Date: 20070117
Docket: IMM-4187-06
Citation: 2007 FC 40
Ottawa, Ontario, January 17,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
KAREN
RUTTER CASTRO
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, a 33 year-old citizen of Mexico,
applied for refugee status in Canada in October 2005 based on threats to her
life arising out of her employment in the Mexican judicial system. The Refugee
Protection Division of the Immigration and Refugee Protection Board (the Board)
concluded that the applicant was not a refugee or person in need of protection
based on the availability of adequate state protection in Mexico. The application applies for
judicial review of the Board’s negative decision.
Background
[2]
From 1996 to 2005, the applicant was employed
as a criminal lawyer by the Judicial Branch of the Federal Government of Mexico. In September 2003, she began
working as a judicial lawyer with the Fifth Court of the Department of Appeals
of Penal Matters in the Federal District of Mexico City.
[3]
The
applicant’s supervisor was a federal judge named Jacinto Figueroa Salmoran,
whom she assisted in the assessment and investigation of criminal appeals. Additionally,
when Judge Salmoran was absent, the applicant stood in his place and signed
judgments issued by the Court.
[4]
In May 2005, the applicant worked on an appeal
brought by Javier Serrano Sixtos, who had been detained as a suspect in the
1988 murder of Javier Ovando Hernandez—a member of the opposition Revolutionary
Democratic Party—and his driver. There was evidence before the Board that the
Chief of the Attorney’s General Office had given the order to kill Mr.
Hernandez before the 1988 federal elections in Mexico
City. After reviewing Mr. Sixtos’ case, Judge Salmoran
decided to provide Mr. Sixtos with federal protection by releasing him from
prison on September 5, 2005 based on the lack of evidence implicating him in
the murder of Mr. Hernandez and his driver. As Judge Salmoran was away at the
time, the applicant was responsible for signing the order releasing Mr. Sixtos
from custody.
[5]
While working on the Sixtos case, the applicant
received threatening phone calls pressuring her not to release the accused. She
also received a bouquet of dried black roses. These threats continued after the
judgment was issued. The Board noted the ease with which individuals can obtain
information about employees of the Judicial Branch of the Mexican government
through its website, which published the applicant’s photograph, the names of
her parents, her marital status, her place of birth, the schools she had
attended, and her place of work. The Board accepted as credible the applicant’s
evidence regarding her employment, her involvement in signing the Sixtos judgment,
the threats that she had received, and the fact that judges and lawyers have
been assassinated and are frequently the subject of persecution in Mexico.
[6]
At the Board hearing, the applicant was asked
whether state protection would be available to her in Mexico. She responded that she had asked her employer, Judge Salmoran,
whether she would be given any protection from the people who had been
threatening her. She noted that some judges had been provided with bodyguards
in light of the persecution and death threats faced by judicial officers in Mexico. Judge Salmoran advised that the
applicant was not eligible for this protection because she was not a judge.
[7]
The Board concluded that state protection was
available to the applicant and denied her claim for protection accordingly.
Issue
[8]
The issue raised in this application is whether
the Board erred in concluding that the applicant is not a refugee or person in
need of protection because there is adequate state protection in Mexico for the applicant.
Standard of Review
[9]
With respect to the Board’s factual
findings, including its determinations of credibility, the appropriate standard
of review is patent unreasonableness. Only if the Board’s findings are
unsupported by the evidence before it will the decision under review be
patently unreasonable. Otherwise, the Court will not revisit the facts or weigh
the evidence before the Board: Jessani v. Canada (Minister of Citizenship and Immigration), 2001 FCA 127 at paragraph 16.
Relevant Legislation
[10]
The legislation relevant to this application is the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). The
relevant provisions governing protection and refugee status are as follows:
|
Convention refugee
96. A Convention refugee is a person who, by reason of
a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
Person in need of protection
97. (1) A person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not have
a country of nationality, their country of former habitual residence, would
subject them personally
[…]
(b) to a risk to
their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable
or, because of that risk, unwilling to avail themself of the protection of
that country,
(ii) the risk would be
faced by the person in every part of that country and is not faced generally
by other individuals in or from that country, […]
|
Définition de
« réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et
se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
[…]
b) soit à une menace à sa vie ou au risque
de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas, […]
|
Analysis
Issue: Did the Board err in concluding that the
applicant is not a refugee or person in need of protection because there is
adequate state protection in Mexico?
[11]
The Board denied the applicant’s claim on the
basis that state protection was available to the applicant. Specifically, the
Board found at page 7 of its reasons that:
[P]olice
and government authorities are making serious efforts to provide protection to
members of the Mexican judiciary, and presumably their judicial assistants
such as the claimant, if such protection were requested by the claimant.
[Emphasis added]
[12]
The Board referred in its reasons to news
articles establishing that violent criminal attacks had been made against judges
and lawyers in Mexico, and that
some state authorities had ordered that all judges be provided with a police
guard while others had been provided with 24 hour protection by bodyguards from
the Federal Investigative Agency. The applicant testified at the hearing that
she had asked her judge to help her get protection, but her judge said that he
could not help her get the protection available for judges.
[13]
The Board found that the protection for judges
referred to in the news articles would “presumably” be available for judicial
lawyers if requested. The Board implicitly rejected the applicant’s evidence
that the protection provided to judges was not available to judicial lawyers.
The Board is entitled to weigh the evidence, and to reject the applicant’s
evidence that she was not entitled to such protection. The Court cannot
intervene unless this finding of fact is patently unreasonable. I am satisfied
that the Board acknowledged the applicant’s evidence that the protection
available to her judge was not available to her as a judicial lawyer, but the
Board did not accept this evidence.
[14]
The respondent cites the judgment of Mr. Justice
Konrad von Finckenstein in Cortez v. Canada (Minister of Citizenship and Immigration), 2006 FC 1487, in support of the proposition that an applicant must
request state protection from the appropriate authorities. The respondent
argues that the applicant only made a single request for protection from her judge.
The respondent argues that the applicant’s claim must fail because there was no
reason not to request state protection from the police who were in a position
to provide it. In Cortez, above, the applicant had not requested any
help from authorities while in Mexico. In this case, the applicant also did not request protection from
the police. Her evidence about seeking state protection with the help of her
judge was slight, vague, and easily susceptible to doubt. She did not make an
extensive or significant effort to get protection from the police in view of
her position. Her evidence on this point was as follows:
Q.
Can you explain, just to be clear, why that
protection would not be available to you?
A. I only know – I’m not sure why, but I do
know that when the judges and the magistrates assume their positions, they get
a certain telephone number that they can call to get police protection, because
I have a friend who’s a magistrate and he told me a long time ago that we have
a special telephone number that we can call whenever we have problems and
that’s – because and that when I told my boss when I started to fear and when
he had just returned from his holidays and I told – I asked him to help me
because I knew that there was a special number and he just said that he
couldn’t help me out.
Q. Okay. Do you believe if you’d gone to the
police with your problems they would have provided you with any help or
protection?
A.
No, no.
Q.
Okay. Can you explain why not?
A.
I don’t know why, but they don’t. They say that
there aren’t enough members in the police force and regular citizens, but we
just don’t get protection. Even though I wasn’t just a regular citizen, it was
– like it was related to the work that I was doing, but I still – because not
even the Minister of the Supreme Court have special protection.
[Emphasis added]
Accordingly,
I must conclude that the Board’s finding of fact that the applicant did not
request or seek state protection was not patently unreasonable.
[15]
Neither party proposes a question for
certification. No question will be certified.
Conclusion
[16]
For these reasons, the application for judicial
review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed.
“Michael
A. Kelen”
Email this Content