Date: 20080421
Docket: IMM-3279-07
Citation: 2008 FC 514
Ottawa, Ontario, April 21, 2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
GRACIELA BLAZQUEZ DE HERNANDEZ
(a.k.a. Graciela Blazquez de Hernande)
DANIELA HERNANDEZ BLAZQUEZ
MARIA GUADELUPE HERNANDEZ BLAZQUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Graciela Blazquez de Hernandez (Ms. Blazquez)
and her two children, Daniela Hernandez Blazquez and Maria Guadelupe Hernandez
Blazquez, from a negative decision of the Refugee Protection Division of the
Immigration and Refugee Board rendered on June 12, 2007.
I. Background
[2]
The
Applicants are citizens of Mexico who arrived in Canada in 2006
along with Ms. Blazquez’s husband, Sergio Hernandez Cervantes
(Mr. Hernandez Cervantes), and their adult son, Sergio Hernandez Blazquez
(Mr. Hernandez). At that time, all of the members of the family claimed
refugee protection based primarily on a risk narrative provided by Mr. Hernandez.
[3]
Mr.
Hernandez claimed to have been beaten and later threatened because of his
volunteer work for a group searching for missing children in Mexico. These
events were apparently connected in some way to his efforts to locate a particular
child. Within a few days of the alleged assault, Mr. Hernandez left for Canada without
having made a police complaint. His excuses for failing to report these crimes
were that he did not trust the Mexican police and that any complaint would have
been futile.
[4]
Not
long after the departure of Mr. Hernandez from Mexico, the rest of
his family followed. They claimed that they had also received threats and had
had their home and business premises ransacked by the same people who had allegedly
accosted Mr. Hernandez. Mr. Hernandez Cervantes claimed that he had reported
these events through his lawyer to the local police in the form of two
denunciations. Those denunciations were tendered in evidence to the Board and
it is apparent they there were, indeed, filed with the authorities.
Nevertheless, within a few days of filing these reports with the police, Ms.
Blazquez and her husband left for Canada. Their two daughters
followed them some weeks later.
II. The
Board Decision
[5]
The
Board rejected the Applicants’ refugee claims on state protection grounds and,
in particular, because they had not taken reasonable or adequate steps to seek
protection within Mexico before coming to Canada. The
determinative passage from the Board’s decision was the following:
The panel finds that it is unreasonable
for the claimants not to have made greater efforts to seek police protection or
the protection of another state authority. The panel further finds it is
unreasonable for the claimants not to take additional steps or measures to
access the protection of the state of Mexico
that was and is available to them. Claimants are required to show that they
have sought all avenues of protection reasonably available to them before
seeking international protection. This is supported in case law, where the
Federal Court held that the claimant should take reasonable steps to ensure
their protection.
In this particular case, the claimants
did not take all reasonable steps; indeed he took no steps at all. The panel
is of the opinion that he ought to have shown that he had taken all steps
reasonable in the circumstances before seeking international protection in Canada.
[footnotes omitted]
[6]
Neither
Mr. Hernandez Cervantes nor Mr. Hernandez have joined in this application and,
according to Ms. Blazquez, their respective whereabouts are unknown to
her.
III. Issues
[7]
(a) Did
the Board err in its treatment of the evidence bearing on the Applicants’
alleged efforts to seek state protection?
(b) Did
the Board apply the wrong legal test to the issue of state protection?
IV. Analysis
[8]
The
standard of review analysis applicable to the judicial review of administrative
decisions was recently altered by the Supreme Court of Canada in Dunsmuir v.
New
Brunswick, 2008 SCC 9. Formerly, the standard of review for
factual matters such as the first issue in the case at bar has been that of patent
unreasonableness, while pure issues of law were considered on a standard of correctness.
In Campos Navarro v. Canada (Minister of
Citizenship and Immigration), 2008 CF 358 at paras. 12-14, Justice Yves
de Montigny considered the Dunsmuir decision and took from it –
correctly in my view – that the courts must continue to show restraint in their
review of administrative decisions involving factual determinations or when the
decision-maker is applying discretion or policy. To the same effect is the
decision of Justice Roger Hughes in Khanna v. Canada (Minister
of Citizenship and Immigration), 2008 FC 335 where he held at para. 4 that
reasonableness is the “deferential standard to be applied where the question is
one of fact, discretion or policy and shall apply where the legal and factual
issues are intertwined and cannot readily be separated”. Having regard to
these recent decisions, I would adopt the standard of reasonableness for the
first issue in this case. Because I can identify no error of law with respect
to the second issue raised by the Applicants, it is unnecessary to conduct a further
standard of review analysis.
[9]
The
Applicants assert that the Board made a factual error by holding that no
efforts had been made by any of them to access state protection in Mexico
before they left for Canada. In the alternative, they say that the
Board had a duty at least to refer to their evidence of the two police
complaints and that the failure to do so indicates that this evidence was
overlooked.
[10]
I
am not convinced that the Board failed to distinguish between Mr. Hernandez’s obvious
failure to seek state protection and the steps which the rest of his family
took in that regard. It would have been better for the Board to have more
clearly articulated that distinction in the evidence; however, where the Board
referred to the claimants as a group, it consistently referred to their state
protection efforts as being inadequate, insufficient or unreasonable. Where it
referred to Mr. Hernandez, it noted that he had taken “no steps at all”. These
passages seem to me to indicate an appreciation by the Board that some effort
to pursue state protection in Mexico had been taken by Mr. Hernandez
Cervantes on behalf of the Applicants.
[11]
It
is unfortunate that the Board failed to mention specifically in its decision the
two police denunciations and the related testimony from Mr. Hernandez
Cervantes. If I was convinced that this evidence had been overlooked and that
it could be material to the outcome of the case, I would not hesitate to send
the matter back for redetermination. However, as noted above, the Board did
generally acknowledge this evidence and found it to be insufficient to rebut
the presumption of state protection. In other words, it found that the
Applicants had failed to adduce clear and convincing evidence that Mexico is unable or
unwilling to protect them. That finding is unassailable because the Applicants
left for Canada within days
of their police complaints and well before any resolution of those complaints
could reasonably have been expected. Even at that, no evidence was tendered to
establish what had become of the complaints or whether the complaints could
even be further pursued by the Mexican authorities in the absence of the Applicants.
In summary, there was no evidentiary foundation in this case for a state
protection finding that would be favourable to the Applicants. The failure by
the Board to mention specifically the police denunciations was, therefore, not
material to the outcome of the case because that outcome was inevitable on this
record: see Kandasamy v. Canada (MCI), 2007 FC 791, 159 A.C.W.S. (3d)
262 at para. 14.
[12]
I
would add, in conclusion, that the evidentiary issues raised on this
application are the apparent result of the Board’s rather cursory treatment of
the case-specific evidence in favour of lengthy and largely irrelevant
references to country condition reports dealing with police, legislative,
judicial and correctional reforms in Mexico. This was not a claim which was
based on allegations of police corruption or abuse and no meaningful evidence
was tendered to establish that the authorities were indifferent to what was, at
most, a case of simple criminality. Greater attention by the Board in its
decision to the particular facts of this case would likely have avoided this
application.
[13]
I
can identify no error by the Board in its identification of the legal test for
state protection. Whether or not the test is one of “effective” protection or
“serious efforts”, the essential fact remains that these Applicants failed to
establish that they had taken reasonable steps to pursue state protection. The
musings by the Board about police corruption in Mexico were, as
noted above, irrelevant to the facts of this case. Therefore, the issue of the
adequacy of police protection in Mexico due to problems of
corruption simply does not arise on this record.
[14]
In
the result, this application for judicial review is dismissed.
[15]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“ R. L. Barnes ”
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