Date: 20110531
Docket: IMM-6804-10
Citation: 2011 FC 603
Ottawa, Ontario, this 31st day of May
2011
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
Fernando MARTIN DEL CAMPO CORDERO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a member of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the
“Board”) pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”) by Fernando Martin Del Campo
Cordero (the “applicant”). The Board determined that the applicant was neither
a Convention refugee nor a person in need of protection under sections 96 and
97 of the Act.
[2]
The
applicant is a citizen of Mexico and resided in Ciudad Juarez. He was the manager of
a chain of five video stores. He was present at one of these stores in December
2005 when it was robbed. The local police attended and the applicant also gave
a statement to a judge at the judicial centre.
[3]
In
February 2006, the applicant alleges that he received a telephone call from a
man who identified himself as Officer Ramirez of the judicial police, stating
that he had been assigned the investigation of the robbery. Officer Ramirez met
with the applicant and questioned him. After a week, the applicant received
another phone call from Officer Ramirez, telling him that he should consider
getting personal protection for the stores considering all of the crime taking
place in Juarez. The applicant was
suspicious of the Officer’s motivation and informed his superior and the
company lawyer. The applicant’s superior told him to ignore it. Officer Ramirez
subsequently called again, and the applicant told him that the company would
not accept any “under the table” offers. Officer Ramirez informed the applicant
that the case might never be solved and that the applicant should consider
asking for personal protection, which would cost one thousand pesos. The
applicant refused.
[4]
After
a second offer and refusal, Officer Ramirez threatened the applicant and his
family and demanded five thousand pesos. He gave the applicant three days to
come up with the money. At the end of three days he demanded it, and the
applicant told him he would be able to get it by the end of the month, being
March 2006.
[5]
On
March 25, 2006, the applicant was stopped by two police vehicles while on the
way to visit his children. Officer Ramirez was present. He threatened the
applicant with a gun and told him that the new demand was ten thousand pesos.
[6]
The
applicant informed his ex-wife of the threats and asked her to take the
children into hiding. The applicant hid at his mother’s home, where he was
living. He resigned from his job and planned his departure from Mexico. On May 22, 2006,
Officer Ramirez contacted him again, and the applicant asked for an extension
until May 30.
[7]
On
June 11, 2006, the applicant traveled to the United States. He lived and worked
there illegally. In February 2007, the applicant’s ex-wife received a phone
call stating that the applicant had been detained and that ten thousand pesos
would secure his release. She called the applicant and established that this
was untrue. She had no further contact with any extortionist.
[8]
The
applicant lost his job in December 2008, and due to the American economy knew
that he would have difficulty finding employment there. He came to Canada on February 11, 2009
and requested refugee protection the same day.
* * * * * * * *
[9]
The
determinative issue for the Board was the existence of state protection. The
Board’s main concern was whether it would have been objectively unreasonable
for the applicant to have pursued state protection in Mexico. The Board member noted
that a claimant cannot rebut the presumption of state protection in a
functioning democracy by asserting only a subjective reluctance to engage the
state; the rebuttal must be objectively based.
[10]
The
Board took note of jurisprudence establishing that state protection need not be
completely effective, so long as the government is taking serious steps to
provide or increase protection for individuals. The Board cited the 2009 U.S.
Department of State Report on Mexico to find that Mexican citizens can file complaints with
federal prosecutors, can seek redress at higher levels of the security forces,
can submit complaints to internal monitoring bodies at the Office of the
Attorney General, and can submit complaints at government-funded human rights
organizations. The applicant testified to not being aware of any of these
procedures; the Board found that he had not made the necessary enquiries.
* * * * * * * *
[11]
At
the hearing before me, the applicant’s counsel raised the following two issues:
a. Was the Board’s finding
regarding subjective fear unreasonable?
b. Was the Board’s finding
regarding state protection unreasonable?
[12]
Regarding
the first issue, Justice Marie-Josée Bédard found in Gomez v. Minister of
Citizenship and Immigration, 2010 FC 1041 at para 11, that the existence of
subjective fear is a question of fact and therefore subject to the standard of
reasonableness.
[13]
The
standard of review applicable to a Board’s finding on the subject of state
protection is likewise that of reasonableness, according to Justice François Lemieux
in Mendoza v. Minister of Citizenship and Immigration, 2010 FC 119 at
paras 26-27. Therefore, the Board’s conclusions on both issues must fall within
the “range of possible, acceptable outcomes which are defensible in respect of
the facts and the law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para 47).
* * * * * * * *
A. Subjective fear
[14]
The
applicant argues that the Board erred in finding that he had not demonstrated
subjective fear without making a negative credibility finding against him. The
applicant also argues that the Board erred in relying on delay to find that
subjective fear was not established, contending that if the applicant is
credible and offers an explanation, delay alone is not enough to negate subjective
fear. The applicant further submits that the Board ignored evidence in the form
of letters from the applicant’s ex-wife and mother supporting his subjective
fear of persecution. The applicant also takes issue with the Board’s noting
that Ramirez’s deadlines passed without any actual repercussions.
[15]
For
his part, the respondent submits that the issues raised on the question of
subjective fear are not determinative of the claim, as the only determinative
issue was state protection. The respondent argues that the question of whether
state protection exists is the first step in determining whether refugee
claimants have an objective basis for their fear of persecution. I agree.
[16]
The
Board was clear in the regard that the determinative issue was state protection,
and declined to make any finding with regard to the applicant’s credibility.
Whether or not the Board was incorrect in making the statements that it did
without coming to an actual credibility finding, the finding that state
protection exists, if reasonable, would still be determinative of the result of
the case. In my view the question of subjective and objective fear are not, as
argued by the applicant, crucial to the determination of whether state
protection exists; they become relevant afterwards when the state is found not
to have been able to protect the claimant. Paragraph 52 of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at
722, is clear on this point:
Having
established that the claimant has a fear, the Board is, in my view, entitled to
presume that persecution will be likely, and the fear well-founded, if there
is an absence of state protection.
[Emphasis is mine.]
B. State protection
[17]
The
respondent cites a list of cases in which this Court has held that state
protection exists in Mexico; the applicant counters with an equally long list
of cases in which this Court has overturned a Board’s finding of state
protection in Mexico. I accept the
applicant’s point that each case is to be decided on its own facts and
circumstances.
[18]
In
the case at bar, the applicant, in my view, has not demonstrated that the
Board’s decision concerning state protection was unreasonable. The applicant
made no effort at all to seek out the state’s protection at any point during
his dealings with Ramirez. He testified to not having looked into any potential
procedures he could have undertaken. While it is true that it was a previous
dealing with the police that led to his persecution by Ramirez, there was
evidence showing that corruption is not absolute; it is difficult for the
applicant to show that protection would not have been reasonably forthcoming
when he did not make any attempt at all to make the state aware of his
situation. I do not find it sufficient for him to state that his company
superiors told him not to bother reporting the threats to the police; in my
view this in itself does not show that protection would not have been
forthcoming had he actually gone to the police.
[19]
Regarding
the documentary evidence, I do not find that the present case was one where the
Board erred by not discussing the documents cited by the applicant in his
memorandum. The Board clearly accepted that corruption is a major problem in Mexico, but also found that
there is not a complete breakdown of the state apparatus. Leaving aside the
recourse to human rights organizations (the jurisprudence following Zepeda
v. Minister of Citizenship and Immigration, 2008 FC 491, [2009] 1 F.C.R.
237 (F.C.), is consistent that such organizations are not sufficient providers
of state protection), there were certain avenues available within the police
hierarchy that were not taken by the applicant. As the respondent notes, the
Board is presumed to have considered and weighed all of the documentary
evidence. In my view the applicant has not pointed out any reviewable error in
the Board’s conclusions regarding the documentary evidence, but merely
disagrees with the Board’s ultimate weighing of this evidence. I find it
difficult to accept the applicant’s proposition that due to the existence of corruption
within Mexican police forces, he did not have any obligation at all to attempt
to complain about his dealings with Ramirez. In this regard I find the
decisions in Borges v. Minister of Citizenship and Immigration, 2005 FC
491, and Palomares et al. v. Minister of Citizenship and Immigration
(June 7, 2006), IMM-5447-05, cited by the respondent, to be on point. At
paragraph 12 of Palomares, Justice Elizabeth Heneghan held that:
.
. . the Principal Applicant did not seek state protection at any time . . . It
is not enough for the Principal Applicant to refer to documentary evidence
that, admittedly, paints a mixed picture about the state response to domestic
violence and say that the Board committed a reviewable error in her case.
* * * * * * * *
[20]
For
the above-mentioned reasons, the application for judicial review is dismissed.
I agree with counsel for the parties that this is not a matter for
certification.
JUDGMENT
The application for judicial
review is dismissed.
“Yvon
Pinard”
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