Date: 20080227
Docket: IMM-6357-06
Citation: 2008 FC 257
BETWEEN:
EDEL HEBERTO CRUZ ROSALES
BLANCA AURORA LOPEZ BAEZ
ADELA PAULINA CRUZ LOPEZ
MIROSLAVA CRUZ LOPEZ
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing of an application for judicial review of a decision
of the Refugee Protection Division (the “RPD”) of the Immigration and Refugee
Board wherein the RPD determined the Applicants not to be Convention refugees
or persons otherwise in need of Convention refugee-like protection in Canada. The
decision under review is dated the 6th of November, 2006.
BACKGROUND
[2]
Edel
Heberto Cruz Rosales (the “principal applicant”) and Blanca Aurora Lopez Baez
(“Blanca”) are husband and wife. Adela Paulina Cruz Lopez and Miroslava Cruz
Lopez are young children of the principal applicant and his wife. The
Applicants are citizens of Mexico. The Applicants fear persecution if they
are required to return to Mexico at the hands of the principal applicant’s
former partner, Judith del Pilar Morales Lara (“Judith”), her current partner
and their associates. Apparently Judith and her current partner are members of
wealthy and well connected families in Mexico.
[3]
The
Applicants arrived in Canada on the 15th of January, 2006. They
claimed protection in Canada on arrival. The principal applicant filed
a seventy-eight (78) paragraph narrative as part of the Applicants’ Personal
Information Form submitted in support of their claim. The narrative recites that
the principal applicant lived in a common law union with Judith from 1988 to
1996. The principal applicant and Judith had two (2) children. In December of
1996 Judith left the principal applicant and the children.
[4]
In
January of 1998, the principal applicant met Blanca. They were married in
August of 1998.
[5]
From
at least as early as March, 1998, the principal applicant and Blanca experienced
threats, harassment, financial and other demands, unnerving surveillance, at
least one assault, extortion and robberies allegedly all at the hands of Judith
or, in their submission, engineered by Judith and her partner. Two particular
incidents are described in the principal applicant’s narrative in some detail.
[6]
In
February of 2002, the principal applicant was “arrested” in circumstances that
could better be described as a kidnapping. He was incarcerated for some
forty-eight (48) hours. He only obtained release after bribing a judge. That
being said, through another judge and the support of a lawyer, he was able to
obtain a judicial order designed to prevent a reoccurrence of the “kidnapping
event”, at least for a limited period of time. In July of 2002, while
returning by highway from a business trip, a van with three (3) men inside pulled
alongside the principal applicant’s vehicle and guns were pointed at the principal
applicant. There followed a high speed chase. The principal applicant
fortunately came upon a police checkpoint. The police pursued the vehicle from
within which the principal applicant had been threatened. The pursuit was in
vain. Nonetheless the principal applicant was provided a police escort for the
balance of his journey.
[7]
To
this point in time in the saga, the Applicants lived in Veracruz where the
principal applicant, and for a brief period of time, Blanca, had businesses.
The Applicants determined that they should leave Veracruz. A business
opportunity presented itself to the principal applicant in Guadalajara. By the end
of October, 2002, the Applicants had relocated to Guadalajara. They
remained there until February of 2004 and, throughout their stay, their life
was relatively peaceful. Unfortunately, the principal applicant’s business
venture in Guadalajara was not
successful. In the result, the Applicants returned to Veracruz where their
odyssey recommenced.
[8]
In
late November 2005, the principal applicant and his wife determined that they
had no alternative but to leave, not only Veracruz, but Mexico. The
principal applicant sold his business. The Applicants’ flight to Canada followed.
THE DECISION UNDER
REVIEW
[9]
In
a relatively lengthy decision, the RPD, while it made no negative credibility
finding with regard to the Applicants’ story, found against them on the basis
that adequate state protection for them was available in Mexico, as was a
viable internal flight alternative. The RPD noted the presumption that a state
is capable of protecting its citizens and determined that the Applicants did
not rebut that presumption with clear and convincing evidence. It noted that,
on the two (2) occasions when the principal applicant did attempt to avail of
state protection, those being the two (2) incidents earlier described in these
reasons, state protection was provided, albeit that, in the incident involving
the detention of the applicant, his release was only obtained after the
provision of a bribe to a judge. In the other instance, the police check point
incident, police support was apparently readily provided. In no other
circumstance during the Applicants’ long period of difficulties, did the
Applicants seek state protection.
[10]
The
RPD determined that the Applicants had a viable internal flight alternative to Guadalajara. It wrote:
The claimant [in these
reasons the principal applicant] testified that he had no problems in Guadalajara where he
lived for about 20 months. He operated a business in Guadalajara, a business
in Cordoba and a business in Veracruz. Although his PIF
narrative indicates that Judith and Fernando [Judith’s companion] had contacts
within the state agencies in Veracruz State, there is no
persuasive evidence to suggest that Judith and Fernando had any contacts within
the state agencies in Guadalajara in Jalisco.
Furthermore, during 20 months in Guadalajara, he was not harmed or threatened
by anybody. In Guadalajara, his only concern was regarding the general
violence in that city.
THE ISSUES
[11]
In
the Memorandum of Fact and Law filed on behalf of the Applicants, the issues
relied on by the Applicants are set out in the following terms:
Whether the Board Member
erred in law by placing too high a burden on the Applicant to seek state
protection.
Whether the Board Member
erred in law by misconstruing and ignoring evidence.
Whether the Board Member
erred in law by reaching a patently unreasonable conclusion with regards to
internal flight alternative.
ANALYSIS
a) Standard
of Review
[12]
Generally
speaking, decisions of the RPD based on adequacy of state protection are
reviewed on a standard of reasonableness simpliciter. That being said,
determinations of fact within the context of a state protection analysis are
reviewable on a standard of patent unreasonableness or on the basis that they
were made in a perverse or capricious manner or without regard for the material
before the decision-maker.
[13]
A
finding of the existence of an internal flight alternative is, by and large, a
finding of fact. It should be reviewed on a standard of patent
unreasonableness or on the basis that it was made in a perverse or capricious
manner or without regard for the material before the decision-maker.
b) The burden
on the Applicants with regard to a finding of state protection
[14]
In
its reasons, the RPD wrote:
The law states that
there is a presumption that a state is capable of protecting its citizens. The
claimant may rebut this presumption by providing “clear and convincing proof of
lack of state protection” in the country of origin. The claimant must approach
his or her state for protection, providing state protection might be reasonably
forthcoming.
Evidence that protection
being offered is “adequate though not necessarily perfect” is not clear and
convincing proof of the state’s inability to protect its citizens, as no
government can guarantee the protection of all its citizens at all times.
However, where a state is in effective control of its territory, has military,
police and civil authority in place and makes serious efforts to protect its
citizens, the mere fact it is not always successful at doing so will not be
enough to justify a claim that the victims are unable to avail themselves of
protection.
When the state in
question is a democratic state, the claimant must do more than simply show that
he or she went to see some member of the police force and that his or her
efforts were unsuccessful. The burden of proof that rests on the claimant is,
in a way, directly proportional to the level of the democracy of the state in
question: the more democratic the state’s institutions, the more the claimant
must have done to exhaust all courses of action open to him or her.
[15]
For
the foregoing summary of the law on state protection, the RPD cites Canada (Attorney
General) v. Ward, Zalzali
v. Canada (Minister of Employment and Immigration) Canada (Minister of
Employment and Immigration) v. Villafranca and Canada (Minister of
Citizenship and Immigration) v. Kadenko. I am
satisfied that the foregoing is an accurate summary of the fundamental
principles regarding state protection and that the authorities relied on in
support of the RPD’s summary fully support the summary.
[16]
In
reviewing the evidence before it, the RPD makes specific reference to the two
(2) significant incidents described earlier in these reasons and concludes:
Based on the
aforementioned evidence, the panel does not find that there was [a] lack of
state protection for the claimant in Mexico. The state made
serious efforts to provide protection when he asked for it.
I agree with the foregoing conclusion of
the Board that state protection must be adequate, not perfect and in this case,
the state made serious efforts to provide protection. The state protection
available to the principal applicant was not rendered null because his release
from detention was only effected on the payment of a bribe to a judge. After
his release, the principal applicant used legal mechanisms available to him in Mexico to obtain a
judicial order destined to prevent a reoccurrence of the “kidnapping event”.
[17]
The
RPD notes that, apart from the state protection sought and obtained on the two
(2) incidents, the Applicants never otherwise sought to avail themselves of
state protection. No adequate explanation for that failure was provided by the
Applicants.
[18]
I
conclude that, against a standard of review of reasonableness simpliciter,
the RPD did not err by placing too high a burden on the Applicants on the issue
of seeking state protection.
c)
Misconstruing and ignoring evidence
[19]
The
RPD rather briefly references the documentary evidence before it. In Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), Justice Evans
wrote at paragraphs [16] and [17] of his reasons:
…the reasons given by
administrative agencies are not to be read hypercritically by a court…, nor are
agencies required to refer to every piece of evidence that they received that
is contrary to their finding, and to explain how they dealt with it… . That
would be far too onerous a burden to impose upon administrative decision-makers
who may be struggling with a heavy case-load and inadequate resources. A
statement by the agency in its reasons for decision that, in making its
findings, it considered all the evidence before it, will often suffice to
assure the parties, and a reviewing court, that the agency directed itself to
the totality of the evidence when making its findings of fact.
However, the more
important the evidence that is not mentioned specifically and analyzed in the
agency’s reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact “without regard to the evidence”…
. In other words, the agency’s burden of explanation increases with the
relevance of the evidence in question to the disputed facts. Thus, a blanket
statement that the agency has considered all the evidence will not suffice when
the evidence omitted from any discussion in the reasons appears squarely to
contradict the agency’s finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.
[citations
omitted]
[20]
I
am satisfied that it is fair to say that the RPD’s summary of the documentary
evidence on state protection in Mexico that was before it is
less than well balanced. It is trite to say that the documentary evidence on
state protection in Mexico that regularly comes before this Court indicates
that state protection in Mexico is far from perfect and indeed, for some,
may well be less than adequate. However, perfection is not the standard and
even if protection is not adequate for some, that is not the test. The
question is whether, for persons similarly situated to these Applicants in Mexico, state
protection is adequate. The evidence before the Court demonstrates that the
principal applicant and Blanca are intelligent, articulate and reasonably
sophisticated.
[21]
I
conclude that the RPD’s review of the documentary evidence before it, on the
particular facts of this claim, is adequate against a standard of review of
patent unreasonableness. I decline to infer that the RPD overlooked
contradictory evidence when making its findings of fact regarding these
Applicants.
d) Internal
flight alternative
[22]
The
RPD quite properly cites the test for determination of an internal flight
alternative as set out in Rasaratnam v. Canada (Minister of Employment and
Immigration),
that being, to establish that persons such as the Applicants have a viable
internal flight alternative, it must be shown that: first, there is no serious
possibility of persecution for them in the area of the identified internal
flight alternative; and secondly, that the conditions in that area are such
that it is not unreasonable for persons such as the Applicants to move there.
[23]
The
RPD notes that the Applicants resided in Guadalajara for more than a year
during their troubles, that the principal applicant testified that he and his
family had no problems related to their experiences in Veracruz during the time
that they lived in Guadalajara and that the principal applicant’s testimony
regarding the reason for returning to Veracruz was the failure of his business
in Guadalajara. In fact, as the RPD notes, the principal applicant expressed
only one concern regarding residing in Guadalajara, that being
the pervasive violence in that city.
[24]
The
RPD concluded that both elements of the test for a viable internal flight
alternative are met in the case of these Applicants.
[25]
I
am satisfied, against a standard of review of patent unreasonableness, that the
RPD made no reviewable error in so concluding.
CONCLUSION
[26]
Based
on the foregoing analysis, this application for judicial review will be
dismissed.
CERTIFICATION OF A
QUESTION
[27]
At
the close of the hearing of this matter, counsel were advised of the Court’s
conclusion. Counsel were consulted on the issue of certification of a
question. Neither counsel recommended certification of a question. The Court
itself is satisfied that this matters turns on its particular facts and the
totality of the evidence that was before the RPD. No serious question of
general importance arises. In the result, no question will be certified.
“Frederick
E. Gibson”
Ottawa,
Ontario
February
27, 2008
Email this Content