Date: 20110224
Docket: IMM-4945-10
Citation: 2011
FC 228
Vancouver, British
Columbia,
February 24, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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VICENTE ZARATE ARIAS
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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
I. Introduction
[1]
It
is well-settled that there is a presumption that state protection is available
to an applicant and that applicants have the onus of providing clear and
convincing evidence that state protection is not reasonably forthcoming. State
protection need not be perfect, as long as the state makes serious efforts to
protect its citizens (Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689, 103 D.L.R. (4th) 1; Zalzali v. Canada (Minister of Employment and
Immigration), [1991] 3 F.C. 605, 27 A.C.W.S. (3d) 90 (CA); Villafranca
v. Canada (Minister of
Employment and Immigration) (1992), 150 N.R. 232, 37 A.C.W.S. (3d) 1259 (FCA); Smirnov
v. Canada (Secretary
of State),
[1995] 1 F.C. 780, 52 A.C.W.S.
(3d)
398 (TD)).
II. Background
[2]
The
Applicant, Mr. Vicente Zarate Arias, a Mexican citizen, alleged he was falsely
convicted in Mexico of assisting
a felon to escape because the police believed he had taken a cell phone video
recording of officers beating up a suspect. Recognizing that each case must be
examined on its own merits, when Mr. Zarate Arias appealed his conviction, the
Mexican appeal court overturned the conviction.
[3]
The
Refugee Protection Division (RPD) found that state protection was available to
Mr. Zarate Arias. The RPD also found that Mr. Zarate Arias’
sexual orientation was not the motivating factor for the police in its specific
pursuit to obtain his cell phone video recording.
[4]
The
Respondent Minister seeks an order dismissing Mr. Zarate Arias’
application for judicial review.
III. Issue
[5]
Has
the Applicant raised a fairly arguable case that the RPD erred?
IV. Analysis
A. Standard of Review
[6]
The
standard of review with respect to the RPD’s finding of state protection is one
of reasonableness. The Supreme Court of Canada has held that the decisions of
the RPD continue to warrant considerable deference (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339).
B. State
Protection – General Principles
[7]
The
Federal Court of Appeal has held that the presumption that state protection is
available “… applies equally to cases where an individual claims to fear persecution
by non-state entities and to cases where the state is alleged to be a
persecutor…” (Hinzman v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, 157 A.C.W.S.
(3d) 153, at para. 54; leave to appeal to Supreme Court of Canada dismissed).
C. State
Protection through the Courts
[8]
With
respect to the single incident from which all the circumstances and
repercussions to Mr. Zarate Arias arose, Mr. Zarate Arias’ argument that
the RPD erred in finding that state protection is available to him in Mexico, does
not distinguish between the Mexican judicial system which exonerated him and
the actions of corrupt police authorities.
[9]
Mr.
Zarate Arias erroneously
argues that the RPD could not find the judicial system, which overturned his
conviction, to be fair and impartial because of police corruption, police abuse
and false evidence given to the lower court. The RPD reasonably found that the
court system worked to assist Mr. Zarate Arias because it had annulled his
conviction for lack of evidence.
D. Police
Corruption Considered
[10]
The
RPD did not minimize or ignore the events Mr. Zarate Arias experienced. The
RPD detailed his experiences and concluded that, in his specific case, state
protection was available to him through the court system. Mr. Zarate Arias was
represented by a lawyer who told him to contest the charges in court and he was
ultimately successful. The RPD found Mr. Zarate Arias’ fear that the
charges would be resurrected to be purely speculative [underlining added].
[11]
Further,
the RPD specifically considered the allegations of police abuse and corruption.
The RPD reviewed the processes in place in Mexico to allow a
citizen to complain about police behaviour. The RPD also reviewed the efforts
by the Mexican government to purge corruption. The RPD noted that Mr.
Zarate Arias did not file a complaint, even after his acquittal
[underlining added].
[12]
In
Mr. Zarate Arias’ case, his successful appeal to the appeal court in Mexico demonstrated
that the RPD had reasonably concluded that he had failed to rebut the state
protection presumption (Villafranca, above).
E. Sexual
Orientation Considered
[13]
Mr.
Zarate Arias argues that the RPD did not properly consider his sexual
orientation in assessing the effectiveness of state protection in Mexico and that the
RPD’s analysis was “pro-forma” and “boilerplate”. Contrary to these assertions,
the RPD specifically considered Mr. Zarate Arias’ circumstances including his
sexual orientation in assessing whether state protection is available to him.
[14]
The
RPD found that state protection was granted to Mr. Zarate Arias through an appeal
court in Mexico. The RPD
found that any discrimination he faced was secondary to the officer’s objective
of obtaining the video.
[15]
It
is well-settled that the RPD is not required to refer to all the evidence in
its reasons for decision (Singh v. Canada (Minister of
Citizenship and Immigration), 2004 F.C. 333, 129 A.C.W.S. (3d) 576).
[16]
The
RPD’s decision is reasonable and does not warrant intervention by this Court.
[17]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the Applicant’s application for judicial review be
dismissed. No certified question of general importance for certification.
“Michel M.J. Shore”
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