Date: 20110524
Docket: IMM-5321-10
Citation: 2011 FC 592
Ottawa, Ontario, May 24,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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LOPEZ GONZALEZ JAQUELINE
(A.K.A. JACQUELINE LOPEZ GONZALEZ)
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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]
The
applicant seeks judicial review, pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision by
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(the Board), whereby the applicant’s application for refugee protection was
refused. This decision of the Board was rendered on August 16, 2010. The
determinative issue was the availability of state protection.
Facts
[2]
The
applicant was 21 years old at the time of her hearing before the Board and is a
citizen of Mexico.
[3]
At
the age of 17 the applicant moved in with her boyfriend and subsequently became
pregnant. This created tension between the applicant and her mother-in-law,
who believed that the couple was too young and that the applicant was only
after her son’s money.
[4]
The
applicant gave birth on July 28, 2006, but the baby was not well and died on
October 21, 2006. Her boyfriend, Jose Antonio, was upset with his son’s death
and began to harass the applicant and accused her of having killed their son
and threatened to kill her. The applicant reported this behaviour to the
police twice; on November 25, 2006 and December 1, 2006. Both times the police
issued a summons but Mr. Antonio went into hiding.
[5]
The
abusive and threatening behaviour continued, with approximately 50 incidents
occurring subsequent to her son’s death. The applicant did not make any
further complaints to the police. As a result of the situation, the applicant
attempted to kill herself in January 2008, and required hospitalization.
[6]
The
applicant arrived in Canada on May 3, 2008 and claimed refugee
protection on July 30, 2009.
Decision Under Review
[7]
The Board
found that the applicant’s claim was based on her membership in a particular
social group, that group being women facing gender-related violence. However,
the Board found that, on the basis of the entirety of evidence before it,
adequate state protection was available to the applicant if she were to return
to Mexico today.
[8]
The Board
accepted that the applicant was in an unfortunate situation and that she
reported the threats from the police on two occasions. The Board rejected the
applicant’s explanation that she did not report the continued incidents to police
because they did nothing in response to her first two complaints. When the
applicant made complaints, the Board found that the police reacted
appropriately by issuing a summons. The applicant’s failure to seek further
help after 2006 was inconsistent with a subjective fear and the foreclosed the
opportunity of the state to offer her protection.
[9]
After
a review of the recourse available to women similarly situated in Mexico, the Board concluded
that the applicant had failed to take reasonable steps to seek protection in Mexico and had not rebutted
the presumption of state protection with clear and convincing evidence.
Analysis
[10]
The core of the
applicant’s argument is two fold; first that the Board erred in considering
that the applicant could have gone to other organizations for assistance.
Counsel argues that these institutions are not “avenues of protection” and
their existence does not stand as a surrogate for the police; Zepeda v Canada (Minister of
Citizenship and Immigration) [2009] 1 FCR 237, 2008 FC 491. The
applicant also contends that the failure of the police to do anything beyond
issuing summonses does not meet the standard of adequate state protection; Perez
Mendoza v Canada (Citizenship and Immigration), 2010 FC
119.
[11]
In a
democratic country, such as Mexico, there is a presumption that a state can protect its own
citizens. As such, the onus is on the applicant to rebut this presumption and
prove through clear and convincing evidence the state’s inability to protect: Canada
(Attorney General) v Ward [1993] 2 S.C.R. 689 at para 50; Hinzman v Canada
(Citizenship and Immigration), 2007 FCA 171, at para 43-44; Zepeda
at para 17; Flores Carillo v Canada (Minister of Citizenship and
Immigration) [2008] 4 F.C.R. 636, 2008 FCA 94, at paras 32-33. There
is a great deal of case law on the availability of state protection in Mexico, particularly for women
experiencing domestic violence.
[12]
The
case law shows that an applicant must include proof that they have exhausted
all recourse available, except in exceptional circumstances where it would be
unreasonable for them to do so, such as when the persecutor is an agent of the
state, because of police corruption: Rodriguez Capitaine v Canada
(Citizenship and Immigration), 2008 FC 98 or where it would otherwise be
futile. Regardless of the weight of this case law with respect to state
protection in Mexico, the Board nevertheless
has a responsibility to assess the evidence before it, including evidence that
may show that the state is unable to protect its citizens or that it was
reasonable for a claimant to refuse to seek out state protection.
[13]
In
this case, the Board, in reaching its conclusion with respect to state
protection considered all relevant criteria essential to make an informed
determination, including the nature of the crime, threat or abuse, the identity
of the perpetrator, the efforts that the victim took to seek protection from
police, the response of the police together with a broader contextual analysis
of country documentation addressing the prevalence of the problem, the capacity
of the police to respond as well as the existence of governmental and
non-governmental agencies that might facilitate access to state protection or
shelter to victims of domestic violence. The Board considered all of these
matters.
[14]
It
is in this latter consideration that the applicant urges the reasoning of this Court
in Zepeda where the Court held:
I am of the view that these alternate institutions do not
constitute avenues of protection per se; unless there is evidence to the
contrary, the police force is the only institution mandated with the protection
of a nation’s citizens and in possession of enforcement powers commensurate
with this mandate. For example, the documentary evidence explicitly states that
the National Human Rights Commission has no legal power of enforcement
(“Mexico: Situation of Witness to Crime and Corruption, Women Victims of
Violence and Victims of Discrimination Based on Sexual Orientation”
[Immigration and Refugee Board of Canada. Country of Origin Research: Issue
Paper]).
[15]
In
this case the Board’s finding that state protection was adequate did not depend
on the existence of these agencies. It found that in issuing two summonses for
the arrest of the applicant’s partner the police responded adequately. Although
referenced by the Board as part of it analysis of the nature and extent of
Mexico’s capacity to support victims of domestic violence and as indicia of
Mexico’s policy in respect of this problem, the role of these agencies, either
as facilitators or providers of state protection, did not constitute the
rational for the decision on state protection. The existence or non-existence
of these agencies formed part of the contextual assessment of the ability of
the state to protect its citizens. What was critical to the finding of state
protection was the fact that the police responded to the assault when it was
reported. In this case, while the summonses were not effective because of the
disappearance of the accused, it does not follow that the response was
inadequate. The test of police protection is, of course, adequacy; Carillo at para 32. The test is
not that of successful arrest, detention and conviction.
[16]
That
said, the Board did mischaracterize the question as being “whether it was
objectively unreasonable for the claimant to have sought state protection”:
This was not the issue at hand because there was evidence that the applicant
had sought protection from the police on two separate occasions. This semantic
error, however, is not determinative because the Board recognized the
applicant’s interaction with the police elsewhere in the decision on three
separate occasions in the course of its reasons.
[17]
The
cases relied on by the applicant are not analogous to the case at bar. Mendoza involved a case where
the applicant was assaulted by unknown men when he participated in an
investigation into corruption. While Zepeda concerned conjugal violence,
the dominant consideration was that the applicant’s former spouse was a police
officer. Although it is similar to the case at hand because the applicant
reported the problem to the police before fleeing, it is of little persuasive
value in this context.
[18]
No
state, regardless of its commitment to democratic values and the rule of law
can guarantee the safety of its citizens at all times. A failure of state
protection cannot be founded, therefore, on a failure to bring a perpetrator to
justice. This is not to say that individuals must put their lives at risk to
prove a failure of state protection; that would defeat the very purpose of the
principle. In this case however, the Board reached a conclusion that the
police response was adequate. This conclusion was reasonably open to it based
on the evidence before it.
[19]
Counsel
proposed that a question be certified. The question would ask for legal
definition of the parameters of what constitutes adequate state protection. In
my view, the proposed question does not meet the threshold necessary for
certification. The answer to the question is largely fact dependent. Nor is
there conflicting case law which requires reconciliation. Moreover, the record
in this case is insufficient to support a detailed examination of the issue. Apart
from the two summonses and the subsequent flight of the assailant, the
applicant did not approach the police as a result of the threats she
subsequently received.
[20]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. There is no question for certification.
"Donald
J. Rennie"
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