Date: 20110113
Docket: IMM-3712-10
Citation: 2011 FC 34
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, January
13, 2011
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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CLAUDIA GONZALEZ LEON
ESTEFANIA CARDENAS GONZALEZ
VICENTE CARDENAS ABASOLO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(the Board) dated May 25, 2010, in which it determined that the applicants
are not refugees or persons in need of protection within the meaning of
sections 96 and 97 of the IRPA, on the ground that they had not rebutted the
presumption of state protection.
Background
[2]
The
applicants are citizens of Mexico. The principal applicant (the female
applicant), Claudia Gonzalez Leon, and the applicants’ daughter, Estefania Cardenas Gonzalez,
arrived in Canada in November 2007. The male applicant arrived in
September 2008.
[3]
The
applicants’ claim for refugee protection is based on the following allegations.
In 1982, the female applicant married a man who became an officer with the
Federal Highway Police. Her husband was killed in 1986 by “XX”. “XX”
allegedly stated that he had acted in self-defence and his version was accepted,
and so no charge was filed against him. The female applicant then sought to
have her former husband’s superior, the chief of the Federal Highway Police,
intervene to bring “XX” to justice. The superior allegedly took on the
case, but the investigation did not result in a charge.
[4]
In 1988,
“XX” was incarcerated for eight months for offences that were unrelated to the
death of the female applicant’s husband. That same year, the female applicant
was assaulted by several men, one of whom identified himself as the murderer of
her husband. He allegedly told her that she was paying and would pay for the
time he had spent in prison. The female applicant did not file a complaint
about the assault.
[5]
The female
applicant submits that as a result of that incident, and until she left Mexico, she was the victim of
thefts, assaults and other crimes, every year in about September, most often by
persons who did not identify themselves. She submits that those persons were
always sent by “XX”, who had said he would never leave her alone. She tried to
file complaints on several occasions, although without alleging any connection
with “XX”, but she stated that her complaints were not accepted because there
was no evidence or names of the alleged assailants.
[6]
The female
applicant met the male applicant in 1989 and their daughter was born
in 1993. The female applicant alleges that an incident that occurred in
the fall of 2007 prompted her to leave Mexico and come to Canada. The applicants were allegedly victims
of a theft. Because they had seen one of the thieves, the applicants filed a
complaint with the police. The female applicant then allegedly crossed paths
with the alleged thief, who told her he had been sent by “XX”. He allegedly ordered
her to abandon her complaint and threatened to attack her and her daughter.
After that incident, the female applicant and her daughter left Mexico.
[7]
The male
applicant remained in Mexico after the incident, but in
July 2008, two people came to his home and asked him where his wife was
and threatened to kill him. After that incident, he decided to join his wife
and daughter in Canada.
Decision of the Board
[8]
The Board
rejected the applicants’ claim for refugee protection on the ground that they
had not rebutted the presumption of state protection. The Board noted that Mexico was a democratic country
where there has not been a complete breakdown of the state apparatus, and in
spite of weaknesses in the judicial system, it was still functional and had
institutions and authorities that were capable of offering its citizens
protection. The Board held that because the applicants had never filed a
complaint directly against “XX”, the alleged agent of persecution, they could
not claim refugee protection in Canada.
It further held that the explanations given by the applicants to justify their
failure to file a complaint against “XX” did not constitute clear and
convincing evidence of Mexico’s inability to protect its
citizens.
Issue
[9]
The
applicants submit that the Board erred when it found that the applicants had
not rebutted the presumption of state protection, in particular because it
assessed the evidence unreasonably and failed to consider relevant documentary
evidence.
[10]
The issue
in this case is therefore as follows:
Did the Board assess the evidence unreasonably and did it
fail to consider relevant documentary evidence?
Analysis
[11]
For the
reasons that follow, I find that the application for judicial review must be
dismissed.
Standard of review
[12]
It is
settled law that questions relating to the adequacy of state protection are
questions of mixed law and fact that are subject to the reasonableness standard
(Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA
171, [2007] FCJ No 584; Rocque v Canada (Minister of Citizenship and
Immigration), 2010 FC 802, [2010] FCJ No 983).
[13]
It is also
settled law that the Board’s findings of fact, and more specifically its
assessment of the evidence, are also subject to the reasonableness standard. It
is not for the Court to substitute its assessment of the evidence for the
Board’s or to reassess the weight assigned to certain evidence by the Board,
and it will intervene only if the Board’s findings are made in a perverse or
capricious manner or without regard to the evidence (Dunsmuir v New Brunswick
[Dunsmuir], 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Martinez v Canada (Minister
of Citizenship and Immigration), 2009 FC 798, [2009] FCJ No 933).
[14]
The role
of the Court in reviewing a decision on the reasonableness standard was stated in
Dunsmuir, at paragraph 47:
… A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
Did the Board assess the evidence unreasonably and did it fail to
consider relevant documentary evidence?
[15]
The
applicants submit that the Board assessed the detailed narrative completed by
the female applicant, and her testimony, unreasonably. The Board allegedly
failed, among other things, to consider the explanation given by the female
applicant and the male applicant to justify their failure to file a complaint
directly against “XX” in the more general context of the female applicant’s
account. In the applicants’ submission, the Board should have taken into
account the fact that when her husband, who was a police officer, was killed, the
female applicant had tried in vain to have “XX” convicted. She had even asked
her late husband’s superior, the chief of the Federal Highway Police, for help,
but his efforts were unsuccessful. They also submit that the Board should have
considered the complaints filed by the applicants regarding the various
offences committed against them instead of focusing solely on their failure to
file a complaint against “XX”.
[16]
The
applicants also submit that the Board analyzed the documentary evidence
relating to the weaknesses in the Mexican judicial system unreasonably and
selectively; in their opinion, that evidence clearly shows the inability of Mexico to protect them. The
applicants relied, among other things, on the report found at Tab 2.1 of
the National Documentation Package on Mexico, which addresses problems relating
to human rights violations, corruption and impunity, in particular in the local
structures of the judicial system. They also stressed the article Mexico:
Laws without justice: Human rights violations and impunity in the public
security and criminal justice system, which addresses numerous weaknesses
in the Mexican judicial system and notes, among other things, that one victim
out of five file complaints because of a lack of confidence in police and only
11.4% of the complaints received lead to charges.
[17]
The
respondent submits that the Board assessed the evidence reasonably and its
findings are based on the evidence. The respondent submits that the Board took the
applicants’ explanations into account, and also considered the weaknesses of
the Mexican judicial system and the problems of corruption and violence. The
Board is presumed to have considered all of the evidence and did not have to
expressly refer to or quote passages from the documents in the National
Documentation Package cited by the applicants. The respondent further submits that
the documentary evidence accepted by the Board is more recent than the
documentary evidence cited by the applicants and that it refers to judicial
reforms instituted in 2008 and anti-corruption operations implemented
in 2009.
[18]
In Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689, at page 725, the Supreme
Court of Canada clearly stated that except in situations of complete breakdown
of the state apparatus, there is a presumption that a state is capable of
protecting its citizens and that a person must avail himself or herself of
protection in his or her country before claiming refugee protection in a
foreign country.
[19]
La
Forest J. explained the principle that underlies the refugee protection
regime, and the crucial importance of the presumption that the country of
origin offers protection to its citizens, as follows:
[18] At
the outset, it is useful to explore the rationale underlying the international
refugee protection regime, for this permeates the interpretation of the various
terms requiring examination. International refugee law was formulated to
serve as a back-up to the protection one expects from the state of which an
individual is a national. It was meant to come into play only in
situations when that protection is unavailable, and then only in certain
situations. The international community intended that persecuted
individuals be required to approach their home state for protection before the
responsibility of other states becomes engaged. For this reason,
James Hathaway refers to the refugee scheme as "surrogate or substitute
protection", activated only upon failure of national protection; see The
Law of Refugee Status (1991), at p. 135. With this in mind, I shall
now turn to the particular elements of the definition of "Convention
refugee" that we are called upon to interpret.
[Emphasis added.]
[20]
The presumption of the availability of state
protection can be rebutted only where the applicant provides “clear and
convincing” of the inability of his or her country of origin to provide effective
protection (Ward). In Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94, [2008] FCJ No 399, the Federal Court of Appeal addressed the quality of the
evidence that was required, and stated, at paragraph 30:
… In other words, a claimant seeking to rebut the presumption of state
protection must adduce relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate.
[21]
In general, a person must seek assistance from
the authorities before concluding that the state is not able to provide
adequate protection, but that is not necessary in all cases. As the Supreme
Court stated in Ward, at paragraph 48:
… A refugee may
establish a well-founded fear of persecution when the official authorities are
not persecuting him if they refuse or are unable to offer him adequate
protection from his persecutors . . . however, he must show that he
sought their protection when he is convinced, as he is in the case at bar, that
the official authorities ‑‑ when accessible ‑‑ had no
involvement ‑‑ direct or indirect, official or unofficial ‑‑
in the persecution against him. (José Maria da Silva Moreira,
Immigration Appeal Board Decision T86-10370, April 8, 1987, at 4, per V.
Fatsis.)
This is not true in all
cases. Most states would be willing to attempt to protect when an
objective assessment established that they are not able to do this
effectively. 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.
[22]
However, the onus is on the applicant to
establish that it was not reasonable to require that he or she seek the
protection of his or her country in order to justify his or her failure to do
so.
[23]
In Kadenko v Canada (Minister of Citizenship and
Immigration), [1996] FCJ No 1376, 143 DLR
(4th) 532, (FCA), Décary J.A. stated that the burden of proof rested on
the applicant and was proportional to the level of democracy in the country in
question.
[24]
Some members of this Court have also stated the
importance of considering Mexico’s place in the spectrum of democracies in
determining what evidence will be considered sufficient to rebut the
presumption of state protection (Capitaine v Canada (Minister of Citizenship
and Immigration), 2008 FC 98, [2008] FCJ No 181 (Gauthier J.), [Capitaine];
Zepeda v Canada (Minister of Citizenship and Immigration), 2008 FC 491,
[2008] FCJ No 625 (Tremblay‑Lamer J.) [Zepeda]). In Zepeda,
Tremblay‑Lamer J. addressed the principles stated in Capitaine
as follows:
17 With respect to the strength of the applicable presumption in
Mexico, the respondent cites the case of Velazquez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 532, at paragraph 6, in which Justice Michael Phelan stated “Mexico is
a functioning democracy, and a member of the NAFTA, with democratic
institutions. Therefore, the presumption of state protection is a strong one.”
(See also Canseco v. Canada (Minister of Citizenship and Immigration),
2007 FC 73, at paragraph 14; Alfaro v. Canada (Minister of Citizenship and
Immigration), 2006 CF 460, at paragraph 18,
highlighting the free and democratic nature of Mexican society.)
18 However, other
jurisprudence has focussed on the problems that remain in Mexico’s democracy.
Recently, Deputy Justice Orville Frenette in De Leon v. Canada (Minister of
Citizenship and Immigration) (2007), 68
Imm. L.R. (3d) 53 (F.C.), at paragraph 28 indicated that as a developing
democracy with problems including corruption and drug trafficking involving
state authorities, the presumption of state protection applicable to Mexico is
more easily overturned.
19 Similarly in Capitaine
v. Canada (Minister of Citizenship and Immigration), 2008 FC 98, at
paragraphs 20-22, my colleague, Madam Justice Johanne Gauthier addressed the
presumption of state protection in the context of Mexico’s democracy:
·
Mexico is a democracy to
which a presumption of state protection applies, even if its place on the
“democracy spectrum” needs to be assessed to determine what credible and
reliable evidence will be sufficient to displace that presumption. …
·
In developed democracies such as the U.S. and Israel, it is clear from Hinzman (at paras. 46
and 57) that to rebut the presumption of state protection, this evidence must
include proof that an applicant has exhausted all recourses available to her or
him. It is also clear that, except in exceptional circumstances, it would be
unreasonable in such countries not to seek state protection before seeking it
in Canada.
·
The Court does not understand Hinzman to say that
this conclusion applies to all countries wherever they stand on the “democracy
spectrum” and to relieve the decision-maker of his or her obligation to assess
the evidence offered to establish that, in Mexico for example, the state is
unable (although willing) to protect its citizens, or that it was reasonable
for the claimant to refuse to seek out this protection.
20
I find Madam Justice Gauthier’s approach to the presumption of
state protection in Mexico to be persuasive. While Mexico is a democracy and generally willing to protect
its citizens, its governance and corruption problems are well documented.
Accordingly, decision makers must engage in a full assessment of the evidence
placed before them suggesting that Mexico, while willing to protect, may be unable to do
so. 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 (Hernandez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1211, at paragraph 21; G.D.C.P. v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 989, at
paragraph 18).
[Emphasis added.]
[25]
I concur, in general, with the principles
stated by Gauthier and Tremblay‑Lamer JJ. and I consider that these
principles should always be applied in light of the particular circumstances of
each case. As clearly stated by Tremblay‑Lamer J., the Board must take
into account the general situation in the country, but must also consider the
efforts made by the applicants and their relationship with the authorities.
[26]
I find that in this case the Board’s assessment
of the testimonial and documentary evidence submitted by the applicants was
reasonable. It is apparent on reading the decision that the Board accepted the
fact that the female applicant contended that she had been the victim of crimes
committed by “XX” or by persons acting on his behalf over a period of more than
20 years. The Board referred to the fact that the murderer of the female
applicant’s husband had not been prosecuted because the authorities concluded
that he had acted in self-defence, and that the female applicant had made
efforts to have him brought to justice. I therefore cannot conclude that the
Board failed to consider the overall context of the female applicant’s account.
The Board certainly had that context in mind, since it expressly referred to
and analyzed the explanations given by the applicants, although it found them
insufficient.
[27]
It is useful to reproduce the passage from the
decision in which the Board addresses the explanations given by the female
applicant:
[15] The
panel is of the opinion that the explanations provided by the claimants
concerning why they had never filed a complaint against XX do not constitute
“clear and convincing” explanations.
[16] The
female claimant’s explanation that she could not file a complaint because she
had never seen XX at the time of the offences proved to be false because in
2003, according to her testimony, she recognized XX as the driver of the pickup
truck that crashed into her vehicle intentionally and in order to cause harm.
She then stated that she did not believe that anything would have been done to
XX if she had complained to the authorities.
[17] The
female claimant testified that in 1986, when she became a widow, the chief of
the federal traffic police helped her press to have XX brought to justice. He
allegedly supported her because the claimant’s late husband had been a traffic
police officer. She stated that she had not heard from him in a long time. When
asked if she had tried to seek help from the chief of the federal traffic
police, she answered that no, she had not tried. She stated that she had lost
contact and that the offices had changed.
[18] The
panel concludes from the claimants’ answers that they failed to seek the
authorities’ protection by failing to file a complaint with the authorities
against XX, and by failing to seek the assistance of a chief of police who had
helped the female claimant in the past and who understood the history of the
problem. Even when XX made death threats directly to the male claimant in 2008,
the male claimant made no attempt to seek the authorities’ protection.
[19] Doubting the effectiveness of state protection when it has
not been tested does not rebut the presumption of state protection.
[28]
It was up to the Board to assess the evidence
and the Court must show deference to that assessment. The Court may not
substitute its own assessment of the evidence for the Board’s and the Board
committed no error such as would warrant the intervention of the Court. The
applicants disagree with the Board’s assessment of the evidence, but they have
not persuaded me that its assessment was unreasonable.
[29]
I will now
address the Board’s assessment of the documentary evidence relating to the
situation in Mexico.
[30]
After considering the applicants’ explanations,
the Board stated the principle that a person’s failure to pursue state
protection opportunities within the home state before seeking refugee
protection was generally fatal where the state is a functioning democracy “with
a willingness and the apparatus necessary to provide a measure of protection to
its citizens”. That statement is not unreasonable having regard to the law on
the question. The Board then analyzed the documentary evidence relating to
Mexican judicial institutions.
[31]
The documentary evidence cited by the
applicants addresses problems in the Mexican judicial system and corruption in
the police forces. It appears from the decision that the Board analyzed the
evidence relating to the weaknesses in the Mexican judicial system and
acknowledged those problems, but found that the evidence also showed that
Mexico is a democracy with a government that, in general, respects the rights
of its citizens, that each state has a Human Rights Commission, and that there
is also a national Human Rights Commission that investigates when complaints
are filed against government employees. The Board also stated that the present
government of Mexico had been elected in free elections, that it recognized the problems of
corruption in the police and that it had taken measures to deal with it. The
Board noted, in particular, the recent legislation that provides that the
police are now better trained and are subject to evaluation processes and that
it is now easier to dismiss corrupt or incompetent police officers. The Board also
noted that anti-corruption initiatives begun under the former government and
pursued by the present government had led to the arrest and dismissal of police
officers, and referred to the reform of the courts initiated in 2008.
[32]
I do not share the applicants’ opinion that the
Board should have had to explain why it did not accept the documentary evidence
submitted by the applicants. First, the Board is presumed to have considered
all of the evidence and it is not necessary that it refer to all of the documentary
evidence available to it (Florea v Canada (Minister of Employment and Immigration)
(FCA), [1993] FCJ No 598; Chagoya v Canada (Citizenship and Immigration), 2008
FC 721, [2008]
FCJ No 908).
[33]
Second, this is not a case where the Board
dealt summarily with the evidence relating to the state’s ability to protect
its citizens or a case where it allegedly failed to address evidence that
squarely contradicted its conclusions (Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration), [1998] FCJ No 1425, 157 FTR 35). In this case, the evidence was contradictory, and the
Board referred to the existing problems and made its own assessment of the
evidence, and its finding falls within the range of possible outcomes, having
regard to the documentary evidence that the Board analyzed. The decision is
clearly articulated and detailed.
[34]
The
parties did not propose a question for certification and there is none in this
matter.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the application for judicial review is dismissed. No
question is certified.
“Marie-Josée
Bédard”
Certified
true translation
Susan
Deichert, Reviser
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