Date: 20080818
Docket: IMM-4208-07
Citation: 2008 FC 952
Ottawa, Ontario, August 18, 2008
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
LUIS DUENAS SORIANO
MONICA GABRIELA ARGUETA SAINZ
ANA DUENAS ARGUETA
Applicants
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), following a
decision by the Immigration Protection Division of the Immigration and Refugee
Board (the panel) dated September 13, 2007. The panel determined that the
applicants were not Convention refugees or persons in need of protection
pursuant to sections 96 and 97 of the Act.
ISSUES
[2]
Two
questions were raised by the applicants in this matter:
(a) Did the panel err in drawing
negative inferences regarding the applicants’ credibility?
(b) Did the panel err in finding
that the applicants had not reversed the presumption of the Mexican state’s
protection?
[3]
After
analyzing the record, the Court considers that the panel did not make a
determination in regard to the female applicant’s credibility, therefore we
need only examine the second issue.
[4]
For the
following reasons, the application for judicial review will be dismissed.
FACTUAL BACKGROUND
[5]
The
applicants are all citizens of Mexico: the male applicant is 31 years
old, the female applicant is 33 years old and the child is a minor. They left Mexico following problems which
began in February 2007.
[6]
On February 20, 2007, the applicant noticed a
white SUV following her when she was on her way to her daughter’s music class. The
next day, she was followed by the same SUV and she received two phone calls from
a woman who asked where she was calling. On February 22, 2007, the female
applicant was once again followed. On February 23, 2007, the female applicant again
received two telephone calls. The first time, the caller asked to speak with
her and quickly hung up. The second time, a woman told the applicant that she
was aware of her activities and that she knew that she was alone with her
daughter every day. The applicant received several phone calls in the next two
days and she noticed the white SUV parked on the corner of the road.
[7]
On
February 25, the applicants received calls during the night, and they called
the state police. The police arrived shortly thereafter and asked them several
questions about the incidents. The police told them that they would cruise the
street and told them to keep their eyes open.
[8]
On February
26, a man called and asked to speak to the minor daughter, telling them that he
had to take her because he had found a buyer for her. The applicants again
called the state police. The police told them to file a report with the public
prosecutor, which they did that same day. The applicants had to wait at the station
for 40 minutes before making this report.
[9]
The
applicants decided to leave Mexico in order to ensure their
daughter’s safety. They arrived in Canada
on March 2, 2007, and sought protection the same day.
IMPUGNED DECISION
[10]
The panel
determined that the applicants were not Convention refugees or persons in need
of protection. Specifically, the panel determined that the applicants had not
reversed the presumption of state protection. The panel’s determination was
based on the following reasons:
(a) The panel noted that the
female applicant had no idea who the people she feared were. The panel
considered the female applicant’s explanation for the question regarding why
she had not sought refuge elsewhere in Mexico: she explained that her first instinct had
been to leave Mexico.
(b) The panel stated that the
applicants left Mexico only four days after they
filed a report with the public prosecutor, despite the fact that the officials had
assured her that they would investigate and that they would do what they could.
The panel asked the female applicant whether she had given the public
prosecutor the chance to help them. Her answer was also noted: she explained
that she had not given the public prosecutor the opportunity because she did
not feel protected. She explained that she had heard of similar cases.
(c) The panel stated that it
informed the applicants of the burden of proof required to reverse the
presumption of state protection. In response, the female applicant said that
the attitude of the public prosecutor officials angered and scared her. She
referred in particular to the fact that they had to wait 40 minutes while the
officials ate before they dealt with their case. The panel asked the female
applicant why these events would lead her to believe that they could not be
protected in Mexico and she replied that the news
and the newspapers had reported abductions. The panel asked why she had not
taken other steps. She replied that she was afraid and that she did not want to
take a chance staying in Mexico with her daughter.
(d) The panel considered that the documentary
evidence indicated that there was some corruption in Mexico, but that not all of the authorities
were corrupt. Further, the documentary evidence did not establish that there
was a complete breakdown of the state apparatus.
(e) Finally, the panel referred to
the fact that the applicants had a valid visa for entering the United States. The question raised was why
they had chosen to go to Canada and not to the United States. The female applicant’s
answer was vague.
ANALYSIS
Standard of review
[11]
The
appropriate standard of review in this case is the standard of reasonableness (Chagoya
v. Canada (Minister of Citizenship and
Immigration),
2008 FC 721, at paragraph 3, [2008] F.C.J. No. 908; Dunsmuir v.
New
Brunswick,
2008 SCC 9, at paragraphs 55,
57, 62, and 64).
[12]
According
to the Supreme Court, the elements to consider are: justification of the
decision, its
transparency and its intelligibility. The outcome must be defensible in
respect of the facts and the law
(Dunsmuir, at paragraph 47).
Did
the panel err in finding that the applicants had not reversed the presumption
of the Mexican state’s protection?
[13]
For this application
for judicial review to be allowed, the applicants must establish that it was
unreasonable for the panel to determine that the applicants did not reverse the
presumption of Mexican state protection.
[14]
The applicants
claim in their written arguments that it is well established that Mexican
society as a whole is corrupt. They allege that the police are indifferent to
criminality and corruption within government institutions. They also submit
that the changes contemplated by Mexican anti-corruption legislation have not
been achieved.
[15]
The respondent
on the other hand points out in his memorandum that it is imperative that the applicants
be able to establish through clear and convincing evidence that Mexico is
unable to provide them with protection (Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689).
[16]
The
respondent also points out that unless there has been a complete breakdown of
the state apparatus, it should be presumed that the state is able to protect
the claimant. The country’s protection need not be perfect, but only adequate (Canada
(Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189
(F.C.A.); Kadenko v. Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. No. 1376 (F.C.A.)).
[17]
It is
clear from the facts in this matter, as admitted by the applicants, that the
Mexican authorities took the complaints and reports from the female applicant seriously
and that the state officials reacted adequately when the applicants filed a
report. It was reasonable for the panel to determine that the applicants had not
established by clear and convincing evidence that Mexico was unable to protect them.
[18]
The applicants
left the country before giving the authorities time to act. The police rapidly
proceeded when the female applicant called on February 25, 2007. The fact that
the public prosecutor officials obliged the applicants to wait 40 minutes is
not sufficient to indicate that state protection is not available.
[19]
The panel did
not make a reviewable error. The decision is justified and intelligible and the
outcome is defensible in respect of the facts and the law.
[20]
There was
no question proposed for certification and none is involved in this matter.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
Email this Content