Date: 20110627
Docket: IMM-6581-10
Citation: 2011 FC 775
Ottawa, Ontario, June 27,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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RAFAEL SOTELO VELAZQUEZ
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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 for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated October 15,
2010, wherein the Applicant was determined to be neither a Convention refugee
nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The
Board found that the Applicant had not rebutted the presumption of state
protection, nor had he taken all reasonable steps to avail himself of that
protection.
[3]
For
the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[4]
The
Applicant, Rafael Sotelo Velazquez, is a citizen of Mexico. He alleges
that he was assaulted, abducted and tortured due to his political beliefs.
[5]
The
Applicant claims to be a long-standing supporter of the Party of the Democratic
Revolution (PRD). In August 2008 he decided to campaign for a PRD candidate in
the municipality
of Jiutepec’s municipal
presidential election. The Applicant’s role was to visit different towns in
the municipality and meet with community leaders in order to build support for
the PRD candidate.
[6]
After
leaving a meeting on the night of September 16, 2008, the Applicant claims he
was attacked by five men. They carried machineguns, and told the Applicant
that they would kill him if he continued to support the PRD. The Applicant was
frightened, so he waited until the next day to file a denunciation at the
Public Ministry. The Public Ministry, however, told him that they could not
help him without any witnesses to the attack.
[7]
The
Applicant claims that due to fear, he stopped attending PRD meetings.
Nonetheless, on September 26, 2008 as the Applicant was about to enter his
home, he alleges that he was abducted by four men who forced him into a black
truck. He was taken to a house where he was given electroshocks to the soles
of his feet. He was told that he was a dead man if he continued to work for
the PRD. The next day, the men dumped the Applicant outside of the city.
[8]
The
Applicant claims that his wife witnessed the abduction. While the Applicant
was being held, his wife went to the Public Ministry. The officer at the Public
Ministry allegedly told his wife, “it’s better if you tell your husband to
disappear because they will kill him.”
[9]
The
Applicant decided to flee to Canada. He arrived on a visitor’s visa on
October 2, 2008. He filed a claim for refugee protection in August 2009.
B. Impugned
Decision
[10]
The
determinative issue for the Board was state protection. The Board found that
the Applicant did not provide clear and convincing evidence that, on a balance
of probabilities, state protection in Mexico is inadequate. The
Board reviewed the documentary evidence and found that the preponderance of the
evidence supported the view that Mexico is a functioning
democracy. As such, the Applicant was obliged to take all reasonable steps to
seek protection. The Board found that the Applicant made very little effort to
avail himself of the protection available in Mexico before fleeing to Canada. He did not
report his abduction to the Public Ministry because his wife allegedly reported
the abduction and received a response the Board found to be illogical. The
officer told the Applicant’s wife that she should tell her husband to
disappear, even though he was currently being held captive and would not be
able to disappear if he were dead. Furthermore, the Board found that after his
release, the Applicant would have been in a position to provide the police with
more evidence about his ordeal, but he failed to do so. The Applicant also
failed to inform anyone from the PRD about his problems, even though in the
Board’s opinion, someone from the PRD may have been able to help him provide
the authorities with more evidence.
[11]
Additionally,
there was no evidence to suggest that the Applicant was in any way politically
influential, or that members of opposing political parties would be motivated
to pursue him. His efforts to garner support for the PRD candidate included
speaking to neighbourhood representatives that he knew, receiving attendees at
community meetings, showing them to their seats and providing them with
refreshments. The Board found that the Applicant was only speculating that his
alleged persecutors were members of the opposition parties.
[12]
As
a result, the Board was not persuaded that the authorities would not
investigate all of the Applicant’s allegations if they were reported in
sufficient detail. The Board did not find the Applicant’s responses regarding
the effectiveness of state protection to be persuasive, since they were not
credible, largely unsubstantiated and not consistent with the documentary
evidence.
II. Issues
[13]
The
Applicant raises the following issues:
(a) Did
the Board ignore evidence?
(b) Was the Board’s state protection
analysis unreasonable?
III. Standard of Review
[14]
The
weight assigned to evidence and the interpretation and assessment of evidence
are all reviewable on a standard of reasonableness (NOO v Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at para
38).
[15]
The
Board’s conclusion regarding the application of the test for state protection
and the disregard of evidence in applying the test are issues of mixed fact and
law and are reviewable on a standard of reasonableness (see Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339; Barajas v
Canada (Minister of Citizenship and Immigration), 2010 FC 21 (QL) at para
21 and Sanchez v Canada (Minister of Citizenship and Immigration), 2008
FC 696, 170 ACWS (3d) 168 at para 11).
[16]
As
set out in Dunsmuir, above, reasonableness requires consideration of the
existence of justification, transparency, and intelligibility within the
decision-making process. It is also concerned with whether the decision falls
within a range of acceptable outcomes that are defensible in respect of the
facts and law.
IV. Argument
and Analysis
A. Did
the Board Ignore Evidence Before it?
[17]
The
Applicant submits that the Board ignored documentary evidence.
[18]
The
Applicant provided medical reports detailing the medical attention he received
subsequent to the first assault, when he presented with injuries to the chest,
abdomen and cheek, and following the abduction. The report from the latter
incident states that the Applicant presented with “many hits to the face,
thorax, and abdomen as well as presenting burns on the soles of his feet.”
[19]
To
support his assertion that he was targeted due to his political involvement,
the Applicant submitted various letters all indicating that the Applicant had
campaigned for the PRD and been persecuted for his political involvement. The
Board mentions none of these documents in its reasons.
[20]
The
other allegedly ignored documentary evidence consists of sections of reports
that challenge the Board’s determination that Mexico is a
functioning democracy. The Applicant argues that the Board selectively cited
documentary evidence to support its conclusion.
[21]
The
Respondent takes the position that the Board neither ignored country condition
evidence nor made selective use of the documents, as a review of the reasons
clearly indicates that the Board acknowledged the weaknesses in the Mexican
justice system, but gave more weight to evidence indicating that laws attacking
corruption and bribery were having a marked effect.
[22]
The
Applicant relies on the principal enunciated in the oft-cited case Cepeda-Gutierrez
v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, 83 ACWS (3d) 264. The
Applicant concedes that the Board is entitled to prefer some documentary
evidence and is not required to refer to every piece of evidence before it. However,
if the Board fails to discuss important, contradictory evidence, the Applicant argues
that the Court is more likely to conclude that the Board ignored or
misapprehended the evidence.
[23]
In
the present matter, the ratio of Cepeda, above, does not apply. The
country condition documents that the Applicant claims were ignored or
selectively utilized only go to show what the Board openly acknowledged – that
corruption and criminality remain a problem that is currently being tackled in Mexico. The Board
is entitled to view the evidence as a whole, and come to the conclusion that
the balance tips in favour of showing that Mexico’s efforts
are translating into adequate, operational results. The allegedly ignored country
conditions documents do not necessarily contradict the Board’s conclusion, nor
do they support the Applicant’s own account.
[24]
The
allegedly ignored personal documents are equally unhelpful to the Applicant’s
cause on judicial review. They support the Applicant’s account of being
beaten, electro-shocked and indicate that he did campaign for the PRD, as he
testified. However, what the Board did not find persuasive, credible or
plausible, was the Applicant’s explanation for failing to approach the
authorities for protection. The onus is on the Applicant to adduce clear and
convincing evidence of the state’s inability to offer adequate protection. An
unsupported unwillingness to make reasonable efforts to access the protection
that is purportedly available will usually not be sufficient to convince the
Board to disbelieve the documentary evidence. For instance, the Applicant did
not go to the authorities following his abduction, but rather fled to Canada. The
Applicant was unable to give a reasonable explanation for this choice. The
Board did not ignore or misapprehend important or contradictory evidence in
coming to the conclusion that the Applicant failed to rebut the presumption of
state protection.
B. Was
the Board’s State Protection Finding Unreasonable?
[25]
The
Applicant argues that the Board erred in its state protection analysis because,
1) the Board failed to consider the effectiveness of the protection
measures implemented by Mexico, 2) the Board failed to consider that
the Applicant had gone to the police, but the police failed to act, and 3) the
Board’s analysis was generic, and did not take into account that the Applicant
was a victim of political persecution.
[26]
With
respect, I do not find that any of the issues raised by the Applicant to point
to the existence of a reviewable error.
[27]
The
test for state protection requires the Applicant to adduce clear and convincing
evidence that the state is unable or unwilling to offer adequate protection.
The Federal Court of Appeal clearly stated in Carillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, 69 Imm LR (3d) 309,
that adequate is not synonymous with effective. Case law does support the
contention that serious efforts by a state will only translate into adequate
state protection where there is the capacity to implement policy changes at an
operational level (Hernandez v Canada (Minister of
Citizenship and Immigration), 2007 FC 1211, 164 ACWS (3d) 842). Again,
as argued by the Respondent, a review of the reasons indicates that the Board
did consider evidence showing the operational implementation of some of the
measures taken by Mexico. Various anti-corruption efforts have resulted
in changed policies and laws responsible for the arrest, prosecution and
conviction of officials and members of the security forces. This evidence
provides justification and intelligibility for the Board’s decision.
[28]
Although
the Applicant was not required to endanger his life to prove the
ineffectiveness of state protection, he was obliged to exhaust all courses of
action reasonably available to him in Mexico prior to seeking protection abroad
(Zepeda v Canada (Minister of Citizenship and Immigration), 2008 FC 491,
167 ACWS (3d) 144 at para 16; Santos v Canada (Minister of Citizenship and
Immigration), 2007 FC 793, 159 ACWS (3d) 267 at para 15). A “subjective
reluctance” or single bad experience with local police is not a sufficient
reason to seek surrogate, international protection. The Board was not
persuaded that the Applicant made reasonable efforts to seek protection in Mexico. Although
the Applicant submits that he would have placed himself in danger had he
delayed his flight in order to seek further state protection, he has provided
no evidence to support this contention.
[29]
The
Applicant also refers in his submissions to the proposition advanced in Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1, that a
claimant may establish the inadequacy of state protection by adducing evidence
of similarly situated individuals who were unable to access state protection.
I agree that this is an accurate statement on the law; however, the Applicant
has not adduced sufficiently probative evidence to show that the state has been
unable to protect other PRD campaigners. The Applicant testified that a
fellow-campaigner was in a suspicious car accident following the election, but
it was only speculation on the part of the Applicant that members of the
opposition party might have been involved.
[30]
As
for any lack of specificity in the state protection analysis, the Applicant has
not provided any evidence to show that his situation of alleged political
persecution is any different from the information on general criminality and
corruption contained in the country conditions documents. The Board
sufficiently engaged with his particular factual situation.
[31]
This
Court is not in the position to interfere with a decision that cannot be shown
to lack justification, transparency and intelligibility. Based on the evidence
before the Board, it was not unreasonable to conclude that the Applicant failed
to rebut the presumption of state protection.
V. Conclusion
[32]
No
question to be certified was proposed and none arises.
[33]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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