Date: 20080205
Docket: IMM-1604-07
Citation: 2008 FC 134
Ottawa, Ontario, February 5, 2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
PERLA SAAVEDRA SANCHEZ
ROBERTO RAFAEL LEON MARTINEZ
FERNANDA YAMILE LEON SAAVEDRA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Perla Saavedra Sanchez (the
Applicant), her husband, Roberto Rafael Leon Martinez, (collectively, the
Applicants) and their daughter, Fernanda Yamile Leon Saavedra, from a
negative decision of the Refugee Protection Division of the Immigration and
Refugee Board (Board).
I.
Background
[2]
The
Applicants entered Canada from Mexico on September 11, 2005
and immediately requested refugee protection. Their claim was based on an
alleged risk of harm at the hands of criminal elements. This risk arose after
the Applicant supposedly identified a federal agent as having been involved in
an armed robbery on March 12, 2005 at the branch of the HSBC bank where she
worked. This was followed by some intimidating events including threatening
calls, stalking behaviour and suspicious activity near their child’s daycare
facility, all apparently directed at having the Applicant recant her
denunciation.
[3]
The
Applicant claimed that on July 22, 2005 she was kidnapped, physically abused
and raped. On the same day, her daughter was briefly abducted from school.
The assault upon the Applicant was allegedly reported to the police after a
couple of days but the allegation was essentially dismissed because of her
delay in coming forward. It also appears from the record that the abduction of
the Applicants' daughter was never reported to the police nor were the prior or
subsequent incidents of intimidation.
[4]
Mr.
Leon claimed that on August 1, 2005 he was forced off the road while driving in
Mexico
City.
He said that on September 1, 2005 the same person pursued him again while
driving and pointed a gun at him. He escaped from this situation by driving
his vehicle into the pursuing vehicle. None of this was reported to the police
and there is no indication that the Applicant attempted to elicit the
assistance of the HSBC Bank to intercede on her behalf with the authorities.
II. The Board
Decision
[5]
The
Board rejected the Applicants' claims on the basis of the availability of state
protection and because the Applicants failed to take reasonable steps to seek
assistance from available protective agencies in Mexico. In coming
to this conclusion, the Board made the following factual determinations:
·
The
police made serious efforts to pursue the perpetrators of the bank robbery and
arrested at least one of them, notwithstanding his supposed ties to a federal
police agency.
·
The
authorities were not complicit with the perpetrators of the robbery.
·
The
Applicants did not report the early instances of suspicious surveillance and
gave up trying because the police telephone line was found to be busy.
·
The
Applicant did not report the assault and rape incident to the police until two
days after it occurred and then became dissatisfied because of an apparent lack
of interest by the police.
·
The
Applicants failed to report the two occasions when Mr. Leon was forced
off the road and threatened.
·
Despite
knowledge of some state institutions which might have been helpful, the
Applicants made no effort to seek such assistance beyond the single occasion
when they approached the local police.
·
Although
corruption of public officials is a problem in Mexico, serious
efforts are being taken to address it.
·
While
kidnapping is a problem in Mexico, the state is making serious efforts to
fight it.
·
There
was no persuasive evidence that local or federal police agencies would not have
assisted the Applicants had they made serious efforts to seek help.
[6]
The
Board concluded its extensive analysis of the evidentiary record with the
following finding:
The panel does not disagree that
criminality, corruption and kidnapping are ongoing problems in Mexico. However, based on the
evidence adduced, the panel is not persuaded to believe that there is lack of
action against criminals including kidnappers, and corrupt government
officials. In this case the claimant did not make any reasonable effort to
seek help from the state agencies other than the police, to address her
situation. The panel finds, based on the evidence adduced that the state
authorities are making serious efforts to provide protection to victims of
crimes including kidnapping, victims of corruption and witnesses to crimes.
Therefore, based on the totality of the
evidence adduced, the panel finds that adequate though not necessarily perfect,
state protection is available to individuals like the claimant in Mexico. In this case the claimant,
living in a democracy, simply did not reasonably exhaust courses of action
available to her in obtaining state protection prior to seeking international
protection.
III. Issue
[7]
Did
the Board err in its treatment of evidence concerning state protection?
IV. Analysis
[8]
The
Applicants contend that the Board erred by failing to take appropriate account
of evidence which identified deficiencies in state protection services
available to victims of crime and witnesses to crime in Mexico. They say that
the evidence before the Board – which, according to the Applicants, may have
been sufficient to displace the presumption of state protection in Mexico - was not
appropriately analyzed or fully taken into consideration. These are matters of
mixed fact and law which are reviewable on a standard of reasonableness: see Hinzman
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th)
413 at para. 38.
[9]
While
it is undoubtedly true that the capacity and willingness of Mexican police
agencies and other state protective services to assist victims of criminal
intimidation is not at a level commensurate with the experience in Canada or in the
United States, the Board was satisfied, on this record, that such assistance was
available in Mexico. The law is
clear that individuals facing the sort of risk described by the Applicants have
a duty to attempt to access such services before seeking international
protection. It is simply not sufficient to give up trying because the
emergency phone line was busy or because of a single bad experience with local
police officials. As was stated by Justice Michael Phelan in Kim
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1126, 141 A.C.W.S. (3d) 822 at
para. 10, a refugee claimant does not rebut the presumption of state protection
in a functioning democracy by asserting only a "subjective reluctance to
engage the state". The Board's conclusion that the efforts taken by the
Applicants to pursue state protection did not meet the required legal threshold
was amply supported by the evidence before it and cannot be described as
unreasonable.
[10]
I
also do not accept that the Board erred by referring to agencies which may not
have a direct responsibility for the provision of protective assistance, such
as the Mexican Human Rights Commission. State agencies which are outside of
the criminal justice system, and even a person's employer, can play a helpful
role in cases like this where the initial local police response may not be
adequate. In this case there were a number of alternate agencies noted by the
Board which could have been approached and it is surprising that the Applicants
chose not to do so in the face of the events they described. Indeed, the
failure by Mr. Leon to immediately seek police assistance after the
alleged kidnapping and return of his daughter is inexplicable.
[11]
I
also do not agree that the Board ignored documentary evidence which detailed
deficiencies within the Mexican criminal justice system. The Board referred to
problems of official corruption and to the prevalence of crime (including
kidnapping) in Mexico but found that the state was motivated and was
taking active steps to respond. The Board has no obligation to list every
piece of evidence that it examined: see Hassan v. Canada (Minister of
Employment and Immigration) (1992) 147 N.R. 317, 36 A.W.C.S. (3d) 635
(F.C.A.). I am satisfied that the Board’s analysis of the evidence was
sufficient and that its conclusion that state protection was available to the
Applicants was, on this record, reasonable.
[12]
Whatever
deficiencies may exist within the Mexican criminal justice system, the country
is a functioning democracy with an official apparatus sufficient to provide a
measure of protection to its citizens. According to Hinzman, above, the
burden of attempting to show that one should not be required to exhaust
all avenues of available domestic recourse is a heavy one and, on the facts as
found here by the Board, it was obviously not met.
[13]
In
the result, this application for judicial review must be dismissed.
[14]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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