Date: 20080624
Docket: IMM-5197-07
Citation: 2008 FC 795
Ottawa, Ontario, June 24, 2008
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
FERMIN
FELICIANO MONCADA MENDOZA
Applicant
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 (Act) for judicial review of a decision of
the Immigration and Refugee Board, Refugee Protection Division (Board), dated
November 22, 2007 (Decision). The Board found that the Applicant, a citizen of Mexico, had not rebutted the presumption of state protection and
was neither a Convention refugee nor a person in need of protection within the
meaning of sections 96 and 97 of the Act.
Background
[2]
The Applicant was a
member of the Public Security Direction, a national police force in Mexico, for seven years. He worked in a number of different
policing units over this period including regular patrols, the Motorcycle division,
a gang and drug policing section, and a vehicular robberies section.
[3]
On March 16, 2002,
the Applicant was allegedly involved in a roadblock, checking for intoxicated
drivers. A car with three passengers was stopped. One of the passengers was
Mrs. Mendoza, the niece of the President of the City of Celaya in Guanajuto, Mexico, the city in which the Applicant
was working. Mrs. Mendoza and her husband became abusive and Mrs. Mendoza
injured the Applicant with her cell phone. She and her husband were arrested by
another police officer and charges were laid.
[4]
The charges were
later dropped at the behest of the Director of Public Security. However, the
Applicant had made a personal declaration against Mrs. Mendoza and refused to
withdraw the complaint. The Applicant submits that he was offered a financial
settlement in exchange for the withdrawal of this denunciation in July 2002,
but that he refused. The Applicant states that he began to receive threatening
phone calls a short time later. The Applicant also states that in April 2004,
he was assaulted by two individuals for “embarrassing” Mrs. Mendoza. The
Applicant was then threatened with dismissal from his job for pursuing the
matter. Nonetheless, the Applicant traveled to Mexico City
to report to the Public Ministry, but he was advised to withdraw the matter. He
made another attempt to complain in February 2005 by reporting to the Human
Rights Commission of the Public Ministry, but was rejected. Upon his return
home, he began to receive death threats.
[5]
On April 23, 2005,
the Applicant resigned from his position with the police force and traveled to
a ranch before coming to Canada on May 12, 2005 and claiming refugee
status shortly thereafter.
Decision
under Review
[6]
A large portion of
the Board’s decision focused on the question, raised by the Minister, of
whether the Applicant ought to be excluded from the benefit of refugee status
pursuant to Article 1(F)(a) of the 1951 Convention Relating to the Status of
Refugees, 189 U.N.T.S. 2545 (Refugee Convention) for
complicity in crimes against humanity because of his involvement in the Mexican
police force. The Board held that the Minister had failed to meet the burden of
proof for the Applicant's complicity in crimes against humanity and, therefore,
the Applicant was not excludable under Article 1(F)(a) of the Refugee Convention.
This is not an issue before the Court.
[7]
Once past the
question of exclusion, the Board found that the claimant had not rebutted the
presumption of state protection in Mexico. The Board reviewed the documentary
evidence which suggests that efforts are being made to provide protection in Mexico. The Board noted that the Federal Agency of Investigation
and the Federal Attorney General had both made efforts to purge corrupt police
officers from service.
[8]
The Board noted that
the Applicant did not file a denunciation relating to police corruption and
that he never witnessed any corruption during his service. As a result, the
Board concluded that the Applicant had not exhausted the recourses that were
reasonably available to him in Mexico, and that, had the Applicant done so,
state protection would have been available.
Issue
[9]
The sole issue on
this application for judicial review is:
1. Did the Board err in finding that
the Applicant failed to rebut the presumption of state protection?
Standard of Review
[10]
Recently, in Eler
v. Canada (Minister of Citizenship and
Immigration) 2008 FC 334
at para. 6, Justice Dawson held that the standard of review to be applied to
the assessment of adequacy of state protection post-Dunsmuir v. New Brunswick, 2008 SCC 9, was that of reasonableness.
I agree with this assessment. As the Supreme Court stated in Dunsmuir, at
para. 47, a review based on the reasonableness standard "requires consideration of the existence of justification,
transparency, and intelligibility of the decision-making process." When
reviewed on this standard, the Board's decision will stand unless the
Board's findings relating to the adequacy of state protection fall outside the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
Analysis
1. Did the
Board err in finding that the Applicant failed to rebut the presumption of
state protection?
[11]
The Applicant submits
that the Board implied that an applicant must exhaust all avenues of state
protection before he could be eligible for refugee status in Canada. The Applicant submits that this is an error and that the
correct test is that of “reasonable efforts” to seek protection (citing Nunez
v. Canada (Minister of Citizenship and
Immigration), 2005
FC 1661 [hereinafter Nunez] and L.G.S. v. Canada (Minister of Citizenship and
Immigration), 2004
FC 731 [hereinafter L.G.S.]).
[12]
The Applicant further
submits that the Board erred in not providing an analysis of why the efforts
made by the Applicant were not sufficient. The Applicant submits that the
Board’s insinuation that he should have complained about corruption was in
error. The Applicant argues that the efforts he made to report the matter, and
the fact that the Police warned the Applicant not to pursue the complaint and
threatened him with a dismissal from his position as a police officer,
sufficiently establish that he sought protection but that protection was not
forthcoming.
[13]
The Respondent
submits that Mexico is presumed capable of protecting its citizens (Sanchez
v. Canada (Minister of Citizenship and
Immigration) 2008 FC 66
at para. 12) and argues that the Board appropriately applied the evidence to
the appropriate legal test. Relying on the Federal Court of Appeal's decision
in Minister of Employment and Immigration v. Villafranca (1991), 99
D.L.R. (4th) 334 (F.C.A.), the Respondent submits that state
protection need only be adequate protection, not perfect protection. The
Respondent argues that, in the present case, the non-response of some police
officers is not sufficient to rebut the presumption of state protection (Arenas
v. Canada (Minister of Citizenship and
Immigration) 2006 FC
458). Thus, according to the Respondent, the Board did not err in its decision.
[14]
The majority of the
Board's analysis regarding the adequacy of state protection in the present case
is comprised of a review of the different government agencies and policing
units established in Mexico and the police reforms and internal
control mechanisms that have been introduced to address police misconduct and
abuse. The Board noted that within the Office of the Attorney General of the Federal District, the position of Inspector General was
established in 1977 to investigate and monitor complaints against the Public
Ministry and judicial police agents to combat corruption and impunity. The
Board noted that the country documentation showed that the Federal Agency of
Investigation "does not hesitate to arrest their own commanders" and
that the Federal Attorney General has made efforts "to purge corrupt
police officers from its agencies." The Board went on to note that
victims of corruption and organized crime can report offences to the nearest
Public Ministry then found that, although the Applicant "pursued his
denunciation with the Public Ministry [he] did not file any denunciation
related to corruption" and that the Applicant's own evidence was that he
had not witnessed any corruption during his service in the police force.
[15]
The Board continued
on by stating that "[w]hen the state in question is a democratic state,
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"
and stressed that the burden of proof on a claimant will be higher where the
state's institutions are more democratic. The Board then concluded that the
Applicant had not exhausted recourses that were reasonably available to him and
that the Board "was not satisfied that the authorities in Mexico would not be reasonably forthcoming with serious efforts to
protect the claimant, if he were to return and approach the state for
protection."
[16]
I note that the Board
did not state that the Applicant was not credible. Counsel for the Applicant, I
believe, correctly states that since the credibility of the Applicant was not
questioned and that "the Applicant attempted on 12 or 13 occasions"
to obtain protection and could not do so, it was for the Board to say why the
Applicant's efforts to obtain protection were not sufficient. The jurisprudence
clearly states that an applicant need not exhaust all avenues of state
protection (see Nunez and L.G.S., supra).
[17]
As I have stated, the
Applicant made various attempts for state protection and was unable to obtain
same, yet the Board rejected the Applicant's claim and found that the Applicant
had not established "that the authorities in Mexico would not be reasonably forthcoming with serious efforts to
protect the claimant." On these facts, I find that the Board was
required to explain why such efforts were not sufficient and that, despite
these numerous past attempts, the authorities in Mexico would be forthcoming
with serious efforts to protect the claimant if he were to return to Mexico and seek state protection yet again.
[18]
In my view, the Board
applied too onerous of a burden of proof upon the Applicant and failed to
undertake a thorough and satisfactory analysis of the Applicant's claim,
relying instead on the fact that Mexico is a democratic state and that the
Applicant was therefore required to "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." It was incumbent upon the Board, in my view, to
clearly set out why the Applicant's numerous attempts to seek protection were
insufficient to establish that he had taken all reasonable steps in the
circumstances to seek state protection. The Board's decision, in my view, lacks
justification and transparency and was not reasonable.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this
application for judicial review is allowed and the matter is returned for a new
hearing before a different Board Member. No question for certification was
submitted by the parties.
"Max M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5197-07
STYLE OF CAUSE: Fermin
Feliciano Mancada Mendoza v. The Minister of Citizenship and Immigration
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: June
10, 2008
REASONS FOR JUDGMENT: TEITELBAUM
D.J.
DATED: June
24, 2008
APPEARANCES:
Mr. Boniface
Ahunwan
|
FOR THE APPLICANT
|
Mr. John Locar
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
Boniface
Ahunwan
Barrister
& Solicitor
Toronto, Ontrio
|
FOR THE APPLICANT
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|