Date: 20091124
Docket: IMM-2201-09
Citation: 2009 FC 1205
Ottawa, Ontario, November 24, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ERASMO LOPEZ VILLICANA
ERASMO LOPEZ GUADARRAMA
MARIA ESTHER VILLICANA ZAVALA
AARON LOPEZ VILLICANA
DONOVAN LOPEZ VILLICANA
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision by the Refugee Protection Division of the Immigration and Refugee
Board (Board), dated November 16, 2009 (Decision), which refused the Applicants’
application to be deemed Convention refugees or persons in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant, a homosexual male, is a citizen of Mexico. He joined a
group called Liberation Light that helped those with drug or alcohol abuse
issues overcome their problems. He joined the group in November of 2000 to help
him “overcome” his homosexuality. He attended the group for two years.
[3]
After
some time away from the group, the Principal Applicant returned in 2006. Upon
his return, he became concerned that the group was promoting hatred and
discrimination against homosexuals. He discussed this approach with the group’s
coordinator, but the coordinator was not interested in change. The Principal
Applicant then made public statements at a group meeting opposing the group’s
approach to dealing with homosexuals. His statements provoked much controversy
within the group. The group soon lost many of its clients and was forced to
cease operating.
[4]
The
leaders of the group then threatened serious harm against the Principal
Applicant. He reported this threat to the police. The sons of one of the group
leaders then assaulted him and his brother. The Principal Applicant did not
report this assault to the police because his assailants had warned him not to
because of their father’s contacts with authorities in Mexico. Moreover, he
felt that Mexican police discriminate against homosexuals and, as a result,
assistance would not be forthcoming.
[5]
These
incidents resulted in the Principal Applicant and his brother fleeing from Mexico. After they
left Mexico, their
parents were targeted and windows in their home were smashed on three
occasions. The parents then fled Mexico and joined their sons
in Canada.
[6]
The
Principal Applicant, his brother, and his mother and father filed a joint application
for refugee status in Canada. This application was rejected by the
Board.
DECISION UNDER REVIEW
[7]
The
Board found that the determinative issue in this case was state protection.
[8]
In
making its determination, the Board considered the Applicant’s testimony,
counsel’s written submissions and all documentary evidence provided. The Board
paid particular attention to the documentary evidence pertaining to
discrimination, harassment and criminal acts against homosexuals in Mexico, as well the
evidence about the police, mechanisms for lodging complaints, and the level of
democracy in Mexico.
[9]
The
Board noted that the Applicants expressed fear of the group leaders of the
Liberation Light as well as fear of the general public that is homophobic and
discriminates against and harasses sexual minorities.
[10]
The
Board noted the Principal Applicant’s testimony that his classmates had
discriminated against him in school because they perceived him to be
homosexual. He did not report this treatment to the principal or teachers
because he had not revealed his sexual orientation.
[11]
With
regard to the state’s protection of homosexuals, the Board did not believe that
“the majority of police at all levels do not assist homosexuals since there is
no documentary evidence before the panel that states so.”
[12]
The
Board found that the Principal Applicant had not tried to avail himself of
state protection. It noted that “he did not seek redress regarding the threats
he received from [the group leaders]…and after his brother and he were
assaulted by David’s sons.”
[13]
The
Board noted that the Principal Applicant claimed to have knowledge of the
existence of federal law concerned with the prevention and elimination of
discrimination, but had nonetheless made no effort to seek “legal assistance or
assistance from the state authorities other than police” when his rights were
violated. The Board recognized his belief that the police were corrupt because
they were friends with the group leader, but noted that he had not sought help
from any “anti-corruption state agency.”
[14]
The
Board then considered that the Principal Applicant had knowledge of the Human
Rights Commission in Mexico, but he did not seek the Commission’s help
because its website did not state that it helps homosexuals. The Board noted
that he had not provided a copy of the Human Rights Commission’s website, so the
Board was not persuaded that the “Human Rights Commissions do not assist
homosexuals as alleged.”
[15]
The
Principal Applicant also had knowledge with regard to a number of organizations
in Mexico that address
and combat discrimination against homosexuals. However, he did not seek
assistance from these bodies because he believed they were corrupt.
[16]
The
Board noted that the Principal Applicant did not know of the existence of the
Secretariat of Public Administration, or SACTEL, which is a 24-hour hotline
that takes complaints from citizens with regard to corruption and misconduct.
Although he was aware of the existence of an organization called 06, which
functions in a similar way to SACTEL, he chose not to seek their assistance
because the group leaders have “friends everywhere.”
[17]
The
Principal Applicant also admitted that he had knowledge of the Federal Agency
of Investigations which deals with such issues as corrupt state officials, but he
stated that he had chosen not to contact them for fear of retribution from the
group leaders if he did.
[18]
Similarly,
after the Principal Applicant’s flight from Mexico, his parents
did not seek assistance from any state agency, including the police when their
windows were broken. The Board was not convinced that the Principal Applicant’s
father would not have received assistance from the police if requested, since
he is not a homosexual.
[19]
The
Board determined that, based on the evidence adduced, it was not convinced that
the Principal Applicant would not have received assistance from state agencies had
he requested their help. Because Mexico is a democracy, the Board found that
“ignorance of the complaints mechanisms is no excuse for the claimant’s failure
to pursue the avenues available to her [sic] in Mexico, and taking
extreme measures of seeking protection abroad.”
[20]
The
Board canvassed the agencies available in Mexico, including
the federal and state police, and other state agencies that address such issues
as drug trafficking, kidnapping, corruption and violence against sexual
minorities.
[21]
The
Board determined that, because they lived in a democracy, the Applicants were
required to seek protection from the state agencies in Mexico prior to
seeking international protection. In this instance, the Principal Applicant had
not sought help from authorities when his rights were violated. Accordingly,
the Board found that the Principal Applicant “did not reasonably exhaust any
course of action open to her [sic] in obtaining state protection in Mexico, and
hence, he has not discharged the onus of showing clear and convincing proof of
the state’s inability or unwillingness to protect him.”
[22]
While
the Board considered the psychologist’s report, it determined that there was no
persuasive evidence adduced at the hearing to show that psychological help
would not be available to the Principal Applicant upon his return to Mexico.
[23]
The
Board stated that, while it did not disbelieve the Applicants’ evidence of
discrimination faced by homosexuals in Mexico, it was not convinced that “the
claimant would not receive adequate state protection against those he fears
including the general public should he return to Mexico.”
[24]
The
Board also considered documentary evidence that the Mexican government was
involved with federal police reform, and that public officials, including the
police, are punished for misconduct where necessary. Accordingly, the Board
determined that there was no lack of police protection for the Applicants. Moreover,
the Board was not persuaded that the Principal Applicant would not have
received help if he had requested it, based on the training the police receive
prior to entering the force coupled with disciplinary measures taken for any
misconduct. Rather, the Board found that the Applicants had simply not made any
effort to seek assistance from any state agencies in Mexico.
[25]
The
Board did not find that the documentary evidence suggested that a majority of
the population of Mexico discriminates against homosexuals.
[26]
The
Board also considered the existence of SIEDO, the Special Investigations into
Organised Crime, and found that there was no proof that SIEDO would not have
provided witness protection against the group leaders and the Principal Applicant’s
assailants had he sought help.
[27]
Moreover,
in order to address the misconduct of state agencies that were in collusion
with the group leaders, the Board determined that the Principal Applicant
should have sought help from anti-corruption agencies. The Board noted that
efforts were made in 2007 to target corruption within the federal government,
and that the Mexican government has enacted strict laws to deal with corruption
and bribery. Consequently, the national corruption index has since decreased in
Mexico.
[28]
The
Board found there to be no shortage of action from the state authorities
against corrupt government officials, including the police.
[29]
The
Board also noted that sexual minorities have seen “substantial political and
legal gains at the federal level and in several states and municipalities…such
as Mexico
City.”
[30]
In
1998, the Mexican Chamber of Deputies voted to repeal discriminatory language
in the Federal District Penal Code. Moreover, in 2003, the Mexican congress
approved the Federal Law to Prevent and Eliminate Discrimination. The Board
also noted the political participation of homosexuals in Mexico is widely
accepted.
[31]
The
Board canvassed the growing homosexual movements in several cities in Mexico and
concluded that it was “not persuaded to believe that the claimant lacks
adequate state protection against homophobic Mexicans and employers in Mexico City where a large
population of gays reside, and work.”
[32]
Although
the Principal Applicant and his family resided in Mexico City where numerous
state protection agencies existed, the Board found that they had made no effort
to seek help from any of these agencies prior to seeking protection in Canada. As such,
the Board held that “based on the totality of the evidence adduced, the panel
finds adequate, though not perfect, state protection is available to the
claimants in Mexico.”
ISSUES
[33]
The
Applicants submit the following issue on this application:
1.
Did
the Board err in failing to consider evidence contrary to its finding that the
applicants could access state protection in Mexico?
STATUTORY PROVISIONS
[34]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality, Boardship
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.
Person in need of protection
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.
Person in need of protection
(2) A person in Canada who is a Board of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
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.
Personne à protéger
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.
Personne à protéger
(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.
|
STANDARD
OF REVIEW
[35]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 the Supreme Court
of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards
are theoretically different, “the analytical problems that arise in trying to
apply the different standards undercut any conceptual usefulness created by the
inherently greater flexibility of having multiple standards of review” (Dunsmuir at paragraph 44). Consequently, the
Supreme Court of Canada held that the two reasonableness standards should be
collapsed into a single form of “reasonableness” review.
[36]
The
Supreme Court of Canada in Dunsmuir also held that
the standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the standard
of review analysis.
[37]
The
Board’s consideration and assessment of the evidence is a matter of fact. Issues
of fact attract a standard of reasonableness upon review, since in “judicial
review contexts, [courts] should show deference to lower courts and
administrative decision makers of question of facts”: Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph
89. As such, a standard of reasonableness is appropriate in considering whether
the Board failed to consider evidence contrary to its own finding.
[38]
Moreover,
as submitted by the Respondent, reasonableness is also the appropriate standard
with regard to state protection, since the adequate of state protection is a
question of mixed fact and law. See Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th)
413.
[39]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARGUMENTS
The Applicants
State protection
[40]
The
Board did not doubt the credibility of the Applicants. There was no dispute as
to the sexual orientation of the Principal Applicant or his
experiences in Mexico as a homosexual.
[41]
The
Applicants submit that the Board’s assessment of state protection took place in
a vacuum in which their evidence with regard to inadequate state protection
that contradicted the Board’s finding went unmentioned by the Board. The Board
must consider any contradictory evidence placed before it in making its
decision, and should explain how this evidence affected its findings. See Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), 157 F.T.R. 35 [1998]
F.C.J. No. 1425 at paragraph 15 (QL). Even though evidence existed that Mexico may have been willing
to protect the Applicants, it may have been unable to do so.
[42]
Moreover,
such an assessment should have focused solely on the police force in Mexico, as opposed to the
variety of state authorities and bodies cited and relied on by the Board as
providing state protection. The Applicants submit that the Board erred in focussing
on the alternate state authorities and bodies it felt the Applicants should have
asked for assistance before fleeing Mexico. A similar error is referred to in the case of Zepeda
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 491, [2008] F.C.J. No. 625 at
paragraph 25:
These
alternate institutions do not constitute avenues of protection per se;
unless there is evidence to the contrary, the police force is the only
institution mandated with the protection of a nation’s citizens and in
possession of enforcement powers commensurate with this mandate.
[43]
In
their particular case, the Applicants believe that seeking protection from the
police would be highly questionable since the Principal Applicant had experienced
harassment by the police in Mexico City. The Applicants concede that this harassment did not rise
to the level of persecution, but it made the Principal Applicant doubt the
protection of the police in Mexico City from any religious or cult organization with ties to both
criminals and the police. Indeed, the Principal Applicant provided
testimony to the Board that he had seen one of the former leaders of the group
interacting with police in his neighborhood as if they were “old friends.”
[44]
The
Applicants submit that the Board’s assessment should have centered on whether the
police in Mexico would be able to offer
adequate or effective protection to the Applicants. They contend that this
required a consideration of whether the protection offered by the state was sufficient
to reduce the possibility of prospective persecution to less than a serious possibility.
[45]
Accordingly,
the Board erred in focusing on the good intentions of the government of Mexico, or the government’s
creation of mechanisms that could potentially protect the Applicants. Rather,
the Board should have focused on whether the government’s intentions and actions
have resulted in effective protection for persons such as the Applicants.
[46]
The
Applicants submit that they cannot reasonably be expected to place themselves in
danger in order to “exhaust all avenues of protection.” The Principal Applicant and his
brother could not reasonably have been expected to undergo a lengthy complaint
procedure against the police after having been threatened at gunpoint by one of
the group leader’s sons. At this time, the Principal Applicant required
timely and effective protection. The evidence placed before the Board suggests
that such concrete protection was not likely available to them, including (but
not limited to) a report by Judith Adler Hellman and an Amnesty International
report.
[47]
The
Board’s statement that it did not dispute the ill-treatment of homosexuals in Mexico was not a substitute for
a proper analysis of the evidence adduced by the Applicants that demonstrated a
lack of state protection. The Board erred by failing to analyze the evidence
before it that clearly contradicted its conclusions.
[48]
While
the Applicants concede that a refugee claimant should seek protection in their
home country, the Supreme Court of Canada held in Canada (Attorney General)
v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 that a claimant need not
risk his or her life in approaching the state for protection simply to show
that the protection in ineffective. Moreover, the Applicants contend that the
question at issue in this instance is not whether state protection is generally
available, but whether state protection is available to the Applicants themselves.
The Respondent
State protection
[49]
The
Board determined that the Principal Applicant and his family
made no attempt to seek help from any of the agencies available to provide
state protection. Accordingly, they did not discharge their burden of showing
the state’s inability or unwillingness to protect them.
[50]
The
Respondent contends that, absent a complete breakdown of the state apparatus,
there is a presumption of state protection. It is the Applicants’ burden to
produce clear and convincing evidence to rebut this presumption. See Ward,
and Hinzman.
Failure
to rebut presumption of state protection
[51]
The Principal Applicant claims that he
did not seek protection because he was concerned that the group leader had contacts
within the police, and he believed the police discriminate against homosexuals.
However, the Board noted that the evidence did not demonstrate that the police
or other state authorities were unwilling to assist him. Specifically, the Board
found that the Principal Applicant had failed to: a) seek help from
teachers and the school principal when threatened; b) seek help from the police
or any other state agency when assaulted; and c) seek legal assistance when his
rights were violated, despite his knowledge of the existence of organizations
that offer assistance. The Principal Applicant’s family also
failed to seek protection from the police when their home was targeted. The
Respondent suggests that these findings demonstrate not only the lack of effort
to seek protection, but also an unwillingness to seek protection.
[52]
The
Federal Court has determined that, in considering the availability of state
protection, the Board may examine all reasonable steps taken by applicants in
the circumstances. Accordingly, if reasonable steps were not taken by the
Applicants, it will reasonably impact their claim. See Szucs v. Canada (Minister
of Citizenship and Immigration), [2000] F.C.J. No. 1614.
[53]
The
Board also noted the plethora of agencies in Mexico from which the Applicants could have
sought help, including the federal police, the state police, SIEDO, SACTEL, and
more. However, the Principal Applicant made no effort to seek help from any of
these state agencies when he felt that the leaders of the group might have
connections with the police.
[54]
In
response to the Applicants’ reliance on Zepeda, the Respondent
refers the Court to Gutierrez v. Canada (Minister of Citizenship
and Immigration),
2008 FC 971, [2008] F.C.J. No. 1211; Pal v. Canada (Minister of Citizenship
and Immigration), 2003 FCT 698, [2003] F.C.J. No. 894; Nagy v. Canada (Minister
of Citizenship and Immigration), 2002 FCT 281, [2002] F.C.J. No. 370; Sanchez
v. Canada (Minister of Citizenship and Immigration), 2008 FC 134, [2008]
F.C.J. No. 182 at paragraph 10.
[55]
Moreover,
the Respondent argues that the present case is comparable to that of Carrillo
v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008]
F.C.J. No. 399 at paragraphs 31-36, in which the Federal Court of Appeal held
that one unsuccessful attempt to seek protection from the local police was not
enough to establish the inadequacy of state protection. In the present case, no
attempt was made to seek protection after the Principal Applicant was first
threatened. Consequently, it cannot be said that the presumption of state
protection was rebutted.
[56]
Furthermore,
the Respondent submits that the steps taken by the Applicants to seek state
protection are correlative to the democratic strength of the state. Thus, the
more democratic the state, the more applicants must do to seek protection. See N.K.
v. Canada (Minister of
Citizenship and Immigration)(1996), 143 D.L.R. (4th) 532 at page
534, [1996] F.C.J. No. 1376 and Hinzman v. Canada (Minister of Citizenship
and Immigration),
2007 FCA 171, [2007] F.C.J. No. 584 at paragraph 57.
[57]
The
Board determined that Mexico is a democratic
country. Moreover, the Respondent cites and relies on many cases in which the
Federal Court has recently upheld the presumption that state protection
generally exists in Mexico. See, for example, Sanchez
and Gutierrez.
[58]
The Principal Applicant’s harassment at
the hands of the police does not amount to exceptional circumstances that exempt
him from the burden of seeking state protection. Because Mexico is a democracy, it was
reasonable for the Board to expect the Applicants to seek help from the police
and other agencies prior to seeking international protection. Ignorance of
complaint mechanisms does not relieve the Applicants of this burden.
Adequate
state protection
[59]
The
Respondent submits that the Board made no error in finding adequate, although
not perfect, protection was available to the Principal Applicant and his family
in Mexico. The Board acknowledged
the difficulties experienced by homosexuals in Mexico, but determined that, on
the totality of the evidence, Mexico is making serious efforts to better protect its citizens.
[60]
State
protection need not be perfect. It need only be adequate. The imperfection of
state protection is not a basis for finding a lack of state protection. See Canada (Minister of Employment
and Immigration) v. Villafranca (1992), 99 D.L.R. (4th) 334, [1992]
F.C.J. No. 1189 and Santiago v. Canada (Minister of Citizenship and Immigration), 2008 FC 247, [2008]
F.C.J. No. 306 at paragraph 21.
[61]
The
Court has upheld numerous Board decisions that have found adequate state
protection in Mexico. One such example is Sanchez,
in paragraph 12 in which Justice Barnes stated as follows:
Whatever
deficiencies may exist within the Mexican criminal justice system, the country
is a functioning democracy with an official apparatus sufficient to provide a
measure of protection to its citizens
[62]
The
Respondent submits that the Board undertook the thorough analysis required and
discussed in paragraph 20 of Zepeda. The Board clearly considered the Applicants’
country of origin, the steps taken by the Applicants, and their interaction
with the authorities. The Board also considered the governance of Mexico as well its problems
with corruption. Nevertheless, the Board concluded that, based on the
circumstances of the case, Mexico would have been able to protect the Principal Applicant and his family.
[63]
The
Applicants suggest that the Board should not have focused on the Mexican
government’s intentions and efforts but should have looked at results. The
Respondent submits that the Board’s assessment was all-inclusive, and that it considered
the challenges faced by the government (corruption), the efforts the government
is making (including the enactment of laws), and the results it has obtained so
far (dismissals and charges laid). The fact that the Board considered this evidence
makes it clear that it conducted a full analysis of the intentions, efforts,
and results of the government.
Need not
cite all evidence
[64]
The
Respondent disputes the Applicants’ allegation that the Board erred by failing
to consider all the evidence before it. According to the Federal Court of
Appeal in Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 at
318, [1992] F.C.J. No. 946, “the fact that some of the documentary
evidence was not mentioned in the Board’s reasons is not fatal to it’s [sic]
decision.” Consequently, the RPD was not required to mention each and every
piece of evidence before it in its reasons.
ANALYSIS
[65]
There
were no adverse credibility findings in this case and the application comes
down to whether the Board’s state protection analysis was reasonable.
[66]
As
the Federal Court of Appeal made clear in Hinzman at paragraph 57 “in
the case of a developed democracy, the claimant is faced with the burden of
proving that he exhausted all the possible protections available to him and
will be exempted from his obligation to seek state protection only in the event
of exceptional circumstances … .”
[67]
With
respect to Mexico, as Justice Tremblay-Lamer pointed out in Zepeda at
paragraphs 17-20, the jurisprudence of this Court recognizes Mexico as a
functioning democracy but also recognizes that there are well-documented
governance and corruption problems that require decision-makers to engage in a
full assessment of the evidence placed before them on the issue of state
protection. As Justice Tremblay-Lamer points out:
This assessment should include the context of the country of
origin in general, all the steps that the applicants did in fact take, and
their interaction with the authorities.
[68]
In
the present case, the Applicants did not approach the authorities. Their explanation
was that the Principal Applicant had been harassed in the past by the police in
Mexico
City
and the police were, in any event, friendly with the agents of persecution.
They feared that approaching the police would expose them to risk. In addition,
that say that even if they had approached the police, the evidence before the
Board was that the police would not have assisted them.
[69]
In
the case of a fully developed democracy, these excuses for not approaching the
authorities would not have availed the Applicants, but Mexico has problems
that require a fuller assessment and a contextual approach to state protection.
The state of Mexico certainly
wants to protect its citizens, but is it able to protect them?
[70]
In
the present case, the Applicants placed before the Board reputable evidence not
only that the Mexican authorities cannot protect ordinary Mexicans who lack
wealth and influence, but that it is those very authorities (the police, the
judiciary and the government) who pose the greatest danger to the normal
citizen.
[71]
This
evidence suggests that all police forces in Mexico are riddled with corruption
and are operating outside the law, that the National Human Rights Commission acknowledges
that the very institutions who are supposedly there to protect ordinary
Mexicans are the ones most likely to violate their human rights, and that the
wealthy and the well-connected operate outside the law with impunity in a
context where the police and government are infested by drug traffickers and
other organized criminals.
[72]
This
evidence cannot be discounted as unauthoritative. Professor Judith Adler
Hellman, Professor of Political and Social Science at York University
has produced a Report on Human Rights in Mexico after more than 40 years
of fieldwork and research in Mexico. Professor Hellman’s position was that of
the Chair of the Human Rights Task Force on the Latin American Studies
Association – an international organization of some 6000 scholars whose work
focuses on Latin
America.
[73]
Professor
Hellman’s report not only addressed country conditions in Mexico, but also examined
the trend of recent IRB decisions that have found effective state protection in
Mexico. She also
addressed the prevalent notion that countries that have stable political institutions
and open elections automatically enjoy a guaranteed rule of law and the
services of an honest and professional police force, a notion which lies behind
the presumption of state protection in our own jurisprudence.
[74]
Professor
Hellman concludes that an improvement in stable political institutions may not
mean an improvement in the rule of law and that Mexico is a case in
point. In Mexico, Professor
Hellman points out, the loss of power by the Party of the Institutional
Revolution has led to a more uncontrolled state of corruption and lawlessness
among the security forces. The much heralded anti-corruption program launched
by the Democratic Revolutionary Party administration in Mexico City has meant
that “Mexicans are less able than ever to gain protection from the police.”
[75]
Professor
Hellman’s work is authoritative and her conclusions are startling:
No well-informed person in Mexico would be inclined to turn to
the police for help in the event of feeling threatened by criminals, by
political opponents, or by persons who, for whatever reason, have issued
threats of violence.
Thus, in this setting, Mexicans have no
recourse to the police for protection from wrongdoers as we do in Canada. It basically makes no sense
to call on the police to rescue oneself from harm. On the contrary it would
create greater risk for oneself in the situation. (Emphasis added.)
[76]
Professor
Hellman’s report was not the only evidence before the Board that contradicted
the Board’s conclusions about Mexico and which spoke of the reality for victims
of crime in Mexico. There was
an Amnesty International Report, and an article published in the most recent
(March/April 2009) issue of Foreign Policy.
[77]
Professor
Hellman points to recent cases involving the murder of Canadians and other
foreigners in Mexico. Her
conclusions are that such cases have demonstrated a “stunning lack of
competence and concern” of police at all levels to investigate crime and
protect citizens even when such cases bring Mexico under an
international spotlight and may cost the country significant tourist dollars.
If the police cannot mount even a minimally credible and competent
investigation in such cases, then the reality for ordinary Mexicans must indeed
be dire.
[78]
The
Board was notably silent on this evidence that contradicted its own
conclusions.
[79]
The
Board did not have to accept this contrary evidence. But it had an obligation
to review it and say why it could be discounted in favour of other reports that
support its own conclusions. See Babai v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1341 [2004] F.C.J. No. 1614,
paragraphs 35-37, and Cepeda-Guttierez, paragraph 47. The Board’s
failure to do this renders the Decision unreasonable.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a different Board member.
2.
There
is no question for reconsideration.
“James
Russell"
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