Date: 20080930
Docket: IMM-5503-07
Citation: 2008 FC 1092
Toronto, Ontario, September 30, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Pilar ATRIANO SALDANA
Alejandro ATRIANO RODRIGUEZ
Micaela Ma. Del Pilar RODRIGUEZ RODRIGUEZ
(a.k.a. Micaela M D P Rodriguez
Rodriguez)
Jorge ATRIANO RODRIGUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
application for judicial review is dismissed because the Refugee Protection Division
of the Immigration and Refugee Board (RPD or Board) committed no reviewable
error when it found Mr. Atriano Saldana's evidence that he had been beaten to
be incredible. Further, the Board made no reviewable error in finding that Mexico
City was a viable internal flight alternative for three of the applicants, and
that the fourth applicant would receive adequate state protection in Mexico
City.
[2] Pilar
Atriano Saldana, his wife Micaela Ma. Del Pilar Rodriguez Rodriguez, and their
adult sons Alejandro Atriano Rodriguez and Jorge Atriano Rodriguez, are
indigenous citizens of Mexico who lived in Tlaxcala, Mexico. They testified
that they were targeted in Mexico by a criminal gang who believed that the
applicants had significant money because each year Mr. Atriano Saldana
came to work in Canada as part of the farm worker program. The applicants
testified that they received harassing and threatening telephone calls and were
followed. The younger son, Alejandro, testified that in May, 2004 he was followed
by a man who tried to stab him, and cut his backpack when Alejandro turned to
face his assailant. Mr. Atriano Saldana testified that he was attacked and
beaten by two men in February, 2005. The older son, Jorge, testified that
after his family moved to Canada he moved to Mexico City. There, on January 4,
2007, he was kidnapped by three men who kept him for four days and then
released him, telling him that he had five days in which to pay them
$10,000.00. Additionally, each claimant testified that as indigenous citizens
they had been discriminated against, and would not receive police protection.
[3] Their
claims for refugee protection were dismissed by the RPD because it found that:
·
The senior male
claimant’s account of being beaten was not credible.
·
Three of the
claimants did not suffer any serious harm or persecution in the past.
·
Being a member of an
ethnic group, i.e. indigenous Mexican, or Jehovah’s Witness, on its own, does
not establish a serious possibility of serious harm or persecution in Mexico City.
·
The efforts of the
oldest son to obtain assistance in Mexico
City due to the nature of
his information does not rebut that the state will provide adequate protection
in the future.
·
The documentary
evidence supports that for citizens such as the claimants living within the
[Federal District] the state is making serious efforts to provide adequate, but
not perfect, protection should they require such protection in the future.
[4] The
applicants assert that the RPD made the following errors:
1. The Board erred by finding that Mr. Atriano Saldana's
testimony that he was beaten was not credible.
2. The Board
ignored evidence.
3. The Board erred by finding that Mexico City is a viable
internal flight alternative for all four applicants.
4. The Board erred by finding that state protection would be
available to the applicants in Mexico City.
1. Did the Board err by
rejecting Mr. Atriano Saldana's claim that he had been beaten?
[5] The
applicants argue that the RPD's manner of questioning Mr. Atriano Saldana was
confusing, and that the Board erred by drawing a negative inference from Mr.
Atriano Saldana's initial failure to testify about the beating. Rather, the
applicants submit that the RPD should have accepted Mr. Atriano Saldana's
explanation for his initial failure to mention that he had been beaten.
[6] In my view, there is no merit to
this contention. The transcript does not support the argument that either the
RPD's questions, or the manner in which it asked questions, was confusing. No
objection was taken to the Board’s manner of questioning, and the order in
which the applicants testified was suggested by their counsel.
[7] Moreover,
the RPD's negative credibility finding was also supported by its finding that
the attack described by Mr. Atriano Saldana was implausible. No challenge is
made to that finding.
[8] The
RPD is entitled to considerable deference with respect to its credibility
findings, and no basis has been established for the Court to interfere with the
finding in this case.
2. Did the RPD ignore
evidence?
[9] The
RPD found that neither Mr. Atriano Saldana, his wife, nor their younger son
experienced serious harm before leaving Mexico. This is said to ignore the
following evidence:
- The younger son was followed by a
knife wielding assailant who cut his back pack when trying to stab him;
- Mr. Atriano Saldana's daughter
was attacked;
- The elder son’s kidnapping was
related to the fears of the other family members because they had all been
targeted; and
- The applicants’ evidence about
their discriminatory treatment.
[10] In
my view, the Board did not err as the applicants argue. The Board’s reasons
are not to be read microscopically. Rather, the question to be answered is
whether the Board had a clear grasp of the issues and the evidence before it.
[11] Here,
the nature of the attack on the younger son was not so serious that the Board's
failure to reference it gives rise to the inference that the Board failed to
take the evidence into account. The Board was correct that, fortunately, the
attack did not cause any serious harm.
[12] The
attack on the daughter, who is not a claimant, was not ignored but was
mentioned by the RPD on page 2 of its reasons.
[13] The
RPD did consider the attack on the older son to be related to the fears of the
entire family because the Board noted that all of the family members believed
they had been targeted and followed by kidnappers. As well, the circumstances
of the older son’s kidnapping were relied upon by the Board to show how
implausible the father's evidence was with respect to the beating he claimed to
have sustained.
[14] With
respect to the applicants' fears arising out of their ethnicity, the applicants
state that the Board ignored an amendment to their Personal Information Forms
(PIFs) with respect to their ethnicity and that "it is difficult to know
what conclusion the RPD would have made if it knew that they raised the issue
and were allowed to talk about it."
[15] What
the Board wrote was that "[t]here is no mention in any of the PIFs that
the claimants experienced discrimination due to their ethnicity. In oral
evidence, ethnicity was mentioned as a reason for not going to the police after
the February 2005 attack […]".
[16] The
Board could have been clearer in stating that the PIFs were amended at the
hearing. However, the Board was correct that discrimination due to ethnicity
was not originally raised by any applicant in their PIF, but the applicants did
testify about discrimination at the hearing. While the RPD did not question
the applicants about the discrimination they said they had faced, and directed
the applicants to deal with the specific questions posed to them by the Board
member, nothing precluded counsel for the applicants from later adducing this
evidence. No attempt was made to do so and no complaint can now be made about
that omission. The applicants were at all times obliged to lead all the
evidence that they intended to rely upon to support their claims to protection.
3. Did the Board err by
finding that Mexico City was a viable internal flight alternative
for all four applicants?
[17] Two
errors are alleged by the applicants. First, it is said that the RPD erred in
finding that Mexico City was an internal flight alternative for the eldest son,
Jorge, because Mexico City was where he had been kidnapped. Second, it is said
that the RPD erred in finding that it would be reasonable for the other family
members to move to Mexico City when there was no evidence that Mr. Atriano
Saldana had ever held any employment in Mexico City, and his work history only
showed that he was employed as a farm worker in Canada.
[18] Again,
I have not been persuaded that the RPD erred as alleged.
[19] With
respect to the first alleged error, the RPD at the end of its reasons did make
the statement that "Mexico City meets both requirements for a viable
[internal flight alternative]." However, I am satisfied that the Board
did not find the older son to have an internal flight alternative in the very
location in which he was kidnapped. Rather, the RPD found that he would have
adequate state protection in Mexico City. I reach this conclusion because
during the hearing, the Board member identified the issue to be as follows:
MEMBER: Oh,
okay. Okay just let me get this and so basically I’m looking at the District
Federale as a viable IFA for the three members of the family than [sic]
an area where the oldest son could return with less than a serious possibility
of harm and where adequate protection would be provided.
[20] Further,
at page 3 of its reasons the Board wrote:
Is the Federal
District (D.F.) within Mexico City a viable Internal Flight Alternative (IFA)
for the senior male claimant, his wife, and youngest son? I am satisfied this
is the case.
[21] Thus,
the Board did not find Mexico City to be an internal flight alternative for the
older son.
[22] I
now turn to the reasonableness of the internal flight alternative for Mr.
Atriano Saldana, and his wife and younger son. The law with respect to the
existence of an internal flight alternative was recently and succinctly
reviewed by my colleague Justice Kelen in Farias v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1035 at paragraph 34.
There, he noted that:
·
It is the applicant who bears the burden of proof to demonstrate
that an internal flight alternative does not exist or is unreasonable.
·
A high threshold must be met in order to establish that an
internal flight alternative is unreasonable.
·
The fact that a refugee claimant may not be able to find suitable
employment in his or her field of expertise may or may not make an internal
flight alternative unreasonable.
[23] Here,
the following evidence was given by Mr. Atriano Saldana:
Q.
If you and your family were to move to Mexico City and have the kinds of
problems that you’ve had in the past, particularly that part of Mexico City
that lies within the Federal District, why do you think you wouldn’t be able to
get help from the authorities in the Federal District?
A. Most
of the times the Mexicans that have the right economical positions are helped.
I believe that we cannot receive that protection because of our ethnic
background.
Q. Is
there any other reason you and your family couldn’t live in Mexico City?
A. The
reason is that if we go back maybe one of us will be kidnapped and killed. I
came to this country to work and gave the best of my life. I try my best to
improve my work and this twenty years that I have reached in the year 2005 I
work as a farmer and this helped me to keep improving my work.
[24] The
Board member later repeated his inquiry to Mr. Atriano Saldana as follows:
Q. So
is there any other reason you can’t live in Mexico City Sir within the Federal
District other than your fear that one of your family members would be
kidnapped and killed and as I understand it to be your belief that because of
your ethnicity the Federal authorities won’t provide you with any meaningful
help? Anything else?
A. Only
because of the reasons given for my family. I ask for the Canadian authorities
to keep us in mind that we are persons who need your protection.
[25] No
other evidence relevant to the reasonableness of the internal flight
alternative was adduced by the applicants. I conclude from this that the
applicants failed to meet their onus to establish that the proposed internal
flight alternative was unreasonable. The RPD's decision on this element of the
two-step test was not unreasonable.
4. Did the Board err by
finding that state protection would be available to the applicants in Mexico
City?
[26] After
the older son was released by his kidnappers, he went to the police. He says
that, after he was made to wait a long time, the police asked him a number of
questions and then completed a report. Questions asked by the police included
what had happened to him, whether he knew the identity of his kidnappers,
whether he had seen them before and whether he could recognize the vehicle used
by the kidnappers. The older son was unable to identify his kidnappers and
could provide no information about his kidnappers, the vehicle they used or
where he was held.
[27] When
making his report, the older son asked for a police car to be put outside his
house, but he was told that there were insufficient personnel for this. The older
son testified that instead he was told by the police to go home and to be
careful.
[28] The
RPD found that:
·
The older son could not provide any helpful information to the
police. "While perhaps the police could have done more than write a
report, it would still be unlikely that an arrest could be made based on this
evidence."
·
The failure of the police to place a patrol car to guard the
older son’s house did not mean that assistance would not be forthcoming if
required in the future.
·
Within that part of Mexico City which is in the Federal District,
the state was making serious efforts to provide adequate, but not perfect,
protection.
[29] The
applicants argue that the police inaction is evidence that the police were
unwilling to protect Jorge and amounted to an admission that the police were
unable to provide protection against kidnappers. The applicants further argue
that the Board failed to consider the documentary evidence, and erred by
failing to consider whether the laws and procedures in place in Mexico City are
effective.
[30] The
following principles are well-settled:
·
Nations are presumed to be capable of protecting their citizens.
·
Clear and convincing evidence of the state's inability to protect
must be provided.
·
The Court cannot require that the protection provided be perfectly
effective. As Justice Hugessen wrote for the Federal Court of Appeal in Minister
of Employment and Immigration v. Villafranca (1992), 150 N.R. 232 at paragraph
7:
No government that makes any claim to democratic values or
protection of human rights can guarantee the protection of all of its citizens
at all times. Thus, it is not enough for a claimant merely to show that his
government has not always been effective at protecting persons in his
particular situation. Terrorism in the
name of one warped ideology or another is a scourge afflicting many societies
today; its victims, however much they may merit our sympathy, do not become
convention refugees simply because their governments have been unable to
suppress the evil. Where, however, the state is so weak, and its control over
all or part of its territory so tenuous as to make it a government in name
only, as this Court found in the case of Zalzali v. Canada (Minister of
Employment and Immigration), a refugee may justly claim to be unable to avail
himself of its protection. Situations of civil war, invasion or the total
collapse of internal order will normally be required to support a claim of
inability. On the other hand, 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.
[emphasis added, footnote omitted]
[31] Justice
Hugessen’s comments are equally applicable to victims of crime.
[32] As
a matter of law, the question for the Board was whether, on all of the
evidence, it could still be presumed that in that part of Mexico City which is
within the Federal District, the state is able to protect the applicants.
Isolated cases of persons having been victimized or kidnapped may not rebut the
presumption of state protection.
[33] In
evidence before the RPD was Response to Information Request (RIR) MEX100642.E
"Mexico: Kidnapping for ransom, including complicity of police officers,
types of kidnapping, effectiveness of law enforcement officials and protection
available to victims (2004 - 2005)." This RIR reported that:
Numerous reports from
various sources published in 2004 and 2005 have noted that kidnapping for
extortion was prevalent across the country, especially in major urban areas
such as Mexico City (Canada 14 Oct. 2005; US 26 July 2005; IHT 22 July
2005; EFE 10 June 2004). However, while some sources have reported that
kidnapping has increased significantly in recent years (ibid.; The Economist
17 June 2004), the government of Mexico counters this data, stating that
this type of crime has stabilized and even declined slightly (ibid.; El
Universal 22 Jan. 2004).
[…]
Even though
kidnappings fall under state jurisdiction, in June 2004 President Fox stated
that federal authorities would work with state and municipal governments “to
coordinate anti-kidnapping efforts” (Mexidata 14 June 2004; EFE 10 June 2004).
Consequently, much of the law enforcement effort to combat kidnapping has
involved primarily federal police agencies such as the AFI (Reuters 22 Sept.
2005; El Universal 22 Jan. 2004; Latin American Weekly Report 22
June 2004; Business Mexico Sept. 2004). In September 2004, Mexico
City-based news magazine Business Mexico reported that the AFI’s
reputation in handling crime situations such as kidnapping was improving among
those associated with the business community in Mexico. Between the time it
was created in December 2001, and June 2004, the AFI reportedly disbanded 48
kidnap gangs, arrested 305 suspected kidnappers and solved 419 cases of
kidnapping (Latin American Weekly Report 22 June 2004). In addition,
the AFI assisted state authorities with 91 kidnapping cases (ibid.). Moreover,
by August 2005, federal authorities announced that for the year-to-date they
had taken into custody 72 suspected kidnappers and had “fully dismantled” 11 kidnapping
gangs (El Universal 4 Aug. 2005).
[34] In
my view, this evidence supported the conclusions of the RPD that the applicants
had not rebutted the presumption that assistance would be forthcoming in the
future in Mexico City in the Federal District if required, and that the state
was providing adequate, but not perfect protection to its citizens.
[35] It
is my further view that this evidence is more relevant to the Board's finding
than the country conditions documentation relied upon by the applicants. In
that regard:
·
The Human Rights Watch and Amnesty International reports relied
upon by the applicants deal generally with human rights problems in the
criminal justice and public security systems.
·
The United States Department of State report relied upon by the
applicants deals generally with human rights protection.
[36] For
these reasons, the application for judicial review is dismissed. Counsel posed
no question for certification, and I agree that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5503-07
STYLE OF
CAUSE: PILAR
ATRIANO SALDANA et al., Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: SEPTEMBER 4, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: SEPTEMBER 30, 2008
APPEARANCES:
GERALDINE MACDONALD FOR
THE APPLICANTS
TESSA ANNE KROEKER FOR
THE RESPONDENT
SOLICITORS OF RECORD:
GERALDINE MACDONALD FOR
THE APPLICANTS
BARRISTER
& SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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