Date: 20071130
Docket: IMM-209-06
Citation: 2007 FC 1265
Ottawa, Ontario, November 30, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JUAN CARLOS PERALTA RAZO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
application for judicial review is allowed because the decision of the Refugee
Protection Division of the Immigration Refugee Board (Board) with respect to
state protection was inadequate and unreasonable.
[2] Mr.
Peralta Razo is a citizen of Mexico who claimed refugee protection on the basis
of his perceived political opinion. He testified that, as a result of his
effort to support the people of Chiapas, he came to the attention of the
Federal Preventative Police (PFP). Members of the PFP took him by force, beat,
threatened, and interrogated him. After his release, the PFP continued to
search for Mr. Peralta Razo throughout Mexico.
[3] The
Board found Mr. Peralta Razo's testimony to be forthright and trustworthy. It
found, however, that state protection existed for him in Mexico. The Board
gave three reasons for this finding.
[4] First,
the Board found that the Federal Attorney General's office (PGR) has broad
powers and, if a complaint to the police is ignored, "one has recourse to
the office of the internal controller of the PGR. According to the documentary
evidence, the PGR was reorganized in 2001 in order to deal with internal
corruption and to better cope with drug trafficking and organized crime and
those found to be involved in internal corruption have been suspended,
dismissed and, in some cases, imprisoned."
[5] Second,
Mr. Peralta Razo had retained a lawyer in Mexico City. The Board wrote "I
cannot understand why a lawyer in Mexico should not be able to assist this
claimant in showing up for questioning by the police in respect to his previous
involvement with two individuals […] that were supposedly supportive of illegal
Zapatista activities. Further, I believe if the claimant has a lawyer representing
him in Mexico City, this lawyer should also be able to address the corrupt
previous interrogation that this claimant had to endure".
[6] Finally,
the Board found that there was no evidence of any outstanding arrest warrant
for Mr. Peralta Razo in Mexico.
[7] Generally,
the appropriate standard of review to be applied to the Board’s analysis of
state protection is reasonableness. See: Hinzman v. Canada
(Minister of Citizenship and Immigration) (2007), 362 N.R. 1 (F.C.A.) at
paragraph 38.
[8] A
decision is reasonable if the reasons for the decision withstand a somewhat
probing examination. See: Canada (Director of Investigation and
Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at
paragraph 56.
[9] In
the present case, the Board’s reasons do not withstand a somewhat probing
examination for the following reasons.
[10] First,
with respect to the PGR, the Board failed to consider whether effective
protection existed. It is insufficient for a state to possess institutions
designed to provide protection if those institutions do not provide actual and
adequate protection. Such analysis was required in view of the documentary
evidence before the Board that:
·
Document 2.2, Amnesty International 2005 Report "Mexico":
Arbitrary detention, torture, and ill-treatment by police remained widespread
and authorities failed to combat these practices effectively or to ensure
judicial remedy.
·
Document 2.3, Human Rights Watch Report, January 2005
"Mexico": One of the pressing human rights issues in Mexico was
torture and other ill-treatment by law enforcement officials and the failure to
investigate and prosecute those responsible for human rights violations.
·
Document 10, Immigration and Refugee Board, May 2004,
"Mexico: Police": Human rights reports continued to cite Mexican
police forces as corrupt and abusive and continued to note that police forces
operate with impunity. The police in Mexico are a long way from the point
where a registered complaint of police abuse is carried out to a genuine conclusion.
[11] With
respect to the Board’s reliance upon the fact that Mr. Peralta Razo had a
lawyer in Mexico City, a letter from the lawyer was filed in evidence. As
well, a second letter was obtained at the Board's request. The Board
apparently accepted the accuracy of information provided by the Mexican
lawyer. Missing, however, from the Board’s analysis was any explanation as to
how a lawyer's involvement would protect Mr. Peralta Razo, or why the Board
rejected the lawyer’s evidence about the availability of state protection for
Mr. Peralta Razo. This was necessary in view of the lawyer's advice that
"my client, being involved with the Federal Preventative Police, does not
have a margin for judicial procedure because the problem unfortunately is with
the same authority" and “trying to act in a legal manner (by going to the
same police) is like exposing himself”.
[12] To
clarify, the Board was not bound to accept the lawyer's opinion. It was,
however, obliged to give a reason for rejecting it when the Board otherwise
accepted the accuracy of information provided by the lawyer.
[13] Finally,
the Board correctly noted the absence of an existing arrest warrant. However,
Mr. Peralta Razo had been detained and beaten by the police previously,
notwithstanding the absence of an arrest warrant. The United States Department
of State Report for Mexico, published February 28, 2005 (Document 2.1),
reported that police continue to detain citizens arbitrarily and that arbitrary
arrest and detention continue to be among the most common human rights abuses.
In light of that evidence, the Board was obliged to explain the relevance of
the absence of an arrest warrant to the issue of state protection.
[14] To
conclude, without expressing any opinion on the point, the Board's decision may
have been reasonably open to it on the evidence. It was not, however,
reasonable for the Board to dismiss the application for protection for the
reasons that it gave.
[15] Counsel
posed no question for certification, and I am satisfied that no question arises
on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed, and the
decision of the Refugee Protection Division dated December 22, 2005, is hereby
set aside.
2. The matter is remitted for redetermination by a differently
constituted panel of the Refugee Protection Division.
“Eleanor R. Dawson”
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