Date: 20090609
Docket: IMM-4776-08
Citation: 2009 FC 610
OTTAWA, Ontario, June 9, 2009
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
JOSE CARLOS MARTINEZ GUTIERREZ
MARISOL HATZIN LOZA CASTILLO
CARLOS GAEL MARTINEZ LOZA
SOCORRO CASTILLO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Fearing
reprisals from drug dealers for his refusal to traffic drugs at his place of
employment, and following a series of ominous phone calls to his wife and the
discovery that his young son had been sexually abused by another minor, Mr.
Jose Carlos Martinez Gutierrez, together with Marisol Hatzin Loza Castillo (his
wife), Carlos Gael Martinez Loza (his minor son), and Socorro Castillo (his
mother-in-law), sought refugee protection in Canada. A panel of the Immigration
and Refugee Board dismissed their claim, finding that they were neither
Convention refugees nor persons in need of protection under section 96 or 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c.27 (“IRPA”).
The Board viewed the claimants as suffering from the unfortunate effects
of criminality, and that there was no nexus to a Convention refugee ground.
Further, the Board found that there was adequate state protection available to
the claimants.
[2]
The
Applicants argue that the Board erred in its assessment about the availability
of state protection and failed to consider the cumulative effects of the
various incidents on the Applicants. The Applicants applied for judicial review
of the decision of the Board, and ask me to order another panel of the Board to
reconsider their claim. However, I can find no basis to overturn the Board’s
decision and must, therefore, dismiss this application for judicial review for
the reasons that follow.
I. Factual
Background
[3]
The
Applicants are all citizens of Mexico. Mr. Gutierrez was working as a disc
jockey in Veracruz when he was
approached, on September 15, 2007, by two drug dealers who ordered him to sell
drugs at the disco. When he did not answer, they threatened to harm or kill Mr.
Gutierrez unless he complied. The drug dealers returned to the disco twice, but
Mr. Gutierrez, with the help of his manager, was able to avoid them both times.
On October 10, 2007, Mr. Gutierrez quit his job, citing his fear of the drug
dealers.
[4]
A
short time after the drug dealers first approached Mr. Gutierrez, Ms. Loza
Castillo began to receive anonymous phone calls. At first, no words were
spoken. Soon, though, the calls became threatening: the speaker said that he
knew who she was, where she lived, and where her husband worked. The speaker
asked for Mr. Gutierrez and stated that he must do what was asked of him, and
made threats against the family.
[5]
The
Applicants reported the anonymous phone calls to the Mexican police around the
beginning of October. They did not report that Mr. Gutierrez had been
approached by drug dealers, even though they believed the phone calls were
linked to his refusal to sell drugs at the disco. Three weeks later, the
Applicants returned to the police and were told that they would have to wait
for the investigation to be completed. Within a week, however, the Applicants
fled to Canada.
[6]
Mr.
Gutierrez and Ms. Loza Castillo also fear for their young son. Ms. Loza
Castillo discovered that Carlos, at the age of four, had been engaging in
sexual touching and sexual acts with an eleven year-old boy and his cousin. Ms.
Loza Castillo approached the older boy’s mother, but was verbally abused and
mocked. The older children had told Carlos not to tell anyone about the
activities, which became a source of distress and guilt.
[7]
Ms.
Loza Castillo reported the circumstances to the Mexican police. She was told
that an investigation would require Carlos to confront the older boy and tell
his story to several people. She was also told that, due to the aggressor’s
age, the likely outcome would be no more than a referral to counselling. Rather
than subject Carlos to the investigation process, Ms. Loza Castillo decided not
to pursue the matter further.
[8]
Finally,
Ms. Castillo fears harm due to three encounters with drug-addicted criminals.
Twice she was assaulted, and both times she was able to escape harm. The third
time she was assisting to break up a fight when she was hit in the face. These
events were apparently unrelated and occurred randomly over the course of Ms.
Castillo’s lifetime.
II. The Board’s
Decision
[9]
The
Board performed an analysis of the events based on section 96 and section 97 of
IRPA. Under the section 96 analysis, the Board determined that the adult
Applicants were not Convention refugees: the threats of harm emanate from a
criminal source, not “on account of any of the Convention grounds” (Board’s
Decision, p. 2 and p. 3). Fear of persecution at the hands of unknown drug
dealers or drug-addicted criminals does not bring the Applicants within section
96. The Board member concluded that the adult Applicants’ fear “is not linked
to race, nationality, religion, real or imputed political opinion or their
membership in a particular social group. Therefore, I conclude that the
claimants are simply victims of crime and this does not provide the claimants
with a link to a Convention ground” (Board’s Decision, p. 3).
[10]
With
regard to the minor child, the Board determined that, although Carlos had
suffered serious harm, the presumption of state protection had not been
rebutted by clear and convincing evidence. The Board observed that Mr. Loza
Castillo did, in fact, report the incident to the police, and went on to point
out, “While the claimant may not have liked or have been satisfied with the
recourse available, the state was willing and able to provide services to help
remedy the situation. The claimant chose not to pursue the complaint … . [Ms. Loza Castillo] also
obtained counseling for the minor claimant. While the decision not to pursue a
complaint may have been frustrating, this does not present as a situation where
state protection was not forthcoming” (Board’s Decision, p. 5).
[11]
The
Board also asked, pursuant to section 97, whether the Applicants, on a balance
of probabilities, would be subjected personally to a danger of torture, a risk
to their lives or a risk of cruel and unusual treatment or punishment if they
were to return to Mexico. The Board found that there was no objective
basis for the Applicants’ fear of drug dealers or drug-addicted criminals, and
that it was more likely than not that the Applicants would not suffer any
prospective harm.
[12]
Further,
the Board found that the Applicants had not rebutted the presumption of state
protection. The analysis touched on documentary evidence from various sources,
and referred to the “well-prepared representations” from counsel for the
Applicants, including the exhortation to consider the “reality of protection”
in practice (citing Avila v. Canada (Minister of
Citizenship and Immigration), 2006 FC 359 at para. 27). While the Board
acknowledged the ongoing challenges faced by the Mexican government as it
combats the drug trade and its peripheral criminal effects, the Board found,
“Despite the shortcomings, having considered the totality of the evidence, the
panel determines that the Mexican authorities do offer adequate protection to
victims of drug dealers” (Board’s Decision, p. 10).
[13]
The
Board similarly found that the harm experienced by Carlos could be determined
by the availability of state protection. In terms of Ms. Castillo’s fears, the
Board determined that she faced a generalized risk of crime which is widespread
in Mexico. The Board
sympathized with Ms. Castillo, but found that she did not face “a personal risk
… and therefore her claim under section 97 also fails. In any event, … she too,
has access to adequate s[t]ate protection in Mexico” (Board
Decision, p. 11).
III. Issues
[14]
The
Applicants raised several issues in their written submissions relating to the
Board’s interpretation and application of sections 96 and 97 of IRPA. They also
argue that the Board made erroneous findings of fact in a capricious manner
without regard for the material before it, and that the Refugee Protection
Officer’s participation at the Board hearing created procedural unfairness. In
argument before me, the Applicants conceded that the Board’s finding that there
was no nexus to a Convention ground was correct. Thus, the remaining issues can
be stated as follows:
1.
Did
the Refugee Protection Officer’s participation in the hearing before the Board
render the procedure unfair?
2.
Did
the Board err in its assessment of the risks faced by the Applicants by failing
to consider their cumulative effect?
3.
Did
the Board err in finding that the Applicants failed to rebut the presumption of
state protection?
IV. Standard of
Review
[15]
Reviewing courts owe no deference
to the Board on questions of procedural fairness. If there has been a breach of
procedural fairness, the Board’s decision cannot stand.
[16]
The
same can be said of a determination of the cumulative effect of incidents and
whether they give rise to a well founded fear of persecution. As the Federal
Court of Appeal has recently held, “The question of whether the Board was
required to consider the cumulative effect of incidents … is a question of law,
to be determined on a standard of correctness” (Munderere v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 84) (see also Mete v.
Canada (Minister of Citizenship and Immigration), 2005 FC 840 at para.
6).
[17]
On the issue of state protection, the onus is on the Applicants to
rebut the presumption of state protection (Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689). It has long been established, both before and
after the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, that a
reviewing court should not interfere with the Board’s findings on the
availability of state protection unless they are unreasonable (Chavez v. Canada
(Minister of Citizenship and Immigration), 2005 FC 193; Navarro v. Canada
(Minister of Citizenship and Immigration), 2008 FC 358).
[18]
The Supreme Court of Canada provided further guidance on how the
reasonableness standard should be applied. Reasonableness is concerned with the
existence of justification, transparency and intelligibility within the
decision-making process. Specifically, a decision must fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, at para. 47).
V. Analysis
1. Did the Refugee
Protection Officer’s participation in the hearing before the Board render the
procedure unfair?
[19]
The
Applicants submit that the Refugee Protection Officer (“RPO”), who was present
at the hearing as a purportedly neutral participant, made submissions that were
in fact clearly adverse to the Applicants’ interests. The Respondent
acknowledges that the RPO expressed some concerns about the credibility of some
of the Applicants’ evidence. However, the Respondent also cites examples of the
RPO supporting the Applicants’ claim, especially as it pertained to Carlos. The
Respondent further points out that the RPO was not the decision-maker in this
case, and that the Applicants’ reliance on Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461 at para. 63, is misplaced
since the Court was commenting not on the input of the RPO, but on the order of
questioning, which was not an issue in this case.
[20]
Having
reviewed the transcript of the proceedings before the Board, I can see no basis
for finding that the participation of the RPO rendered the process unfair. The
RPO participated in the hearing in a way that respected and protected the
procedural safeguards available to the Applicants. Her comments were, on the
whole, in keeping with her role.
2. Did the Board err in
its assessment of the risks faced by the Applicants by failing to consider
their cumulative effect?
[21]
The
Applicants submit that the Board correctly identified three bases for their
claims, but they argue that the Board proceeded to consider and analyze the
incidents only in isolation. They argue that this is a reviewable error. The
Respondent does not specifically respond to the Applicant’s argument; rather,
he made detailed arguments defending the Board’s findings generally, which I
will not summarize in their entirety.
[22]
In
its section 96 analysis, the Board notes the three sets of circumstances put
forward by the Applicants, and identifies the determinative issue for each
(Board Decision, p. 2). Similarly, in undertaking an analysis pursuant to
section 97, the Board notes, “As above, the analysis under this section is
based on three set[s] of circumstances” and proceeds to identify the
determinative issue for each (Board Decision, p. 6). This is the wording with
which the Applicants take issue. They maintain that it reflects an approach
that considers the events only in isolation, and precludes a holistic analysis
that would account for the cumulative effect of the Applicants’ experiences.
[23]
The
Federal Court of Appeal provides guidance on this issue. In Munderere,
above, the Honourable Justice Marc Nadon, writing for the Court, stated:
[T]he Board is duty bound to consider all of the events
which may have an impact on a claimant’s claim that he or she has a well
founded fear of persecution, including those events which, if taken
individually, do not amount to persecution, but if taken together, may justify
a claim to a well founded fear of persecution. (At para. 42.)
[24]
It
is true that the Board never used the phrase “cumulative effect” or “cumulative
grounds”. The true question, however, is whether the Board considered such a
concept even if it did not use the terminology. The Board thoroughly reviewed
the various aspects of the Applicants’ claims, and recognized that some of the
events may have been interrelated. For example, the Board was clearly concerned
with timelines, such as when and what the Applicants reported incidents to the
police, and also notes that the attacks on Ms. Socorro occurred over the course
of a lifetime; the Board also reflected on the sexual touching suffered by
Carlos, and made findings as to their current and prospective effect on him,
given the support he received from his family and the possibilities available
in Mexico for treatment.
[25]
I
am mindful of the high standard established by the Federal Court of Appeal with
regard to the Board’s analysis of the cumulative effects of refugee claimants’
experiences: it must be more than a reasonable assessment of the circumstances
– it must be correct. In this case, I am satisfied that the Board was, in fact,
mindful of all aspects of the Applicants’ various claims, how they had impacted
them, and how they might affect the Applicants should they return to Mexico.
The Board’s failure to couch the analysis in terms of a “cumulative” approach
does not betray an incorrect analysis. The Board clearly considered all of the
events described by the Applicants, both individually and as a group. I can see
no basis, therefore, for overturning the Board’s decision on these grounds.
3. Did the Board err in
finding that the Applicants failed to rebut the presumption of state
protection?
[26]
The
Applicants submit that the Board erred in its assessment of the evidence before
it, much of it provided by the Applicants in the form of documentation about
conditions in Mexico. They argue
that the Board ignored and/or misinterpreted evidence to such a degree that the
findings, including those on the availability and effectiveness of state
protection, were unreasonable. The Respondent emphasizes the weight of judicial
authority behind the proposition that, absent a complete breakdown of the state
apparatus, it is presumed that the state is capable of providing effective
protection (e.g., Ward, above). The Respondent maintains that the
Applicants have not adduced the clear and convincing evidence required to rebut
this presumption.
[27]
The
Board is presumed to have considered all the evidence unless the contrary is
shown; further, a failure to refer to some evidence does not necessarily
signify that it was not considered (see Florea v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.); Ortiz
v. Canada (Minister of Citizenship and Immigration),
2002 FCT 1163; Ali v. Canada (Minister of Citizenship
and Immigration), 2003 FCT 242). However, when
there is important contradictory evidence, it must be discussed (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J. No. 1425 at para. 17; Babai v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1341).
[28]
Both
before and at the hearing before the Board, counsel for the Applicants produced
documentation outlining the difficult social conditions in Mexico, including
the prevalence of organized crime, the infiltration of certain police forces by
nefarious elements, and the rampant intimidation of ordinary citizens. The
Board’s decision specifically discusses the evidence produced by counsel for
the Applicants (Board Decision, p. 10), as well as the documentary evidence
gleaned from other reliable sources. The Board then specifically outlines its
reasons for finding that, despite contradictory evidence on the issue, the
Mexican government and authorities are capable of providing effective
protection. For example, the Board cites increases in the number of
investigations in Mexico aimed at stemming corruption of federal employees;
increased military expenditures aimed at fighting drug related crime; and the
possibility that some increases in violence actually show that government strategies
to combat the drug trade are working, as they signal cartels’ destabilization.
The Board states that it has – and, indeed, seems to have – considered “the
totality of the evidence” before it (Board’s Decision, p. 10).
[29]
The
Board also points out that the Applicants did, in fact, bring their concerns to
the police. In the matter of the anonymous phone calls, they left the country
before the investigation could be completed; in the matter of the sexual
touching suffered by Carlos, the state was prepared to act but the Applicants
decided not to avail themselves of the protective measures available.
[30]
The
Board’s finding on the availability of state protection to all the Applicants,
regardless of their circumstances, is reasonable, and I see no reason to
interfere with it.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review is dismissed. No question of general importance was submitted
for certification.
"Max M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4776-08
STYLE OF CAUSE: JOSE
CARLOS MARTINEZ GUTIERREZ et al v. MCI
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: June
2, 2009
REASONS FOR JUDGMENT: TEITELBAUM
D.J.
DATED: June
9, 2009
APPEARANCES:
|
Mr. Jack Davis
|
FOR THE APPLICANTS
|
|
Ms. Eleanor
Elstub
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Jack Davis
Barrister
& Solicitor
|
FOR THE APPLICANTS
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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