Date: 20070419
Docket: IMM-2113-06
Citation: 2007
FC 423
Toronto, Ontario, April 19, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
PACO
JESUS GARCIA ALDANA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant
is an adult male citizen of Mexico. He sought refugee status in Canada as a Convention refugee. By a
decision dated March 31, 2006 the Immigration and Refugee Board, Refugee
Protection Decision, determined that he was not a Convention refugee. That is
the decision for which judicial review is now sought.
[2]
For the
Reasons that follow I find that the application will be allowed and the matter
is to be returned to the Board for re-determination by a different member.
[3]
The record
demonstrates that the applicant came from a dysfunctional family. His parents
are divorced and many of the incidents relevant to the applicant’s
circumstances here took place during the course of the family’s break up and
thereafter. The matter is further complicated by issues relating to a woman
named Laura who was in a relationship not only with the applicant but also with
the applicant’s father who was, at least for a time, Laura’s employer.
[4]
The
uncontradicted evidence on record is that the applicant has been the victim of
police beatings and harassment on more than one occasion. Medical evidence is
corroborative of a beating by someone on at least one occasion. The applicant
filed a “denunciation” with the police, which I take to be a rough equivalent
of a complaint, alleging his father’s complicity in certain harassment suffered
by the applicant. This denunciation was, however, filed some two years after
the event and the applicant did not follow upon the matter.
[5]
The
evidence also shows that the applicant contacted an organization concerned with
reporting police corruption who advised him to report an incident of police
harassment to the local police station. When he arrived at the police station
the applicant’s father was there with a lawyer. The applicant was charged with
trespass and later absolved of that charge. The charge appears to have been
related to the ongoing divorce of his parents and disputes as to who owned or
could be in possession of certain property.
[6]
The
record, in brief, shows that the applicant suffered a number of incidents of
police harassment and even violence and made at least two efforts to report
them without success and, on the one occasion, found himself charged with
trespass.
[7]
The
applicant fled to Canada but did not make a refugee
claim at that time. He returned to Mexico
for about four months in 2004 where he obtained work only to be once again
embroiled with his father and the girlfriend Laura. He returned to Canada and shortly thereafter sought
refugee protection.
[8]
The Board
rejected the applicant’s claim on two grounds. The first was that the Board
determined that the applicant did not make a “determined effort” to avail
himself of state protection. The second was what what the Board described as
“Re-availment”.
[9]
As to the
second ground, counsel for the Minister agreed that re-availment does not apply
in the circumstances here and that the Board was in error to call the situation
one of re-availment. The Minister’s counsel asserted that the fact that the
applicant returned to Mexico where he worked for a period
of a few months is simply indicative of the fact that the applicant can be
protected by the state. While this may or may not be so, the fact that the
Board misdirected itself in law is indicative that the Board failed to
appreciate the legal basis upon which the claim was to be determined.
[10]
As to the
first ground the Board stated its conclusions respecting state protection as
follows:
As the panel finds that the
claimant did not make a determined effort to avail himself of the state
protection available in Mexico before fleeing to Canada, the
panel finds it would not be unreasonable for him to return to Mexico to seek protection there. The
panel recognizes that a refugee claimant is not entitled to perfect protection.
What is necessary is that the state be reasonably forthcoming with serious
efforts to protect. Canada’s protection for the claimant is not necessary
because the panel is convinced, within the preponderance of probability, that
the state of Mexico would be reasonably forthcoming with serious efforts to
protect the claimant, if he were to return to Mexico and approach the state for
protection.
[11]
The Board
in requiring a “determined effort” to be made by the applicant made an error of
law which requires that the decision of the Board to be set aside.
[12]
What the
Board ought to have done is assess the steps actually taken by the applicant in
the context of country conditions and the interaction that the applicant did
have with the police authorities. As stated at paragraph 18 of Peralta v.
Canada (M.C.I.), 2002 F.C.T. 989:
[18] In my opinion, the Applicants
have succeeded in demonstrating that the Board applied the wrong test in
determining whether the state protection was available. According to its reasons,
the Board required the Applicants to show that they had exhausted all avenues
of protection. This test was found to be erroneous by Justice Rothstein in Jane
Doe v. Canada (Minister of Citizenship and
Immigration) (21 November 1996), action number IMM-1514-95 (F.C.T.D.). In that
case, Justice Rothstein said as follows:
I am not satisfied that the panel of the
C.R.D.D. applied the correct test in respect of the Applicant seeking the
protection of the state in this case. The words used by the panel and its
references to the evidence suggest that it my[sic] have required the Applicant
to exhaust absolutely all avenues of protection rather than taking all steps
reasonable in the circumstances to seek protection in the country of origin. In
this case the seeking of protection had to be considered not only in the
context of the country of origin in general but also with respect to all the
steps the Applicant did take and the interaction the Applicant had with the
authorities in the very unusual circumstances of this case. The application for
judicial review is allowed and the matter is remitted to a different panel of
the C.R.D.D. for redetermination only in respect of the matter of state
protection.
[13]
Thus I
find that the Board erred in law in respect of both issues before it. The
matter must be re-determined by a different member. There is no question for
certification.
JUDGMENT
For the Reasons given;
THIS COURT ADJUDGES that:
1.
The
application is allowed.
2.
The matter
is returned to the Board for re-determination by a different member.
3.
There is
no question for certification.
4.
No Order
as to costs.
“Roger
T. Hughes”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2113-06
STYLE OF CAUSE: PACO DE JESUS GARCIA ALDANA v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: HUGHES J.
DATED: April 19, 2007
APPEARANCES:
Alesha A. Green FOR THE APPLICANT
A. Leena
Jaakkimainen FOR THE RESPONDENT
SOLICITORS
OF RECORD:
GREEN, WILLARD
LLP
Barristers and Solicitors
Toronto, Ontario FOR
THE APPLICANT
John H. Sims,
Q.C.
Deputy Attorney
General of Canada
Toronto, Ontario FOR
THE RESPONDENT
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