Date: 20080812
Docket: IMM-1907-07
Citation: 2008 FC 937
Ottawa, Ontario, August
12, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
AGUILAR
GUTIERREZ QUINATZIN
Applicant
and
THE
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated April 24, 2007, which found that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requested that the decision be set aside and the matter referred back
to a newly constituted panel of the Board for redetermination.
Background
[3]
Quinatzin
Aguilar Gutierrez (the applicant) is a citizen of Mexico. The applicant alleged
that he had a well-founded fear of persecution by reason of his membership in a
particular social group, that is, victims of personal vendetta and/or
homosexual men. The applicant’s alleged fear is as described in his Personal
Information Form (PIF).
[4]
The
applicant has known he was homosexual since he was 13 years old (since 1993).
In his PIF, he described how he had been the victim of abuse and bullying while
in elementary and high school because the other students thought that he was
gay. The applicant also described how he was raised in a very religious, conservative,
and strict Mexican family. The applicant finally told his mother he was gay in
2000, but she begged him not to tell his father. The applicant did as he was
told.
[5]
In
2005, the applicant met Angel Gomez Cruz at a party and the two became a couple
shortly after. On April 28, 2005, the applicant alleged that Angel’s father,
Luis Gomez, saw the two men kissing and began yelling and calling the two
names. The applicant stated that while Luis Gomez was grilling his son about
the encounter, he managed to escape. Luis Gomez is a police officer in Mexico.
[6]
The
applicant stated that a few days later, he began receiving hang up phone calls
to his home and police patrol cars began parking suspiciously in front of his
house. The applicant’s father began asking questions about the phone calls and
police cars. The father got very upset and the applicant’s mother revealed to
him that the applicant was homosexual. The applicant’s father came into the
applicant’s bedroom, took him by the throat and began beating him. The
applicant left his parents’ house after the incident and did not return.
[7]
On
November 1, 2005, while working in the city of Puebla, the applicant alleged that he was grabbed
by two men from behind. He was beaten unconscious and when he awoke he was in
the back seat of a police patrol car, naked and bound. He was told that if he
tried to break free he would be raped again. The applicant alleged that the
assault was Luis Gomez’s doing. Before the applicant was left naked and bound
in a ditch, he was told by the two men that “he would not see Christmas.” The
applicant was taken to the hospital by a friend and treated for his injuries
but did not report the incident to police.
[8]
On
November 5, 2005, the applicant began to make plans to flee to Canada. He left Mexico City airport on December 6,
2005 and arrived in Canada the same day. The
applicant learned while in Canada that he could apply for refugee protection. As such, the
applicant filed a refugee application on January 6, 2006. In a decision dated
April 24, 2007, the applicant’s application was rejected. This is the judicial
review of the Board’s decision.
Board’s
Decision
[9]
In
its decision, the Board identified the determinative issues as whether the fear
was well founded and whether there was sufficient state protection available to
the applicant in Mexico. The Board found that the applicant’s fear was
not objectively well founded and that there was credible and trustworthy
documentary evidence indicating that Mexico was making serious
efforts to provide state protection to its citizens.
[10]
With
regards to the fear of criminality and violence from his former lover’s father,
the Board was of the opinion that this was a personal vendetta. The Board noted
that there was no evidence confirming that Luis Gomez was indeed a police
officer. The Board stated that regardless, there was reliable documentary
evidence indicating that state protection is available in Mexico for the
applicant. The Board acknowledged the considerable crime and corruption in Mexico, but noted
the government’s substantial, meaningful and often successful efforts to combat
crime and corruption. The Board stated that as Mexico was a fully
functional democracy, the presumption of state protection applied. The Board
found that the applicant had failed to rebut this presumption and noted that
local failures to provide effective policing did not amount to a lack of state
protection. The Board recognized that corruption of police forces was a
widespread problem in Mexico, but went on to note the serious efforts made by Mexico in
addressing the problems. The Board relied on the documentary evidence and found
adequate state protection existed for the applicant. The Board found it
unreasonable that the applicant had not made any efforts to seek police
protection or the protection of other state authorities. The Board was of the
opinion that the applicant should have shown that he had taken all reasonable
steps in the circumstances before seeking international protection in Canada.
[11]
With
regards to the applicant’s homosexuality, the Board noted at page 5 of its
decision “that there continues to be strong, homophobic attitudes and that
despite legislation, discrimination, harassment and even arrests sometimes
occur”. However, the Board perused the documentary evidence and found that Mexico was
adequately addressing the issue of sexual orientation and universal rights for
vulnerable groups, such as homosexuals. The Board found that “his rights as a
gay person are protected, and it is not sufficient for the claimant to say that
protection would not be available if one has not sought that protection; the
onus of approaching the state for protection rests with the claimant.”
[12]
In
conclusion, the Board found that the applicant was not a Convention refugee,
nor was he a person in need of protection. As such, the applicant’s claim for
refugee status was rejected.
Issues
[13]
The
applicant submitted the following issue for consideration:
1. Was
the Board’s conclusion that the applicant should have sought police protection,
and that there are sufficient safeguards against persecution provided by the
Mexican government made without regard to all of the evidence?
[14]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the Board err in finding that the applicant should have availed himself of
state protection?
3. Did
the Board err in failing to consider all the documentary evidence on state
protection?
4. Did
the Board err in finding that there existed adequate state protection in Mexico for the
applicant?
Applicant’s
Submissions
[15]
The
applicant submitted that as the Board never made any negative credibility
findings, it has implicitly accepted the police assault on the victim. As such,
it was patently unreasonable for the Board to find that applicant should have
sought police protection from the police.
[16]
It
was also submitted that the Board failed to consider certain pieces of
documentary evidence that supported a finding of inadequate state protection.
The documents that were specifically identified by the applicant are:
·
the
Department of State Report for 2003,
·
a
United Press International article from January 9, 2005,
·
an
article from OneWorld.net dated June 25, 2005,
·
a
2006 Human Rights Watch report entitled “Lost in Translation”,
·
an
article entitled “Mexico Cap” from Amnesty International dated January 27,
2006,
·
the
Washington Office on Latin America report dated April 6,
2006,
·
the
Harvard University Executive Session on Human Rights Commissions and Criminal
Justice dated May 12, 2006, and
·
the
Amnesty International Report on Mexico for 2006.
[17]
The
applicant submitted that in Tong v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 1376, the Board’s decision was set
aside on the ground that it dismissed the documentary evidence in an off-hand
manner, with no comment whatsoever, at the end of their reasons. Moreover, in Mahanandan
v. (Minister of Employment and Immigration), [1994] F.C.J. No. 1228,
the Board’s decision was overturned based on its bare acknowledgment of the
documentary evidence and lack of real consideration of it. The Board’s failure
to weigh conflicting documentary evidence constitutes a reviewable error (Magham
v. Canada (Minister of
Citizenship and Immigration) (2001), 13 Imm.L.R. (3d) 120). The Board
has the right to put more weight on the documentary evidence, but in doing so
it is required to clearly state its reasons for preferring the documentary
evidence over that of the applicant’s testimony (Levtchenko v. Canada
(Minister of Citizenship and Immigration) (1998), 152 F.T.R. 100).
Respondent’s
Submissions
[18]
The
respondent submitted the presumption of state protection applied and as such,
the applicant was required to provide some “clear and convincing proof” in
order to rebut the presumption (Canada (A.G.) v. Ward, [1993] 2
S.C.R. 689). It was submitted that it was not enough for the applicant to
merely show that his government has not always been effective at protecting
persons in his situation. “Where a state is in effective control of its
territory, has military, police and civil authority in place, and makes serious
efforts to protect its citizens from terrorist activities, the mere fact that
it is not always successful at doing so will not be enough to justify a claim
that the victims of terrorism are unable to avail themselves of such protection”
(Ward, above).
[19]
The
respondent noted the Board’s findings on state protection based on the
documentary evidence. The respondent submitted that local failures to provide
effective policing do not amount to a lack of state protection (Syed v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1556; Szorenyi
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.
No. 1761; Chorny v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 1263; Orban v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 681). It was submitted that the applicant’s
fear of his ex-partner’s father’s affiliation with the local police was not an
excuse for his failure to seek protection from the state of Mexico and its many
law enforcement and judicial institutions. The evidence before the Board was
that there was state willingness to protect people such as the applicant who
are targeted by public officers who abuse their powers. Moreover, state
protection can be available from state run or funded agencies and not only from
the police (Pal v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 894; Nagy v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 370; Zsuzsanna v. Canada (Minister
of Citizenship and Immigration), [2002] F.C.J. No.1642; Szucs v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.
1614).
[20]
The
respondent also submitted that the Board considered all the relevant evidence
and that no evidence was ignored. The Board is presumed to have taken all of
the evidence into consideration, whether or not it expressly indicates having
done so in its reasons (Florea v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 598 (C.A.)). The respondent noted
that the Board acknowledged the considerable crime and corruption in Mexico and the
remaining discrimination against homosexuals. It is therefore inaccurate for
the applicant to claim that the Board ignored evidence to this effect. The
respondent submitted that the Board considered all the documentary evidence and
in conclusion, found that state protection existed.
Reply
[21]
The
applicant submitted that his assault at the hands of two police officers was
some “clear and convincing proof” of the state’s inability to protect him. With
regards to the Board’s failure to refer to certain pieces of documentary
evidence in its analysis of state protection, the applicant stated that as the
evidence specifically contradicts the Board’s findings, there is a duty that
the Board expressly consider this evidence (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(F.C.T.D.) at paragraphs 15 to 17).
Analysis and
Decision
[22]
Issue
1
What is
the appropriate standard of review?
The Board’s
overall finding on the adequacy of state protection is a question of mixed law
and fact and is reviewable on a standard of reasonableness (Machedon v.
Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1331; Chaves
v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 232).
[23] This application
for judicial review was heard before the landmark decision of the Supreme Court
of Canada in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9. Dunsmuir
eliminated the standard of reasonableness simpliciter and patent
unreasonableness for a more straightforward standard of reasonableness.
Adequacy of state protection was already established in jurisprudence, however,
as a question of mixed law and fact reviewable on a standard or reasonableness
(Hinzman v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 584). Since Dunsmuir
above, Justice Dawson found in Eler v. Canada (Minister of
Citizenship and Immigration), [2008] F.C”J. No. 418, that
reasonableness remained the standard of review but in accordance with the
definition in paragraph 47 of Dunsmuir above:
Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[24]
Issue
2
Did the
Board err in finding that the applicant should have availed himself of state
protection?
The
applicant submitted that it was patently unreasonable for the Board to find
that the applicant should have sought state protection being that the agents of
persecution where members of the police force themselves.
[25]
In
Nagy above, Justice Simpson of this Court dealt with a similar
situation. In that case, the applicant also alleged that the police were the
agents of persecution and the Board found that the applicant should have
approached other reasonable state protection mechanisms, specifically, the
Parliamentary Commissioner for the protection of national and ethnic minority
rights. Justice Simpson considered evidence such as past complaints made to the
Parliamentary Commissioner by people in the same situation as the applicant. In
the end, Justice Simpson determined that based on the material before the
Board, its state protection finding was reasonable.
[26]
In
the present case, the Board found it unreasonable that the applicant did not
even try to test state protection:
In this particular case, the claimant did
not take all reasonable steps. Indeed, the claimant took no steps at all. The
panel is of the opinion that the claimant ought to have shown that he had taken
all steps reasonable in the circumstances before seeking international
protection in Canada.
[27]
Just
prior to this finding, the Board assessed state protection mechanisms available
to persons in Mexico who were
targeted by corrupt police officers. The Board stated:
Victims of corruption and organized
crimes can report offences directly to the nearest public ministry officer,
when the local police might be involved. When victims are ignored or their
claims are not processed, they have recourse to report the offence directly to
the internal comptroller of the Procuraduria General de la Republica (PGR).
[28]
In
my opinion, it was reasonable for the Board to find that there were reasonable
other avenues of state protection available to the applicant. In cases where
the alleged agents of persecution are the police, it is critical that the Board
consider the reasonableness of asking the applicant to approach the same police
force to ask for protection. In my opinion, the Board in the present case was
sensitive to this fact and properly assessed the reasonableness of other
mechanisms of state protection. I believe that the Board committed no error in
finding that the applicant should have made an effort to seek state protection
before seeking international protection even if the agents of persecution were
the police themselves. I would not allow the judicial review on this ground.
[29]
Issue
3
Did the
Board err in failing to consider all the documentary evidence on state
protection?
The applicant
submitted that the Board erred in failing to expressly mention documentary
evidence that directly contradicted its finding on the adequacy of state
protection. In making this argument, the applicant relied on Cepeda-Gutierrez,
above. In Shen v. Canada (Minister of Citizenship and
Immigration), [2007] F.C.J. 1301, Justice Pinard found that the Board’s
duty to expressly refer to evidence that contradicted its key findings as per Cepeda-Gutierrez,
above did not apply where the evidence in question was general documentary
evidence. I am satisfied that Cepeda-Gutierrez above, can also be
distinguished from the present case. While in that case the evidence in
question was specific and personal to the applicant, in the present case, the
evidence in question is general documentary evidence.
[30]
In
any case, even if the principle articulated in Cepeda-Gutierrez above,
did apply to the present case, I am not convinced that the Board failed to
consider the evidence in question. The Board clearly acknowledged that there
were serious issues of corruption and crime among police in Mexico and that
discrimination against homosexuals persisted. These considerations and the
Board’s statement that they had considered all the documentary evidence before
them satisfy me that no error was committed in the Board’s assessment of the
documentary evidence on state protection. I would not allow the judicial review
on this ground.
[31]
Issue
4
Did the
Board err in finding that there existed adequate state protection in Mexico for the applicant?
The applicant
submitted that the Board’s overall finding that adequate state protection
existed for the applicant was patently unreasonable. As mentioned above, the
appropriate standard of review for the Board’s overall finding on state protection
is a standard of reasonableness. Having carefully reviewed the Board’s reasons,
I am satisfied that the Board’s finding that state protection existed for the
applicant in Mexico was
reasonable.
[32]
In
its decision, the Board carefully reviewed state protection for both
individuals targeted by corrupt police officers and for homosexuals. The Board
considered not only government initiatives such as legislative reforms, new
laws and programs, but it also considered the effectiveness of these measures.
The Board conducted a very thorough investigation into state protection in Mexico and I see no
reason to interfere with its decision. I would not allow the judicial review on
this ground.
[33]
The
application for judicial review is therefore dismissed.
[34]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[35]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
|
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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