Date: 20071212
Docket: IMM-6429-06
Citation: 2007 FC 1307
Ottawa,
Ontario, December 12, 2007
PRESENT: The Honourable Orville Frenette
BETWEEN:
ANDROMEDA
DIAZ DE LEON
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 November 8, 2006, in which the presiding Board member
found that the Applicant is not Convention refugee nor a person in need of
protection.
ISSUES
[2]
The
present application raises only one issue: did the Board err by concluding that
the Applicant failed to rebut the presumption of state protection?
FACTUAL BACKGROUND
[3]
The
Applicant is a citizen of Mexico and was born on June 12, 1977. Her claim
for refugee protection arises from the fact that she was targeted by members of
local drug cartels in the Mexican state of Chihuahua where she
worked as a radio host and journalist. She therefore claims protection on the
grounds of membership in a particular social group, and political opinion.
[4]
The
Applicant worked as a news reporter for a radio station, Radio Noticias 920 AM,
between April 1994 and September 2003. In 1998 the Applicant was licensed as a
radio host by the Office of Public Education, and in 2001 she registered with
the Journalist’s Forum. In 2001 the Applicant began a journalism course at the
Autonomous University of Chihuahua Mexico, and in September of 2003 she moved
to work at another radio station.
[5]
Between
April 1997 and March 1999, a man by the name of Edmundo Fernandez was the news
director at Radio Noticias. It was through their work at the radio station that
the Applicant and Fernandez developed both a working relationship and a
friendship.
[6]
The
Applicant and Mr. Fernandez reconnected in 2004 when the Applicant approached
her former colleague for advice and guidance regarding an investigative
journalism course offered during her third year of study. The Applicant was
doing practical work investigating the drug operations in Chihuahua. Since Mr.
Fernandez had become Special Forces Operations Director for the state of Chihuahua’s municipal
security unit in October of 2004, and was in charge of investigations of
criminal groups and drug trafficking in the area, the Applicant became a source
for Mr. Fernandez.
[7]
She
provided him with names and addresses of people involved in drug trafficking,
as well as the locations of underground rave parties, where drug sales were
prevalent, particularly sales to minors. Mr. Fernandez proceeded to arrest
several people on the basis of the information provided by the Applicant.
[8]
Mr.
Fernandez became a target of drug traffickers as a result of his work, and
began to receive threats in January 2005. He warned the Applicant of these
threats. On June 13, 2005 he was murdered by armed assassins while he was
walking out of a store at midday.
[9]
Around
midnight on June 15th, 2005, the day of Mr. Fernandez’ funeral, the Applicant
received a phone call from an unidentified person, threatening that the next
funeral would be hers because she was meddling in the business of others.
[10]
The
Applicant contacted the police by phone immediately to ask for protection, and
later visited the Public Ministry with her mother to report the threatening
call. She was asked if she had caller ID and could provide police with the
number from which the call came. When she told them she could not, the officer
indicated that nothing could be done, but that she should keep their number
close in case there was another incident. No report was made by the officer.
[11]
Following
the threat the Applicant, fearing for her safety, ceased her investigative
work, ended her association with the journalist group in Chihuahua and resigned
from her job.
[12]
Other
assassinations occurred in the Applicant’s home city around the same time. The Applicant
makes particular note of an incident which occurred on June 26, 2005 in which a
Chihuahua Police Chief Commander R.G. Levario and his partner agent Frias were
assassinated. The men were found with their index fingers amputated and placed
in their mouths, which signifies that the victims were identified as informants.
[13]
The
Applicant fled to Mexico City on September 15, 2005, approximately 27 hours
away by bus, where she lived with her aunt. On September 24, 2005, around 10:00
pm, she received a second threatening phone call in Mexico City. The
unidentified caller told the Applicant that she was an idiot to not have heeded
the previous warning. Fearing for her life, and having no faith in the Police response
if she complained, she immediately returned to Chihuahua to organize
her affairs and make arrangements to travel to Canada. She arrived
in Canada on October
4, 2005.
DECISION UNDER REVIEW
[14]
The
Board determined that the Applicant was neither a Convention refugee nor a person
in need of protection, because her fear had no objective basis.
[15]
At
the outset of the analysis the Board asserted that the Applicant’s identity was
established, and that her credibility was not in question. The only ground put
forward by the Board for rejecting the claim is that the claimant has not
rebutted the presumption that state protection is available to her in Mexico,
and that it was objectively reasonable to require the Applicant to make
additional efforts to seek state protection in Mexico. The
following reasons are given in support of this finding:
a. It was objectively
reasonable to require the Applicant to make additional efforts to seek state
protection in Mexico. She made no
effort to seek national protection in Mexico. Instead she made a
single report to the public ministry. Further, neither the police nor judicial
authorities were contacted following the second telephone threat.
b. The Board
found that because the Applicant’s problems stemmed from her involvement in
government-related work, that state protection would be forthcoming.
c. The Board
relied on the fact that the documentary evidence indicated that combating drug
trafficking in Mexico is a key focus of the Mexican government. Despite
the fact that there is corruption and collusion with traffickers within the
police force the government is making an effort to combat trafficking and to
protect Mexican citizens.
d. The Board found
it evident that the drug trafficking situation in the state of Chihuahua was very
serious. The Board also acknowledged that there is documentary evidence stating
that journalists and reporters have been victimized. However, there was no
persuasive evidence that the State of Mexico is unwilling or unable
to provide the Applicant with protection.
ANALYSIS
The documentary Evidence
[16]
The
Board considered the documentary evidence, acknowledging that according to that
evidence, there was corruption among the police and security forces in Mexico,
some of whom colluded with the drug traffickers and that there was inefficiency
and corruption in the judicial system.
[17]
However,
the Board was impressed by the Attorney General’s and the Federal Investigation
Agency’s significant efforts to combat criminality and drug trafficking, while
protecting Mexican citizens.
[18]
It
also mentioned the victimization of journalists and reporters. A simple reading
of this documentation reveals that a 2000 annual report on Mexico states
“despite the good news, Mexico is still a relatively dangerous place to
work as a journalist. The investigation of drug trafficking leads to death
threats – three of the five journalists murdered in 1997 and 1998 had been
investigating the subject…” The same document refers to threats, attacks and
arrests and kidnapping of journalists. The Reuters document for 2006 is entitled
“Mexico hit by fresh
wave of drug killings”.
[19]
It
is a fact that president Vincento Fox promised renewed efforts to combat crimes
yet in a letter from Canada dated October 7th 2005, the association
complained of violation of human rights in Mexico, and the
murders of journalists.
[20]
The
Board should have examined the totality of the evidence, particularly the
documentary evidence to realize that notwithstanding President’s Fox’s promises
and efforts, investigative journalists in Mexico still face threats and risk of
death. This evidence together with the Applicant’s recital of facts and events especially
support her objective and subjective fears for her life in Mexico.
Standard of Review
[21]
The
standard of review applicable to the Board’s decision of whether the Applicant adequately
demonstrated the state's inability to protect is reasonableness simpliciter.
Tremblay-Lamer J. arrived at this standard after applying the pragmatic and
functional analysis in Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232, which
has since been followed consistently by this Court. See e.g. Martinez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 982, [2007] F.C.J. No. 1276. I
agree that reasonableness is the appropriate standard.
Rebutting the presumption of state
protection
[22]
In
order to determine whether the Board erred, it is first useful to review the
principles underlying the presumption of state protection and how the Applicant
may rebut the presumption.
[23]
The
Supreme Court of Canada in Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, establishes the test for state
protection:
Like Hathaway, I prefer to formulate this aspect of the test
for fear of persecution as follows: 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.
The issue that arises, then, is how, in a practical sense, a
claimant makes proof of a state's inability to protect its nationals as well as
the reasonable nature of the claimant's refusal actually to seek out this
protection. On the facts of this case, proof on this point was unnecessary, as
representatives of the state authorities conceded their inability to protect
Ward. Where such an admission is not available, however, clear and convincing
confirmation of a state's inability to protect must be provided. For example, a
claimant might advance testimony of similarly situated individuals let down by
the state protection arrangement or the claimant's testimony of past personal
incidents in which state protection did not materialize. Absent some
evidence, the claim should fail, as nations should be presumed capable of
protecting their citizens. Security of nationals is, after all, the essence
of sovereignty. Absent a situation of complete breakdown of state apparatus,
such as that recognized in Lebanon in Zalzali, it should be assumed that the state is
capable of protecting a claimant.
[Emphasis added]
[24]
In
Kadenko v. Canada (Solicitor General), 143 D.L.R. (4th) 532, the Federal
Court of Appeal confirmed that a refugee claimant must do more than show that
he or she approached some members of the police force and that the attempts to
seek protection were unsuccessful. This interpretation of the law has been
recently applied by Justice Martineau in Ramirez et al. c. MCI, 2007 CF
1191.
[25]
The
Applicant in this case submits that the Board erred by overlooking the murders
of Mr. Fernandez, of the two police officers who were labelled as informants,
and the numerous journalists identified by the documentary evidence as having
been targeted. The Applicant submits that these are similarly situated
individuals who were let down by the state. The Applicant further submits that
because Mr. Fernandez and the officers were senior officials, they would have had
greater access to protection. Despite this access to protection, they were
targeted and killed, and those responsible Mr. Fernandez’ death have not yet
been apprehended. The Applicant contends that this makes it objectively
unreasonable for the Applicant to be required to seek further protection from
the state.
[26]
The
Respondent submits in response that the Applicant was a student journalist,
with a low-profile, unlike Mr. Fernandez and the police officers, and she would
therefore not be a target. Similarly, the Board found that because she had
aided a government official, that protection would be more readily forthcoming.
The
presumption of state protection
[27]
In
Ward, above, the Supreme Court of Canada decided that in refugee law,
there is a presumption of state protection and to rebut this presumption, there
must be a “clear and convincing confirmation of state’s inability to protect
must be provided …”. In Hinzman v. Canada (Minister of Citizenship and
Immigration); Hughey v. Canada (Minister of Citizenship
and Immigration), [2007] FCA 171, [2007] F.C.J. No. 584, the Federal Court
of Appeal quoted its own decision in Kadenko v. Canada (Solicitor General)
(1996), 143 D.L.R. (4th) 532, at page 532, stating that the more
democratic a country, the more a claimant must seek protection from his of her
home state. However, this proviso must pass the test, as to whether the state
protection “might reasonably have been forthcoming” (Hinzman, para 54).
[28]
In
the case of a country considered a true democracy, as the United States of
America as determined in Hinzman above, the presumption of state
protection is difficult to overturn, but in a country like Mexico, considered
more as a developing democracy, where corruption, drug trafficking is prevalent,
involving some government officials, police and security forces, the
presumption can be more easily overturned, see: Carrillo v. Canada (Minister
of Citizenship and Immigration), 2007 FC 320. [2007] F.C.J. No. 439.
[29]
Evidently,
each case must turn on its particular facts, therefore every refugee claim from
a Mexican citizen will not satisfy the criteria required; for example judicial
reviews were refused in the following cases concerning Mexican citizens:
K.T.S.G. v. Canada (Minister of Citizenship and
Immigrationj),
2005 FC 1669, [2005] F.C.J. No. 2070;
Monroy v. Canada (Minister of Citizenship and
Immigraition),
2006 FC 834, [2006] F.C.J. No. 1180;
Canseco v. Canada (Minister of Citizenship and
Immigration),
2007 FC 73, [2007] F.C.J. No. 115 and;
Ramirez, above
[30]
Considering
the evidence in the present case, I believe that the Board’s decision was
unreasonable. The Board’s failure to consider the fact that the very people
from whom the Applicant is asked to seek protection could not avail themselves
of protection constitutes a reviewable error. As was the case in Irhuegbae
v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 671, 2003 FCT 522, the
evidence of these murders was mentioned in the Board’s decision, but was not
addressed in the context of the state’s inability to protect the Applicant:
[27] The Applicant provided evidence of similarly situated
individuals let down by the state protection arrangement. He gave evidence that
another lecturer was murdered two nights after the Applicant gave his lecture.
This lecturer was a fellow anti-cult activist (tribunal record page 19). The Applicant,
in his Personal Information Form ("PIF") stated that a registrar of Delta State University, the Applicant's alma mater,
told him in May 1999 that he had been offered police protection against the
cultists. A few weeks later, the registrar was murdered. The Board did not
state this evidence was not credible. As well, the Board found that the Applicant
had not provided clear and convincing evidence that the government is unable to
protect him. However, in my opinion, the Applicant did provide evidence of
similarly situated individuals let down by state protection (e.g. the registrar
at Delta State University who was killed). This
evidence was mentioned in the Board's decision, but it was not addressed in the
context of the state's inability to protect the Applicant. As Ward, supra
states, one of the ways to establish the inability of a state to protect a
person is by showing its inability to protect other similarly situated
individuals. Therefore, this constitutes a reviewable error on the part of the Board.
[Emphasis added]
[31]
The
individuals whose stories the Applicant relied upon to illustrate the state’s
inability to protect her were in senior, public positions. Their inability to
receive adequate protection is therefore more convincing that it would be if
they were ordinary citizens working as informants. Further, it constitutes a
clear and convincing confirmation of the state’s inability to protect the Applicant
in this particular circumstance. The Respondent’s argument that the Applicant’s
lower profile occupation would shelter her from persecution is contradicted by
the fact that she received death threats. The fact that she was a target was at
no time called into question by the Board, nor was the Applicant’s credibility
generally.
[32]
This
Court has found that when a state is the alleged perpetrator of persecution, an
Applicant is not required to exhaust all avenues of protection in order to
rebut the presumption of state protection. For example, in Chaves, supra,
Justice Tremblay-Lamer stated the following:
In my view, however, Ward, supra and Kadenko,
supra, cannot be interpreted to suggest that an individual will be required
to exhaust all avenues before the presumption of state protection can be
rebutted (see Sanchez v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 536 (T.D.)(QL) and Peralta v. Canada (Minister of
Citizenship and Immigration) (1996), 123 F.T.R. 153 (F.C.T.D.)). Rather, where
agents of the state are themselves the source of the persecution in question,
and where the Applicant's credibility is not undermined, the Applicant can
successfully rebut the presumption of state protection without exhausting every
conceivable recourse in the country. The very fact that the agents of the
state are the alleged perpetrators of persecution undercuts the apparent
democratic nature of the state's institutions, and correspondingly, the burden
of proof. As I explained in Molnar v. Canada (Minister of Citizenship and
Immigration),
[2003] 2 F.C. 339 (T.D.), Kadenko, supra has little application when the
"[...] police not only refused to protect the Applicants, but were also
the perpetrators of the acts of violence"; Molnar, supra at para.
19.
[Emphasis added]
[33]
Similarly,
it is my opinion that in circumstances where agents of the state whose job it
is to protect the Applicant were unable to receive the necessary protection for
themselves, that fact may be used by an Applicant whose credibility is not challenged
in order to rebut the presumption of state protection. It is appropriate to
distinguish this case from Kadenko, supra on these particular facts.
Here, it was not objectively reasonable to require the Applicant to seek further
protection when the very agents whose job it is to protect the public, cannot
themselves receive adequate protection.
[34]
For
the above reasons, it is my opinion that the Board committed a reviewable
error.
[35]
No
question is certified and none is raised.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
The
application for judicial review is allowed and the matter is to be referred
back for reconsideration by a differently constituted panel.
"Orville
Frenette"
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