Date: 20110426
Docket: IMM-4478-10
Citation: 2011 FC 491
Ottawa, Ontario, April 26,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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VALENTIN QUINTERO SANCHEZ
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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 a judicial review of the decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
July 8, 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, RS 2001, c 27 [IRPA]. The Board found that the
Applicant failed to provide clear and convincing evidence of the state’s
inability to protect.
[2]
For
the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Valentin Quintero Sanchez, is a citizen of Mexico. He was a
farmer in Las Choapas, Veracruz. He alleges that he
was approached by two local farmers, Constantino and his brother Porfirio, in
October 2008. The Applicant also claims that the brothers were known to be
members of Los Zetas, a criminal organization. The brothers asked the
Applicant to plant marijuana on his father’s farm. The Applicant told the men
he would think about it. He was approached again approximately one week
later. This time Constantino and Porfirio were accompanied by three unknown
men. They asked the Applicant for his decision. He told them that he could
not grow marijuana on the farm because it was illegal. Constantino allegedly
told the Applicant that if he loved his family, he should reconsider. The
Applicant was again visited by the brothers one week later, and he again refused
their proposition. The Applicant alleges that as a result he was physically
assaulted by Constantino, Porfirio and two unknown men on
October 27, 2008. The men threatened to kill the Applicant next
time.
[4]
The
Applicant claims that he considered filing a police report, but his friend,
police chief Jose Luis Reyes, told him that the police could not protect him
from Los Zetas. Consequently, the Applicant fled to the state of Tobasco in
November 2008. After his family informed him in May 2009 that Los Zetas knew
where he was, the Applicant decided to flee to Canada. He arrived
on June 22, 2009 and immediately claimed refugee status.
B. Impugned
Decision
[5]
The
determinative issue for the Board was state protection. The Board found that
the Applicant made minimal efforts to seek state protection in Mexico. The
Applicant did not file an official report with the police on any of the three
occasions he was allegedly harassed by Constantino and Porfirio, including the time
he was allegedly physically assaulted.
[6]
The
Applicant did approach his friend, a police officer in the town of Las Choapas, named Jose
Luis. Jose Luis allegedly first told the Applicant that he would need concrete
proof that he had been threatened, and in that case, the police would respond
immediately. However, following the physical assault, Jose Luis told the
Applicant that the police would not be able to protect him. The Board
concluded that despite this, the Applicant had not taken all reasonable steps
in the circumstances to seek protection. He only unofficially approached a
friend who worked for a police force in a different jurisdiction. The Board
rejected the Applicant’s explanation for failing to contact the police who had
jurisdiction over the area where the assault occurred. The Applicant explained
that the Minatitlan police
station was too far away. The Board found that he could have nonetheless contacted
them by telephone.
[7]
The
Board also determined that the Applicant was merely speculating that Constantino
and his accomplices were members of Los Zetas as he was unable to adduce any
persuasive evidence to corroborate this allegation.
[8]
The
Board was not persuaded that the police would not have investigated the
Applicant’s allegations if they had been reported. The Board found the
Applicant’s responses regarding the effectiveness of state protection to be,
“not credible, largely unsubstantiated and not consistent with the documentary
evidence,” (reasons para 14).
[9]
The
Board reviewed the documentary evidence. While acknowledging evidence of Mexico’s
difficulties addressing the criminality and corruption that exists within the
security forces, the preponderance of the evidence indicated that Mexico is making
serious efforts and on the whole deficiencies and corruption are being
addressed by the state. The Board noted that although most articles submitted
by counsel reported on crime and corruption in Mexico, those same articles
often contained accounts of Mexico’s efforts to combat that crime and
corruption.
[10]
In
conclusion, the Board stated that in the particular circumstances of this case,
the Applicant failed to rebut the presumption of state protection with clear
and convincing evidence and had not taken all reasonable steps to avail himself
of state protection before making a claim for refugee protection. Therefore,
the Board was not persuaded that the state of Mexico would not be
reasonably forthcoming with state protection, should the Applicant seek it.
II. Issues
[11]
This
application raises the following issues:
(a) Did
the Board err in their consideration of state protection?
(b) Did the Board ignore documentary
evidence?
III. Standard
of Review
[12]
It
is well-established that decisions of the Board as to credibility are factual
in nature and are therefore owed a significant amount of deference. The
appropriate standard of review is a standard of reasonableness (Dong v
Canada (Minister of Citizenship and Immigration), 2010 FC 55 at para 17;
Lawal v Canada (Minister of Citizenship and Immigration), 2010 FC 558 at
para 11; Aguebor v Canada (Minister of Employment and Immigration)
(1993), 160 NR 315, 42 ACWS (3d) 886 (FCA) at para 4). Similarly,
the weight assigned to evidence and the interpretation and assessment of
evidence are all reviewable on a standard of reasonableness (N.O.O. v Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at para
38).
[13]
The
Board’s conclusion regarding the availability of state protection and the
disregard of evidence in making such an assessment 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).
[14]
As
set out in Dunsmuir, above, reasonableness requires consideration of the
existence of justification, transparency, and intelligibility in 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 Err in its Analysis of State Protection?
[15]
The
Applicant submits that in reaching its ultimate conclusion regarding the
availability of state protection, the Board made several unreasonable findings.
(1) Credibility
[16]
The
Applicant submits that the Board made no negative credibility finding as to the
basis of the Applicant’s claim. Since there was no adverse credibility
finding, the Board must have accepted the Applicant’s testimony concerning his
experiences in Mexico as credible.
[17]
The
Respondent points out that the Board did in fact make an adverse credibility
finding. Specifically, the Board found that the Applicant’s “responses
regarding the effectiveness of state protection were not persuasive, since they
were not credible…” The Board concluded that the Applicant’s fear was not
objectively reasonable. I must agree with the Respondent. The reasons fully
explain why the Applicant’s testimony regarding the effectiveness of Mexican
state protection lacked credibility.
(2) Did
the Board Err in Finding that the Aggressors’ Membership in Los Zetas was Speculative?
[18]
The
Applicant submits that the Board erred in holding that the Applicant was merely
speculating that Constantino and his accomplices were members of Los Zetas.
The Applicant based his opinion on the fact that Constantino had high-calibre
weapons, an elegant home, a number of vehicles and many well-to-do visitors.
The Applicant submits that the Board ignored the evidence that the Commander of
the Municipal Preventive Police Force, Jose Luis, himself identified the
Applicant’s aggressors as part of the Los Zetas group. Therefore, this
allegation was more than mere speculation.
[19]
The
Board found that despite this, the Applicant’s testimony that his alleged
aggressors belonged to the Los Zetas gang was not substantiated by any evidence
that was sufficiently persuasive. The Respondent points out that neither the
Applicant’s Personal Information Form (PIF) narrative nor the Applicant’s
testimony at the hearing state that the police had conclusively identified
Constantino and Porfirio as members of the Los Zetas gang.
[20]
As
the Applicant described in his PIF, Jose Luis allegedly told the Applicant that
the police “could not do anything against the group.” At the hearing, the
Applicant repeated the same story, adding the further detail to the retelling
of Jose Luis’ words that, “with regard to this group, nothing can be done
because these are only a group of the – of the big group called Los Zetas” (CTR
275). As argued by the Respondent, this statement does not conclusively
identify the alleged aggressors as Los Zetas gang members. Especially not,
considering the Board did not find that the Applicant’s testimony regarding his
efforts to seek state protection to be credible.
[21]
The
Board occupies the role of finder of fact, and absent a misapprehension or a
capricious finding this Court will not disturb the Board’s conclusion.
Furthermore, the reasons reference the Applicant’s version of the advice
received from Jose Luis. The Board cannot be said to have ignored or been
unaware of this evidence.
(3) Was
the Board’s Finding Regarding the Proper Jurisdiction Reasonable?
[22]
The
Applicant submits that the Board erred in finding that the Applicant failed to
report any of the incidents to the police in the proper jurisdiction and
therefore did not make reasonable efforts to avail himself of state protection.
[23]
The
Applicant unofficially sought the advice of his friend, Jose Luis, a member of
the police force in Los Choapas. The Applicant testified that the Los Choapas
police station was closer to his father’s farm, where the assault occurred.
The Board was under the impression that the farm was actually under the
jurisdiction of the police in Minatitlan, which the Applicant
testified was a five hour drive away, due to unpaved roads.
[24]
The
Respondent submits that the Applicant gave uncertain and equivocal testimony
about whether the police in Los Choapas had jurisdiction over the area where
the Applicant’s father’s farm is located. The Applicant testified that Los
Choapas was closer to the farm, so the Board asked if they had jurisdiction
over the area where the farm is found. The Applicant replied:
Yes, because sometimes they come to the
river, to the riverbank. They cross the river and go in. I don’t know if they
actually apply their jurisdictional rights there but I know that they cross.
(CTR pg 276)
[25]
Given
the uncertainty of the Applicant’s testimony, it was not unreasonable for the
Board to conclude that the Applicant could have filed a complaint at the
station in Minatitlan, which the
Applicant knew was in the same jurisdiction as his father’s farm. As argued by
the Respondent, within reason, convenience for the Applicant is not material to
the assessment of whether the Applicant took all reasonable steps in the
circumstances to seek protection. There was no evidence that the police in Minatitlan would not
have been forthcoming with protection.
[26]
The
Respondent cited Monroy v Canada (Minister of
Citizenship and Immigration), 2006 FC 834, 155 ACWS (3d) 649. Dealing
with a fact-pattern similar to that of the present matter, Justice Pierre Blais
held at paras 17-18:
[17] The only thing the
applicant did to seek state protection was to contact his friend in the police.
In spite of the fact that he had been threatened and assaulted, the Board
concluded that he had not undertaken sufficient steps to obtain adequate state
protection.
[18] The applicant has not satisfied
me that the Board erred in concluding that he had not succeeded in rebutting
the presumption of state protection.
[27]
I
do not find that the Board erred in finding that the Applicant failed to make a
complaint in the proper jurisdiction. Moreover, Monroy, above, shows
that even if the jurisdictional finding was unreasonable, it would not have
been fatal to the overall finding as it is reasonable to conclude that only
contacting a friend is an insufficient effort to obtain state protection.
(4) Was
the Finding that the Applicant Did Not Take All Reasonable Steps Reasonable?
[28]
The
Applicant submits that he twice sought advice from the police. The Applicant
then relied on the advice he received and fled. The Applicant argues that the
Board erred in finding that he had not taken all reasonable steps to avail
himself of state protection.
[29]
The
Applicant testified that he received contradictory advice from Jose Luis.
However, he never officially filed a complaint or attempted to contact other
police authorities. The Board inquired whether the Applicant considered going
to the state. The Applicant answered that he considered it, but decided not to
because of police corruption. He based this decision on media, news and
internet reports of rampant corruption in Mexico.
[30]
The
Respondent submits that the Board properly considered documentary evidence
showing that the Mexican government is making efforts to reduce corruption in
the police agency from which the Applicant declined to seek assistance. Given
this, the Applicant’s explanation for failing to go to the police is neither
clear nor convincing evidence that state protection in Mexico would not have
been forthcoming.
[31]
I
accept the Respondent’s submissions on this point. From the submissions it
seems that the Applicant is not arguing that the Board misapplied the test in
analyzing state protection. The Board is not obliged to prove that Mexico can
offer the Applicant effective state protection, rather, the Applicant bears the
legal burden of rebutting the presumption that adequate state protection exists
by adducing clear and convincing evidence which satisfies the Board on a
balance of probabilities (Carillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94, 69 Imm LR (3d) 309 at para 30). The
quality of the evidence required is proportional to the level of democracy of
the state (Avila v Canada (Minister of
Citizenship and Immigration), 2006 FC 359, 295 FTR 35 at para 30).
Here the Board found that Mexico is a functioning democracy. This Court
has recently held that Mexico is a democracy with the willingness and ability
to protect its citizens (Alvarez v Canada (Minister of
Citizenship and Immigration), 2010 FC 197, at para 20). The Board
found that the Applicant failed to exhaust all reasonable avenues available to
him to procure state protection. The Applicant has not shown anything on this
application to suggest that that finding was unreasonable.
(5) Did
the Board Ignore Evidence Regarding Similarly Situated Individuals?
[32]
The
Applicant submits that the Board failed to properly consider the Applicant’s
testimony about similarly-situated individuals who had been threatened by the
same aggressors. Some of these individuals were killed, while others claimed
that the police did nothing. The Applicant argues that this is clear and
convincing evidence of Mexico’s inability to protect the Applicant.
[33]
The
Respondent takes the position that the Applicant’s testimony regarding
similarly situated individuals who had been threatened by the same aggressors
and not protected by the police was not detailed and was inconsistent and thus
it was not unreasonable for the Board to attribute little weight to this
evidence.
[34]
During
the hearing the Applicant did mention the similarly situated individuals, but
under questioning he also stated that no one had been able to prove that his two
aggressors were responsible for the other alleged crimes because there was
never any substantial evidence. Further, when asked if the police investigated
these murders, the Applicant answered yes, but that they were late appearing on
the scene (CTR pg 281).
[35]
I
share the view of the Respondent. The Applicant’s testimony on this point is
not clear and convincing evidence of the state’s inability to protect. Rather
it shows that the police did respond to allegations of criminal activity and
that there was no clear link between his alleged aggressors and the other
crimes. The Applicant did not provide sufficient evidence to allow the Board
to assess whether these other individuals were in fact similarly situated to
the Applicant. There is no reviewable error here.
B. Did
the Board Ignore Evidence?
[36]
The
Applicant submits that the Board erred in concluding that adequate state
protection is available in Mexico given that the documentary evidence
suggests otherwise.
[37]
The
Respondent submits that the Applicant merely disagrees with the Board’s
decision to give more weight to the documentary evidence than to his own
testimony. This decision was open to the Board as the first instance
decision-maker, even absent a negative credibility decision (Dolinovsky v
Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1784 (QL),
93 ACWS (3d) 133).
[38]
Again,
the Respondent’s submissions on this point are much more persuasive than the
Applicant’s. Despite what the Applicant might contend, the Board engaged in a
very thorough review of the documentary evidence. The Board acknowledged
contradictory evidence, but explained that the preponderance of the documentary
evidence led them to believe that the efforts of the Mexican government are producing
adequate and forthcoming state protection absent clear and convincing evidence
otherwise. The Applicant failed to adduce any such evidence. I can find no
error in the Board’s decision and accordingly this application for judicial
review is dismissed.
V. Conclusion
[39]
No
question to be certified was proposed and none arises.
[40]
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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