Date: 20080521
Docket: IMM-4574-07
Citation: 2008 FC 630
Ottawa, Ontario, May 21,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ROSA ALEJANDRA
HURTADO-MARTINEZ
and VALERI
AILIN OLVERA-HURTADO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review is one of many before this Court touching on whether the
Refugee Protection Division (RPD) erred in finding that state protection was
available in Mexico. The Applicant
claimed protection in Canada following an attempted sexual assault by a
senior police officer.
II. BACKGROUND
[2]
The
Applicant was a 24-year old mother from Mexico. She claimed
that her neighbour, a Commander in Mexico’s Federal
Investigations Agency (AFI), attempted to force himself on her in December 2005.
Her common-law partner, returning home just in time, repelled the attack. The
Commander then allegedly made oral threats as he left.
[3]
When
the Applicant attempted to file a complaint at the police department in her
city, she was met by sarcasm (or laughter) by the duty officers and effectively
told that nothing could be done without proof, especially of physical injuries.
[4]
The
Applicant further alleged that her partner was attacked two days later by the
Commander and some of his men because they had tried to denounce the Commander
– or so the statement was attributed to the Commander. The day following the
attack, the Applicant claims, she received a threatening phone call from the
Commander.
[5]
Thereafter
the Applicant took her daughter and fled to another city to stay with her
step-sister while her partner went to a different city.
[6]
Although
the Applicant was in a different city, the Commander was allegedly able to call
her and threaten her again. She again fled to another city, changed her cell
phone number and yet the Commander was able to contact her and repeat his
threats.
[7]
All
of these events occurred in a short period of time in December 2005. In January
2006, the Applicant went to the Desarrollo Integral de la Familia (DIF). There
she was advised to take her complaint to another department of the Public
Ministry.
[8]
As
a result of the past treatment of her complaint by police and of her fear of
reprisals, the Applicant declined to follow the DIF’s advice and instead
decided to leave Mexico. Two days before her departure, the Commander apparently
telephoned her to inform her that she would not be able to leave because of his
influence. Despite the threat, she did manage to leave.
[9]
The
gravamen of the RPD’s decision is that the Applicant and her husband had not
exhausted the potential remedies for obtaining state protection. The RPD noted
her partner’s failure to complain about the beating he suffered and concluded
that the Applicant was too quick to conclude that state protection was not
available to her.
[10]
The
RPD acknowledged that Mexico has a deeply entrenched culture of
official impunity and corruption. However, it concluded that the Applicant had
not provided “clear and convincing” evidence of the state’s unwillingness or
inability to provide protection. The RPD preferred the objective documentary
evidence, including the U.S. DOS Report and IRB reports on the situation of
witnesses to crime and corruption and women victims of violence, which refer to
a complaints process and recourse mechanisms.
III. ANALYSIS
[11]
Even
before the Supreme Court’s decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, the standard of review of findings on state protection was
reasonableness. Nothing in Dunsmuir changes that standard.
[12]
The
RPD relied on the decision in Kadenko v. Canada (Solicitor General)
(1996), 143 D.L.R. (4th) 532 (F.C.A.), to suggest that a person must
exhaust all available courses of action before concluding that state
protection was not forthcoming. Kadenko does not go that far. The steps
taken to secure state protection depend on a number of factors, including the
country conditions and whether the state or its agent is a persecutor. What is
required of an applicant is that they take reasonable steps to secure state
protection in the context of the circumstances. The analysis of seeking state
protection is not a formulaic exercise.
[13]
There
are several difficulties with the RPD’s analysis and conclusions which require
that the decision be quashed and remitted back.
[14]
Firstly,
the RPD’s decision is unclear on whether it accepted the Applicant’s story. It
is a story of assault and harassment by a senior officer of the AFI (a federal
police force) whose reach went beyond the boundaries of any one city or locality.
[15]
Secondly,
the RPD did not fully consider the existence and scope of the agent of
persecution. In many of the decisions of this Court supporting conclusions of
adequate state protection in Mexico, considerable emphasis has been placed on
the availability of federal authorities to deal with issues of police officers
as agents of persecution.
[16]
In
Lopez v. Canada (Minister of Citizenship and Immigration), 2007 FC
1341, the RPD had concluded that the Attorney General’s Office and the AFI
played a significant role in providing protection.
[17]
The
AFI is the very force to which the Commander, alleged agent of persecution, was
a member. However, the RPD conducts no analysis of this fact as against what
would be reasonable in seeking protection from one of the key agents of state
protection.
[18]
Thirdly,
while the RPD may refer and even prefer documentary evidence, it must be
evidence relevant to the issue before them. The RPD refers, at some length, to
reports on protection for women victims of violence, generally in the context
of domestic violence. The issue in this case is not one of violence against
women per se but that of police corruption and self-interest – the
victims of which were each a woman and a man. This inclusion of irrelevant
consideration raises further questions about the reasonableness of the RPD’s
decision.
IV. CONCLUSION
[19]
Therefore,
this judicial review will be granted, the RPD’s decision quashed, and the
matter remitted to a differently constituted panel for a new determination.
[20]
In
view of the basis of the Court’s decision, which is largely based on the facts
of this case, there is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the RPD’s decision is
quashed, and the matter is to be remitted to a differently constituted panel
for a new determination.
“Michael
L. Phelan”
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