Date: 20080416
Docket: IMM-3452-07
Citation: 2008 FC 491
Ottawa,
Ontario, April 16, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ROSARIO ADRIANA FLORES ZEPEDA,
GREGORIO MORENO QUINTANILLA, AND
VICTOR GUSTAVO RAMIREZ FLORES
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act), for judicial review of a decision
of the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dated August 3, 2007, wherein the Board determined that the applicants
were not Convention refugees according to Section 96 of the Act, nor
"persons in need of protection" according to Section 97 of the Act.
[2]
The applicants are citizens of Mexico and
residents of Queretaro State.
The 32 year old female applicant, (the principal applicant) fears her former
husband, from whom she was separated in 1997. She describes her former spouse
as a violent, jealous and vengeful man who has often abused her and threatened
to kidnap her son. She never approached the police for protection as her former
husband was himself a policeman. She is also accompanied by her minor son.
[3]
The male applicant is the common-law spouse of
the principal applicant. He fears the principal applicant’s former husband, who
threatened his life numerous times and beat him to the point of requiring hospitalization
on one occasion in order to intimidate him into leaving the principal
applicant. He complained to the police in October 2005, however they refused to
register his complaint, and he was instructed to leave the perpetrator alone.
[4]
The male applicant arrived in Canada on March 25, 2006 and claimed Refugee
protection on March 28, 2006. The principal applicant and her son arrived in Canada on
June 10, 2006 and
made their claims on the same day.
[5]
In a decision dated August 3, 2007, the Board
rejected the applicants’ claims for protection, as it was of the view that
adequate state protection existed in Mexico. The Board noted that as Mexico was a functioning democracy, the presumption of state protection
applies, and thus, in order to rebut that presumption, the applicants must
provide “clear and convincing” evidence that the state is unable or unwilling
to protect them.
[6]
First, the Board analyzed the claim of the
principal applicant. The Board noted that while there remain areas of
protection for women which need to be improved, Mexico has taken great strides in protecting its female citizens in the
Federal District (F.D.) of Mexico City. The Board was satisfied that a comprehensive legislative scheme
was in place that gives victims of domestic violence both protection and
recourse in the F.D., and that the state has put in place numerous initiatives
that will assist a citizen in accessing the protection and recourse provided by
the legislation. However, while all of those efforts do not always provide
protection to all citizens, the protection available was adequate.
[7]
Next, the Board examined the male applicant’s
claim and focused on his failure to complain about the inefficiency of the
police to other institutions. The Board stated that local failures to provide
protection do not amount to a lack of state protection and that pursuant to the
documentary evidence, if the applicant was dissatisfied with police efforts or
concerned that police corruption was a factor, there were avenues open through
which he could seek redress. The Board recognized that there is serious crime
and corruption in Mexico, but
documentary evidence indicates that serious efforts are being made by the
government to tackle this problem as well as the problem with drug traffickers.
I. Standard of
review
[8]
In Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL), at para. 11, I concluded
that, given the nature of the question, as one of mixed fact and law, and the
relative expertise of this Court in determining whether a legal standard has
been met, the appropriate standard of review applicable to determinations of
state protection is one of reasonableness simpliciter.
[9]
However, in light of the recent decision of the
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9,
the question of the applicable standard of review must be revisited. The
Supreme Court offered the following guidance in determining the standard of
review:
[…] questions of fact, discretion and
policy as well as questions where the legal issues cannot be easily separated
from the factual issues generally attract a standard of reasonableness while
many legal issues attract a standard of correctness. Some legal issues
however, attract the more deferential standard of reasonableness. (at para.
51).
Further, at para. 62, the Court highlighted
that the process of judicial review occurs in two stages:
First, courts ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
defence 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.
[10]
In
a recent decision, Madam Justice Eleanor Dawson, examined the standard of
review applicable to findings regarding state protection and concluded that in
light of Dunsmuir, above, the standard remains that of reasonableness (Eler v. Canada (Minister of Citizenship and Immigration), 2008 FC 334, at para. 6). Thus, pursuant to the
reasonableness standard, the analysis of the Board’s decision will be concerned
with “the existence of justification, transparency and intelligibility within
the decision-making process [and also with] […] whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir, above, at para. 47).
II. Analysis
[11]
The determinative issue in this application is
the ability of the state of Mexico to adequately protect the applicants from their alleged persecutor,
the principal applicant’s former husband, a police officer.
[12]
The applicants argue that the Board erred in its
state protection analysis and that a claim should not be rejected where there
is evidence that state protection would either not be forthcoming or where it
would be ineffective. The respondent submits that given the fact that Mexico is a democracy, the presumption of
state protection is a strong one and the applicants have not provided clear and
cogent evidence capable of rebutting it.
[13]
It is true that “clear and convincing
confirmation” of a state’s inability to protect must be put forth by an
applicant, and that absent such proof, it is to be presumed that a state can
protect its own citizens (Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689, at pages 724-725, [1993] S.C.J. No. 74 (QL), at para. 50). In this
context, the more democratic a state is, the more the individual must have done
to exhaust all avenues of protection available (Kadenko v. Canada (Solicitor
General) (1996), 143 D.L.R. (4th) 532, at p. 534, [1996] F.C.J.
No. 1376 (QL), at para. 5; Hinzman v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 171, [2007] F.C.J. No. 584 (QL), at para. 57).
[14]
In the recent decision of Hinzman, above,
at para. 54 the Federal Court of Appeal noted that “[t]he presumption of state
protection described in Ward, therefore, applies equally to cases where
an individual claims to fear persecution by non-state entities and to cases
where the state is alleged to be a persecutor.” Thus, the existence of state
persecuting agents does not serve to automatically rebut the presumption that a
state is capable of protecting its citizens.
[15]
The Court of Appeal expounded upon the nature of
the burden imposed upon claimants when attempting to rebut the presumption of
state protection:
Kadenko and Satiacum together teach that
in the case of a developed democracy, the claimant is faced with the burden of
proving that he exhausted all the possible protections available to him and will
be exempted from his obligation to seek state protection only in the event of
exceptional circumstances: Kadenko at page 534, Satiacum at page
176. (Hinzman, above, at para. 57)
[16]
While the burden placed on claimants from developed
democratic states is a high one, I remain of the view that this burden does not
require that they put themselves in danger in order to exhaust all possible
avenues of protection. Indeed, as Justice LaForest indicated, an individual
will be required to seek state protection where it would be objectively
unreasonable not to do so (Ward, above, at para. 49). In Chaves,
above, at para. 18, I stated that:
[…]
notwithstanding that not every member of the [police] was implicated in the
applicant’s persecution, seeking help from the [police], - asking, in effect,
the [police] to protect the applicant from itself – would have in all
likelihood placed the applicant in greater peril.
Indeed,
in my opinion, the requirement of having to place oneself in danger in order to
exhaust all protection avenues would constitute an “exceptional circumstance”
referred to by the Federal Court of Appeal above.
[17]
With respect to the strength of the applicable
presumption in Mexico, the respondent cites the case of Velazquez v. Canada (Minister of Citizenship and
Immigration), 2006 FC 532, [2006] F.C.J. No. 663
(QL), at para. 6, in which Justice Michael Phelan stated “Mexico is a functioning democracy, and a
member of the NAFTA, with democratic institutions. Therefore, the presumption
of state protection is a strong one.” (see also Canseco v. Canada (Minister of Citizenship and
Immigration), 2007 FC 73, [2007] F.C.J. No. 115
(QL), at para. 14; Alfaro v. Canada (Minister of Citizenship and Immigration), 2006 FC 460, [2006] F.C.J. No. 569 (QL), at para. 18, highlighting the free
and democratic nature of Mexican society).
[18]
However, other jurisprudence has focussed on the
problems that remain in Mexico’s
democracy. Recently, Deputy Justice Orville Frenette in De Leon v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1307, [2007] F.C.J. No. 1684
(QL), at para. 28 indicated that as a developing democracy with problems
including corruption and drug trafficking involving state authorities, the
presumption of state protection applicable to Mexico is more easily overturned.
[19]
Similarly in Capitaine v. Canada
(Minister of Citizenship and Immigration), 2008 FC 98, [2008] F.C.J. No.
181 (QL), at paras. 20-22, my colleague, Madam Justice Johanne Gauthier
addressed the presumption of state protection in the context of Mexico’s
democracy:
20 Mexico is a
democracy to which a presumption of state protection applies, even if its place
on the "democracy spectrum" needs to be assessed to determine what
credible and reliable evidence will be sufficient to displace that presumption
[…]
21 In developed
democracies such as the U.S. and Israel, it is clear from Hinzman (at
paras. 46 and 57) that to rebut the presumption of state protection, this
evidence must include proof that an applicant has exhausted all recourses
available to her or him. It is also clear that, except in exceptional
circumstances, it would be unreasonable in such countries not to seek state
protection before seeking it in Canada.
22 The Court does not
understand Hinzman to say that this conclusion applies to all countries
wherever they stand on the "democracy spectrum" and to relieve the
decision-maker of his or her obligation to assess the evidence offered to
establish that, in Mexico for example, the state is unable (although willing)
to protect its citizens, or that it was reasonable for the claimant to refuse
to seek out this protection. […]
[20]
I find Madam Justice Gauthier’s approach
to the presumption of state protection in Mexico to be persuasive. While Mexico
is a democracy and generally willing to protect its citizens, its governance
and corruption problems are well documented. Accordingly, decision-makers must
engage in a full assessment of the evidence placed before them suggesting that Mexico,
while willing to protect, may be unable to do so. This assessment should
include the context of the country of origin in general, all the steps that the
applicants did in fact take, and their interaction with the authorities (Hernandez
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1211, [2007]
F.C.J. No. 1563 (QL), at para. 21; G.D.C.P. v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 989, [2002] F.C.J. No. 1331 (QL), at
para. 18).
[21]
I also note that with respect to avenues of
protection that the applicants were required to exhaust, the applicants and the
respondent have highlighted conflicting lines of jurisprudence.
[22]
One line of jurisprudence holds that in seeking
protection, an applicant is not required to “seek counselling, legal advice, or
assistance from human rights agencies if the police are unable to help” (Malik
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 453, [2003]
F.C.J. No. 645 (QL), at para. 21; Molnar v. Canada (Minister of Citizenship
and Immigration), [2003] F.C. 339, [2002] F.C.J. 1425 (QL), at paras. 23-24).
[23]
Another line of jurisprudence holds that for the
purposes of conducting a state protection analysis, state-run or state-funded
agencies other than the police can be taken into account (Pal v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 698, [2003] F.C.J. No.
894 (QL), at para. 5; Nagy v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 281, [2002] F.C.J. No. 370 (QL); Szucs v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1614 (QL), at
para. 29).
[24]
In the present case, the Board proposed a number
of alternate institutions in response to the applicants’ claim that they were
dissatisfied with police efforts and concerned with police corruption, including
National or State Human Rights Commissions, the Secretariat of Public
Administration, the Program Against Impunity, the General Comptroller’s
Assistance Directorate or through a complaints procedure at the Office of the Attorney General (PGR).
[25]
I am of the view that these alternate institutions
do not constitute avenues of protection per se; unless there is evidence
to the contrary, the police force is the only institution mandated with the protection
of a nation’s citizens and in possession of enforcement powers commensurate
with this mandate. For example, the documentary evidence explicitly states that
the National Human Rights Commission has no legal power of enforcement (“Mexico:
Situation of Witness to Crime and Corruption, Women Victims of Violence and
Victims of Discrimination Based on Sexual Orientation”).
[26]
The Board’s decision points to many efforts
being made by the state to protect women from domestic violence. However, what
was important was for the Board to be satisfied that the protection offered in
Mexico was effective (Lopez v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1341, [2007] F.C.J. No. 1733 (QL), at para. 16; Garcia
v. Canada (Minister of Citizenship and Immigration), 2007 FC 79, [2007]
F.C.J. No. 118 (QL), at para. 15; Avila v. Canada (Minister of Citizenship
and Immigration), 2006 FC 359, [2006] F.C.J. No. 439 (QL), at para. 34; Elcock
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1438
(QL), at para. 15).
[27]
With respect to the principal applicant, who did
not personally complain about the actions of her former husband, a police
officer, the Board examined the documentary evidence and concluded that there
were measures in place to deal with such a situation. However, the Board was
faced with an abundance of evidence which indicated that these measures were
not effective.
[28]
This Court has consistently held that where
there is contradictory evidence before the Board, it must provide reasons why
it did not consider this evidence relevant or trustworthy (Simpson v. Canada
(Minister of Citizenship and Immigration), [2006] FC 970, [2006] F.C.J. No.
1224 (QL), at para. 44; Castillo v. Canada (Minister of Citizenship and
Immigration), 2004 FC 56, [2004] F.C.J. No. 43 (QL), at para. 9; Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(QL), at para. 15).
[29]
More particularly, while the Board refers to the
document entitled “Mexico:
Domestic Violence and Other Issues Related to the Status of Women”, dated March
2003,
it did not address portions of the same document which pointed to a different
conclusion. For example, excerpts indicated that domestic abuse occurs in one
of every three homes in Mexico.
Further, according to the Justice Attorney General’s Office of the Federal
District, 48% of homicides committed in 2001 were attributed to domestic
violence. The document also indicated that Mexican society generally considers
domestic violence to be a private matter and police are reluctant to intervene.
With respect to the availability of shelters for women who are victims of
violence, the document indicates that according to COVAC [Mexican Association
Against Violence Towards Women] “existing shelters established for victims of
violence are saturated and that the assistance that can be received is temporary
and does not generally respond to the growing need in the cities.” Finally,
according to Marta Torres, Coordinator of the Interdisciplinary Women’s Studies
Program at the Colegio de México, “despite the progress made in the legislative
field, the existing legislation on spousal abuse has not yet had a decisive
impact.”
[30]
The 2006 U.S. State Department Report on Mexico,
also specifically referred to by the Board, indicates that at the state level,
laws sanctioning domestic violence, if any, are weak, and victims generally do
not report abuse for many reasons, including disinterest of authorities in
prosecuting such offences. Further, violence against women remained a
widespread phenomenon throughout the country; on an annual basis approximately
1,600 women were killed nationwide mostly from domestic violence. Finally, in
August the UN Committee for the Elimination of Discrimination Against Women
said that there were no visible results from government efforts to prevent
gender violence.
[31]
The issue paper entitled “Mexico: Situation of
Witnesses to Crime and Corruption, Women Victims of Violence and Victims of
Discrimination Based on Sexual Orientation”, dated February 2007, again referred
to by the Board, indicates in the “Effectiveness of protection efforts” section
that the effectiveness of law enforcement and shelters in meeting the needs of
victims could not be provided:
Regarding the
effectiveness of protection available to women victims of violence
interlocutors from both governmental and non-governmental organizations stated
that evaluation efforts are relatively new and statistical information on, for
example, the effectiveness of law enforcement and shelters in meeting the needs
of victims could not be provided […]
[32]
Further, in the National Documentation Package
provided to the Board was a document entitled “Integration of the Human Rights
of Women and a Gender Perspective: Violence Against Women”, dated January 13,
2006 (National Documentation Package on Mexico, item 5.15). This report by the United Nations Special Rapporteur
on violence against women regarding the situation in Mexico, instructively states the following:
The Government
of Mexico has taken significant steps to prevent, punish and eradicate violence
against women with due diligence. But in the light of the unbearably high
levels of violence against women that continue to exist in Mexico, the
Government needs to do more to live up to its international obligations. The
responsiveness of the police and justice sectors to gender-based violence
remains inadequate overall and needs to be improved (para. 63)
[Emphasis added]
The
views of the Special Rapporteur present cogent evidence that despite the
government of Mexico’s “due
diligence”, the response to gender-based violence remains inadequate. While the
Board is not required to defer to the Special Rapporteur’s general conclusions,
it is required to address relevant and contradictory evidence.
[33]
With respect to the male applicant, the Board
was of the view that he should have exhausted additional avenues of protection.
The Board was cognizant of the fact that the applicant complained directly to
the police after his attack; however, it failed to mention the fact that he
did submit a complaint to the Queretaro State Human Rights Commission. This State Human Rights Commission was specifically mentioned by
the Board as an alternate institution capable of addressing the applicants’
corruption concerns. I note that the Board referred to an Amnesty Report in its
reasons stating that commissions were overall ineffective in holding the
authorities accountable for their actions and yet without further explanation paradoxically
went on to cite it as a possible avenue for redress.
[34]
In light of the foregoing, I am of the view that
the Board erred by failing to consider the abovementioned documents in its
analysis of state protection.
[35]
Accordingly, the application for
judicial review is allowed. The matter is returned to a newly constituted
Board for re-hearing and re-determination.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is allowed. The matter
is returned to a newly constituted Board for re-hearing and re-determination.
“Danièle
Tremblay-Lamer”
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