Date: 20110106
Docket: IMM-2415-10
Citation: 2011 FC 4
[UNREVISED CERTIFIED ENGLISH
TRANSLATION]
Ottawa, Ontario, January
6, 2011
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
FELIPE DE
JESUS MORENO CORONA
CECILIA CORTES JIMENEZ
DANIEL ANTONIO MORENO CORTES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an
application for judicial review by Felipe de Jesus Moreno Corona (the principal
applicant) and Cecilia Cortes Jimenez and Daniel Antonio Moreno Cortes under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act) of a decision made by a member of the Refugee Protection
Division of the Immigration and Refugee Board (the panel). The panel determined
that the applicants were not “Convention refugee[s]” or “person[s] in need of
protection” under sections 96 and 97 of the Act.
* * * * * * * *
[2]
The applicants are
Mexican citizens. The principal applicant worked as a truck driver for a
company whose business included delivering merchandise for the company Mabe.
[3]
On
February 8, 2006 the principal applicant’s pickup truck was allegedly hijacked
by three individuals who apparently stole merchandise worth 250,000 pesos as well
as various personal documents belonging to the applicant, including his voter
registration card. One of these individuals purportedly identified himself as a
member of the judicial police. The hijackers seemingly left the applicant
stranded and threatened to kill him if he reported them.
[4]
The
principal applicant claims that he filed a complaint with the police so that
his boss could prove to Mabe that its merchandise had been stolen. He also says
that his boss came with him when he filed the complaint but that he was the
only one who spoke to the police. He apparently did not denounce the judicial
police as hijackers as he was afraid that they would find out that he had
reported them.
[5]
Following
this, the applicant purportedly received a number of phone calls from these
same people, threatening him and his family and telling him that they knew
where he lived and worked. The calls allegedly continued even though the
applicant and his family moved twice, to Huauchinango and to Queretaro.
[6]
The
principal applicant came to Canada on October 18, 2007, and made a refugee
claim at the airport. His wife and son arrived on November 1, 2007, and made
their refugee claims the same day. The claims of his wife and son are based
entirely on the principal applicant’s story.
* * * * * * *
*
[7]
As
the panel found that section 96 of the Act did not apply, its analysis was
based solely on paragraph 97(1)(b) of the Act.
[8]
The
panel did not find the applicant to be entirely credible and decided that, in
any case, the applicant had not proven, on a balance of probabilities, that
state protection was inadequate in Mexico. The panel noted
specifically that the applicant did not exhaust all possible domestic remedies
before seeking international protection. The panel particularly emphasized that
there were several services available to Mexican citizens to complain about
corruption, including a phone “hotline”, an Internet site and the ability to
complain in person. The panel found inadequate the applicant’s explanation that
he had not attempted to avail himself of those services because he knew other
people who had done so without obtaining any results.
* * * * * * *
*
[9]
Two
questions are at issue:
a)
Was the panel’s credibility finding
unreasonable?
b)
Did the panel err when it found that state
protection was adequate in Mexico and that the applicant had not made adequate efforts to avail
himself of that protection?
[10] The standard
of review to be applied to findings of credibility is reasonableness, according
to Justice Beaudry in Auguste v. Canada (Citizenship
and Immigration), 2009 FC 1099, at paragraph 6 (following the decision in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190, at paragraph 47). The standard of review to be applied to
findings on the question of state protection is also reasonableness, according
to Justice Russell in Montenegro Buitrago v. Canada (Citizenship
and Immigration), 2009 FC 1046, at paragraph 14.
* * * * * * *
*
[11] If we turn
our attention first to the question of state protection, the applicant claims
that he made an adequate effort in seeking it and that he gave a good
explanation as to why he did not do more. He submits that the panel erred both
in finding that his filing of a complaint was insufficient and in not taking
into account his explanation that he was afraid of taking other steps because
of the risk to his family in a society where the police are corrupt. The
applicant alleges that the panel did not consider the documentary evidence
concerning corruption in Mexico and, furthermore, that it erred in finding
that the government’s measures to encourage victims to report crimes provided
effective protection against the risk of revenge.
[12] As noted by
the respondent, while accepting the fact that the applicant had filed a
complaint, the panel found that his efforts in seeking state protection were inadequate.
In Campos Navarro v. Canada (Citizenship and Immigration), 2008 FC 358,
at paragraph 17, Justice de Montigny specified that “…the state must at least
be offered a real opportunity to intervene before one can conclude that it is
unable to provide the protection required by one of its citizens.” In this
case, the applicant did not indicate in his complaint that the hijackers could be
members of the judicial police. He also did not go further and exhaust all of
the domestic remedies that he was aware of.
[13] I agree with
the respondent that it is not enough that the applicant rely on his subjective
fear concerning the ineffectiveness of these measures (see Sanchez v. Canada (Citizenship
and Immigration), 2008 FC 134, at paragraph 9). It is, in any case, obvious
from the panel’s decision that it did explicitly take the documentary evidence
into account. What it found was that state protection did exist and that the
applicant had not done enough to seek it out. As was noted by Justice Edmond Blanchard
in Perez Burgos v. Canada (Citizenship
and Immigration), 2006 FC 1537, state protection does not have to be perfect
and the claimant must provide clear and convincing evidence of the inability of
the state to protect him.
[14] It is,
therefore, my conclusion that the panel’s finding on the question of state
protection falls within the range of possible, acceptable outcomes. In these
circumstances, it is therefore not necessary to dispose of the arguments of the
parties on the question of credibility.
* * * * * * *
*
[15] For the
foregoing reasons, the application for judicial review is dismissed.
[16] I concur with
counsel that there is no question for certification arising.
JUDGMENT
The application for judicial review of the decision of a member of the
Refugee Protection Division of the Immigration and Refugee Board dated March
22, 2010, is dismissed.
“Yvon
Pinard”
Certified
true translation
Susan
Deichert, Reviser
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