Date: 20080404
Docket: IMM-4135-07
Citation: 2008 FC 438
Montréal, Quebec, the 4th day of April 2008
Present: the Honourable Madam Justice Danièle
Tremblay-Lamer
BETWEEN:
JUAN LUIS GONZALES TEJEDA
ERIKA MARIA LOPEZ REYES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the panel) made pursuant to
section 72 of the Immigration and Refugee Protection Act (the Act). In
its decision dated September 6, 2007 (the decision), the panel concluded that
the applicants did not have the status of Convention refugees or persons in
need of protection.
[2]
The
applicants are citizens of Mexico. The principal applicant
alleged he was kidnapped and tortured by the underworld, which was looking for
his father, who had been arrested and sentenced to eight years’ imprisonment
for drug trafficking.
[3]
He said
they left the city in August 2006 and moved to Santa Catarina Nuevo Leon, located in northern Mexico, where they were again
attacked.
[4]
In
December 2006 they left Mexico for Canada. On February 28, 2007, they filed their refugee
status claim, which was dismissed on the ground that they were unable to
provide clear and persuasive evidence that the Mexican government was unable or
unwilling to protect them.
[5]
The
earlier decisions of this Court indicate that unless the governmental apparatus
has collapsed completely, it should be presumed that the government is capable
of protecting a claimant. It is also established that general documentary
evidence on conditions in the country of origin is not adequate to rebut this
presumption (Sholla v. Canada (Minister of Citizenship and
Immigration), [2007] F.C.J.
No. 1299, 2007 FC 999,
and Ward v. Canada, [1993] 2 S.C.R.
689). The Court has further recognized that the protection offered
by the government does not necessarily have to be effective (Canada (Minister of Employment and Immigration) v. Villafranca,
[1992] F.C.J.
No. 1189 (QL) at paragraph 7).
[6]
It is hard
to blame a decision-maker for concluding that a refugee status claimant has not
rebutted the presumption that government protection is available when he “has
made no effort to seek government protection” (Skelly v. Canada (Minister of
Citizenship and Immigration), 2004 FC
1244, at paragraph 51).
[7]
In the
case at bar, except for a complaint filed with the Mexican authorities by the
applicant’s mother, no other action was taken to seek government protection.
When the applicants were attacked in Santa Catarina Nuevo Leon, they preferred to leave the town at
once without seeking the assistance of the local authorities.
[8]
It should
be noted that the panel did not in any way question the applicants’ credibility
as to the truth of the facts alleged. In order to obtain a favourable response
from the panel, they had to rebut by clear and persuasive evidence the
presumption that a democratic state such as Mexico is capable of protecting its citizens,
which unfortunately they could not establish.
[9]
For these
reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS that
The
application for judicial review is dismissed.
“Danièle Tremblay-Lamer”
Certified true
translation
Brian McCordick,
Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4135-07
STYLE OF CAUSE: JUAN LUIS GONZALES TEJEDA ET
AL.
v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April
3, 2008
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE
MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
DATED: April
4, 2008
APPEARANCES:
|
Manuel A. Centurion
|
FOR THE APPLICANTS
|
|
Kinga Janik
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Manuel A. Centurion
Montréal, Quebec
|
FOR THE APPLICANTS
|
|
John
H. Sims, Q.C.,
Deputy
Attorney General of Canada
Montréal, Quebec
|
FOR THE RESPONDENT
|
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