Date: 20080609
Docket: IMM-4613-07
Citation: 2008 FC 723
Ottawa, Ontario, June 9,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
NUBIA VICTORIA SUAREZ FLORES
NICOLAS ROSALES DAVILA
LUIS ENRIQUE MALDONADO SUAREZ
NUBIA ARITZY MALDONADO SUAREZ
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants are a family of four, all citizens of Mexico. They fled
to Canada and applied
for refugee status in 2006, which was denied in October 2007. This application
for judicial review is of the finding of the Refugee Protection Division (RPD)
that they are neither Convention refugees nor persons in need of protection.
[2]
The
claims of the two minor children and the adult male applicant are based on that
of the adult female applicant, Ms Flores, who alleges fear of her former common
law partner, Enrique. In 1994, aged 14,
Ms. Flores began a relationship with Enrique, who became abusive towards her
after she announced the following year that she was pregnant. The two minor
claimants are her children from that relationship, born in 1996 and 1997.
[3]
Enrique
spent nine months in prison in 1996 and almost five years from 2001 to 2005. In
the gap between the two, he threatened the principal applicant and allegedly killed two men with whom she had started
relationships. Ms. Flores married the adult male applicant, Mr. Davila, during
Enrique’s second incarceration. On Enrique’s release, he threatened Ms. Flores
at her mother’s house. She and Mr. Davila went to the police, who refused to
take a denunciation.
[4]
In December 2005, Mr. Davila was
allegedly attacked by two unknown men. He did not require medical attention and
the attack was not reported to police. The family relocated within Mexico in
February 2006, but was followed by Enrique, with whom Mr. Davila got into a
fight in March 2006. They moved again several times within Mexico,
apparently always being followed by Enrique. On September 13, 2006, they fled
to Canada.
[5]
The panel member found that Ms
Flores failed to make diligent efforts to seek state protection prior to
seeking asylum and thus her family was not in need of Canada’s protection.
The finding that such protection would be reasonably forthcoming was based
largely on legislative and judicial measures to combat domestic violence and
measures to assist women who are its victims taken by the Mexican authorities.
[6]
The
applicants allege that the RPD panel member erred in the assessment of state
protection and in ignoring highly relevant evidence without explanation.
[7]
The claim that the member ignored
evidence which contradicted the decision would mean that the decision was
unreasonable according to the statutory guidance of paragraph 18.1(4)(d)
of the Federal Courts Act, R.S., 1985, c. F-7.
State protection
[8]
The applicants argued in their
written submissions that the legal test for a finding of state protection was
whether that protection was effective, citing Carrillo v. Canada (Minister
of Citizenship and Immigration), 2007 FC 320, [2008] 1 F.C.R. 3. In the
interim between the filing of the representations and the hearing, that
decision had been overturned by the Federal Court of Appeal in Canada
(Minister of Citizenship and Immigration) v. Carrillo, 2008 FCA 94, [2008]
F.C.J. No. 399 which confirmed that the test is adequacy rather than
effectiveness per se.
[9]
The applicants contend,
nonetheless, that it remains an error for an RPD panel to fail to consider
whether the measures it deems adequate are at least minimally effective.
[10]
While
this is an attractive argument, it does not convey the current state of the law
in Canada in my view. As
noted by the Federal Court of Appeal in Carillo, the decision of the
Supreme Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 stressed
that refugee protection is a surrogate for the protection of a claimant’s own state.
When that state is a democratic society, such as Mexico, albeit one
facing significant challenges with corruption and other criminality, the
quality of the evidence necessary to rebut the presumption will be higher. It
is not enough for a claimant merely to show that his government has not always
been effective at protecting persons in his particular situation: Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R.
(2d) 130 (F.C.A.).
[11]
The
serious efforts to provide protection noted by the panel member support the
presumption set out in Ward. Requiring effectiveness of other countries’
authorities would be to ask of them what our own country is not always able to
provide.
Ignoring
evidence
[12]
The
relevant evidence which the applicants claim the panel member erred in failing
to mention includes the Issue Paper on State Protection in Mexico authored by
the RPD itself. The failure of an RPD panel to discuss that same documentary
evidence in a similar case was the basis of my colleague Justice Luc J.
Martineau’s finding that the decision of that panel was not based on the
entirety of the evidence: Avila v. Canada (Minister of Citizenship and
Immigration), 2006 FC 359, 295 F.T.R. 35.
[13]
In
coming to his decision, however, Justice Martineau indicated that the panel had
failed to assess the personal circumstances of the applicant. Indeed, he warned
of the ‘systematic’ approach which might erroneously be undertaken in the cases
of claimants from a particular country when the reasons for dismissal given by
the Board are too general and may apply equally to another country or another
claimant.
[14]
Such
an error cannot be said to have occurred in the instant case. The panel member cited
a number of documents from the evidence, which included one entitled “Mexico: Domestic
Violence and Other Issues Related to the Status of Women”. It is clear from the
decision that the panel member assessed the personal circumstances of Ms.
Flores as a woman victim of domestic abuse and the state protection which would
be reasonably forthcoming from the Mexican government, should she avail herself
of it.
[15]
It
is trite law that decision makers are presumed to have considered all the
evidence before them, absent strong indications to the contrary. In the instant
case, those indications are absent and the presumption stands.
[16]
It
was reasonably open to the RPD panel member to come to the decision at which he
or she arrived and it will not be set aside. No questions were proposed for
certification.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application is
dismissed.
“Richard
G. Mosley”
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