Date: 20070730
Docket: IMM-4602-06
Citation: 2007 FC 793
Ottawa, Ontario, July 30,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MARCO ANTONIO SALAZAR SANTOS,
GUADALUPE
CLAUDIA MELENDEZ GODINEZ,
JORGE
ADIRAN DE L AMORA GARZA,
CLAUDIA
VANESSA SALAZAR MELENDEZ,
SANTIAGO
ALESSANDRO DE LA MORA SALAZAR
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by the principal Applicant, Marco
Antonia Salazar Santos, and his family from a decision of the Refugee
Protection Division of the Immigration and Refugee Board (Board) by which their
respective claims to refugee protection were denied.
BACKGROUND
[2]
The
Applicants are citizens of Mexico. Their claims for protection are based on
allegations of persecution directed at Mr. Salazar between 1995 and 2005.
[3]
In
1995, Mr. Salazar claimed to have been arrested and detained by local police
authorities on trumped-up charges of robbery, illegal confinement, threatening
and illegal association. He speculated that this arrest was orchestrated by a
senior police official who was looking for a scapegoat for an unsolved, high-profile
crime. Why Mr. Salazar was the person victimized in this way was not
explained.
[4]
In
the face of these legal difficulties, Mr. Salazar retained legal counsel who
was able to effect his release from custody after only a few days. Mr. Salazar
made a complaint to the Human Rights Commission which apparently led to retaliation
in the form of a second apprehension order. This prompted Mr. Salazar to leave
for Mexico
City
but not before he instructed his lawyer to challenge the outstanding
apprehension order.
[5]
Mr.
Salazar testified to the Board that he was successful in obtaining protection
from the Federal Court which ordered the state authorities to cease and desist
in their attempts to prosecute him. This process unfolded over a year or so
but nevertheless resulted in his complete vindication.
[6]
Mr.
Salazar returned to his home state in 1996 but claimed that he was subjected to
continuous, low-level harassment in the form of being openly followed or
watched by unknown parties until 2005. The culminating incidents which he
claimed caused him to flee Mexico were the receipt of two anonymous, extortionary
letters. Again, he did nothing to report these events to the authorities
before leaving for Canada in July 2005. His family followed and arrived
here in October 2005.
THE BOARD DECISION
[7]
Although
the Board expressed a reservation about whether the conduct Mr. Salazar
complained about amounted to persecution, it did not make a determinative
ruling on that issue. Instead, the Board found that the Applicants had failed
to rebut the presumption of available state protection in Mexico. It noted
that, to the limited extent that Mr. Salazar had sought judicial protection, he
obtained it.
[8]
Although
the Board noted the existence of corruption and inefficiency within the Mexican
policing and judicial systems along with occurrence of human rights abuses, it
also found that those problems were being confronted and that the protective
apparatus of the state was not wholly dysfunctional. There was ample
documentary evidence to support these findings.
[9]
The
Board concluded by finding that the Applicants had not made reasonable efforts
to seek protection within Mexico. Its finding on that point was as
follows:
“In these claims, the evidence does not
show that the claimants made reasonable efforts or explored any options of
being protected from criminality. They have not been refused protection, nor
have they been given protection that was inadequate. For these reasons, I
conclude that the claimants face no possibility of persecution in Mexico and they are not convention
refugees”.
ISSUES
[10]
(a) What
is the appropriate standard of review for the issues raised by the Applicants?
(b) Does
the Board decision contain any reviewable errors?
ANALYSIS
[11]
It
is unnecessary in this case to conduct a pragmatic and functional analysis
because I can identify no error in the Board’s decision.
[12]
Beyond
pointing out that the Board’s state protection finding was unreasonable, the
Applicants failed to identify any specific problem with its legal or
evidentiary analysis. The Board’s conclusion that state protection was
available to the Applicants in the context of their alleged concerns was a
reasonable conclusion to draw from the evidence before it. It is not the
function of this Court on judicial review to reweigh the evidence; but, even if
I was unfettered by any deference to this finding, I would not have reached a
different conclusion on this record.
[13]
The
Board’s further conclusion that the Applicants had failed to establish that
they had taken reasonable steps to pursue available protection within Mexico was also reasonable.
Indeed, any other conclusion would have been perverse.
[14]
Even
where the protective services of the home state have gaps or deficiencies, a
refugee claimant who alleges a subjective fear based on criminality must, in
the absence of a compelling justification, take reasonable steps to access
those services.
[15]
It
was not open to Mr. Salazar to sit idly in the face of almost 10 years of
alleged harassment at the hands of unknown parties and then excuse his failure
to do anything in Mexico because he did not “trust” the local
authorities. In 1996, he had successfully obtained protection through recourse
to the federal judiciary and it was reasonable for him to approach the federal
authorities again if protection was unavailable at the local level. Even at
that, he only suspected that a local police official was somehow involved in
this situation and he never took steps to determine if his difficulties could
be addressed at that level. Suffice it to say that a localized failure of
police protection will not necessarily lead to a conclusion that state
protection is wholly unavailable: see Dannett v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1701, 2006 FC 1363.
[16]
The
Board found Mr. Salazar’s conduct to be unreasonable and it was unreasonable.
As stated by my colleague Justice Michael Phelan in Kim v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1381, 2005 FC 1126, a refugee
claimant does not rebut the presumption of state protection in a functioning
democracy by asserting only a “subjective reluctance to engage the state”.
[17]
More
recently in Hinzman v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 584, 2007 FCA
171, the Federal Court of Appeal re-stated the importance of seeking protection
within the home state before claiming refugee protection elsewhere. A failure
to do so will usually be fatal to a refugee claim – at least where the home
state is a functioning democracy with a willingness and the apparatus necessary
to provide a measure of protection to its citizens. In Hinzman, the Court
described the heavy burden facing a claimant in such circumstances in the
following passage:
“Kadenko and Satiacum
together teach that in the case of a developed democracy, the claimant is faced
with the burden of proving that he exhausted all the possible protections
available to him and will be exempted from his obligation to seek state
protection only in the event of exceptional circumstances: Kadenko at
page 534, Satiacum at page 176. Reading all these authorities together,
a claimant coming from a democratic country will have a heavy burden when
attempting to show that he should not have status. In view of the fact that
the United States is a democracy that has
adopted a comprehensive scheme to ensure those who object to military service
are dealt with fairly, I conclude that the appellants have adduced insufficient
support to satisfy this high threshold. Therefore, I find that it was
objectively unreasonable for the appellants to have failed to take significant
steps to attempt to obtain protection in the United States before claiming refugee status in Canada.”
[18]
Having
found the Board’s decision in this case to be legally correct and reasonable,
this application for judicial review is dismissed. Neither party proposed a
certified question and no issue of general importance arises on this record.
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