Date:
20090508
Docket: IMM‑3318‑08
Citation: 2009 FC 480
Ottawa, Ontario, May 8, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
HECTOR
TREJO HERNANDEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, of a decision dated
June 27, 2008, by the Refugee Protection Division of the Immigration and
Refugee Board (the panel) finding that the applicant is not a Convention
refugee or a person in need of protection.
Issue
[2]
Did the
panel err in finding that the applicant had not reversed the presumption of
Mexican state protection?
[3]
For the
following reasons, the application for judicial review will be dismissed.
Factual background
[4]
The
applicant, Hector Trejo Hernandez, is a 35-year-old Mexican citizen
who was beaten and robbed by three men on February 7, 2005, in the
neighbourhood of Colonia Lomas de Casablanca, in Querétaro, where he grew up. A
bandit known as “El Piojo” was allegedly the head of the group.
[5]
Following
the incident, the applicant went to social security and the Mexican institute
to file a complaint against his assailants for theft and bodily injuries. After
filing his complaint, the applicant began to receive threats.
[6]
In
June 2005, the applicant decided to move with his family to Morelia, in
the state of Michoacán, thinking that they would be safe. He lived there from June 2005
to May 2006 and he then returned to Querétaro because his wife’s attitude
had changed greatly.
[7]
On
June 17, 2006, his wife left him, taking their daughter with her.
[8]
On
December 31, 2006, the applicant learned from a friend that his wife was
seeing El Piojo and was living in Michoacán. Wanting custody of his
daughter, he wished to submit El Piojo’s criminal record in the divorce
proceedings. However, he was threatened with death and discouraged from going
ahead with the proceedings.
[9]
The
applicant filed a report on January 13, 2007, but, following a kidnapping
attempt on January 15, 2007, by El Piojo and other bandits, the
applicant decided to leave the country without awaiting the outcome of his
report.
[10]
On
January 19, 2007, the applicant arrived in Canada and claimed refugee
protection.
Impugned decision
[11]
The
panel’s negative decision rests essentially on the availability of protection
in the applicant’s country.
[12]
Here, the
panel found that the applicant had not taken all reasonable steps to seek protection
from the Mexican authorities with regard to an incident on January 15,
2007. The applicant knew the names of witnesses who could have corroborated his
report, and he had already initiated a complaint on January 13, 2007,
which identified El Piojo. Moreover, this person and his wife were to
appear before the authorities to give their version of the facts regarding
another complaint by the applicant, dated January 17, 2007.
[13]
The panel
found that the applicant’s explanation of fear being the reason for not having
pursued his complaint was insufficient. The applicant cannot rebut the
presumption of state protection in a functioning democracy by asserting only a
subjective reluctance to approach the state (Judge v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1089,
133 A.C.W.S. (3d) 157; Santiago v. Canada (Minister of
Citizenship and Immigration), 2008 FC 247,
165 A.C.W.S. (3d) 325). The panel reviewed its reasons in
decision TA6-07453, dated November 26, 2007, and adopted the same reasoning
regarding the issue of availability of state protection in Mexico.
Standard of review
[14]
Since Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
the panel’s conclusions on state protection are subject to review under the
reasonableness standard (Hinzman v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 171, 362 N.R. 1, at
paragraph 38; Huerta v. Canada (Minister of Citizenship and
Immigration), 2008 FC 586, 167 A.C.W.S. (3d) 968,
at paragraph 14; Chagoya v. Canada (Minister of Citizenship and
Immigration), 2008 FC 721, F.C.J. No. 908 (QL), at
paragraph 3; Dunsmuir, above, at paragraphs 55, 57, 62
and 64).
[15]
According
to the Supreme Court, the factors to be considered are justification,
transparency and intelligibility within the decision-making process. The
outcome must be defensible in respect of the facts and the law (Dunsmuir,
at paragraph 47).
Analysis
[16]
The
elements of the claim emerge from the answer to question 31 in the
applicant’s Personal Information Form (PIF) and from his testimony at the
hearing. The panel found that the applicant could have taken further steps with
the police authorities to meet the burden of proof that he had taken all
reasonable steps, given his situation, to seek protection in his country.
[17]
The
applicant acknowledged that he left Mexico on January 19, 2007, even
though he had lodged a complaint against El Piojo less than one week
earlier, and the authorities had summoned El Piojo and the wife to a
meeting scheduled on January 17, 2007. By leaving, the applicant dropped his
complaint, making the efforts of the Mexican authorities to protect him
pointless. Yet a number of witnesses saw the kidnapping attempt on
January 15, 2007, and could have testified for the applicant.
[18]
The
panel’s finding is entirely reasonable. Twice the applicant lodged complaints
with the police and the Office of the Prosecutor, and both complaints were
dealt with. Although the first complaint did not succeed, the fact remains that
the authorities did what they felt they could do with the evidence they had.
[19]
On the
facts of this case, as admitted by the applicant, the Mexican authorities
received and considered the applicant’s complaints seriously and reacted
adequately when the applicant filed a report. It was reasonable for the panel
to find that the applicant had not established by clear and convincing evidence
that Mexico was unable to protect him.
[20]
The panel
did not make a reviewable error. The decision is justified and intelligible and
the outcome is defensible in respect of the facts and law.
[21]
No
question was proposed for certification and there is none in this case.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be dismissed. No
question is certified.
“Michel
Beaudry”
Certified
true translation
Brian
McCordick, Translator
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