Date: 20080507
Docket: IMM-4439-07
Citation: 2008
FC 584
Toronto, Ontario, May 7, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
LUIS ARCEO MENDEZ
RAMONA ROMO SEGURA
SERGIO EFREN ARCEO ROMO
LUIS ANTONIO ARCEO ROMO
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The applicants seek judicial
review pursuant to section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) of a decision of the Refugee Protection Division (RPD),
dated October 3, 2007, wherein the RPD found that the applicants were neither
Convention refugees nor persons in need of protection.
[2]
The applicants are a husband and
wife and their two children, all citizens of Mexico. Their claims for refugee
protection are based on the allegations of Mr. Mendez (the principal
applicant).
Mr. Mendez alleges that as a result of
his involvement in election campaigns in his home town of Pajacuaran in
the state of Michoacan he became aware of corrupt election practices and
reported them to the police. Reports were taken, but Mr. Mendez asserts that
nothing was done.
[3]
Mr. Mendez says that threats were
made to him over the telephone and that in mid-February of 2006 Ms Segura and
their youngest son were approached and threatened with kidnapping and death if
Mr. Mendez did not leave Mexico or stop his activities. On March 22, 2006, Mr.
Mendez was attacked while in La Barca in Jalisco state. He required medical
attention as a result of the attack and was off work for ten days. This
assault was not reported to the authorities.
[4]
After threats began again on April
2, 2006, the family moved to Mexico City. The family claims to have been threatened there as
well, both on the street and over the telephone. These threats were again not
reported to police. The applicants state that it was at this point that they
obtained passports and fled the country.
[5]
The
panel member made a number of adverse credibility findings against Mr. Mendez
based on inconsistencies in his evidence and with his Personal Information
Form. The member also found that the information reported to the police by Mr.
Mendez was vague and insufficient and would not have supported a meaningful
investigation, that he had failed to
follow up as to what actions the authorities were taking and had failed to
report several incidents to the police.
[6]
In the result, the panel member found that the applicants had not
rebutted the presumption of state protection with clear and convincing
evidence. Despite indications of problems with some individuals in the Mexican
security forces, the member found that the authorities in that country were
making serious efforts to fight corruption and the claimants had not exhausted
the mechanisms available to them for protection in their own country.
Issues:
[7]
The
issues on this application were whether the panel had erred in its credibility
findings and erred in its finding that the applicants had not rebutted the
presumption of state protection.
ANALYSIS:
Standard of
Review:
[8]
Recently
in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9, the
Supreme Court of Canada revisited the approach to be taken in the judicial
review of decisions of administrative tribunals. Among the most important
consequences was the Supreme Court's decision to reduce the available standards
of review from three to two, collapsing the standard of reasonableness simpliciter
and patent unreasonableness into a "single form of ‘reasonableness’
review" (paragraph 45). In determining which of the remaining two
standards would be appropriate in a given set of circumstances, the Supreme
Court proposed a two-step process at paragraph 62:
First, courts ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
[deference] to be accorded with regard to a particular category of question.
Second, where the first inquiry proves unfruitful, courts must proceed to an
analysis of the factors making it possible to identify the proper standard of
review.
[9]
In Mugesera v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at paragraph 38, the Supreme
Court had previously held that findings of fact by a tribunal are entitled to
great deference by a reviewing court. Having regard to paragraph 18.1(4)(d) of
the Federal Courts Act, R.S.C. 1985, c. F-7, the court can intervene only
if it considers that the tribunal based its decision or order on an erroneous
finding of fact that it made in a perverse or capricious manner or without regard
for the material before it.
[10]
Since
Dunsmuir was released, several Judges of this Court have reached the
conclusion that the Supreme Court’s decision does not change the law in respect of factual findings subject to the
limitation in paragraph 18.1(4)(d): Da Mota v. Canada (Minister of
Citizenship and Immigration), 2008 FC 386, [2008] F.C.J. No. 509 at
paragraph 14; Obeid v. Canada (Minister of Citizenship and Immigration), 2008 FC 503, [2008] F.C.J. No. 633; Naumets v.
Canada (Minister of Citizenship and Immigration), 2008 FC 522, [2008]
F.C.J. No. 655..
[11]
The
findings of fact that underlie a state protection determination must also be
assessed against the standard in paragraph 18.1(4)(d). The test set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, is then applied. Do the facts
constitute “clear and convincing confirmation of a state’s inability to
protect” so as to rebut the presumption? That is a question of mixed fact and
law for which less deference should be shown the tribunal’s decision.
[12]
The weight of the
jurisprudence prior to Dunsmuir had established that overall, the standard
of review of a state protection decision should be reasonableness: Chaves v.
Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005]
F.C.J. No. 232; Muszynski v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1075, [2005] F.C.J. No. 1329; Franklyn v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1249, [2005]
F.C.J. No. 1508. In my view, that standard should continue to apply.
[13]
Justice
James Russell recently commented upon
this question in Woods v. Canada (Minister of Citizenship and Immigration), 2008 FC 446, [2008] F.C.J. No. 570 at paragraph 32:
The central issue in this case is
whether, given the facts… which the Board accepted, the presumption of adequate
state protection was rebutted. I regard this as a question of mixed fact and
law reviewable on a standard of reasonableness. Following Dunsmuir, the
analysis of the Board's decision will be concerned with "the existence of
justification, transparency and intelligibility within the decision-making
process" (Dunsmuir at para. 47). If the Decision does not fall
"within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law," the Decision shall be set aside.
Did the
Panel err in its credibility findings?
[14]
The
applicant submits that the member erred in making adverse credibility findings
when there were plausible explanations for each apparent inconsistency,
contradiction or omission in his evidence. Counsel for the applicant took me to
each credibility finding and to the corresponding pages of the transcript of
the oral hearing in which the panel member’s concerns were addressed.
[15]
I
would note that the principal applicant’s evidence was given through an
interpreter and some allowance must be made for the confusion that sometimes
results in those circumstances. Nonetheless, I am unable to conclude from a
review of the reasons provided and the relevant testimony that the member made
his findings of fact without regard for the evidence or in a perverse or
capricious manner.
[16]
I
might have reached a different conclusion on certain points had I been hearing
the evidence. For example, the member found that no reasonable explanation had
been provided for the applicant’s failure to report his concerns about corrupt
election practices to more senior levels of his political party. The
applicant’s explanation, which I might have found to be reasonable, was that he
had expected a response from the police. But it is not for me to reweigh the
evidence and substitute my own conclusions for those of the tribunal. In any
event, given the number of
points on which incredibility was found, none should be seen as a determinative
factor.
[17]
The assertion that the principal applicant had plausible
explanations for the concerns of the Panel is not sufficient to overturn the
findings. Absent irrelevant considerations or a failure to provide reasons
based on the evidence, the court should not interfere. On the totality of the evidence, the credibility
finding was reasonable.
Did the Panel err in its finding that the applicants had not rebutted the
presumption of state protection?
[18]
The
applicants submit that the member erred in not considering whether the state
protection available to them in Mexico would be effective citing critical
comments in the objective documentary
evidence: Garcia
v. Canada (Minister of Citizenship and Immigration), 2007 FC 79, [2007]
F.C.J. No. 118 and M.L.R.T. v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1690, [2005] F.C.J. No. 2094.
[19]
A number of decisions of this
Court have held that effectiveness is too high a standard: Smirnov v. Canada (Secretary of State) (T.D.), [1995] 1
F.C. 780, [1994] F.C.J. No. 1922. See also Ferguson v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1212, [2002] F.C.J. No. 1636
at para.7; Syed v. Canada (Minister of Citizenship and Immigration),
(2000), 195 F.T.R. 39, [2000] F.C.J. No. 1556; Malik v. Canada (Minister of Citizenship and
Immigration), 2004 FC 189, [2004] F.C.J. No. 217; Saeed
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1016, [2006]
F.C.J. No. 1281.
[20]
It
is well established that individuals claiming refugee
status must provide clear and convincing confirmation of their state’s
inability to protect: Ward, above. The protection afforded by the state
need not be perfect: Canada (Minister of Employment and Immigration) v. Villafranca, (1992), 99 D.L.R. (4th) 334, 18 Imm. L. R.
(2d) 130 (F.C.A.).
[21]
The Federal
Court of Appeal has recently addressed the burden of proof, standard of proof
and quality of the evidence necessary to meet the standard in Canada (Minister of Citizenship and
Immigration) v. Carrillo, 2008 FCA 94, [2008]
F.C.J. No. 399.
[22]
Paraphrasing from paragraphs 17 to 30 of Carillo,
the applicant bears both an evidentiary and legal burden: he must introduce
evidence of inadequate state protection and must convince the trier of fact on
a balance of probabilities that the evidence adduced establishes that the state
protection is inadequate. The evidence must have sufficient probative value to
meet the applicable standard of proof. The evidence will have sufficient
probative value if it convinces the trier of fact on the balance of
probabilities that the state protection is inadequate. The evidence must be
relevant, reliable and convincing.
[23]
The test is not effectiveness but adequacy. In
the present instance, the RPD was not persuaded that the state protection
available to the applicants in Mexico was inadequate. Given that Mexico is a democracy with functioning political and judicial systems, the burden on the applicants to rebut the
presumption of state protection was necessarily a heavy one. The finding that
the applicants had failed to meet their burden to rebut the presumption was
within the spectrum of reasonable decisions open to the
Panel and I see no reason to interfere with that conclusion.
[24]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application is dismissed, and no
questions are certified.
“Richard G. Mosley”
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