Date: 20110117
Docket: IMM-2628-10
Citation: 2011 FC 48
Ottawa, Ontario, January 17, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
|
|
FLORENTINO SANCHEZ ROVIROSA
MARTHA PATRICIA ROSAS
ROVIROSA
TRINIDAD SANCHEZ ROVIROSA
GRETEL ITZEL VELEZ SANCHEZ
(A MINOR)
ELIACIM MARIA APREZA BAHENA
SOFIA SANCHEZ ROVIROSA
EDSON DAVID LOPEZ SANCHEZ (A
MINOR)
JONATHAN DE JESUS CASTRO
SANCHEZ
(A.K.A. JONATHAN DE JES
CASTRO SANCHEZ (A MINOR)
|
|
|
|
Applicants
|
|
And
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Principal Applicant, his wife and members of the extended family (collectively,
the Applicants) are citizens of Mexico who claim protection in
Canada pursuant to
ss. 96 and 97(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA). Briefly stated, the Applicants fear persecution from
Mexican gang members associated with the illegal drug trade in Mexico. In a
decision dated April 21, 2010, a panel of the Immigration and Refugee
Protection Board, Refugee Protection Division (the Board) determined that the
Applicants were neither Convention refugees nor persons in need of protection.
[2]
The
Board’s determinative finding was that the Applicants’ fear was not objectively
reasonable. After reviewing all of the evidence before it, the Board concluded
that: (a) there was adequate state protection in Mexico; (b) the
Applicants had failed to take all reasonable steps to avail themselves of that
protection; and (c) the Applicants failed to provide clear and convincing
evidence of the state’s inability to protect them.
[3]
The
Applicants seeks judicial review of the Board’s decision, arguing that the
Board’s decision on state protection is unreasonable.
II. Issues
[4]
The
Applicants raise three issues:
1.
Did
the Board unreasonably conclude that the Applicants had not taken reasonable
steps to avail themselves of state protection?
2.
Did
the Board err by failing to properly weigh the documentary evidence regarding
state protection in Mexico?
3.
As
a subset of the second issue, did the Board err by rejecting the report of
Professor Hellman?
III. Analysis
A. Standard of Review
[5]
Questions
as to the adequacy of state protection are questions of mixed fact and law and,
thus, are reviewable against the reasonableness standard. On this standard, this
Court can only intervene if the Board’s decision does not fall “within the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 (Dunsmuir)).
(1)
Issue
#1: Failure to seek state protection
[6]
The
Applicants challenge the Board’s conclusion that the Principal Applicant had
not taken all reasonable steps in seeking protection from the state against
threats by the drug gang in Mexico City. The Applicants submit that the record shows that they made
a total of 11 different attempts to seek state protection. Further, they
submit, some of those efforts were addressed to the very institutions that the
Board said would have been available to the Principal Applicant.
[7]
The
Applicants point to the decision of Lopez v Canada (Minister of
Citizenship and Immigration), 2010 FC 1176, [2010] FCJ No 1589 (QL) (Lopez)
where a claimant had made some unsuccessful attempts to seek police assistance.
At paragraph 3 of Lopez, Justice Hughes stated that, “I am satisfied that, in
the circumstances, the Applicant did what he could to report the incidences of
threats and assault to the authorities and to seek refuge elsewhere in Mexico.”
This, in the view of the Applicants, supports their position that, with the
evidence of 11 attempts to obtain protection, the Board was obligated to
conclude that the state was unable to protect these Applicants.
[8]
The
case of Lopez does not assist the Applicants. The decision does not
disclose the facts that were before the Board in that case. Further, the
determinative finding by Justice Hughes, in Lopez, was not whether Mr.
Lopez had made sufficient efforts to seek state protection. Rather, the case
was decided on the basis that the Board had failed to properly consider the
documentary evidence before it.
[9]
Every
case turns on its own unique facts. On its face, 11 attempts to seek state
protection appear to constitute a strong evidentiary record to show the failure
of the state to provide protection. However, on the particular facts of this
case, it is not outside the range of possible, acceptable outcomes to conclude,
as the Board did, that more could reasonably have been done (Dunsmuir,
para 47). The case at bar is not about one individual making 11 unsuccessful
efforts to obtain help. In this case, the testimony on this issue involved five
of the members of this extended family. Thus, the fact that one of those
Applicants had failed to receive assistance from one police or law enforcement
agency does not necessarily mean that, objectively, it would have been futile
for the others to try. Further, while the Board accepted the credibility of the
Applicants, it is evident from its reasons, that the Board did not accept the
claim that assistance would not have been forthcoming from some of the agencies
described. The Board carefully considered the reasons provided by the Principal
Applicant for not approaching certain authorities, in light of the documentary
evidence that set out, objectively, the role and efficacy of those law
enforcement bodies.
(2) Issue #2:
Improper weighing of documentary evidence
[10]
The
Applicants submitted much documentary evidence that, in their opinion, demonstrates
a consistent failure of Mexico to provide state
protection. They acknowledge that the Board did not ignore any of this
evidence. However, they submit that the Board weighed the evidence of state failure
against documents that only showed efforts of the state to address the
problems of drug‑related violence and corruption.
[11]
It
is up to the Board to weigh the evidence before it. The Court will not lightly
intervene where, as here, the reasons of the Board demonstrate a careful
consideration of all of the evidence before it. I do not agree with the
Applicants that the Board, in support of its conclusion, relied on documents
that only reflected the efforts of the state of Mexico to provide protection
to its citizens. The Board acknowledges that the process of addressing the
problems of crime and corruption was slow but also described several measurable
and positive results of the state’s intervention. For example, the Board
referred to the increase in convictions and the number of persons who had been
imprisoned as a result of drug-related crimes. These are significant markers of
progress. I am satisfied that the Board did not solely examine the efforts.
There is no reviewable error.
(3) Issue #3:
the Hellman Report
[12]
A
key argument of the Applicants is that the Board failed to have regard to one
particular document provided to it. That document is a Report on Human Rights
in Mexico written in
2007 by Professor Judith Adler Hellman (the Hellman Report). The Applicants
submitted the Hellman Report with their written submissions filed after the
hearing.
[13]
The
Applicants rely on two recent cases of the Federal Court where the Hellman Report
was considered (Villicana v Canada (Minister of
Citizenship and Immigration), 2009 FC 1205, 86 Imm LR (3d) 191 (Villicana);
Lopez, above). In each case, the reviewing judge concluded that the
applications for judicial review would succeed. In each case, the reviewing
judge found that the Board’s analysis of the Hellman Report was flawed.
[14]
It
is trite law that the Board is entitled to consider and weigh the evidence
before it. However, in doing so, the Board must consider contradictory evidence
and explain why it prefers one side over the other. Apparently that was not
done in the decisions that were before Justices Russell (Villacana,
above) and Hughes (Lopez, above). This particular point was made by
Justice Russell in Villicana, above, at paragraph 79, where he states:
The Board did not have to accept this
contrary evidence [the Hellman Report]. But it had an obligation to review it
and say why it could be discounted in favour of other reports that support its
own conclusions. . . . The Board’s failure to do so renders the Decision
unreasonable.
[15]
While
I acknowledge that the Hellman Report before me is most likely the same report
that was before my colleagues in Villicana and Lopez, I know
little about the record that was before those judges. The mere fact that two
other panels of the Board conducted faulty analyses of certain evidence does
not mean that that every Board panel who refers to the Hellman Report will also
err. Nor are these two decisions authority for the proposition that the Hellman
Report is conclusive evidence that state protection in Mexico is
inadequate. The Hellman Report is but one piece of documentary evidence that
must be considered and weighed by the Board. As the reviewing judge in this
case, I must examine the underlying record and assess the Board’s reasons as a
whole, including how the Board dealt with the Hellman Report.
[16]
In
this case, the Board, in a lengthy and detailed section of the reasons,
summarizes the contradictory evidence presented to it by the Applicants. At
paragraph 25, the Board describes the key findings of the Hellman Report. The
Board continues with the following comments:
I find that if I were to accept as true
the central findings of Professor Hellman’s report on human rights in Mexico,
it would basically mean that the entire state security apparatus in Mexico, including the judicial,
criminal, and penal systems, are on the verge of collapsing. It would also mean
that corruption, lawlessness and impunity have completely overtaken democratic
institutions, including law enforcement agencies, in Mexico at all levels and fundamentally
subverted the rule of law in Mexico so that no ordinary citizen in Mexico would ever be able to rely on
the police for protection or assistance. I find that Professor Hellman’s
central findings are contradicted by the preponderance of the documentary
evidence.
[17]
The
Board then turns to a description of the documentary evidence that supports a
view that, while corruption exists and changes are slow, “there is no
indication that Mexico has lost this battle or that it is on the verge
of collapse”. The Board refers to specific examples in the documentary evidence
that support this conclusion.
[18]
In my view,
the Board’s analysis reflects a careful consideration of all of the evidence
before it – including the Hellman Report. The Hellman Report was dealt with
appropriately and the reasons clearly explain why the Board preferred the
conflicting documentary evidence. In the result, the decision falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir, para 47).
IV. Conclusion
[19]
For
these reasons, the Application for judicial review will be dismissed.
[20]
Neither
party proposes a question for certification.
JUDGMENT
THIS COURT’S ORDERS
AND ADJUDGES that :
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith
A. Snider”
Email this Content