Date: 20071221
Docket: IMM-5544-06
Citation: 2007 FC 1341
Ottawa, Ontario, December 21, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
JOSE
OCTAVIO CEJUDO LOPEZ
Applicant
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 (the Act), for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee Board
(the “IRB” or the "Board") dated September 25, 2006, wherein the
Board determined that the applicant was not a Convention refugee according to
Section 96 of the Act, nor a "person in need of protection" according
to Section 97 of the Act.
BACKGROUND
[2]
The applicant is a 25 year old citizen of Mexico who claimed refugee status pursuant
to ss. 96 and 97(1) of the Act.
[3]
At his Refugee Determination Hearing, the
applicant alleged that he had been harassed and physically abused by police
officers seeking to know the whereabouts of his uncle, a former government
official accused of gross embezzlement of government funds. His uncle
disappeared during the government’s investigation of the matter and has been a
fugitive from justice since 1998.
[4]
The applicant fled to Canada and claimed Refugee status in 1999. His claim was denied and he
left for Mexico in September
2000.
[5]
In December 2000, the applicant returned to Canada and made a second claim for
protection.
[6]
At his second hearing, the applicant alleged
that when he returned to Mexico
in September of 2000, he received telephone calls from unidentified individuals
seeking to meet with him to discuss his uncle. These individuals threatened his
life and warned that he would be punished by the Mexican authorities if he
failed to cooperate.
[7]
The applicant relocated but was later found and
continued to be harassed. During one instance of harassment, three men driving
white cars similar to those of the judicial police threatened to set fire to
his grandfather’s farm if he did not assist them in locating the applicant.
Furthermore, individuals believed to be police officers forced the applicant
out of a car at gunpoint, and questioned him about his uncle’s whereabouts.
During the altercation he was kicked, his arm was twisted and he sustained
bruises that later required medical attention.
[8]
The applicant remained in Mexico, concealing his identity for fear of
being recognized by the police. In December 2000 he returned to Canada and made a second claim for protection
which was denied in 2004.
[9]
However, the applicant was successful on his
application for judicial review and the claim was returned to for a
re-determination by a different panel.
[10]
In a decision dated September 25, 2006, the IRB
found that the applicant’s testimony was “presented in a straightforward
manner”, but disagreed with the applicant’s assertion that he was being
persecuted by the state of Mexico, through its judicial police officers. The Board concluded that the
applicant’s persecutors were either rogue police officers or criminals posing
as police officers.
[11]
The Board found that the applicant had not
rebutted the presumption of state protection. While the Board acknowledged that
documentary evidence revealed there was corruption among the police and a
measure of inefficiency in the judicial system in Mexico, it noted that the Attorney General’s Office (PGR) and the Federal
Investigative Agency (AFI) “played a significant role in attempting to combat
criminality […] and to provide protection to Mexican citizens.”
ANALYSIS
[12]
In Chaves v. Canada (Minister of Citizenship and Immigration), [2005] FC 193, [2005] F.C.J. No. 232 (QL), at para. 11, I applied
the pragmatic and functional approach and concluded that, given the nature of
the question, as one of mixed fact and law, and the relative expertise of this
Court in determining whether a legal standard has been met, the appropriate
standard of review applicable to determinations of state protection is one of
reasonableness simpliciter. Accordingly, the Board’s decision will
stand “if it is supported by a tenable explanation even if this explanation is
not one that the reviewing court finds compelling” (Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247, at para. 55).
[13]
The Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 established the general principles relating to
the presumption of state protection. At pages 724-725, LaForest J. stated:
[…] Moreover,
it would seem to defeat the purpose of international protection if a claimant
would be required to risk his or her life seeking ineffective protection of a
state, merely to demonstrate that ineffectiveness […]
[…] only in
situations in which state protection "might reasonably have been
forthcoming", will the claimant's failure to approach the state for
protection defeat his claim. Put another way, the claimant will not meet the
definition of "Convention refugee" where it is objectively
unreasonable for the claimant not to have sought the protection of his home
authorities; otherwise, the claimant need not literally approach the state.
He went on to
assert that “clear and convincing confirmation” of a state’s inability to
protect would be required and that absent such proof it is to be presumed that
a state can protect its own citizens.
[14]
Furthermore, the case law indicates that the
burden of proving a lack of state protection increases with the level of
democracy exhibited by the state. The more democratic the state in question
is, the more the claimant must have done to exhaust all avenues of protection
available (Kadenko v. Canada (Minister of Citizenship and Immigration),
[1996] 143 D.L.R. (4th) 532, [1996] A.C.F. No. 1376 (C.A.) at page
534; Hinzman v. Canada (Minister of Citizenship and Immigration), 2007
FCA 171, [2007] F.C.J. No. 584 (QL), at para. 57).
[15]
However, this does not mean that the claimant is
required to put him or herself in danger in the pursuit of state protection. It
is obvious that in such a situation, protection would not reasonably be forthcoming.
As I stated in Chaves, supra (at para. 18):
[…]
notwithstanding that not every member of the [police] was implicated in the
applicant’s persecution, seeking help from the [police], - asking, in effect,
the [police] to protect the applicant from itself – would have in all
likelihood placed the applicant in greater peril.
[16]
Of particular importance in determining whether
the presumption of state protection has been rebutted, is the effectiveness of
the protection offered. As Martineau J. asserted in Avila v. Canada (Minister of Citizenship and
Immigration), 2006 FC 359, [2006] F.C.J. No. 439
(QL), at para. 34:
[…] the question
is not so much whether remedies exist against corrupt public servants in Mexico, but is to determine whether in
practice those remedies are useful in the circumstances
[17]
Similarly, Campbell J. has held that
when examining whether a state is making serious efforts to protect its
citizens, it is at the operational level that protection must be evaluated, Garcia
v. Canada (Minister
of Citizenship and Immigration), 2007 FC 79, [2007]
F.C.J. No. 118 (QL), at para. 15). Indeed, the “[a]bility of the state to
protect must be seen to comprehend not only the existence of an effective
legislation and procedural framework but the capacity and the will to
effectively implement that framework.” (Elcock v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1438 (QL), at para. 15).
[18]
In sum, the guiding principle of state
protection indicates that a claimant will not be required to seek state
protection where it would be objectively unreasonable to do so; however, the
claimant bears the burden of proof. This burden of proof increases with the
level of democracy exhibited by the state.
[19]
Further, country conditions must also be
taken into account in the objective analysis. While an analysis of country
conditions includes determining the existence of mechanisms of state
protection, it also involves an analysis of the effectiveness of those
mechanisms.
[20]
While I recognize that in the present case, the
Board did consider the existence of state protection in Mexico, it failed to consider the effectiveness
of that protection. My finding is bolstered by the fact that the Board ignored
contradictory evidence in this regard.
[21]
As a preliminary matter, I note that an analysis
of state protection does not occur in the abstract (Montenegro v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1681, [2005] F.C.J. No. 2077
(QL), at para. 17). In the present case, the Board did not come to any
determinative conclusions with respect to the identity of the persecuting
agents, finding only that they were either rogue officers or criminals parading
as officers. The Board reached that finding despite the applicant’s sworn,
uncontradicted testimony and Personal Information Form indicating that he
recognized his assailants as judicial police officers because of previous dealings
with them in 1998. While the Board appears to have proceeded in its analysis
as if the persecutors were rogue officers, I find the lack of a definitive
statement on the matter troubling. Conducting a state protection analysis in
the absence of a determination as to the nature of the persecuting agent risks
short circuiting a full assessment of the claim.
[22]
The distinction between “state agents”, “rogue
officers” and “criminals” raises different considerations in evaluating the effectiveness
of state protection. Where the alleged persecutors are state agents, the
claimant may be faced with an official policy of persecution, such that state
protection may not reasonably be forthcoming. On the other hand, where the
assailants are “rogue officers” the analysis will focus on whether the state is
in a position to effectively police itself, including the effectiveness of
oversight and accountability mechanisms. However, where purely criminal
elements are the agents of persecution; the above considerations will be
irrelevant in evaluating the effectiveness of state protection.
[23]
In its analysis of state protection against
rogue officers, the Board highlighted the existence of anti-corruption measures
in Mexico. While extremely
laudable, the efforts of any government to investigate and punish instances of
corruption are not in and of themselves determinative of the effectiveness of
those efforts at an operational level. The Board highlighted the number of
corruption-related investigations carried out by the Attorney General’s Office,
new training initiatives aimed at combating police and judicial corruption, and
the existence of a mechanism for filing complaints against public officials as
indicative of the government’s ability to protect the applicant, but it did not
indicate how those initiatives have affected the level of corruption on the
ground, and the lives of the civilian population in general. I note, for
example, that the ability to make ex post facto complaints and commence ex
post facto investigations of corruption and ill-treatment does not automatically
constitute effective protection.
[24]
Moreover, the Board failed to address
contradictory evidence that was critical to the reasonableness of the
applicant’s failure to seek state protection. In Simpson v. Canada (Minister of Citizenship and
Immigration), 2006 FC 970, [2006] F.C.J. No. 1224
(QL), at para. 44, Russell J. asserted that:
While it is
true that there is a presumption that the Board considered all the evidence,
and there is no need to mention all the documentary evidence that was before
it, where there is important material evidence on the record that contradicts the
factual finding of the Board, [it] must provide reasons why the contradictory
evidence was not considered relevant or trustworthy […]
Thus, a Court may
infer that an erroneous finding of fact was made from a failure of an
administrative board to “mention in its reasons some evidence before it that
was relevant to the finding, and pointed to a different conclusion from that
reached by the agency.” (Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J. No. 1425 (QL), at para. 15).
[25]
As Layden-Stevenson J. indicated in Castillo
v. Canada
(Minister of Citizenship and Immigration), 2004 FC
56, [2004] F.C.J. No. 43 (QL), at para. 9:
The
question of effective state protection was identified as the central issue.
Where evidence that relates to a central issue is submitted, the burden of
explanation increases for the board when it assigns little or no weight to that
evidence or when it prefers specific documentary evidence over other
documentary evidence.
Thus, in the context of the central issue of
state protection, the Board is required to explain its preference for certain
documentary evidence over other relevant sources.
[26]
Accordingly, it is clear that the IRB, as the
primary finder of fact, is mandated to weigh the evidence before it and, in the
case of conflicting documentary evidence, come to its own conclusions as to
which evidence it finds more persuasive; however, it must address why the
contradictory evidence was not relied upon.
[27]
In the present case, there are many indications
in the documentary evidence that state protection may not be effective. For
example, there are documents in the National Documentation Package indicating
that corruption remains a problem and that Mexican police continue to employ
torture as an investigative technique with impunity (see Amnesty International
Report 2005 “Mexico”; Amnesty International Report Mexico: Unfair Trials Unsafe
Convictions). Moreover, the documentary evidence indicates that complaints
mechanisms are weak, and further that when complaints are filed against police
officers, the officers are provided with a copy of the complaint (see Country
of Origin Research Document Mexico: Police –May 2004; Country of Origin
Research document MEX38204.E: Procedure for charging a police officer with
assault in Mexico). It is clear that this fact would make an individual
reluctant to complain of ill-treatment at the hands of police officers and it
has the potential of provoking reprisals. Again the Board was free to find
other documentary evidence more reliable. However, it erred in failing to
address the existence of relevant and contradictory evidence.
[28]
For all these reasons, the application
for judicial review is granted.
JUDGMENT
[29]
THIS
COURT ORDERS that the
application for judicial review is granted and the matter is referred back for
re-determination by a different panel.
“Danièle Tremblay-Lamer”
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