Date: 20080307
Docket: IMM-2534-07
Citation: 2008 FC 314
Ottawa, Ontario, March 7, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
VIRIDIANA
CATALINA HERRERA VILLALVA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated May 17, 2007 concluding
that the applicant is not a Convention refugee or a person in need of
protection.
FACTS
[2]
The
applicant, a 30-year-old Mexican citizen, arrived in Canada on September 5,
2005 seeking refugee protection on account of her relationship with Alfredo
Jimenez Mota, an investigative journalist who went missing in April 2005 and
has not been heard from since. At the time of his disappearance, Mr. Mota was
investigating the connections between drug traffickers and the police. He had
also published a number of articles on the subject.
[3]
The
applicant’s relationship with Mr. Mota lasted approximately three years, from
April or May 2002 until his disappearance in April 2005. The applicant states
that during this time, Mr. Mota occasionally confided in her about his
activities. The applicant states that because of her connection to Mr. Mota and
his investigations, she herself was threatened and harassed on five occasions. The
incidents cited by the applicant include:
1) around April
2003 the applicant was confronted by two men in a coffee shop, one of whom
pushed the applicant and told her that she would “face the consequences” if Mr.
Mota did not stop working on his investigations;
2) around
October 2003, the applicant was abducted at gunpoint by the same two
individuals. She states that they beat and manhandled her and told her to tell
Mr. Mota that she would suffer the consequences if he did not stop his
investigations;
3) around
December 2003, shortly after Mr. Mota had published an article about a car
accident involving the son of a “drug lord,” the applicant began receiving
threatening messages on her cell phone from numbers that she traced to
government offices;
4) around
December 2004, after the applicant had moved to another city, she was again
approached by the same two men and was threatened at gunpoint; and
5) around April
2005, after Mr. Mota had gone missing, the applicant received a threatening phone
call from an individual who told her that her “last days” had arrived. The
phone call came approximately three weeks after a journalist friend of the
applicant’s had been fatally shot.
[4]
Shortly
after the December 2004 incident, the applicant’s parents persuaded her to contact
the authorities. Accordingly, the applicant attended the Mexican Public
Ministry and requested protection. However, she was told that because her
complaint was based on her connection to Mr. Mota, he would need to make a
joint statement with the applicant. When the applicant explained the situation
to Mr. Mota he told her to flee for her own safety.
[5]
The
applicant believes that because of the nature of Mr. Mota’s investigations,
which connected the police to the drug trafficking industry, she would not be
able to receive adequate protection in Mexico. It is this
fear that forms the basis of her refugee claim, which was heard by the Board on
December 13, 2006.
Decision under review
[6]
On
May 17, 2007, the Board concluded that the applicant was not a Convention
refugee or a person in need of protection. In reaching its decision, the Board made
no adverse findings with respect to the applicant’s credibility. Rather, the
Board based its decision on the adequacy of state protection in Mexico,
concluding that the applicant failed to rebut the presumption of state
protection enunciated by the Supreme Court of Canada in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689. The Board stated at page 6 of its
decision:
The panel does not disagree that
criminality, including corruption, continues in Mexico. However, based on the totality of the
evidence adduced, the panel finds that Mexico is making serious efforts to protect its
citizens who are witnesses and victims of crime, corruption and kidnappings.
Therefore, based on the evidence adduced,
the panel finds that adequate, if not perfect, state protection is available to
the claimant in Mexico. In this case, the claimant,
living in a democracy, simply did not reasonably exhaust the courses of action
available to her prior to seeking international protection.
Since adequate state protection is
available to the claimant, the panel finds that there is not a serious
possibility that the claimant will face persecution, a risk to her life, a
danger of torture, or a risk of cruel and unusual treatment or punishment
should she return to Mexico.
It is this decision that the applicant
seeks to have judicially reviewed.
ISSUE
[7]
The
sole issue raised in this application is whether the Board erred in finding
that state protection was available to the applicant in Mexico.
STANDARD OF REVIEW
[8]
In
Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003
SCC 19, [2003] 1 S.C.R. 226, the Supreme Court of Canada affirmed the primacy
of the pragmatic and functional approach when determining the appropriate
standard of review. In applying the pragmatic and functional approach to the
issue of state protection, Madam Justice Tremblay-Lamer concluded in Chaves
v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, 45 Imm.
L.R. (3d) 58, that the appropriate standard is that of reasonableness simpliciter.
This standard has been followed by a number of decisions of this Court: see Ramay
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 954, [2007] F.C.J. No. 1234 (QL);
Nunez v. Canada (Minister of Citizenship and Immigration), 2005 FC
1661, 51 Imm. L.R. (3d) 291; and Franklyn v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1249, [2005] F.C.J. No. 1508
(QL).
[9]
I
agree with this reasoning and conclude that the appropriate standard to apply
to the Board’s decision in the case at bar is that of reasonableness simpliciter.
Accordingly, as long as the Board’s reasons are “tenable in the sense that they
can stand up to a somewhat probing examination,” then the decision is
reasonable and the Court will not interfere with the Board’s decision: see Franklyn,
above, at paragraph 17.
ANALYSIS
Issue: Did the Board
err in concluding there existed adequate state protection in Mexico?
[10]
In
Ward, above, the Supreme Court of Canada held that except in situations
where there has been a complete breakdown of the state apparatus, there exists
a general presumption that a state is capable of protecting its citizens: see
also Canada (Minister of Employment and Immigration) v. Villafranca
(1992), 150 N.R. 232 (F.C.A.). As Mr. Justice La Forest stated at
page 725 of Ward:
… Absent some evidence, the claim should fail,
as nations should be presumed capable of protecting their citizens. Security of
nationals is, after all, the essence of sovereignty. Absent a situation of
complete breakdown of state apparatus … it should be assumed that the state is
capable of protecting a claimant.
[11]
While
the presumption of state protection may be rebutted, this can only occur where
the refugee claimant provides “clear and convincing” evidence confirming the
state’s inability to provide protection. Such evidence can include testimony of
similarly situated individuals let down by the state protection arrangement, or
the refugee claimant’s own testimony of past incidents in which state
protection was not provided: see Ward, above, at pages 724-725.
[12]
In
Kadenko v. Canada (Solicitor General) (1996), 206 N.R. 272 (F.C.A.), the
Federal Court of Appeal held that refugee claimants have an obligation to make
“reasonable efforts” at seeking out state protection, and that the burden on
the claimant increases where the state in question is democratic. Mr. Justice
Décary stated at paragraph 5:
¶ 5 When the state in question is a
democratic state, as is the case at bar, the claimant must do more than simply
show that he or she went to see some members 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 democracy in the
state in question: the more democratic the state’s institutions, the more the
claimant must have done to exhaust all the courses of action open to him or
her. …
[13]
In
the case at bar, the Board relied on the principles enunciated in both Kadenko
and Ward, above, in reaching its conclusion that the applicant failed to
rebut the presumption of state protection. The Board held that the applicant,
“living in a democracy, simply did not reasonably exhaust the courses of action
open to her” prior to seeking refugee protection. Accordingly, the Board
concluded that she had therefore not “discharged the onus of showing clear and
convincing proof of the state’s inability and unwillingness to protect her”:
Board decision at page 4.
[14]
In
her testimony, the applicant stated that she did not approach other law
enforcement agencies about her experiences because, on the basis of Mr. Mota’s
investigations, she believed they were in collusion with members of the drug
trafficking industry and would cause her more harm than good. However, the
Board found it unreasonable that, given her connection to Mr. Mota, she would
not ask him about which agencies or officials may be safe to approach.
[15]
The
Board then reviewed the documentary evidence, concluding at page 5 of its
decision:
Based on the evidence adduced, the panel
is not persuaded to believe that there is lack of action by the state
authorities against corrupt government officials. In this case, the claimant
did not make any further attempt to seek help.
According to the Board,
the Mexican administration has made corruption in government agencies a significant
priority, and has enacted “strict laws attacking corruption and bribery” within
the public service. Further, the Board concluded that there was no “persuasive
evidence” that the Mexican National Human Rights Commission would not have been
able to ensure that the applicant received adequate state protection from the individuals
threatening her life.
[16]
On
the basis of the Board’s conclusions, the respondent argues the applicant’s
claim must fail since the evidence demonstrates that Mexico is capable of
protecting its citizens, and that the applicant failed to take “specific,
demonstrable steps” to seek state protection as required by Kadenko,
above, and the recent Federal Court of Appeal decision in Hinzman v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, 362 N.R. 1.
[17]
However,
the Board’s decision does not canvas the recent Federal Court jurisprudence,
which states that Kadenko cannot not be interpreted as requiring the
refugee claimant to exhaust “every conceivable recourse” available to them in
order to rebut the presumption of state protection. This is especially true
where the state is alleged to be involved in the persecution. For example, in Chaves,
above, Madam Justice Tremblay-Lamer held at paragraph 15:
¶ 15 In my view, however, [Ward], supra
and Kadenko, supra, cannot be interpreted to suggest that an
individual will be required to exhaust all avenues before the presumption of
state protection can be rebutted…. Rather, where agents of the state are
themselves the source of the persecution in question, and where the applicant’s
credibility is not undermined, the applicant can successfully rebut the
presumption of state protection without exhausting every conceivable recourse
in the country. The very fact that the agents of the state are the alleged
perpetrators of persecution undercuts the apparent democratic nature of the
state’s institutions, and correspondingly, the burden of proof. …
See also Nunez,
above, at paragraph 15 and Sanchez v. Canada (Minister of
Citizenship and Immigration), 2004 FC 731, 36 Imm. L.R. (3d) 283 per
Mactavish J. at paragraph 22.
[18]
In
Ward, above, Mr. Justice La Forest stated that the presumption of state
protection can be rebutted by both the refugee claimant’s own evidence concerning
his/her inability to obtain state protection, as well as by the evidence of
similarly situated individuals who themselves were unable to obtain such
protection. In the case at bar, the applicant provided extensive evidence showing
that journalists, researchers, and their associates who were involved in investigating
ties between drug trafficking and the police, were unable to receive adequate
state protection. This evidence provides numerous specific examples, including reports
of Mr. Mota’s own disappearance, and is persuasive in establishing that
individuals in a similar situation to Mr. Mota and the applicant were unable to
obtain adequate state protection from the Mexican authorities.
[19]
The
evidence from the Mexican paper “Reporters without Borders for Press Freedom”
dated November 28, 2005 states that the police investigation of the disappearance
of reporter Mota was “totally inadequate”. This quote was from the head of the
Mexican National Human Rights Commission which concerns itself with attacks
against journalists.
[20]
“Reporters
without Borders for Press Freedom” for April 14, 2005 reported that Mr. Mota
notified the municipal police that he felt threatened and the police “treated
him as paranoid” and refused to take any action.
[21]
In
another journal entitled “Attacks on the Press in 2005” it is reported that
after Mr. Mota disappeared his editor came to the conclusion that the newspaper
cannot do any kind of investigative reporting on organized crime because there
is not adequate protection for such journalists.
[22]
In
its decision, the Board failed to address any of this evidence that the applicant
was unlikely to receive adequate state protection even if she had made further
inquiries to the Mexican authorities. The Court concludes that the Board’s
analysis of state protection was too general in the sense that it failed to
address the issue of state protection within the context of the applicant’s
specific situation. The evidence before the Board establishes that journalists,
researchers, and their families face significant risk in Mexico, especially
when involved investigating the ties between public officials and the drug
cartels.
[23]
In
Avila v. Canada (Minister of Citizenship and Immigration), [2006]
F.CJ. No. 439 Justice Martineau held at paragraph 34:
Although the Board alluded in its
decision to the problem of corruption in general, it made no specific finding
in this regard. Now, the question is not so much whether remedies exist against
corrupt public servants in Mexico, but is to determine whether
in practice those remedies are useful in the circumstances …
In the case at bar, the evidence was that
the police were ineffective in protecting journalists, and those close to the
journalists, when the journalists are investigating links between criminals and
the police such as the drug dealers in the case at bar.
[24]
Having
found the applicant credible with respect to the central aspects of her claim,
it was not open to the Board to reject that claim without specifically
addressing this evidence: Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35.
[25]
There
is one other clear error in the Board’s decision. At page 5 of the decision the
Board refers to the claimant lodging a complaint with the Human Rights
Commission against four judicial police officers on April 29, 2004. The Board
decision refers to the applicant as a male. The Board relies on this evidence
to make a particular finding. The reference to this evidence is patently
unreasonable. The applicant did not make any complaint to the Human Rights
Commission against four judicial police officers on April 29, 2004 or any other
date. Moreover, the applicant is not a male. Obviously the Board was confusing
the applicant’s fact situation with that of another case. The Court’s
conclusion in this case does not turn on this issue but is noted since it was
raised by the applicant.
[26]
For
the reasons expressed in this decision, the Court will allow this application
for judicial review.
[27]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is allowed, the decision of the Board dated May
17, 2007 is set aside and the refugee claim is referred to a differently
constituted panel of the Board for redetermination.
“Michael
A. Kelen”
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