Date: 20090708
Docket: IMM-5669-08
Citation: 2009 FC 707
Ottawa, Ontario, July 8, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MONTESINOS
HIDALGO, Marco
Antonio
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) 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) dated December 1, 2008, where the Board found that the Applicant was not
a Convention refugee or a person in need of protection.
Issues
[2]
This
application raises the following issues:
a) Did
the Board err in its analysis of state protection?
b) Did
the Board err by relying on the Board’s persuasive decision TA6-07453 in its
analysis of state protection?
c) Was
there a breach of procedural fairness that necessitates the matter be sent back
to the Board?
Factual Background
[3]
The
Applicant is a citizen of Mexico and was born in Tapachula on December 2,
1978. After completing secondary school in 1998, he obtained a law degree and
worked in a legal capacity for the Instituto Federal Electoral.
[4]
In
2004, the Applicant opened his own video store (DVD Magic) in Tapachula.
[5]
In
December 2006, three individuals who were regular customers entered the store.
They offered to complete certain renovations if the Applicant agreed to sell
something in the store in exchange. The following week, they returned with a
sample of some white powder. When the Applicant refused to sell the powder,
they told him that he did not know what he was getting into.
[6]
On
January 15, 2007, just as he was closing his store for the night, four people
with weapons came in the store and beat the Applicant, telling him that he was creating
resistance against the expansion of their territory. The Applicant reported the
incident to the police who agreed to investigate.
[7]
At
the end of March 2007, while he was on his way home, the Applicant was
confronted by a policeman named Pedro Sanchez and one of the men who had come
to his store in January. The officer led the Applicant to believe that if he
did not cooperate with the persons who were trying to sell the white powder, he
would be sorry and he could lose his store.
[8]
The
next day, when he went to inquire about the status of the investigation at the
police station, the Applicant came across the same police officer with whom he
had met the previous day. Officer Sanchez told him that because it was not an
emergency case and because the police lacked proper resources, they could do
nothing for him. The following day, two persons entered the Applicant’s store
to assault him for going to the police and they threatened to kill him the next
time. The Applicant went to a local clinic for treatment for his injuries and while
he was at home recovering, his store burned in a fire.
[9]
The
Applicant then moved to Tuxtla Gutierrez, Chiapas, where his
mother and one of his brothers lived and worked. In March 2007, the Applicant
went to the police in Tuxtla to tell them about Officer Sanchez and what had
happened to him. The police told him that they would investigate his
allegations and that they would also question Officer Sanchez.
[10]
In
September 2007, the Applicant received a call on his cellular telephone. The
caller told him that it had been discovered that he had filed a complaint with
the police and that an investigation was underway from the central office. The
caller threatened the Applicant with death if he identified anyone in the
investigation.
[11]
The
Applicant decided to leave Mexico to attend a conference in Gatineau, Quebec,
which had been arranged for him by his brother. The Applicant left for Canada on November
7, 2007 and when the conference ended, he did not return to Mexico. He was
advised to make a refugee claim, which he did on December 19, 2007.
[12]
The
Applicant alleges that he is afraid of being killed because there is inadequate
state protection in Mexico against corrupt policemen who work with gang
members.
Impugned Decision
[13]
The
Applicant’s claim was refused by the Board on the basis that there was adequate
state protection available to the Applicant and because he lacked credibility.
[14]
The
Board found that the Applicant failed to produce any acceptable documents to
show that he was the owner of the DVD Magic store in Tapachula. He tried to
introduce a registration document which had not been translated. When the
interpreter present at the hearing was asked to view the document, she
indicated “that there was nothing there to state that [sic] what the
registration was except the date of 2000/14/04”. Nothing in the
document related it to a video store or to an address in Tapachula. As a
result, the document was not accepted into evidence and no weight was given to
it.
[15]
The
Applicant’s store was in a building rented from Dr. Carlos Carballa. The
Applicant admitted he had entered into a written lease agreement with Dr.
Carballa, but did not bring a copy of the lease with him at the hearing. The
Applicant was unable to produce photographs of his video store or brochures or
other documents which would mention the name of the store.
[16]
The
Applicant was allegedly injured on January 15, 2007, and went to the regional
hospital in Tapachula for treatment. He admitted that the hospital registered
his visit, but he did not keep the records, which he states are in his
abandoned house in Tapachula. The Applicant’s Personal Information Form (PIF)
was signed on January 15, 2008 and he has obtained a counsel since then. The
Applicant or his counsel should have realized the importance of producing
available documents of this nature to support the claim.
[17]
Following
the second attack, the Applicant was injured and treated for severe injuries at
the same hospital in March 2007. One of his teeth had to be extracted there and
medication was prescribed for him by the doctor. The Applicant did not bring
any of these records with him, nor did he attempt to obtain these records,
notwithstanding the instructions at question 31 of his PIF to “attach copies of
any medical, psychological, police or other documents to support your claim.”
[18]
At
the end of the hearing, the Applicant’s counsel asked the Board if he could be
allowed sufficient time to obtain these documents from Mexico for the
Board before preparing its reasons. The Board denied the request because it
considered that the Applicant was obliged to provide sufficient credible
documents to corroborate his claim no later than 20 days before the hearing.
There were no exceptional circumstances in the case at bar which warranted a
delay in completing the hearing and for the Board to finalize its reasons.
[19]
The
Applicant told the Tuxtla police about Officer Sanchez when he moved there in
March 2007. The police therefore knew the officer’s identity at that time and they
promised to investigate. In fact, the police would have commenced their
investigation at or about the time the Applicant was getting ready to leave
Mexico to come to Canada. The Board did not understand why the Applicant
received a call in September 2007 from a person who threatened to kill him if
he identified or named anyone involved since he had already named and
identified one of them as a corrupt police officer in March of the same year.
[20]
Other
than police officer Sanchez, the Applicant did not know who the other drug
dealers were, except that they wore sleeveless t-shirts with tattoos. He did
not report the first incident to the police because he thought they looked like
police by the way they were dressed and because he was afraid to report
them. The Applicant believes that most police officers in Mexico, both state
and federal, are corrupt, notwithstanding the fact that this was the very first
time he had any personal contact with the police. If the Applicant held the
belief that the police were corrupt and would not act in matters like this, the
Board wondered why he went to the police on two occasions to report on a
corrupt police officer.
[21]
The
Applicant acknowledged that state protection was one of the determinative
issues in this case. He also acknowledged that he was aware of the persuasive
decision TA6-07453, dated November 26, 2007, which analyzed the issue of state
protection in Mexico, the
availability of the mechanisms for lodging complaints, and the level of
democracy in Mexico.
[22]
The
Board reminded that there is a presumption that a state is capable of
protecting its citizens and an Applicant may rebut this presumption by
providing “clear and convincing” proof of lack of state protection in the
country of origin. The Applicant must approach his state for protection
provided state protection might be reasonably forthcoming.
[23]
When
the state in question is a democratic state, such as Mexico, the
Applicant must do more than show that he went to see some member of the police
force and that his efforts were unsuccessful. The burden of proof resting on
the Applicant is, in a way, directly proportional to the level of democracy of
the state in question; the more democratic the state’s institutions, the more
the Applicant must have done to exhaust all reasonable courses of action open
to him.
[24]
The
police have to be given a reasonable period of time to investigate the facts
and to lay charges if their information and facts warrant such action. The
Applicant was told by the Tuxtla police that they would investigate and Officer
Pedro Sanchez would also be questioned. The Applicant admitted at the hearing
that he did not wait around long enough to find out the results of their
investigation before he came to the conference in Canada.
[25]
The
Board thought that had the Applicant remained in Mexico, with the
evidence the police had, they might have charged and convicted Officer Sanchez.
[26]
The
Board assumed that without the Applicant’s further cooperation because he was
in Canada, he would
not be available to testify as a witness against officer Sanchez, the
investigation started by the Mexican police would probably end quickly. The
Applicant should have waited to see whether or not justice was done in this
particular instance before fleeing.
[27]
The
issue of the availability of state protection was carefully analysed in persuasive
decision TA6-07453 and the Board was satisfied that the facts of the case
before it were similar enough to the facts in the persuasive decision.
[28]
At
the hearing, the Applicant’s counsel did not attempt to distinguish the facts
or findings made by the Board in TA6-07453, nor did he refer to it during his
oral submissions, other than to acknowledge its existence.
Relevant Legislation
[29]
The
relevant legislation can be found at Annex A at the end of this document.
Standard of Review
[30]
In
light of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Cervantes
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 680, [2008] F.C.J. No. 848 (QL)
at para. 7 and Farias v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1035, 170 A.C.W.S. (3d) 601 at
para. 14, the Court finds that the standard of review for the Board’s
assessments of the adequacy and availability of state protection is
reasonableness.
[31]
Questions
of procedural fairness should be assessed on a correctness standard (Ellis-Don
Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4,
[2001] 1 S.C.R. 221 at para. 65). When a breach of the duty of fairness is found,
the decision should generally be set aside (Sketchley v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392 at para. 54).
a) Did the Board
err in its findings about state protection?
[32]
The
Board is entitled to significant deference with respect to its findings on
whether an Applicant has rebutted the presumption of state protection. In the
present case, it was entirely open to the Board under the circumstances to
conclude that the Applicant had failed to exhaust all reasonable avenues
to seek alternative avenues of redress sanctioned by the state.
[33]
The
Applicant admitted that he left Mexico for Canada in November 2007, just as the
investigation concerning officer Sanchez was about to begin. Thus, the
Applicant was wrong to believe that the Mexican authorities were not able to
protect him. By fleeing Mexico, the Applicant simply did not give the
Mexican authorities the opportunity to offer him adequate protection by
prosecuting the offenders. The authorities in Tuxtla stated that they would investigate
the Applicant’s complaint, but the Applicant did not wait for the results of
the investigation before fleeing Mexico. It was reasonable for
the Board to conclude that the Applicant had not shown by clear and convincing
evidence that Mexico was unable
to protect him.
b)
Did the Board err by relying on the Board’s persuasive decision
TA6-07453 in its analysis of state protection?
[34]
The
factual context surrounding the persuasive decision TA6-07453 is not exactly
the same as in the case at bar but similar enough for the Board to adopt and
apply the same findings as to state protection in the case it had to decide.
That conclusion is not unreasonable.
[35]
The
Board was not bound by the persuasive decision. Rather, it considered its
relevance as part of its specific assessment of the Applicant’s claim with the
evidence it had before it.
[36]
The
Board is assumed to have weighed and considered all the evidence presented to
it unless the contrary is shown. The mere fact that the Board’s reasons do not
canvass every piece of evidence does not indicate that the Board did not
consider these documents and is not fatal to its decision (Florea v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.)
(QL); Hassan v. Canada (Minister of Employment and Immigration) (1992),
147 N.R. 317 at 318, 36 A.C.W.S. (3d) 635 (F.C.A.)). In the case at bar, the
Board’s reasons adequately support the decision and the Court’s intervention is
not warranted.
c)
Was there a breach of procedural fairness that necessitates the matter
be sent back to the Board?
Applicant’s Arguments
[37]
While
making no specific finding in its reasons that the Applicant lacked
credibility, the Board cast aspersions on the Applicant’s credibility regarding
two matters: the September 2007 threatening phone call and the lack of
documentation filed by the Applicant in support of his claim.
[38]
The
Board made no finding that the Applicant’s testimony was inconsistent or that
it was contradicted by any other evidence before it. The Board made no comment
on any omissions from the Applicant’s testimony or PIF, or on the Applicant’s
testimony, but the decision made several references to the Applicant’s failure
to provide corroborative evidence in support of his claim. However, the case
law states that a Board member errs in making a negative credibility finding
against an Applicant based solely on the lack of documentary evidence (Ahortor
v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 137,
41 A.C.W.S. (3d) 863 (F.C.T.D.) at para. 45).
[39]
There
was nothing in the case at bar to contradict the Applicant’s sworn testimony
that he was the proprietor of a video store and that he had attended at a
medical clinic following two beatings in January and March 2007. By doubting
the Applicant’s credibility because of a lack of corroborative documentation,
the Applicant submits that the Board member erred in law.
[40]
The
Applicant also notes that his counsel had not asked him to provide any
documentation concerning his claim before the hearing. At the hearing, the
Applicant’s counsel asked the Board for time to file documentation before the
Board finalized its reasons. The Board rejected the request, stating that there
were no exceptional circumstances warranting a delay in completing the hearing and
for the Board to finalize its reasons. The Applicant submits that given that
the decision had not yet been rendered on the date the motion was filed, as a
matter of procedural fairness, the Board should have considered the request. By
failing to do so, the Board breached its duty of procedural fairness owed to
the Applicant.
[41]
On
November 26, 2008, the Applicant, with new counsel, filed a motion with the
Board requesting, among other relief, an extension of time within which to file
new documentary evidence. Although the Applicant’s motion was filed several
days before the Board member rendered his decision, there was no
acknowledgement by the Board of receipt of the motion. On December 15, 2008, it
was returned to the Applicant’s counsel, who was told that the decision had
already been made in the Applicant’s case.
[42]
In
his second distinct written application, the Applicant provided new information
showing that there were exceptional circumstances in support of the request. In
particular, the Applicant explained that his counsel at the hearing had never
informed him that he was required to provide documentary evidence in support of
his claim, that he only learned of this requirement during the hearing and that
this information was readily available to him.
[43]
The
Respondent argues that this was not an exceptional situation where the evidence
was new or previously unavailable. The Applicant is not contending that the
Board was required to accept his request for more time to submit documentation.
The Applicant alleges that since the motion was received by the Board prior to
the date of the decision, and since pursuant to section 69 of the Refugee
Protection Division Rules, SOR/2002-228, the Board has the power to “change
a requirement of a rule”, “excuse a person from a requirement of a rule”, or
“extend or shorten a time limit, before or after the time limit has passed”,
the motion should have been addressed before the decision was rendered. The
failure of the Board to acknowledge the Applicant’s motion constitutes a breach
of procedural fairness.
Respondent’s Arguments
[44]
The
Applicant did not provide corroborating documentary evidence within the
statutorily prescribed time and he now alleges that his attempts to file
documents late by way of a motion weeks after the hearing, led to a breach of
procedural fairness. However, the record shows that rather than a breach of
procedural fairness, the Applicant simply did not bring his motion in time for
the Board to consider it before rendering its decision.
[45]
At
the hearing, the Applicant’s counsel requested an extension of time to file
documentary evidence, but the Board denied the extension because it held that
there were no exceptional circumstances which warranted the delay. The Board
held that the Applicant had the obligation to provide any documents to
corroborate his claim 20 days before the hearing, as stipulated at Rule
29(4)(a) of the Refugee Protection Division Rules and on the Personal
Information Form (PIF).
[46]
The
Board rejected the Applicant’s claim on November 4, 2008, the day after the
hearing. Draft reasons were provided to the secretary on that date and the
reasons were signed on December 1, 2008.
[47]
On
November 26, 2008, a few weeks after the hearing, a counsel other than the
Applicant’s counsel of record, sent motion materials for a motion to extend the
time for filing evidence by fax to the Board. This counsel was not the
Applicant’s counsel of record at the time. By the time the Applicant filed a
notice of change of counsel on December 9, 2008, the Board’s decision had
already been rendered.
[48]
In
his affidavit, the Applicant’s new counsel affirmed that he was asked to act on
behalf of the Applicant on November 21, 2008. However, the Applicant or his
counsel only attempted to change the Applicant’s counsel of record only on
December 9, 2008, after the decision was signed. The Refugee
Protection Division Rules require an immediate notification of change of
counsel, as is repeated on various forms received by the Applicant. The
Applicant and his new counsel should have been aware of the close timing and
should have ensured that the motion came from counsel of record so that it
could properly be put before the Board. The Board’s adherence to its Rules
is not a breach of fairness, neither is it unduly harsh given that counsel was
advised that he could submit a motion to reopen.
[49]
Rule
4(4) of the Refugee Protection Division Rules provides that a claimant
must provide all changes related to his counsel’s information in writing to the
Division and the Minister. Claimants before the Board are also advised on the
PIF to notify the Board immediately if they change counsel. They are provided
with a special form in the PIF kit for this purpose. It is important that
Applicants provide the Board with updated contact information of their counsel.
[50]
On
December 11, after the Board had rendered its decision, the Applicant attempted
to provide the Board with documentary materials in support of his claim. He was
provided with the Board’s decision.
[51]
On
December 15, Board registry staff returned the motion materials to the new
counsel and advised him that as the decision had already been rendered, he
could file a motion to reopen the case if he chose so. The Applicant did not avail
himself of that opportunity and instead pursued this judicial review.
[52]
In
the absence of exceptional circumstances, this Court should not reward the
Applicant or his counsel’s lateness by finding a procedural fairness breach. To
do so would be unfair to other Applicants who follow the Refugee Protection
Division Rules and the prescribe time requirements. In fact, the Board had
already dealt with the issue of the Applicant’s request to file evidence after
the hearing. As noted in the Board’s reasons, at the end of the hearing, the
Applicant’s then counsel had requested an extension of time to file documentary
evidence before the Board prepared its reasons but the Board denied the request
because of an absence of exceptional circumstances warranting a delay as this
was not an exceptional situation where the evidence was new or previously
unavailable.
Analysis
[53]
The
Board did not commit a breach of procedural fairness in determining that there
were no exceptional circumstances justifying the grant of an additional delay
to file documentary evidence to be considered by it in its reasons. The Applicant's
PIF was signed on January 15, 2008; he had since then been represented by an
experienced lawyer. The hearing date was November 3, 2008. The Applicant had
ample time to gather and file his documents before the Board.
[54]
Furthermore,
the Applicant could have filed a motion to reopen the case after the decision
was signed but he chose instead to pursue his judicial review. In light of
these circumstances, there is no justification for this Court to intervene.
[55]
The
parties did not suggest questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS the application for judicial review be
dismissed. No question is certified.
“Michel
Beaudry”
ANNEX A
Relevant Legislation
Refugee
Protection Division Rules,
SOR/2002-228
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4. (1) The claimant must provide the
claimant’s contact information in writing to the Division and the Minister.
Time limit
(2) The
claimant’s contact information must be received no later than 10 days after
the claimant received the Personal Information Form.
Change to
contact information
(3) If the
claimant’s contact information changes, the claimant must without delay
provide the changes in writing to the Division and the Minister.
Claimant’s
counsel
(4) A claimant
who is represented by counsel must, on obtaining counsel, provide the
counsel’s contact information in writing to the Division and the Minister. If
that information changes, the claimant must without delay provide the changes
in writing to the Division and the Minister.
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4.
(1) Le demandeur d’asile transmet ses
coordonnées par écrit à la Section et au ministre.
Délai
(2)
Les coordonnées doivent être reçues par leurs destinataires au plus tard dix
jours suivant la réception, par le demandeur d’asile, du formulaire sur les renseignements
personnels.
Changement
des coordonnées
(3)
Dès que ses coordonnées changent, le demandeur d’asile transmet ses nouvelles
coordonnées par écrit à la Section et au ministre.
Coordonnées
du conseil
(4)
Dès qu’il retient les services d’un conseil, le demandeur d’asile transmet
les coordonnées de celui-ci par écrit à la Section et au ministre. Dès que
ces coordonnées changent, le demandeur d’asile transmet les nouvelles
coordonnées par écrit à la Section et au ministre.
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29. (1)
If a party wants to use a document at a hearing, the party must provide one
copy to any other party and two copies to the Division, unless these Rules
require a different number of copies.
Disclosure
of documents by the Division
(2) If the
Division wants to use a document at a hearing, the Division must provide a
copy to each party.
Proof that
document was provided
(3) Together
with the copies provided to the Division, the party must provide a written
statement of how and when a copy was provided to any other party.
Time limit
(4) Documents
provided under this rule must be received by the Division or a party, as the
case may be, no later than
(a) 20 days
before the hearing; or
(b) five days
before the hearing if the document is provided to respond to another document
provided by a party or the Division.
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29. (1) Pour utiliser un
document à l’audience, la partie en transmet une copie à l’autre partie, le
cas échéant, et deux copies à la Section, sauf si les présentes règles
exigent un nombre différent de copies.
Communication
de documents par la Section
(2)
Pour utiliser un document à l’audience, la Section en transmet une copie aux
parties.
Preuve
de transmission
(3)
En même temps qu’elle transmet les copies à la Section, la partie lui
transmet également une déclaration écrite indiquant à quel moment et de
quelle façon elle en a transmis une copie à l’autre partie, le cas échéant.
Délai
(4)
Tout document transmis selon la présente règle doit être reçu par son
destinataire au plus tard :
a)
soit vingt jours avant l’audience;
b)
soit, dans le cas où il s’agit d’un document transmis en réponse à un
document reçu de l’autre partie ou de la Section, cinq jours avant
l’audience.
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69. The Division may
(a) act on its
own initiative, without a party having to make an application or request to
the Division;
(b) change a
requirement of a rule;
(c) excuse a
person from a requirement of a rule; and
(d) extend or
shorten a time limit, before or after the time limit has passed.
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69. La Section peut :
a)
agir de sa propre initiative sans qu’une partie n’ait à lui présenter une
demande;
b)
modifier une exigence d’une règle;
c)
permettre à une partie de ne pas suivre une règle;
d)
proroger ou abréger un délai avant ou après son expiration.
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