Date: 20080604
Docket: IMM-4089-07
Citation: 2008 FC 702
Vancouver, British Columbia, June
4, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
GASTON
CHAVEZ SOLIS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review is dismissed because I find no reviewable error
in the conclusion of the Refugee Protection Division of the Immigration and
Refugee Board (RPD) that adequate state protection exists for Mr. Chavez Solis
in the Federal District of Mexico.
FACTS
[2]
Gaston
Chavez Solis is a citizen of Mexico. He claims to have a well-founded fear of
persecution on the basis of threats received from a corrupt official within the
Ministry of Defence. Specifically, Mr. Chavez Solis says that, while working as
an accountant with a company that provided medical supplies to the military, he
became aware of corrupt bidding practices used by the company to secure
contracts. When Mr. Chavez Solis expressed his intention to leave the company,
he says that he was threatened by a “high level” military officer within the
Ministry of Defence and began receiving threats against his life.
[3]
On May 1, 2006, Mr. Chavez Solis arrived in Canada. He filed a claim for
refugee protection on May 31, 2006.
DECISION
OF THE RPD
[4]
The
reasons of the RPD are confusing about the credibility of Mr. Chavez
Solis' evidence. The RPD spoke of "credibility concerns in core events of the
claim" and found that a letter filed in support of Mr. Chavez Solis' claim
defied logic. However, I agree with the submissions of both counsel that the
RPD's credibility concerns appear to have been obiter and that the RPD
accepted that Mr. Chavez Solis has a well-founded fear of persecution in Mexico.
This is the only rational conclusion that can be reached in view of the
RPD's expression of sympathy for Mr. Chavez Solis’ “fear of being the test
case so to speak" on the adequacy of state protection.
[5]
With respect to state protection, after reviewing the documentary
evidence, the RPD concluded that, if Mr. Chavez Solis had approached the
authorities, “meaningful protection would have been provided.” The RPD
distinguished the documentary evidence relied upon by Mr. Chavez Solis, noting
that it did not relate to “military officers accused of corruption and bid
rigging,” but rather to officers “who exceeded their authority […] and in so
doing violated suspects’ human rights.”
ALLEGED
ERRORS
[6]
Mr.
Chavez Solis asserts that the RPD's finding of adequate state protection is
flawed in two respects. First, he argues that the RPD failed to consider the
effectiveness of Mexico's efforts to respond to corruption and criminal
activity. Second, he argues that the RPD:
·
ignored, or wrongly distinguished, evidence that any complaint
made about a military officer would be referred to military authorities for
investigation;
·
ignored, or wrongly distinguished, evidence that internal
military investigations are wholly inadequate and that a high level of
impunity exists for those who are accused of abusing civilians; and
·
erred by rejecting reports of Amnesty International and Human Rights
Watch because they dealt with human rights abuses and not matters of
corruption.
STANDARD
OF REVIEW
[7]
Decisions of the RPD about the adequacy of state
protection have been found to be reviewable against the standard of
reasonableness simpliciter. See: Hinzman v. Canada (Minister of Citizenship and Immigration) (2007),
362 N.R. 1 at paragraph 38 (F.C.A.). I am satisfied that such
jurisprudence satisfactorily determined the degree of deference to be given to
the RPD’s finding of state protection. See: Dunsmuir v. New Brunswick, [2008]
S.C.J. No. 9 (QL) at paragraphs 57, 62, and 64. The RPD's finding of
the existence of state protection should be reviewed against the standard of
reasonableness.
GENERAL
PRINCIPLES OF LAW
[8]
Mr. Chavez Solis did not
seek protection in Mexico. As a
matter of law, Mr. Chavez Solis was therefore required to provide clear and
convincing confirmation of Mexico's
inability to protect him. See: Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689 at pages 724 and 725. Without such evidence, Mr. Chavez Solis' claim for
protection must fail because it is presumed that a country is capable of
protecting its citizens. A claimant who seeks to rebut the presumption of state
protection faces a heavy evidentiary burden. A claimant must adduce relevant,
reliable, and convincing evidence to establish, on a balance of probabilities,
that state protection is inadequate. See: Carillo v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. No. 399 (QL) at paragraph
30.
APPLICATION OF THE STANDARD OF REVIEW TO THE DECISION OF THE RPD
[9]
In my view, contrary to Mr. Chavez Solis’
submissions, the RPD did consider whether Mexico's corruption reforms were effective. I say this because after
reviewing the "documentary evidence as it applies to efforts to provide
adequate protection for [a] person such as a claimant," the RPD concluded
that "if the claimant had approached the authorities, meaningful
assistance would have been provided." The reasons of the RPD show
that it was mindful of the fact that no country can guarantee the protection of
all of its citizens. The evidence before the RPD fell short of establishing
that in the Federal District of Mexico there was a broad-based ineffectiveness
in the quality of protection available to victims of corruption.
[10]
Turning to the second asserted error, Mr. Chavez
Solis argues that the RPD ignored the following evidence:
·
An Amnesty International report
that referred to a 2005 National Supreme Court decision, which confirmed the
judicial precedent of granting the military wide jurisdiction when determining
the criminal responsibility of military officials. This was so even if the
official was not on active duty or carrying out military activities. The report
highlighted the ongoing impunity that this generated for military officials.
·
A Human Rights Watch report which
stated that a "major shortcoming of the Mexican justice system is that it
leaves the task of investigating and prosecuting army abuses to military
authorities. The military justice system is ill-equipped for such tasks. It
lacks the independence necessary to carry out reliable investigations and its
operations suffer from a general absence of transparency."
[11]
The RPD did not ignore this evidence. It found that the Amnesty
International document did not to relate to corruption and the cover-up of
corruption, but rather to human rights violations, such as rape, and the
involvement of military officials in carrying out civilian policing (such as
policing operations to combat drugs). The Human Rights Watch document was found
not to apply to officers accused of corruption or bid rigging, but rather to
apply to officers who violated suspects’ human rights while investigating or
controlling civil disruption.
[12]
I have read both articles carefully. In my view, the
interpretation given to the evidence by the RPD was reasonable and open to it
on the evidence.
[13]
Reading the reasons of the RPD
with respect to state protection as a whole, the RPD pointed to evidence that
was sufficient to support its finding that serious efforts were being made to
provide adequate protection in the Federal District of Mexico and that
meaningful assistance would have been available to Mr. Chavez Solis had he
approached the authorities. A rational basis existed in the evidence for the
RPD's treatment of the Amnesty International and Human Rights Watch reports. It
was Mr. Chavez Solis who faced the heavy onus of refuting the presumption of
state protection.
[14]
In my view, the reasons of the RPD on state
protection were transparent, intelligible, and justified. The RPD's conclusion
on state protection was also within the range of possible, acceptable outcomes
which were defensible on the basis of the facts and law. The RPD's decision
was, therefore, reasonable.
[15]
Accordingly, the application for judicial review is
dismissed.
[16]
Counsel posed no question for certification, and I
am satisfied that no question arises on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is
dismissed.
“Eleanor
R. Dawson”
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