Date:
20111026
Docket: IMM-1034-11
Citation: 2011 FC 1224
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, October 26, 2011
PRESENT: The Honourable
Madam Justice Tremblay-Lamer
BETWEEN:
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ALMA ELIZABETH MIRANDA
ORDUNO
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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 the decision by the Refugee Protection
Division of the Immigration and Refugee Board (Board) dated January 21, 2011, pursuant
to subsection 72(1) of the Immigration
and Refugee Protection Act,
S.C. 2001, c. 27 (Act). In that decision, the Board rejected the refugee
claim of the applicant, a Mexican citizen, on the ground that she could have
availed herself of the protection of the Mexican state.
THE FACTS
[2]
The
applicant is alleging the following facts in support of her application.
[3]
In
November 2006, she received harassing telephone calls from a secret admirer. This
person also sent her gifts and messages. She tried at that time to report this
secret admirer to local police authorities, but they refused to believe her.
[4]
Things
calmed down for some time. She then agreed to go out with a co-worker, Mr. Rios.
The next day, her admirer called her to tell her that any man who took an
interest in her would end up like her co-worker, Mr. Rios, hospitalized for
being beaten after their date. The description that Mr. Rios gave her was of the
applicant’s maternal uncle. The applicant tried to persuade Mr. Rios to file a
complaint against her uncle, but he refused to do so, thinking that it was
useless without a witness.
[5]
The
harassment continued unabated. The applicant confided in her mother, but she
did not believe her.
[6]
Fearing
for her life, she left her country on March 1, 2008, and claimed refugee
protection upon arrival in Canada.
[7]
The
Board does not doubt the applicant’s allegations with respect to the identity
of her admirer despite her inability to explain why she had not recognized the
voice of her uncle during the telephone harassment. The Board recognized that
the applicant had suffered serious physical and emotional trauma at the hands
of her uncle.
[8]
At
the hearing, the Board asked her to explain why she had not reported her uncle
to the police. She replied that because the police force had not believed her
when she complained the first time, she did not think they would help her
subsequently. Furthermore, she feared more harm by her uncle if she reported
him.
[9]
The
Board noted that the state protection test is objective and that clear and
convincing evidence is required to rebut the presumption of protection. It
considered the applicant’s testimony and the documentary evidence, but found
that adequate state protection would be available to the applicant upon her
return to Mexico. Because the presumption of state protection had not been
rebutted, the Board found that she is not a “Convention refugee” or a “person
in need of protection”.
[10]
The
applicant submits that the Board improperly assessed the evidence regarding the
state protection available in Mexico. In particular, she alleges that the Board
did not consider her explanations as to why she did not seek protection from
the police force. She claims that, after the police force made fun of her the
first time, it was reasonable for her to not want to return.
[11]
The
respondent contends that the applicant did not exhaust all of the recourses
available to her before seeking international protection. I share this opinion.
[12]
Even
though the applicant told the police about the harassment she was a victim of
in 2007 without getting any assistance, I note that she never told them the
complete story or her suspicions with respect to her admirer’s identity.
[13]
As
in Gamash v. Canada (Minister of Employment and Immigration), 93
F.T.R. 242, the police cannot be faulted for doing nothing because they did not
have the necessary information to proceed with an investigation or make an
arrest.
[14]
In
this case, given the burden on her, a bad experience with the local police is
not sufficient to demonstrate that state protection was not available.
Furthermore, as I indicated in Gonzalez v. Canada (Minister of Citizenship
and Immigration), 2011 FC 855, it is insufficient for applicants to rely
solely on documentary evidence of flaws in the judicial system if they have
failed to avail themselves of available state protection.
[15]
For
these reasons, the application is dismissed. No question for certification was
proposed and none will be certified.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
The application for judicial
review is dismissed.
“Danièle
Tremblay-Lamer”
Certified true
translation
Janine Anderson,
Translator
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