Date: 20080916
Docket: IMM-4434-07
Citation:
2008 FC 1029
Ottawa, Ontario, September 16,
2008
PRESENT:
Mr. Justice de Montigny
BETWEEN:
JOSE ALFREDO XOCOPA MARTELL,
ADRIANA BELTRAN CUATECO,
DAENA VALERIA XOCOPA BELTRAN
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants are seeking judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Panel), which rejected their
claim for refugee protection on September 20, 2007. The Panel found them
to be neither refugees nor persons in need of protection under sections 96
and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act).
[2]
The
principal applicant, Jose Alfredo Xocopa Martell, alleged that his life and
those of his spouse, Adriana Beltran Cuateco, and daughter, Daena Valeria
Xocopa Beltran, were threatened by Enrique Garcia (El Gato) and by the
police officers who were protecting him. The Panel found that the applicants
were not credible and that they did not discharge their burden of showing that
the Mexican authorities were not capable of protecting them.
[3]
For the
reasons below, the Court is of the view that this application for judicial
review should be dismissed. In light of the evidence in the record, the Panel
could reasonably find that the applicants failed to rebut the presumption that
the Mexican state could protect them.
I. Facts
[4]
According
to the principal applicant, he worked at a psychiatric hospital as a laboratory
technician in Mexico. On February 28, 2006, while out for a walk in the
park with his family, he was beaten and robbed by three individuals. He
recognized one of his attackers, a police officer named Enrique Garcia, better
known as El Gato.
[5]
The applicant
went to the Office of the Public Prosecutor to report the incident that same
day. He was intercepted by three police officers who took him by force to an
isolated place. They told him not to file a complaint against El Gato because
he worked for the police as a “madrina” (someone who does the police’s dirty
work). They also threatened the applicant and his family with reprisals if he
made another complaint.
[6]
On
June 3, 2006, the applicant was forced to go with three men to meet with El
Gato, who wanted information on dates that cocaine was to arrive at the psychiatric
hospital where he was working. El Gato warned him not to contact the police.
[7]
The applicant
did not comply with El Gato’s request for information on drug shipments;
instead, he quit his job and went to live with his family in the city of
Cuernavaca Morelos.
[8]
On
June 8, 2006, El Gato located the applicant, threatened him with a gun and
gave him 30 days to provide the information he was looking for. So
the applicant fled to Tlalpan, where he went about getting passports; he
ultimately left Mexico for Canada by himself on June 10, 2006.
[9]
The applicant’s
spouse went with their daughter to live with an aunt. On September 10, 2006,
she was accosted by El Gato, who asked where her husband was. He slapped her in
the face and attempted to abduct her daughter. When she started shouting, El
Gato let go but continued to threaten. So she decided to leave Mexico and join
her husband in Canada on September 13, 2006.
II. Impugned Decision
[10]
The Panel
identified some contradictions between the applicants’ testimony at the hearing
and their Personal Information Forms (PIFs), particularly with respect to when
they recognized El Gato, when they moved in June 2006 and where the
June 3, 2006 attack occurred. The Panel found that these contradictions
undermined the applicants’ credibility.
[11]
That said,
the main issue for the Panel was state protection. In his testimony, the
principal applicant said he was told by the three police officers who
intercepted him on March 1, 2006, that El Gato worked for the police;
this was after he had filed his report. However, the report indicates quite
clearly that the applicant recognized one of his three attackers, Enrique
Garcia, alias El Gato, because he was a judicial police officer. When
confronted with that contradiction, the applicant gave an explanation that the Panel
found inconsistent with the complaint.
[12]
The Panel
considered the fact that the applicant’s spouse did not report the alleged attack
on her on September 10, 2006, to the authorities. It also drew an adverse
inference from the applicant’s failure to report the police officers’ treatment
of him when he went to file a report on March 1, 2006. Finally, the Panel
noted that the applicant did not inform the Mexican authorities or his employer
about El Gato’s attempts to get drugs through him.
[13]
After
reviewing the documentary evidence, the Panel found that recourse was available
to the victims of corrupt police officers, and determined that the applicants
had failed to rebut the presumption that the Mexican authorities were able to
protect them.
III. Issue
[14]
The only
issue in this judicial review application is whether the Panel erred in finding
that the applicants failed to rebut the presumption of state protection.
IV. Analysis
[15]
Prior to
the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC
9, it was settled law that the appropriate standard of review for a decision on
an issue of this nature was reasonableness: see, for example, Chaves v.
Canada (MCI), 2005 FC 193, 45 Imm. L.R. (3d) 58; Muszynski v. Canada
(MCI), 2005 FC 1075, 141 A.C.W.S. (3d) 620; Franklyn v. Canada
(MCI), 2005 FC 1249, 142
A.C.W.S. (3d)
308. In Dunsmuir, the Supreme Court not only brought down the number of
applicable review standards from three to two, it also indicated that there was
no need to analyse the various factors that determine the proper standard of
review when that exercise has already been conducted in a satisfactory manner
in other decisions.
[16]
On that
basis, and considering that the issue of whether a state is able to protect its
citizens is a question of mixed fact and law, the Court has no hesitation in
finding that this issue must be examined against the reasonableness standard. That
is, in fact, the standard this Court has repeatedly applied since the Supreme
Court’s decision in Dunsmuir: see, inter alia, Da Mota v. Canada
(MCI), 2008 FC 386, 166
A.C.W.S. (3d)
552, at paragraph 14; Obeid v. Canada (MCI), 2008 FC 503, 167 A.C.W.S.
(3d) 373; Naumets v. Canada (MCI), 2008 FC 522, 167 A.C.W.S. (3d) 147; Woods v. Canada
(MCI), 2008 FC 446, 166 A.C.W.S. (3d) 551, at paragraph 32; Mendez
v. Canada (MCI), 2008 FC 584, [2008] F.C.J. No. 771 (QL).
[17]
It could
well be that the Panel jumped to some slightly hasty conclusions in finding
that there was a contradiction between the principal applicant’s testimony and
his PIF over when he identified his attacker. Mr. Martell did explain that
his family had told him that El Gato was a judicial police officer, so he
included that in his report to the Office of the Public Prosecutor. What he
learned from the police officers who subsequently intercepted him and
threatened him was that El Gato was a “madrina”. There is no contradiction
there that would allow the Panel to make an adverse credibility finding with
respect to the applicant.
[18]
The same
goes for the apparent contradiction between his PIF, in which he said he went
to the authorities to file a complaint on March 1, 2006, and the report
dated February 28, 2006. The Panel mentioned in its decision that the applicant
was not confronted with this contradiction. However, the applicant indicated in
his affidavit that he went to the Office of the Public Prosecutor to file a
report on February 28 at 10 o’clock at night, and did not leave until
March 1st because he had to wait so
long for them to take his complaint.
[19]
The Court
is therefore prepared to admit that the Panel did not really give the applicant
the chance to explain, and when it did, it misinterpreted what he said. That
said, these errors in assessing the principal applicant’s credibility were not
decisive, and do not affect the applicants’ failure to rebut the presumption of
state protection.
[20]
In support
of its finding that the applicants did not sufficiently avail themselves of the
protection available from Mexican authorities, the Panel took into account the
fact that the applicant’s spouse did not report the alleged attack on her on
September 10, 2006, to the authorities. It also noted that the principal applicant
did not report his interception by police officers on March 1, 2006, and
did not inform the Mexican authorities or his employer about El Gato’s attempts
to get drugs through him.
[21]
The Panel
indicated that drug trafficking, abductions and police corruption were serious
problems in Mexico. At the same time, however,
it pointed out that results were being achieved, with drug dealers and corrupt
police officers and government officials being apprehended, charged and
convicted. The Panel also mentioned that organizations funded by the Mexican
government had been set up to assist people having difficulty obtaining state
protection. With recourse available specifically for that type of problem, the Panel
found that it was not unreasonable to expect the applicants to avail themselves
of the protection that the Mexican authorities were capable of providing.
[22]
The applicants
also argued that the Panel ignored documents filed in evidence. It should be
pointed out that there is a presumption to the effect that the Panel is deemed
to have considered all of the evidence before making its decision, despite the
fact that not all of the various pieces of evidence are specifically mentioned
in its reasons. It is up to the Panel to weigh the evidence before it and to make
the appropriate findings. In so doing, the Panel may choose from among the
evidence as it sees fit, and this choice is an integral part of its role and expertise:
Mahendran v. Canada (MCI), (1991) 134 N.R. 316, 14 Imm. L.R. (2d)
30 (F.C.A.); Tawfik v. Canada (MCI) (1993), 137 F.T.R. 43, 26 Imm. L.R. (2d)
148; Akinlolu v. Canada (MCI) (1997), 70 A.C.W.S. (3d) 136,
[1997] F.C.J. No. 296 (QL); Florea v. Canada (MEI), [1993] F.C.J. No.
598 (C.A.) (QL).
[23]
Furthermore,
this Court has repeatedly held that the conduct of some police officers does
not obviate the need to seek protection from the authorities because that is
not sufficient proof of the state’s inability to protect its citizens. This
Court established in De Baez v. Canada (MCI), 2003 FCTD 785, 236 F.T.R. 148, that the actions of some
police officers do not obviate the need to seek protection from the authorities:
[14] In the present case, the applicants
never attempted to report their concerns to the police. They say that the
police were part of Pablo’s problem, so it is unreasonable to expect him to
seek protection from the police.
[15] However, in Kadenko v. Canada
(Solicitor General) (1996) 143 D.L.R. (4th) 532 (F.C.A.) the Federal Court
of the Appeal expressed the obligation on a applicant in the following terms:
When the state in question is
a democratic state, as in 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. …
[16] Thus, the actions of some police
officers does not obviate the need to seek protection from the authorities.
Discrimination by some police officers is not sufficient proof of the state’s
unwillingness to provide, or inability on the part of the applicants, to seek
protection.
See also, in the
same vein: Garcia Villasenor v. Canada (MCI), 2006 FC 1080, 157
A.C.W.S. (3d) 818.
[24]
Although
in agreement with the applicants on the Panel’s errors of interpretation and
understanding, the Court does not consider unreasonable, in light of the
documentary evidence, the Panel’s finding that they failed to rebut the
presumption of state protection. Therefore, the Panel’s errors with respect to
their credibility do not affect its finding that Mexico was capable of protecting them.
[25]
For these
reasons, I would dismiss the application for judicial review. The parties did
not submit any questions for certification.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
“Yves
de Montigny”
Certified
true translation
Peter
Douglas
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