Date: 20071120
Docket: IMM-2099-07
Citation:
2007 FC 1211
Ottawa, Ontario, November 20, 2007
Present:
The Honourable Mr. Justice Shore
BETWEEN:
DOMINGUEZ HERNANDEZ Gerardo
Rene
RAMOS DE DOMINGUEZ Marisela
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
[34] . .
. Now, the
question is not so much whether remedies exist against corrupt public servants
in Mexico, but is to determine whether in practice those remedies are useful in
the circumstances. . . .
(as stated by Mr. Justice Luc Martineau in Avila
v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, [2006]
F.C.J. No. 439 (QL)).
LEGAL
PROCEEDING
[2]
This
is an application for leave and judicial review of a decision by the Refugee
Protection Division of the Immigration and Refugee Board (Board) dated May 4,
2007, that the applicants, who are Mexican citizens, are neither Convention
refugees nor persons in need of protection.
FACTS
[3]
The
applicants, Mr. Gerardo Rene Dominguez Hernandez and Ms. Marisela Ramos de
Dominguez, claim that they are persons in need of protection under section 97
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
because they would be subjected to a risk to their lives or to a risk of cruel
and unusual treatment or punishment.
[5]
The
principal applicant filed a complaint with the appropriate authorities, but the
authorities did not want to accept his complaint. At the time of the deposition
in question, Mr. Dominguez Hernandez made a written statement in which he
described all his difficulties. However, he saw that the Public Ministry
officials did not want to help him. He was told that they were unable to do
anything. They gave him unacceptable reasons for their inaction and did not
want to give him a copy of what he had written.
[6]
The
principal applicant then consulted a lawyer who told him that he had made a
serious error in trying to file a complaint and in talking about the problem.
Following his (attempted) complaint, Mr. Dominguez Hernandez received death
threats on the telephone. His situation deteriorated after he went to the
Public Ministry. The principal applicant changed his home address, but he was
found and threatened again.
DECISION OF THE BOARD
[7]
The
Board submits that the applicants could have obtained protection in their
country of origin but does not doubt their credibility.
ISSUES
[8]
Did
the Board make a reviewable error in incorrectly assessing “state protection”
(in determining that protection was available to the applicants)?
Standard of
Review
[9]
It
is well established that the appropriate standard of review for such
determinations is patent unreasonableness (See: Aguebor v. Canada (Minister
of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 732 (QL); R.K.L.
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003]
F.C.J. No. 162 (QL); Khaira v. Canada (Minister of Citizenship and
Immigration), 2004 FC 62, [2004] F.C.J. No. 46 (QL)). A decision is patently
unreasonable where, considering all the circumstances, it is clearly abusive,
patently unjust, contrary to common sense or has no basis in fact or in law.
ANALYSIS
[10]
The
applicants attempted to obtain state protection but did not succeed.
[11]
It
is patently unreasonable to contend that the applicants, who were considered
credible by the Board, would have been able to find protection in their country
of origin in light of all the circumstances of this case (problems involving
members of the authorities—police officers, Treasurer—problems related to drug
traffickers with ties to members of the authorities, etc.). In short, the
applicants fulfilled their obligations.
[12]
The
Board erred in failing to take into account the particular situation of the
applicants who, after attempting to file a complaint, saw their situation
worsen (see: death threats).
[13]
As
stated by Mr. Justice Edmond Blanchard in Burgos v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1537, [2006] F.C.J. No. 1537 (QL):
[36] However, when it considers the
issue of state protection, the Court cannot require that the protection
currently available be perfectly effective. The following excerpt written by
Mr. Justice James Hugessen in Villafranca v. M.E.I., [1992]
F.C.J. No. 1189 (F.C.A.) (QL), sets out this principle:
On the other hand, where a state is in
effective control of its territory, has military, police and civil authority in
place, and makes serious efforts to protect its citizens from terrorist
activities, the mere fact that it is not always successful at doing so will not
be enough to justify a claim that the victims of terrorism are unable to avail
themselves of such protection.
[37] In spite of this, the mere willingness of
a state to ensure the protection of its citizens is not sufficient in itself to
establish its ability. Protection must nevertheless have a certain degree of
effectiveness (Bobrik v. M.C.I., [1994] F.C.J. No. 1364 (T.D.)
(QL).
. . .
[42] By determining that there was adequate
protection in Mexico and that the applicants could have made a complaint
following the incidents of August 21, 2005, and October 2, 2005, the Board
rendered an unreasonable decision, in that it failed to take into consideration
that the situation of the applicants was aggravated on both occasions when they
made complaints to two different authorities. This conclusion is contrary to
the principle established by the Supreme Court in Ward, according to
which an applicant does not have to “risk his or her life seeking ineffective
protection of a state, merely to demonstrate that ineffectiveness”. This error
warrants intervention by this Court insofar as this determination could not
stand up to a probing examination.
[14]
Since
the applicants were found to be credible, the Board should have shown that it
had analyzed the relevant documents adduced in evidence in order to determine
this question (see, for example, exhibit 2.1 of the National Documentation
Package, June 23, 2006, document 2.1: Country Reports on Human Rights
Practices for 2005, March 8, 2006). This is an excerpt from the
introduction to this report:
Mexico, with a population
[of] 106 million, is a federal republic composed of 31 states and a federal
district, with an elected president and bicameral legislature. In 2000 voters
elected President Vicente Fox Quesada of the National Action Party to a
six-year term in generally free and fair multiparty elections. While civilian
authorities generally maintained effective control of the security forces,
elements of the security forces frequently acted independently of government
authority.
The government generally respected and
promoted human rights at the national level; however, violations persisted at
the state and local level. The government investigated, prosecuted, and
sentenced several public officials and members of security forces involved in
criminal acts; however, impunity and corruption remained a problem. Local
police released suspects who claimed to have been tortured as part of
investigations, and authorities investigated complaints of torture, but
authorities rarely punished officials for torture. There was a marked increase
during the year in narcotics trafficking-related violence, especially in the
northern border region. Violence against women continued to be a problem nationwide,
particularly in Ciudad Juarez and the surrounding area. Government efforts to
improve respect for human rights were offset by a deeply entrenched culture of
impunity and corruption. The following human rights problems were reported:
·
unlawful
killings by security forces
·
vigilante
killings
·
kidnappings,
including by police
·
torture,
particularly to force confessions
·
poor,
overcrowded, sometimes life-threatening prison conditions
·
arbitrary
arrest and detention
·
corruption,
inefficiency, and lack of transparency in the judicial system
·
statements
coerced through torture permitted as evidence in trials
·
criminal
intimidation of journalists, leading to self-censorship
·
corruption
at all levels of government
·
domestic
violence against women often perpetrated with impunity
·
criminal
violence, including killings, against women
·
trafficking
in persons, allegedly with official involvement
·
social
and economic discrimination against indigenous people
·
child
labor
[15]
Document
2.2 Amnesty International (AI), 2006 “Mexico” Amnesty International
Report 2006, states that:
A number of factors contributed to
undermining the right to a fair trial, including a failure to ensure immediate
access to defence counsel and a lack of effective oversight of the prosecution
service and judicial police. In May the recently founded National Council to
Prevent Discrimination published a national survey illustrating the patterns of
discrimination faced by socially disadvantaged groups.
§
In
September Felipe Arreaga, a human rights defender and prisoner of conscience
known for his environmental activism, was acquitted of murder charges after his
defence demonstrated that the prosecution case had been fabricated as a
reprisal for his activism.
§
Nicolasa
Ramos was released from prison in Baja California on appeal for lack of
evidence. She had served nearly three years in prison on the basis of
reportedly fabricated criminal charges of stealing water from the local
authority on behalf of the long-standing squatter community of Maclovio Rojas,
Tijuana.
·
In June
human rights defender and gay activist Octavio Acuña was murdered in Querétaro.
He and his partner had filed a complaint against local police officers for
discrimination in 2004 and had complained of homophobic harassment prior to the
murder. Despite this, official investigators reportedly ignored evidence that
the killing was motivated by homophobia.
[16]
Also,
document 2.3: Human Rights Watch (HRW), January 18, 2006, “Mexico”, World
Report 2006, establishes the following:
Among Mexico’s
most serious human rights problems are those affecting its criminal justice
system. Persons under arrest or imprisonment face torture and other
ill-treatment, and law enforcement officials often neglect to investigate and
prosecute those responsible for human rights violations.
President Vicente Fox has repeatedly
promised to address these problems and has taken important steps toward doing
so—establishing a special prosecutor's office to investigate past abuses and
proposing justice reforms designed to prevent future ones. Unfortunately,
neither initiative has lived up to its potential.
. . .
Impunity
The criminal justice system routinely
fails to provide justice to victims of violent crime and human rights abuses.
The causes of this failure are varied and include corruption, inadequate
training and resources, and a lack of political will. One prominent example is
the unsolved murders of hundreds of young women and girls over the last decade
in Ciudad Juárez, a city on the U.S. border in Chihuahua state. Several
individuals facing charges for some of the Júarez killings have recanted
confessions that they claim were coerced through torture.
A major shortcoming of the Mexican
justice system is that it leaves the task of investigating and prosecuting army
abuses to military authorities. As Human Rights Watch documented in a 2001
report, the military justice system is ill-equipped for such tasks. It lacks
the independence necessary to carry out reliable investigations and its
operations suffer from a general absence of transparency. The ability of
military prosecutors to investigate army abuses is further undermined by fear
of the army, which is widespread in many rural communities and which inhibits
civilian victims and witnesses from providing information to military
authorities. The Mexican Supreme Court had an opportunity to address the
problem of military jurisdiction in a 2005 case, but in September it upheld the
military’s authority over cases involving army members even when the alleged crimes
were committed while off-duty.
[17]
Moreover,
exhibit 9.7 Canada, May 2005, Immigration and Refugee Board, Mexico: State
Protection (December 2003 – March 2005), states:
3.2 The judiciary
. . .
In practice, international human
rights sources reported in 2004 and in early 2005 that many of Mexico's human
rights violations stem from structural deficiencies in its criminal justice
system (HRW 8 Jan. 2005; AI 2004). For example, Amnesty International's
2004 annual report (ibid.) and Human Rights Watch's World Report 2005
(8 Jan. 2005) noted that cases of torture, arbitrary detention, and extortion
within the judicial system, especially at the state level, continued to be
reported in an atmosphere of impunity in 2003 and 2004. Country Reports
2004 added that while efforts to reform the judiciary were being made in
2004, concerns such as "lengthy pretrial detention, lack of due process,
and judicial inefficiency and corruption persisted" (28 Feb. 2005).
In June 2004, Alejandro Gertz
Manero, then-Federal Secretary of the Secretariat of Public Security
(Secretaría de Seguridad Pública, SSP) was quoted as describing the country's
justice system as being outdated, lacking in credibility, and unresponsive to
the needs of Mexican society (FBIS 30 June 2004). According to a 2004 public
opinion poll conducted by Corporación Latinobarómetro, 58 per cent of the
Mexican respondents claimed that it was quite possible to bribe a judge in
order to receive a favourable sentence (sentencia favorable) (13 Aug.
2004).
Key points discussed at a July 2004
conference on justice reform in Mexico, sponsored by the US-based Center for
Strategic and International Studies (CSIS) and the Center for US-Mexican
Studies, included statements that the criminal justice system was "both
ineffective and unfair" (CSIS 16 July 2004). At the conference, numerous
national and international justice reform experts claimed that in Mexico
"[fewer] than 5 per cent of crimes are investigated and [fewer than] 2 per
cent go to trial" (ibid.). Moreover, the criminal justice system was
deemed unfair due to its use of arbitrary detention, delays in trial and
sentencing, "incarceration without sentencing" or pretrial detention
and "poor legal defence" (ibid.; see also AI 28 Sept. 2004).
Various sources reported that, among
the criticisms of the judicial process, the use of pre-trial detention (prisión
preventiva) was of particular concern (ibid.; OSJI Nov. 2004; CSIS 16 July
2004). During the July 2004 justice reform conference sponsored by CSIS and the
Center for US-Mexican Studies, experts concurred that pre-trial detention
"impedes the prosecutorial process and contributes to a system that jails
large numbers of people" (ibid.). In a November 2004 publication of the
Open Society Justice Initiative (OSJI), author and public security expert
Guillermo Zepeda stated that about 82,000 incarcerated individuals were then
waiting for a court appearance in Mexico, some for having committed only minor
offences (11 Nov. 2004). Zepeda's study also argued that pre-trial detention
has not reduced crime rates, does not effectively guarantee victim
compensation, and is not cost-efficient (OSJI 11 Nov. 2004).
As well, Country Reports 2004
noted that authorities did not ensure legal representation for poor defendants
(28 Feb. 2005, Sec. 1.c). In particular, "[d]efendants in pretrial
detention did not have immediate access to an attorney to discuss privately
issues arising during the hearings. Moreover, the public defender system was
not adequate to meet the need" (Country Reports 2004 28 Feb.
2005, Sec. 1.c).
[18]
This
case will be referred back to the Board for a new hearing. The notion of state
protection requires that each case be reviewed on its own facts, using the
relevant documentation about country conditions that are summarized in the
encyclopedia of references, the dictionary of terms, and a gallery of portraits
demonstrating state protection in this type of case.
[19]
It
would seem to defeat the purpose of international protection if a claimant is
required to risk his or her life seeking ineffective protection of a state,
merely to demonstrate that ineffectiveness (see: Canada (Attorney General)
v. Ward, [1993] 2 S.C.R. 689; also: Aramburo v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1873 (QL)).
[20]
In
Howard-Dejo v. Canada (Minister of Citizenship and Immigration), [1995]
F.C.J. No. 176 (QL), the Court noted that, in that case, the evidence
showed not only that the state had not always succeeded in protecting the
targets of terrorism, but that the authorities were unable to provide
protection proportionate to the threat.
[21]
In
G.D.C.P. v. Canada (Minister of Citizenship and Immigration), 2002 FCT
989, [2002] F.C.J. No. 1331 (QL), Madam Justice Elizabeth Heneghan confirmed that applicants are
not required to show that they have exhausted all avenues of protection.
Rather, applicants must demonstrate that they have taken all reasonable steps,
considering the context of the country of origin in general, all the steps that
they did in fact take and their interaction with the authorities (see also: D’Mello v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 72 (QL), by Mr. Justice Frederick
Gibson).
[22]
In
Bobrik v. Canada (Minister of Citizenship and Immigration), [1994]
F.C.J. No. 1364 (QL), Madam Justice Danièle Tremblay-Lamer noted:
[13] . .
. [E]ven
when the state is willing to protect its citizens, a claimant will meet the
criteria for refugee status if the protection being offered is ineffective. A
state must actually provide protection, and not merely indicate a willingness
to help. Where the evidence reveals that a claimant has experienced many
incidents of harassment and/or discrimination without being effectively
defended by the state, the presumption operates and it can be concluded that
the state may be willing but unable to protect the claimant.
[23]
On
the other hand, the fact that civil rights groups are able to conduct
investigations of alleged abuses is not relevant to the issue of protection
(see: Thakur v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 600 (QL), by Mr. Justice Jean-Eudes Dubé; Mendoza v. Canada
(Minister of Citizenship and Immigration), [1996] F.C.J. No. 90 (QL), by
Mr. Justice Francis C. Muldoon; Molnar v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1081, [2002] F.C.J. No. 1425 (QL),
by Tremblay-Lamer J.)
[24]
In
Molnar, above, Tremblay-Lamer J. held that the Board erred in imposing
on the applicants the burden of seeking redress from agencies other than the
police.
[25]
In
Elcock v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1438 (QL), Gibson J. wrote:
[15] .
. . I am
satisfied that the same result must follow here and that the CRDD committed a
reviewable error in failing to effectively analyse, not merely whether a legislative
and procedural framework for protection existed, but also whether the state,
through the police, was willing to effectively implement any such framework.
Ability of a state to protect must be seen to comprehend not only the existence
of an effective legislative and procedural framework but the capacity and the
will to effectively implement that framework.
[26]
In
the case before us, the state did not demonstrate that it had the capacity to
implement a framework for the applicants’ protection. It must be reiterated
that, with respect to “state protection”, each case turns on its own facts.
[27]
The
applicants had no obligation to [translation]
“file a complaint at a higher level” subsequent to the steps they took (in
light of the facts described in the objective documentation on country
conditions, specific to their problems).
CONCLUSION
[28]
For
all the foregoing reasons, the application for judicial review is allowed, and
the matter is remitted for redetermination by a differently constituted panel.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be allowed and that the matter be remitted for
redetermination by a differently constituted panel.
“Michel
M.J. Shore”
Mary
Jo Egan, LLB
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