Date:
20090521
Docket: IMM-4148-08
Citation: 2009 FC 511
Ottawa, Ontario, this 21st day of May
2009
Present: The Honourable Orville
Frenette
BETWEEN:
JOSE ALFREDO GONZALEZ MENESES,
MANYUSIN IVETTE VILLALOBOS ARELLANO,
JONATHAN IVAN GONZALEZ VILLALOBOS,
STEPHANIA ANDREA GONZALEZ VILLALOBOS
Applicants
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the “Board”),
rendered on August 21, 2008, determining that the applicants were not
Convention refugees nor persons in need of protection pursuant to sections 96
and 97 of the Act.
I. The Facts
[2]
The principal applicant, Jose Alfredo
Gonzalez Meneses, his wife and two children are Mexican citizens. They resided
in the city of Puebla, Mexico.
They claimed refugee protection under sections 96 and 97 of the Act, alleging
they had received threats from unidentified individuals who threatened to kidnap
the principal applicant’s wife and children unless he paid them 80,000 Mexican
pesos by the end of August 2007.
[3]
The principal applicant claimed he had
begun receiving threatening telephone calls which he reported to the police in Puebla
by telephone but received no response. He alleges that on April 25, 2007, three
unknown individuals approached him near his residence and threatened to kidnap
his children if he did not come up with the money by the end of the month. The
next day he went to the Public Ministry office to make a report about the
incident. About three weeks later, while attending an emergency at the Public
Ministry, he saw the same man who had approached him on April 25, 2007, wearing
a black safety vest recognizing him (or almost recognizing him) as a Judicial Police
officer. He feared the police. He discussed these events with his wife and they
decided to leave Mexico.
[4]
The applicants came to Canada
on August 21, 2007 and claimed refugee protection at the airport the same day.
II. The Impugned
Decision
[5]
The Board, in its 14-page decision,
elaborated the facts and the reasons why the applicants’ alleged fears were not
based upon persuasive evidence that members of the Judicial Police were
involved in the threats of kidnapping and money demands. The presumption of
state protection had not been rebutted.
[6]
The Board concluded that if such threats
were made, it was the result of being targets or victims of crime, which could
not be linked to any Convention ground. The Board considered the documentation
filed, including that there was evidence of corruption and bribery by officials
and police or security forces but that since 2000 the Mexican
State
had made significant efforts to eradicate corruption and criminality. The Board
found Mexico
to be a democratic state, even if not a perfect one, and that it had effective state
protection. However the applicants had not rebutted the presumption of state
protection and had not taken reasonable steps to obtain state protection.
III. The Issue
[7]
Was the Board’s decision reasonable?
IV. The Legislation
[8]
Sections 96 and 97 of the Act read as follows:
|
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; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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.
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
|
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;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
V. The Standard
of Review
[9]
The jurisprudence has established that the
standard of review for the assessment of facts or mixed facts and law is one of
reasonableness and, on questions of law the standard is correctness (Dunsmuir
v. New Brunswick,
[2008] 1 S.C.R. 190). Deference must be given to decisions in findings of fact
(Minister of Citizenship and Immigration v. Khosa, 2009 SCC 12).
Breaches of the rules of natural justice or procedural fairness are also
governed by the standard of review of correctness (Juste v. Minister of
Citizenship and Immigration, 2008 FC 670, paragraphs 23 and 24; Bielecki
v. Minister of Citizenship and Immigration, 2008 FC 442, paragraph 28; Hasan
v. Minister of Citizenship and Immigration, 2008 FC 1069, paragraph 8).
VI. Presumption of
State Protection
[10]
The Federal Court of Appeal in Canada
(M.C.I.) v. Flores Carrillo, [2008] 4 F.C.R. 636, in a case involving a
claim for refugee protection from a Mexican citizen, concluded that such claim
failed because Carrillo failed to rebut the presumption of state protection
“with clear and convincing evidence within the preponderance of probability
category”.
VII. Analysis
A. Lack
of Nexus
[11]
As the Board has noted in its reasons, this
Court has clearly held that victims of crime, corruption or vendettas generally
fail to establish a link between their fear of persecution and one of the
Convention grounds in the definition of Convention refugee.
[12]
In the present case, the applicants claim
that their lives and safety are threatened by three unidentified individuals
who they allege are Judicial Police officers. The Board therefore concluded
that they were victims of crime and consequently did not meet the Convention
refugee definition.
[13]
This Court has held that victims of crime do not necessarily have a nexus to one of the Convention grounds (Bacchus v.
Minister of Citizenship and Immigration, 2004 FC 821; see also Rawji v.
Canada (Minister of Employment and Immigration) (1994), 87 F.T.R. 166; Mousavi-Samani
v. Canada (Minister of Citizenship and Immigration) (1997), 74 A.C.W.S. (3d)
655).
[14]
In
Justice Michel Beaudry’s recent decision Castro v. Minister of Citizenship
and Immigration, 2008 FC 1282, he notes:
[25] It
is trite law that for an applicant to succeed on a refugee claim under section
96 of IRPA, the claimant cannot only show that they have suffered or
will suffer persecution in their country of origin. This persecution must also
be linked to one of the Convention grounds set out in the definition of refugee
pursuant to subsection 2(1) of the Act. As explained in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 61:
.
. . the drafters of the Convention limited the included bases for a
well-founded fear of persecution to “race, religion, nationality, membership in
a particular social group or political opinion”. Although the delegates
inserted the social group category in order to cover any possible lacuna left
by the other four groups, this does not necessarily lead to the conclusion that
any association bound by some common thread is included. If this were the case,
the enumeration of these bases would have been superfluous; the definition of “refugee”
could have been limited to individuals who have a well-founded fear of
persecution without more. The drafters’ decision to list these bases was
intended to function as another built-in limitation to the obligations of
signatory states. . . .
[26] The Applicant claims he has a
well-founded fear of a group of individuals involved in money laundering on the
basis of being a victim of crime.
This does not fall under one of the enumerated categories of the Convention
refugee definition and as such, the Board’s decision in this regard is
reasonable.
[15]
Based
on the above, the Board’s decision regarding the applicants’ lack of nexus was
reasonable.
B. State
Protection
[16]
The
principal applicant bases most of his submissions attacking the Board’s
decision on state protection. He alleges that documentary evidence shows that
70 percent of kidnappings in Mexico involve policemen or former policemen. He submits that the
majority of the population has no faith in the state’s enforcement institutions
(police and courts).
[17]
The
principal applicant argues the Board failed to justify its decision on this
point. He also claims the Board ignored some of his evidence.
[18]
The
respondent answers that the applicants made only one effort to obtain police
protection by a telephone call with no follow-up. The principal applicant did
verify one week later but was told the investigation was ongoing. He states
that the Board considered all of the evidence.
[19]
The
evidence shows that the principal applicant, instead of following-up to
establish the identity of the individuals or seeking further state protection
or moving to another area of Mexico, decided to come to Canada. The onus of
rebutting the presumption of state protection is upon the applicant.
Furthermore, the more democratic the state’s institution, the more the claimant
must do to exhaust all courses of action, available to him or to her (Hinzman
v. Minister of Citizenship and Immigration, 2007 FCA 171, at paragraphs 56
and 57; Nava v. Minister of Citizenship and Immigration, 2008 FC 706, at
paragraphs 19 and 20; Granados v. Minister of Citizenship and Immigration,
2009 FC 210, at paragraph 19).
[20]
An
analysis of the Board’s decision shows that the applicants have not rebutted
the presumption of adequate state protection or internal flight alternative,
based on a reasonable interpretation of the facts satisfying the requirements
of Dunsmuir, supra, and the case law (see Carillo, supra
and Suarez v. Minister of Citizenship and Immigration, 2009 FC 227).
[21]
The
applicants rely upon the decision in Capitaine v. Minister of Citizenship
and Immigration, 2008 FC 98; however a reading of that case reveals that
the applicants in that case made three serious attempts at finding an internal flight
alternative. They also requested police assistance in the past, without
success, concerning three robberies and previous kidnappings. Therefore the
facts are very different than the ones in this case and call for a different
conclusion.
VIII. Conclusion
[22]
For
all the above reasons, the applicants have not persuaded me that the Board
committed any reasonable error. This application for judicial review will
therefore be dismissed.
JUDGMENT
This
Court orders that:
The application for judicial
review of the Immigration and Refugee Board’s decision of August 21, 2008, is dismissed.
No questions are to be
certified.
“Orville
Frenette”
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