that the Applicants had not shown
that there was no state protection in Mexico. The RPD further found
that they had not taken all reasonable steps to engage state protection and had
acted unreasonably in not reporting something to one of the multiple levels of
police in the areas where they lived or visited.
[11]
The
RPD did a detailed analysis of the circumstances of state protection, including
the speculative nature of the Applicants’ assertion of police involvement in
surveillance.
III. ANALYSIS
[12]
State
protection is reviewable on a standard of reasonableness (Huerta v. Canada (Minister of
Citizenship and Immigration), 2008 FC 586). As such, the examination
goes to “the existence of justification, transparency and intelligibility within
the decision-making process” and also to whether the decision as a whole “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9
at paragraph 47).
[13]
As
a preliminary matter, the Applicants argued that the eldest daughter’s claim
stands alone, and is not derivative, because she was personally threatened.
Nothing turns on this matter because all aspects of the Applicants’ claim were
assessed. In any event, the daughter, like her parents, did not seek state
protection nor show that it was unavailable to her.
[14]
I
can find no unreasonableness in the assessment of state protection. The
Applicants had the burden of proof, on a balance of probabilities, to show that
state protection was unavailable. They failed to discharge this burden.
[15]
There
were logical explanations for police presence in their home area – a police
officer lived six houses away and it was a high crime area. Even if one police
force was problematic, this was not enough to establish the absence of state
protection in a democratic country with multiple organs of redress.
[16]
Not
having sought out police protection, even on incidents for which there was no
alleged connection to police, and not having shown a convincing reason why seeking
state protection would endanger them, the Applicants have not met their burden
of proof.
[17]
Counsel
for the Applicants argued that the test of “clear and convincing” proof of inadequate
state protection as set in Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689, either is inconsistent with F.H., above, which sets
only one standard for civil proof or alternatively, the Ward test is
misunderstood by RPD members as imposing a greater burden than balance of
probability.
[18]
However,
in this case, the decision does not turn on the sufficiency of proof; it turns
on the absence of any proof that state protection is unavailable. The failure
of the Applicants to seek state protection or to provide any real basis for
fearing to engage state protection renders this interesting issue irrelevant in
this case.
IV. CONCLUSION
[19]
For
these reasons, this judicial review will be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application
for judicial review is dismissed.
“Michael
L. Phelan”
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