Date: 20110517
Docket: IMM-1477-10
Citation: 2011
FC 562
Ottawa, Ontario,
May 17, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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FRANCISCO JAVIER MARIN GARCIA
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated February 11, 2010, wherein the applicant was
determined not to be a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board.
Background
[3]
Francisco
Javier Marin Garcia (the applicant) was born on January 24, 1969 and is a
citizen of Mexico.
[4]
On
December 21, 2006, in Veracruz, Mexico, the applicant and his
family witnessed a man covered by a mask with his hands tied behind his back
and a child also covered, taken into a house by four people. The applicant
reported the incident to the police and was told that the criminal organization
“Los Zetas” operated in the area.
[5]
After
he returned to Puebla, Mexico, the
applicant’s car and home were vandalized with the words “we are going to kill
you”. The applicant did not report this vandalism to the police. Rather, he and
his family stayed at his mother-in-law’s home and then left for Canada on January 6, 2007.
The applicant filed a refugee claim on November 21, 2008.
Board’s Decision
[6]
The
Board found that the applicant was not a Convention refugee under section 96 of
the Act as there was no nexus between a Convention ground and any personal
vendetta that members of Los Zetas may have against the applicant.
[7]
The
determinative issue for the Board was state protection. The Board found that Mexico is a
democratic country with a functioning political and judicial system and that
the presumption of state protection applies. After reviewing the documentary
evidence, the Board noted that Mexico has made recent efforts and achieved
results in combating drug-trafficking, corruption and other organized crime. The
Board found that the applicant did not seek protection from Mexican authorities
and given the significant progress made by the Mexican state, this was
objectively unreasonable. The Board assigned greater probative weight to the
documentary evidence than to the applicant’s opinion that there is inadequate
state protection in Mexico, since the documentary evidence was drawn from
a variety of reliable and independent sources. The Board concluded that the
applicant failed to rebut the presumption of state protection.
Issues
[8]
The
applicant submitted the following issues for consideration:
1. Did the Board fail
to observe a principle of natural justice or procedural fairness?
2. Did the Board ignore
relevant evidence before it?
3. Did the Board err in
its assessment of the availability of state protection in Mexico?
4. Did the Board base
its decision on an erroneous finding of fact?
5. Did the Board make a
decision in a perverse or capricious manner or without regard for the material
before it?
[9]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
its assessment of whether state protection is available to the applicant?
Applicant’s Written Submissions
[10]
The
applicant does not challenge the nexus finding of the Board under section 96 of
the Act.
[11]
The
applicant submits that the Board ignored relevant evidence before it. The Board
member did not address contradictory evidence on the lack of availability of
state protection in Mexico, even when such information was more current
than that which the Board relied on. Failure to reference evidence directly
relevant to the central issue will give rise to a conclusion that the Board did
not take into account all of the evidence before it.
[12]
The
applicant submits that the Board erred in its state protection analysis. The
applicant submits that the organization Los Zetas has strong contacts with
corrupt police and members of the judiciary and state protection is not
forthcoming for individuals targeted by this organization. The applicant was
not required to continue to approach the state for protection in these
circumstances. Further, the Board did not properly examine the particular
reasons why the applicant did not continue seeking protection from Mexico that he had
previously experienced the inefficiency of the police with respect to his
brother’s death twenty years earlier.
Respondent’s Written Submissions
[13]
The
respondent submits that the Board properly noted that a state is presumed
willing and capable of protecting its citizens, absent a complete breakdown of
the state apparatus. The Board reasonably found that the applicant had not
rebutted the presumption of state protection with clear and convincing evidence.
[14]
The
Board specifically noted that the documentary evidence indicates that
inefficiency, bribery and corruption remain issues at all levels of the Mexican
security forces and the public sector. The Board weighed this against evidence
that indicated that Mexico has enacted strict laws against corruption and
bribery. The Board made multiple references to the success of recent law enforcement
measures in Mexico. The Board
found that based on the preponderance of the objective evidence, there is adequate
state protection available to victims of crime in Mexico.
[15]
The
onus was on the applicant to exhaust all courses of action reasonably open to
him before seeking protection in Canada. The applicant made no
attempt to access state protection in Mexico prior to coming to Canada. The Board
reasonably found that the applicant’s explanation that he did not approach the
authorities because there had been an unsatisfactory police response to the
death of his brother twenty years earlier was an insufficient basis on which to
refuse to seek state protection.
[16]
The
Board’s conclusion that the applicant did not rebut the presumption of state
protection fell within the range of possible, acceptable outcomes and should
not be disturbed.
Analysis and Decision
[17]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence has determined
the standard of review applicable to a particular issue, the reviewing court
may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[18]
It is established that assessments of the adequacy
of state protection which raise questions of mixed fact and law are reviewable
against a standard of reasonableness (see Hinzman Re 2007 FCA 171 at
paragraph 38). As such, this Court should not intervene on judicial review
unless the Board has come to a conclusion that is not transparent, justifiable
and intelligible and within the range of acceptable outcomes based on the
evidence before it (see Dunsmuir above, at paragraph 47).
[19]
Issue
2
Did the Board
err in its assessment of whether state protection is available to the
applicant?
The onus was on the applicant to rebut the
presumption of state protection with clear and convincing evidence of Mexico’s
unwillingness or inability to protect him (see Ward v Canada (Minister of Employment
and Immigration),
[1993] 2 S.C.R. 689, [1993] SCJ No 74 (QL) at paragraph 52).
[20]
The
Board found that the applicant had not approached the Mexican authorities for
protection. The applicant submitted that he did in fact approach the
authorities in filing a police report concerning the potential kidnapping that
he witnessed. The applicant submits that his contact with the police is what
led to the vandalism and threats on his life as the police likely provided his
address to the criminal organization Los Zetas. The applicant submits that it
was reasonable for him not to go to the police again when he was directly
targeted by Los Zetas, because he would be putting his own life at risk.
[21]
While
it is true that the applicant was not required to seek state protection if
doing so would put his own life at risk, it was open to the Board to find that
this was not that type of situation (Ward above, at paragraph 48).
[22]
The
Board acknowledged that police corruption and involvement with criminal
organizations occurs in Mexico. However, despite this,
there was no evidence that the organization Los Zetas located the applicant due
to information received from the police. Moreover, the applicant testified at
the refugee hearing that while driving away from the scene of the kidnapping,
one of the persons involved pointed a firearm at the applicant’s vehicle, thus
the applicant knew that the organization could have gained his license plate
through means other than the police. Furthermore, the Board reasonably
concluded that the police followed through and arrested persons involved in the
kidnapping reported by the applicant which contradicts his statements that
state protection would not have been available for him as a victim of Los
Zetas.
[23]
In
oral submissions, the applicant pointed to several parts of the documentary
evidence which contradict the Board’s conclusion that the applicant’s views
that police protection is not effective are largely unsubstantiated.
[24]
The
Board need not refer in its decision to all the documentary evidence, provided
that its decision takes into account any evidence which contradicts its
conclusion (see Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425 (FCTD) (QL), at
paragraph 17; Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ No 598 (CA) (QL)).
[25]
The
Board reviewed the documentary evidence at length and noted that corruption in
the security forces is an ongoing problem in Mexico. The Board
reviewed several incidents where police and government officials shared
information and cooperated with drug cartels and organized crimes groups. The Board engaged in a detailed analysis
of the current situation in Mexico and
concluded that Mexico is making efforts to fight crime and corruption which have
achieved unprecedented results. Reading the decision as a whole, it was not
unreasonable for the Board to find that adequate state protection would be
reasonably forthcoming to the applicant in Mexico.
[26]
The Board’s finding that the
applicant had failed to rebut the presumption of state protection was
reasonable. As a result, the application for judicial review must be dismissed.
[27]
Neither party wished to submit
a proposed serious question of general importance for my consideration for
certification.
JUDGMENT
[28]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
. . .
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.
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.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
. .
.
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.
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.
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