Date: 20110413
Docket: IMM-4058-10
Citation: 2011 FC 456
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, April 13, 2011
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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MARIA LUISA ESTEBAN ZEFERINO
MASSIEL MACEDO ESTEBAN
DIANA BERTHA MACEDO ESTEBAN
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Applicants
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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]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (hereinafter the Act), for judicial review
of a decision dated June 17, 2010, by the Immigration and Refugee Board, Refugee
Protection Division (hereinafter the panel). In that decision, the panel determined
that the applicants were neither Convention refugees nor persons in need of
protection under sections 96 and 97 of the Act.
Facts
[2]
The
principal applicant, Maria Luisa Esteban Zeferino, and her two daughters,
Massiel Macedo Esteban and Diana Bertha Macedo Esteban, are Mexican and arrived
in Canada in August
2007.
[3]
The
principal applicant claims that she lived under the control of a violent and
controlling husband, Pablo Macedo Muñoz, from 1989 to June 2007. It is alleged
that on June 27, 2007, the applicant’s husband was found lying near his car after
he had gone to work. He had been attacked and died in hospital from injuries to
his leg that had been inflicted during the attack. The police suspected an
employee and the victim’s brother, José Victor Macedo Muñoz, of committing the
crime.
[4]
Following
this event, José Victor Macedo Muñoz told the applicant to report to the police
that her husband had injured himself and that he had no enemies. Mr. Muñoz allegedly
paid the doctor to proceed with the burial as quickly as possible, but the doctor
confirmed to the applicant that he had already performed the autopsy and that
the victim had died from an attack with a machete.
[5]
The
police officers who were present took the applicant’s statement but did not
believe it. The police continued to suspect the employee and the victim’s
brother and asked the applicant to make another statement if she obtained new
information or developed suspicions about someone. If that happened, the police
said that they would exhume the body of her late husband.
[6]
In
the past, the principal applicant’s late husband had received threats from
three different sources while he was alive.
[7]
Since
her husband’s death, the applicant has been afraid that strangers would take
reprisals against her daughters and would like her daughters to live in an
environment free of violence.
[8]
On
March 5, 2010, almost two and a half years after the events, the principal
applicant provided new allegations that added an agent of persecution and a basis
for her fear. Essentially, the principal applicant added the following:
·
The
members of her ex‑spouse’s family are violent people who do not get along
with each other or with their neighbours. José Victor Macedo Muñoz is a rapist.
·
The family
conflicts concern the management of the land owned by the family. The
applicant’s late husband was the administrator of his family’s property.
·
On his
death bed, Pablo Macedo Muñoz asked that his daughters be protected from his
brother.
·
When the
victim’s brother told the applicant to tell the police that the victim had no
enemies, he also threatened her.
·
The police did not believe the applicant and
told her that all of this was very suspicious.
·
There was
no autopsy because of the pressure exerted by José Victor Macedo Muñoz.
·
He took the principal applicant to a notary to
have her sign a document so that he could represent her in everything.
·
This
document indicates that the principal applicant can be deprived of all her
property.
·
The notary gave her some advice, including that
she should go to Canada and claim
refugee protection.
·
Her ex-husband’s
family wanted steps to be taken so that the principal applicant’s ex-brother‑in‑law,
José Victor Macedo Muñoz, could obtain parental authority over her daughters.
[9]
Thus,
the principal applicant feared that her daughters could be kidnapped or killed because
of the allocation of land owned by her late husband’s family and because José Victor
Macedo Muñoz was the main suspect in his death.
Impugned decision
[10]
In
making its decision, the panel took into consideration the Chairperson’s Guideline
entitled Women Refugee Claimants Fearing Gender‑Related Persecution,
issued by the Immigration and Refugee Board (IRB), March 1993, updated in
November 1996.
[11]
The
panel found that the applicants’ fear related to a land issue was not credible.
In the panel’s view, that part of the testimony was added to embellish the
principal applicant’s story (Panel’s Decision, at paragraph 24).
[12]
As
for the rest of the story, the panel determined that the applicants made no
effort to seek protection from the authorities and failed to demonstrate clearly
and convincingly that the Mexican authorities were unable to provide adequate
protection (Panel’s Decision, paragraphs 26 and 45).
[13]
First,
the panel determined that the applicants’ story was not credible primarily
because of the disparity between the story contained in the Personal
Information Form (PIF), the interview and the amendments to the PIF (Exhibit P-10,
Amendment to Question 31 of the PIF, filed with the Board on May 4, 2010, pages
150‑157 of the Board’s record).
[14]
The
panel did not find it credible that the principal applicant had not mentioned
in her PIF that she feared José Victor Macedo Muñoz because of an issue related
to the possession of family land. It also noted that if the principal applicant
had fled Mexico with her
daughters to escape from José Victor Macedo Muñoz she would have stated that in
her PIF. Instead, she said that she feared strangers.
[15]
In
addition, the panel did not find it credible that the principal applicant had
not mentioned her fear of José Victor Macedo Muñoz when she was interviewed 17
days after her admission to Canada. When asked [translation] “Who are you afraid of?”, the applicant replied
that she was afraid of the sons of Jorge Salinas, Luis Chachahuate, and the
police because her husband had had problems with those people. The applicant did
not say at the interview that she feared José Victor Macedo Muñoz because of
problems related to the possession of family land.
[16]
The
applicant testified that she was afraid the Canadian authorities would reveal
that she was afraid of José Victor Macedo Muñoz and that this fear was the
reason for her silence. The panel did not accept this explanation, finding it
not credible. The panel determined that if the principal applicant really feared
José Victor Macedo Muñoz, she would have mentioned it to the immigration officer
in order to substantiate her fear. The fact that the applicant waited almost
two and a half years to submit these new grounds did not strengthen her
credibility at all.
[17]
Given
the negative credibility findings, the panel gave no probative value to the
psychological report filed as Exhibit P‑11 on the day of the hearing
before the panel (Exhibit P-11, Psychological Report: Maria Luisa Esteban
Zeferino, by Dr. Marta Valenzuela, dated May 5, 2010, at pages 187-195
of the Tribunal Record).
[18]
Moreover,
the panel concluded that the applicants had not satisfied their obligation to
seek protection from the Mexican authorities.
[19]
Indeed,
the panel noted that the police strongly suspected that José Victor Macedo Muñoz
had murdered Pablo Macedo Muñoz. The police asked the principal applicant to
file a subsequent written statement if she developed new suspicions. When
questioned as to why she had not sought police protection, the principal
applicant replied that the Mexican police force is corrupt. She based her
statement on events dating back to 1994 when her husband and José Victor Macedo
Muñoz allegedly killed an individual. They subsequently gave the police money
and were not bothered after that.
[20]
In
the panel’s view, the explanations provided by the principal applicant as to
why she had not filed a complaint against her ex-brother-in-law, Jose Victor, did
not constitute clear and convincing evidence of the lack of state protection or
rebut the presumption established in the jurisprudence that states are capable
of protecting their citizens.
[21]
The
panel subsequently completed an analysis of the documentary evidence on Mexico and
mentioned the National Documentation Package on Mexico (see IRB, Ottawa, National
Documentation Package on Mexico, October 2, 2009). The panel concluded
that Mexico is a
democracy whose government generally respects the rights of its citizens.
[22]
The
panel also reviewed the contradictory evidence and stated that the national
human rights commission (CNDH) believes that some members of the local and
state police forces are involved in kidnappings, extortion and collaboration
with organized crime. However, the panel also specifically stated that the
Mexican government has implemented extensive human rights training programs for
the police forces in general. The panel also reviewed the 2008 court reforms
and the recent legislation that requires police personnel to meet a superior
level of training on human rights and other procedures.
[23]
Consequently,
the panel concluded that the applicants’ application should be dismissed.
Relevant statutory
provisions
[24]
The following provisions of the Immigration and Refugee
Protection Act apply to this proceeding:
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Convention
refugee
96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of nationality,
is outside the country of their former habitual residence and is unable or,
by reason of that fear, unwilling to return to that country.
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Définition
de « réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person
in need of protection
97.
(1) A
person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Personne
à protéger
97.
(1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la
Convention
contre la torture;
b) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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Issue
[25]
On
this application for judicial review the only issue is as follows: Are the
panel’s findings on state protection and the lack of credibility reasonable?
Standard of review
[26]
The
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, at paragraph 51, recognized that “... questions
of fact, discretion and policy as well as questions where the legal issues
cannot be easily separated from the factual issues generally attract a standard
of reasonableness ...”.
[27]
As to the questions involving the assessment of
credibility, the Court will only intervene if the panel based its decision on
an erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it (Aguebor v. Canada (Minister of
Employment and Immigration) (F.C.A.), (1993), 160 N.R. 315, 42 A.C.W.S.
(3d) 886).
[28]
The
panel’s findings on state protection are reviewable against the standard of reasonableness
(see Huerta v. Canada (Minister of
Citizenship and Immigration), 2008 FC 586, [2008] F.C.J.
No. 737, at paragraph 14).
Analysis
[29]
The
principal applicant maintains that she did not mention the contents of Exhibit
P-10 submitted on May 4, 2010, at her interview with the officer or in her original
PIF because of her fear of returning to Mexico, i.e., her
fear that she and her two daughters would be killed or persecuted by the
primary agent of persecution. The applicant submits that the panel should have
assessed her explanations objectively, taking into consideration the battered
woman syndrome and Dr. Marta Valenzuela’s psychological report.
[30]
The
respondent maintains that, as the panel noted in its reasons (Panel’s Decision,
at paragraphs 16, 18 and 20), the agent of persecution in the person of José Victor
Macedo Muñoz and the new basis for fear had not been raised before, at the
point of entry into Canada when the applicants asked for asylum, at the
interview in this regard with an immigration officer 17 days after their
arrival in the country or in their original PIF completed and signed in October
2007 with the assistance of their counsel at the time.
[31]
This
Court has confirmed on a number of occasions that all the important facts of a
claim must appear in the PIF and that failing to mention them could affect the
credibility of part or all of the testimony. Furthermore, the RPD is entitled
to review the contents of the PIF before and after its amendment and may draw
negative inferences about credibility if matters it considers important were
added to the PIF by an amendment later (Taheri v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 886, [2001] F.C.J. No. 1252, at paragraphs
4 and 6; Grinevich v. Canada (Minister of Citizenship and Immigration),
(1997) 70 A.C.W.S. (3d) 1059, [1997] F.C.J. No. 444).
[32]
It
was open to the panel to gauge the principal applicant’s credibility and to
draw negative inferences about the disparities between her statements in the
original PIF, in the interview notes, in the amended narrative of the PIF and
in the viva voce testimony, for which the principal applicant provided
no satisfactory, plausible or credible explanation in the circumstances (He v.
Canada (Minister of Employment and Immigration), (1994), 49 A.C.W.S. (3d)
562, [1994] F.C.J. No. 1107). In this case, and the Court agrees with counsel
for the respondent, the evidence shows that the applicants’ story and narrative
changed over the last two years.
[33]
As
for the psychological report, the applicant maintains that the panel should
first have read Dr. Valenzuela’s psychological report and taken it into account
in assessing the credibility of the refugee claim, even in assessing the
relevance of omissions in the interview notes and the first PIF before it was
amended by Exhibit P-10. The applicants submit that the psychological report
refers to the principal applicant’s vulnerability, which could have affected
her testimonial capacity.
[34]
The
respondent submits that the panel was aware of the contents of the
psychological report and assessed this evidence in the context of the case. The
respondent notes that the panel’s negative credibility finding was not based on
deficiencies in the applicant’s testimony at the hearing before the Board. The
deficiencies did not involve memory lapses or hesitations in answering
questions, errors in dates or other difficulties referred to in the
psychological report.
[35]
The
Court concurs with counsel for the respondent because it is for the panel to
assess the probative value of the psychological report in relation to the other
evidence, especially since the psychological report refers to Esteban Zeferino’s
current state of mind and makes no findings as to her state of mind in 2007.
[36]
In
terms of state protection, the decision in Carrillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399, at paragraph 38, defines the burden of proof, the
standard of proof and the quality of the evidence of an allegation that state
protection is inadequate or non‑existent for one of its citizens:
[38] A refugee who
claims that the state protection is inadequate or non-existent bears the
evidentiary burden of adducing evidence to that effect and the legal burden of
persuading the trier of fact that his or her claim in this respect is founded.
The standard of proof applicable is the balance of probabilities and there is
no requirement of a higher degree of probability than what that standard
usually requires. As for the quality of the evidence required to rebut the
presumption of state protection, the presumption is rebutted by clear and
convincing evidence that the state protection is inadequate or non-existent.
[37]
The jurisprudence has repeatedly recognized
that where the state in question is a democratic state, like Mexico,
the applicants’ obligation to seek state protection increases. They must
establish that they tried to exhaust all the courses of action open to them to
obtain the required protection (see Kadenko v.
Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1376, 68 A.C.W.S. (3d) 334).
[38]
The applicants maintain that they did not
request state protection because they did not have confidence in the protection
that would be offered. There is a great deal of documentary evidence about
police corruption in Mexico.
However, the Court notes that the same evidence shows that there were other
courses of action available to them.
[39]
In particular, it was recognized in Sosa
v. Canada (Minister of Citizenship and Immigration),
2009 FC 275, [2009] F.C.J.
No. 343, at paragraph 22, that Mexico is a democratic state, that state
protection is available and that applicants are not exempt from taking other
steps if protection at the local level cannot be ensured:
[22] Regardless of the
deficiencies that may exist in the Mexican criminal justice system, the fact
remains that Mexico is a functioning democracy with a state apparatus that
provides a measure of protection for its citizens. The fact that protection at
the local level cannot be ensured does not exempt the applicant from taking
other steps.
[40]
The applicants made no request or attempt
and took no initiative to seek protection from Mexico
(Panel’s Decision, at paragraphs 26, 30 and 34).
[41]
In its reasons, the panel noted that the police strongly suspected José Victor Macedo Muñoz of murdering the applicant’s husband and had taken her
statement. The police did not believe it and asked her to make another
statement if she had new information or suspicions; if that were the case, the
police said that they would exhume the body of the deceased (Panel’s Decision, at
paragraphs 6, 7 and 27).
[42]
In Tejeda v. Canada (Minister of
Citizenship and Immigration), 2008 FC 438, [2008] F.C.J. No. 552, at paragraph
6, a case involving
a Mexican national, Justice Tremblay‑Lamer stated that if no effort is
made to seek protection it is hard to blame a decision‑maker for
concluding that the presumption has not been rebutted:
[6] It is hard to
blame a decision-maker for concluding that a refugee status claimant has not
rebutted the presumption that government protection is available when he “has
made no effort to seek government protection” (Skelly v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1503, 2004 FC 1244, at
paragraph 51).
[43]
Given the facts of this case and the evidence in
the record, there is no justification for the Court to intervene. For these
reasons, the application for judicial review will be dismissed. There is no
question to certify.
JUDGMENT
THE COURT RULES that
1.
This application for judicial review is
dismissed.
2. No
question will be certified.
“Richard
Boivin”
Certified
true translation
Mary Jo Egan,
LLB
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