Date: 20110310
Docket: IMM-3025-10
Citation: 2011 FC 294
Ottawa, Ontario, March 10,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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LUCIA RIVERA MESINAS
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant is a citizen of Mexico seeking protection from her father, her
former boyfriend as well as her former boyfriend’s associates. Her claim was
denied by the Immigration and Refugee Board (the “IRB”), by way of a written
decision dated May 4, 2010. In this decision, the Applicant was deemed to
benefit from sufficient state protection in Mexico, and thus, was not a
Convention refugee or a person in need of protection under the regime of
section 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c.27 (“IRPA”). Leave was granted on December 3, 2010.
[2]
The
IRB’s decision focused on the sufficiency of state protection in Mexico against
gender-based violence against women, and state protection at large. The IRB
noted that it had considered the Gender Guidelines in making its
determination. In essence, despite the contrary documentary evidence, the IRB
ruled that protection would be reasonably forthcoming should the Applicant seek
it. Also, the fact that the Applicant’s former boyfriend had been arrested on
drug charges was indicative of the state’s wilfulness to pursue such matters.
Having stated the applicable law on state protection, the IRB noted that the
Applicant had only once approached authorities to denounce her then-boyfriend,
and never had done so to denounce her father. As such, the Applicant had not
rebutted the presumption of state protection with clear and convincing
evidence.
[3]
The
Applicant argues that the IRB had misconstrued the evidence before it and had
ignored key elements of the evidence to base its findings. Furthermore, it is
argued that the IRB failed to assess the proper test for state protection. More
precisely, the Applicant argues that had the IRB properly considered the
evidence before it, it would have come to the determination that her reluctance
to engage authorities absolved her of approaching them for protection before
seeking asylum.
[4]
The
Respondent contends that the decision was reasonable and had considered all the
relevant evidence. Hence, the Applicant simply had not rebutted the presumption
of state protection with clear and convincing evidence.
[5]
The
determinative issue in this case is that of the IRB’s assessment of the
sufficiency of state protection. This is a mixed question of fact and law that
is to be reviewed on the standard of reasonableness (Dunsmuir v New
Brunswick,
2008 SCC 9; Zepeda v Canada (Minister of Citizenship and Immigration),
2008 FC 491; Vigueras Avila v Canada (Minister of
Citizenship and Immigration), 2006 FC 359). As such, the Court cannot
substitute its decision to that of the IRB. Instead, the Court is assessing
whether the decision falls within the range of outcomes defensible in fact and
law.
[6]
In
this case, the IRB’s assessment of the sufficiency of state protection in Mexico is adequate.
The key elements of the presumption of state protection were addressed,
particularly in regards to case law’s requirements for rebutting the
presumption of state protection (Canada (Attorney General) v Ward, [1993]
2 SCR 689; Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171).
There was no error in law committed by the IRB.
[7]
The
Court does not agree with the Applicant’s submissions that the IRB had fatally
omitted to mention and consider the fact that the Applicant’s sister had been
murdered. This was said to influence the Applicant’s attitude towards the
police. The Court notes that the sister’s murder was indeed detailed in the
PIF. However, no argument was made on the impact this may have had. Also,
counsel was provided with ample chance to highlight this fact, but did not do
so at any point (despite the hearing being adjourned on two occasions). If the
Applicant does not address facts important to the case during her testimony or
during submissions, it is therefore not expected that the IRB should attribute
much importance, if any, to these facts. Therefore, it cannot constitute
grounds for judicial review.
[8]
The
Applicant is correct in stating that it was unreasonable to not have approached
authorities about her father’s abuse when she suffered it as a teenager.
Indeed, the Gender Guidelines, and common sense, support the contention
that the Applicant would rely on her mother’s dealings with the authorities to
address this matter. However, the Court believes that this finding is not
determinative of the outcome of the case. What is at issue is not how the
Applicant reacted to the abuse she suffered at a young age, but rather, how she
dealt with her father’s return into her life. In this perspective, it is clear
that she did not approach the authorities about her father’s note and
ransacking of her residence.
[9]
The
IRB provided a detailed analysis of state protection in Mexico. There is
nothing to indicate that this assessment was generic or omitted important
elements. Indeed, the IRB recognized there were contradictory elements of
evidence, but it was not required to comment every single piece of evidence, so
long as the rationale for the decision was clear and that important elements
were not omitted (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), (1998) 157 FTR 35; Flores Campos v Canada (Citizenship and
Immigration), 2010 FC 842). In this case, the Court cannot state that the reasons
and rationale were deficient.
[10]
The
IRB did analyze the relevant factual elements of the evidence as it relates to
the Applicant. It did consider the fact that the Applicant had addressed a
complaint against her then-boyfriend, which was summarily dismissed. However,
there were other recourses and the local failure of one law enforcement officer
does not amount to inadequate state protection (Kadenko et al. v Canada (Attorney
General), (1996) 206 NR 272 (FCA); Sanchez Rovirosa v Canada
(Citizenship and Immigration), 2011 FC 48). Although fearing many
persecutors, the Applicant only took action against one and even then, did not
refer her complaint to another officer or instance. This is not consistent with
case law’s requirements of meaningfully seeking protection before applying for
the surrogate form of protection that is asylum law, as illustrated in Ward,
above.
[11]
Also,
the IRB properly assessed the factual elements of the case, not least of which
was the Applicant’s former boyfriend’s arrest. The IRB rightly noted that this
was indicative of sufficient state protection. The newspaper article that was
filed describes Ivan’s arrest in late September 2008. It also indicates that
the police were also looking for the Applicant, who left in early October 2008.
In regards to the threats from presumed associates of Ivan, the IRB
appropriately assessed this evidence and indicated that it was a very serious
threat, and that the Applicant did not make any efforts to report it to the
authorities.
[12]
Hence,
it was reasonable for the IRB to conclude that the evidence provided did not
amount to “clear and convincing” evidence to rebut the presumption of state
protection.
[13]
Consequently,
the IRB’s decision falls within the range of acceptable outcomes defensible in
fact and law. It assessed the documentary evidence, explained its conclusions
and did not ignore facts that were validly placed before it. The application
for judicial review is denied.
[14]
No
question was suggested and none will be certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is denied. No question is certified.
“Simon
Noël”
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