Date: 20090810
Docket: IMM-232-09
Citation: 2009 FC 805
Ottawa, Ontario, this 10th day of August
2009
Present: The Honourable Orville
Frenette
BETWEEN:
ARTEMIO VALERIO CUETO
MARIA LUISA MEYA CASTILLO
DAVID SANTIAGO CUETO
LEONARDO SANTIAGO CUETO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
I. Introduction
[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 December 31, 2008 determining that the applicants were not Convention
refugees nor persons in need of protection pursuant to sections 96 and 97 of
the Act.
II. The facts
[2]
The
principal applicant, Artemio Valerio Cueto, is a 37 year old who with his
brothers David and Leonardo, and Leonardo’s wife, Maria Luisa Meya Castillo,
are all Mexican citizens. They resided in Veracruz, Mexico. The
latter applicants base and rely upon the claim of the principal applicant.
[3]
In
May 2005, the applicants became close to their cousin, Gabriel Cobos Hernandez,
who they believed was an insurance broker. In January 2006, the latter was
arrested by the police for drug trafficking and weapons possession. He was
identified as a member of a gang believed to be a division of the Sinaloa
cartel. He was released from prison in 2006.
[4]
The
male applicants allege they were pressured by their cousin and members of
Sangre Nueva to join the gang. When they refused they were assaulted on May 16,
2007 and injured. They received threats by telephone. The male applicants left Mexico for Canada on June 7,
2007; Maria Luisa followed two months later on August 16, 2007.
[5]
The
applicants claimed asylum in Canada as persons in need of refugee protection
pursuant to sections 96 and 97 of the Act. The applicants did not report the
above threats to the police and did not seek help from any state protection agency
in Mexico reasoning
that they were afraid because the police were corrupt and some were members of
the mafia.
[6]
The
applicants alleged fear of persecution if returned to Mexico.
III. The impugned decision
[7]
In
its ten-page decision, the Board reviewed the evidence as presented. It also
scrutinized the documentary evidence on the situation in Mexico relating to
crime, police and state corruption and efforts to combat crime.
[8]
The
Board found Mexico to be a
democratic country that had a functioning police, security forces and judiciary
offering responsible law enforcement and order.
[9]
The
Board acknowledged that Mexico had corruption problems in the police,
officials and agencies of the government some of which were on the “payroll” of
the drug cartels. However, the documentation showed that anti-drug and anti-corruption
activities and efforts were made under the initiative of former President Fox and
intensified by President Calderon, which led to federal and local officials and
security personnel being arrested and prosecuted for criminal activities. The
Board referred to numerous Federal Court decisions which illustrated the
measures referred to above.
[10]
The
Board then considered that the applicants had not sought state protection and
had not discharged the burden to rebut the presumption of state protection. The
Board also found that there was a viable Internal Flight Alternative (“IFA”) to
other cities where the applicants could have relocated.
IV. The issues
[11]
The
applicants raised what I consider to be secondary issues (which I will deal
with briefly later). However, I believe the central issue is: “Did the Board
err in finding that the applicants were not persons in need of protection?
Particularly, did the Board err in finding that the applicants had not rebutted
the presumption of state protection and that a viable IFA existed for them in Mexico?”
V. The sub-issues
[12]
The
sub-issues raised were: A. Did the Board err in law in supporting specific
factual findings with case law? B. Did the Board err in law by not referring to
a single document to corroborate its analysis of state protection? C. Did the
Board ignore pertinent evidence about police corruption? And D., a factual
error was made by the Board.
A. The
Board erred in law in supporting specific factual findings with case law
[13]
The
applicants argue that the Board could not use case law to prove particular
facts in a particular case such as the situation in Mexico. The
respondent agrees with this proposition; however, he submits that the documentary
evidence concerning the general situation in Mexico relating to the state
agencies, the police, the problems with corruption and drug trafficking and
efforts to combat these problems can be considered in a case such as the one
presented here.
[14]
I
agree with the respondent that the jurisprudence can form a basis of
consideration by a court about general conditions in a country as determined by
the jurisprudence without excluding evidence to show change in these
conditions.
[15]
In
summary, I believe the Board had the right to invoke the jurisprudence
involved, but I do not follow the applicants’ reasoning that the Board did in
fact disregard the particular circumstances of their case.
B. The
Board erred in law by not referring to a single document to corroborate its
analysis of state protection
[16]
This
submission is plainly erroneous since the Board refers to extensive
documentation on this precise point at pages 3, 6 and 9 of its decision.
C. The
Board ignored pertinent evidence about police corruption
[17]
In
its decision the Board referred at length to general documentation and case-law
on the question of police and agency corruption and the efforts made by the
state under former President Fox and later intensified by President Calderon.
Therefore this argument fails.
D. Factual
error
[18]
The
applicants refer to a factual error made by the Board when it stated the
principal applicant had reported the May 16, 2007 incident to the police. This
is correct since the applicant admitted in his testimony that he did not
denunciate the attack of May 16, 2007 or the threats of March 15, 2007. This
factual mistake is insufficient to change any important issue or decision and
therefore has no bearing in the decision which, as we shall see, turns upon the
lack of working state protection and IFA.
VI. Pertinent legislation
[19]
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.
|
VII. The standard of review
[20]
To
determine a claimant’s risk of return to a particular country is a fact-driven
inquiry which calls into play paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F-7, which provides this Court may grant relief
if it is satisfied a tribunal “based its decision or order on an erroneous
finding of fact that it made in a perverse or capricious manner or without
regard to the material before it”.
[21]
The
Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, and Canada (Minister of Citizenship and Immigration)
v. Khosa,
2009 SCC 12, has established that questions of fact or mixed fact and law, are
to be governed by the standard of reasonableness. In judicial review,
reasonableness is concerned mostly with “the existence of justification,
transparency and intelligibility within the decision-making process” and
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, supra,
at paragraph 47).
[22]
Questions
of law are reviewable on a standard of correctness as are questions of
procedural fairness (see Chrétien v. Canada (Commission
of Enquiry into the Sponsorship Program and Advertising Activities, Gomery
Commission), [2008] F.C.J. No. 973 (QL)).
[23]
Questions
of credibility are to be assessed on the standard of reasonableness (see, for
example, Malveda v. Minister of Citizenship and Immigration, 2008 FC
447; Aguirre v. Minister of Citizenship and Immigration, 2008
FC 571; Khokhar v. Minister of Citizenship and Immigration, 2008 FC
449, and Tovar v. Minister of Citizenship and Immigration, 2009 FC 600).
VIII. State protection
[24]
The
Board rendered an elaborated discussion of the issue of state protection
concluding that the applicants had not sought state protection.
[25]
There
is a presumption that state protection is the responsibility of the state of
which the refugee is a citizen (Sanchez v. Minister of Citizenship and
Immigration, 2008 FC 134). In Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, at page 709, the Supreme Court of Canada made it clear
that claimants must first address themselves to their home state for protection
or to demonstrate that it was objectively unreasonable to have done so, before
the responsibility of other states becomes engaged. Therefore, refugee
protection is not available when the claimant has not made an attempt or made
an adequate attempt to first seek state protection in his home country (Ward,
supra, at page 724; Hinzman v. Minister of Citizenship and
Immigration, 2007 FCA 171, at paragraphs 52 and 56). When adequate
protection exists, a claimant cannot claim an objective well-founded fear of
persecution (Sarker v. Minister of Citizenship and Immigration, 2005 FC
353, at paragraph 7; Dannett v. Minister of Citizenship and Immigration,
2006 FC 1363, at paragraphs 34 and 43).
[26]
To
rebut the presumption of state protection, the claimant must establish
relevant, reliable and convincing evidence which satisfies the trier of fact on
a balance of probabilities that the state protection is inadequate (Flores
Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4
F.C.R. 636 (F.C.A.); Granados v. Minister of Citizenship and Immigration,
2009 FC 210; Minister of Public Safety and Emergency Preparedness v.
Gunasingam, 2008 FC 181). A subjective reluctance to seek state protection
is insufficient to rebut the above presumption.
[27]
Mexico
is considered an emerging, not a full-fledged democracy which is plagued by
major problems, such as crime, corruption in police and governmental agencies,
drug-trafficking gangs etc., but since the government presided by President Fox
and followed by President Calderon, measures have been implemented to combat
these problems. Countries cannot guarantee perfect state protection; what is
required is adequate protection which is not necessarily effective (Blanco
v. Minister of Citizenship and Immigration, 2005 FC 1487, at paragraph 10; Canada
(M.E.I.) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.) (QL); Mendez v.
Minister of Citizenship and Immigration, 2008 FC 584). It is recognized in
documentary evidence that Mexico still has extensive problems such as state and
police corruption, prevalent crime and drug trafficking but it is making
efforts to cope with them (De Leon v. Minister of Citizenship and
Immigration, 2007 FC 1307; Zepeda v. Minister of Citizenship and
Immigration, 2008 FC 491; J.C.M.G. et al. v. Minister of Citizenship and
Immigration, 2009 FC 610). However, its citizens must first claim state
protection in Mexico before they
can seek refuge in another country.
A. Adequate
v. effective protection
[28]
As
mentioned before the preponderant case-law supports the test of an “adequate”
state protection rather than an “effective or perfect” state protection. The
applicants in the present case rely upon the decision of Garcia v. Canada (Minister of
Citizenship and Immigration), [2007] 4 F.C.R. 385, at paragraph 16, to
argue that the test should be “[t]hat is, are the police capable of accepting
and acting on her complaint in a credible and earnest manner?”
[29]
The
applicants submit that the Board in the present case did not refer to or meet
this test. With all due respect, this test resembles unequivocally the
“effective” test which the case-law has not accepted, preferring the “adequacy”
test (see also Minister of Citizenship and Immigration v. Carrillo, 2008
FCA 94, at paragraph 38).
[30]
In
the present case, as the Board found, the applicants have not sought state
protection and have not presented sufficient reasons to rebut the presumption
of state protection. For the two serious criminal acts in 2007, the applicants
have not sought state protection.
B. Internal
flight alternative
[31]
During
the hearing before the Board the principal applicant was asked why they had not
considered moving away, for example, to Mexico City or Tijuana. The
applicant replied they feared the gang could track them down with their police
connections and database information.
[32]
The
respondent answers that this allegation is purely speculative with no
evidentiary basis.
[33]
In
principle an applicant must first seek safety in another part of his or her
country before coming to Canada or establishing why this would be
unreasonable (Thirunavukkarasu v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 589 (C.A.)).
[34]
The
leading case on IFA, Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706 (C.A.), proposes a two-pronged test for a
potential IFA: (a) the Board must be satisfied that there is no serious
persecution or danger in the city where the IFA is located; and (b) the Board
must consider whether the claimant can reasonably, without undue hardship, seek
refuge in that city.
[35]
The
Board in this case has analyzed the applicants’ reasons in their opposition to
the IFA and the evidence which is quasi-totally speculative, concluding an IFA
was open to the applicants.
[36]
In
my view, both findings of the Board on the state protection and the IFA issue
are reasonable and fall within the range of acceptable outcomes based upon the
facts and the law (Dunsmuir, supra).
IX. Conclusion
[37]
For
these reasons I must conclude that the application must be dismissed.
JUDGMENT
The
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 rendered on December 31,
2008, determining that the applicants were not Convention refugees nor persons
in need of protection pursuant to sections 96 and 97 of the Act, is dismissed.
No
questions are certified.
“Orville
Frenette”
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