Date: 20110630
Docket: IMM-5603-10
Citation: 2011 FC 807
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, June 30,
2011
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
Oswaldo
Daniel LEON ALMAGUER
Adriana VILLEDA CHAVEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
a member of the Refugee Protection Division of the Immigration and Refugee
Board
(panel) submitted in accordance with subsection 72(1) of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27. The
panel rejected the refugee and protection claim of the applicants, a married
couple of Mexican citizenship, on August 23, 2010.
[2]
The main
allegation of the male applicant, Oswaldo Daniel Leon Almaguer, is that
judicial police officers are looking for him because of his involvement in a
social movement to help citizens in the State of Oaxaca against abuses by the
central government.
[3]
According
to the panel, the determinative issue “is whether or not the claimants did
everything necessary in the circumstances to seek and obtain the protection of
the Mexican authorities with regard to the threats made against them and the
assaults they allegedly experienced”. The panel
found the applicants to be credible.
I. Overview
[4]
The male
applicant testified that he joined a united movement in support of Oaxaca in
January 2006 and was responsible for propaganda and collecting funds in
the Mexican capital. He also participated in demonstrations in Mexico City,
distributed pamphlets in the city centre and collected money from the public.
[5]
In
January 2008, he noticed that the judicial police were watching him and
gathering information on him through his colleagues and through the management
at the hotel he worked at. In May 2008, the male applicant said that he was threatened
with death on two occasions if he did not leave the movement.
[6]
The
panel questioned the male applicant about whether he filed a complaint with the
authorities. The exchange appears on pages 175 and 176 of the Tribunal Record:
[translation]
Q. So, it was in the month of May that
you thought about leaving, after the second threat. Did you think to report the
incidents to the police or to other authorities?
A. But sir, they were the ones looking
for me, who were after me, the judicial police. How could I report the judicial police?
Q. Wait, wait, wait. That is not what I
asked you. Did you think to report the incident to someone or seek help?
A. No.
Q. Why did you not think to report those
people to the authorities? You could have reported them to the police, the Human Rights Commissions
in Mexico… Hold on. Why, why did you
not think to report them?
A. Because ever since Felipe Calderon took
power in Mexico, he has criminalized struggles for social rights and the
police have done exactly the same; they would not have been able to help me, to
the contrary.
Q. But why do you say that the police
cannot do anything?
A. The police would have done nothing, to
the contrary.
Q. No, no, but why do you say that they
cannot do anything?
A. Because I would have been trying to
report police officers, so I . . .
Q. So, you are saying that the police do
nothing in Mexico?
A. Against the police, no. The police
against the police, no, nothing can be done.
Q. Did you think to consult other
organizations, like the Human Rights Commissions?
A. I thought about it, yes, just when
I was on the point of travelling here to Canada. I was interested in ensuring protection and safety for me
and my children, which meant leaving the country. Sorry, my wife. For me and my
wife.
Q. So, you thought about the Human
Rights Commission, but you did nothing?
A. No, I did nothing. Because I was
already . . . at that moment, I was already about to leave, I feared that
something was going to happen to me, there, that I could be attacked, I was
already (inaudible).
Q. So, you did not take any step with
any organization, the police, or any authority before leaving.
A. No.
[Emphasis
added.]
II. Panel’s decision
[7]
The
panel, at paragraph 7 of its decision, wrote the following:
. . . the panel must refer to the
well-established case law principle that a refugee protection claimant must
have sought the protection of his or her country before claiming international
protection.
Except in the case of a complete breakdown of the state apparatus, there is
a presumption that a state is capable of protecting its citizens. This
presumption can only be rebutted by means of “clear and convincing” evidence of
the state’s inability to provide protection. The Federal Court of Appeal has
also stated that a refugee protection claimant must do more than simply show
that he or she went to see some members of the police force and that his or her
efforts were unsuccessful. According to Kadenko [v. Canada (Solicitor General)
(1995), 32 Imm. L.R. (2d) 275 (F.C.T.D.)], “…the more democratic the state’s
institutions, the more the claimant must have done to exhaust all the courses
of action open to him or her.”.
[Emphasis
added.]
[8]
The
panel rejected the principal claimant’s explanations and found that he “has not shown that it was
reasonable to refuse to seek the protection of the Mexican authorities.”
The panel also wrote the following:
[10] Although Mexico has some problems with
corruption, it cannot be described as a country in which there has been a
complete breakdown of the state apparatus and where it is impossible to obtain
state protection.
[9]
In
support of this statement, the panel listed the legislative measures taken to
combat corruption, the list of government-funded institutions that assist those
having difficulty obtaining state protection, possible recourse for victims of
corruption by government officials federally, including agencies to which such corruption
can be reported and the protection available, the possibility of filing a
complaint with the police in a state other than the one in which the crime was
committed and the procedure for filing a complaint with the office of the federal
attorney general.
[10] The panel was
guided by the Federal Court of Appeal in Canada (Minister of Employment and Immigration)
v. Villafranca (1992), 18 Imm. L.R. (2d) 130, in finding that Mexico “makes
serious efforts to protect its citizens who have been the victims of or have
been threatened with criminal activities” and that, in this case, the male applicant had
not rebutted the presumption that the Mexican authorities were able to protect
him.
[11] Finally, the panel found
that the applicants could have benefited from an internal flight alternative (IFA).
However, I note that the panel did not address the male applicant’s submission
that the police could have found him easily using his voting card.
[12] I also note that the
panel failed to mention the fact that the male applicant had indicated that, on
May 29, 2008, while he was in hiding in Toluca, he had tried to contact an
organization that defends human rights to protect him but the offices were
closed for one week (point of entry notes, Tribunal Record, at page 95).
III. Parties’ submissions
[13] The parties
raise well-settled case law. On the one hand, the applicants’ submission relies on the
principle that a demonstration that the state or the police is the agent of persecution
creates an exception to refugee law, which states that a claimant must seek
protection from his or her country before seeking international protection and,
in that context, having reasonably exhausted all of the recourses available.
[14] This principle arises
from the Supreme Court of Canada’s decision in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, in which
Justice La Forest wrote the following, at page 724:
Like Hathaway, I prefer to formulate this
aspect of the test for fear of persecution as follows: only in situations in
which state protection "might reasonably have been forthcoming", will
the claimant's failure to approach the state for protection defeat his claim.
Put another way, the claimant will not meet the definition of "Convention
refugee" where it is objectively unreasonable for the claimant not to have
sought the protection of his home authorities; otherwise, the claimant need not
literally approach the state.
[Emphasis
added.]
[15] Justice La Forest previously indicated
that it was unreasonable for a claimant to risk his or her life seeking
ineffective protection of a state, merely to demonstrate that ineffectiveness,
which would be the case if the state was the agent of persecution or complicit
to this persecution.
[16] The
applicants cite the following decisions, among others: Zepeda v. The
Minister of Citizenship and Immigration, 2008 FC 491; Soto v. The Minister
of Citizenship and Immigration, 2010 FC 1183; Chaves v. The Minister of
Citizenship and Immigration, 2005 FC 193; De Leon v. The Minister of
Citizenship and Immigration, 2007 FC 1307; Nieves v. The
Minister of Citizenship and Immigration, 2010 FC 497, and Yanez v. The
Minister of Citizenship and Immigration, 2010 FC 1059.
[17] On the other
hand, counsel for the respondent claims that the panel’s decision is well
founded because the applicants did not take all reasonable steps to seek state
protection. He
submits that Mexico has acknowledged that police corruption exists in that
country, which led it to put effective measures in place. He cites the cases on
which the panel relied as well as the following decisions: Valencia
v. The Minister of Citizenship and Immigration, 2005 FC 1136; Castaneda v.
The Minister of Citizenship and Immigration, 2010 FC 393; Sanchez v. The
Minister of Citizenship and Immigration, 2008 FC 696; Monroy v. The
Minister of Citizenship and Immigration, 2006 FC 834, and Soto v. The
Minister of Citizenship and Immigration, 2005 FC 1654.
IV. Analysis
[18] It has been
established that questions on the adequacy of state protection are questions of
mixed fact and law and that they are reviewable against the standard of reasonableness
(Hinzman v. The Minister of Citizenship and Immigration, 2007 FCA 171). The
Supreme Court of Canada, in Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, at paragraph 47, teaches us how to apply this standard:
. . . A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[19] Internal
flight alternative issues are questions of fact. Pursuant to Dunsmuir, above,
the applicable standard of review is also reasonableness.
V. Conclusion
[20] This
application for judicial review must be allowed. I believe that the problem
raised by the panel’s decision is that it failed to assess, or improperly
assessed, the true nature of the applicants’ fear—fear of persecution by the
state and its police because the principal applicant supported a movement that the
state wanted to suppress. The case law is clear that, when the state or the
police is the agent of persecution, the analysis of the need to seek protection
must be adapted accordingly, which the panel did not do.
[21] The panel’s IFA finding
suffers from the same infirmity. The panel failed to analyze whether the police
would have been able to find him in the territory of the IFA if the principal
applicant had continued to support the movement.
[22] The
application for judicial review will therefore be allowed. The question of
importance suggested by the applicants is irrelevant given the result.
JUDGMENT
The
application for judicial review is allowed. The decision dated August 23, 2010,
by a member of the Refugee Protection Division of the Immigration and Refugee
Board is set aside and the matter is referred back to a differently constituted
panel of the Board for redetermination.
“François
Lemieux”
Certified
true translation
Janine
Anderson, Translator
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