Date: 20081107
Docket: IMM-1949-08
Citation: 2008 FC 1246
Toronto, Ontario, November 7,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
EMMANUEL
MEJIA BALLESTEROS,
MARIA EUGENIA GUZMAN DE LA CRUZ
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are common-law spouses and citizens of Mexico. The male
Applicant entered Canada on September 30, 2006 and made a claim for
refugee status on December 15, 2006. The female Applicant entered Canada on January
29, 2007 and made a claim for refugee status that day.
[2]
Their
claims were heard together in November and December 2007. A decision was made
in writing by the hearing Member of the Immigration and Refugee Board dated
April 10, 2008 rejecting the Applicants claim. This decision is the subject of
the judicial review.
[3]
For
the reasons that follow, I find that the application is allowed.
[4]
The
Applicants formerly resided in the Mexico City area. The sister of
the male Applicant was being courted by two suitors, one being a well-placed
police officer. Ultimately, his sister chose the other suitor. This caused
the police officer, Romero, to harass his sister to such an extent that she
fled Mexico to come to Canada for
respite. About a year later, his sister made a Refugee claim in Canada which, by a
decision of the Board dated December 11, 2002, was accepted. The Applicants
claim to have been unaware of this decision or at least the basis for this
decision.
[5]
The
male Applicant alleges that the police officer, Romero, pursued him and
threatened to kill him unless he revealed his sister’s whereabouts. The male
Applicant alleges that on two separate occasions, he reported Romero’s conduct
to the police to no avail. He left Mexico and came to Canada where he
made his claim for refugee status.
[6]
The
female Applicant allegedly then became the subject of Romero’s harassment and
threats made in order to coerce her to reveal the sister’s whereabouts. The
female Applicant was pregnant at the time with the male Applicant’s child. The
female Applicant left Mexico and came to Canada where she
made a claim for refugee protection. The child was born in Canada.
[7]
There
is one central issue in this matter, whether Mexico is able to
offer adequate state protection to these two Applicants. It is well
established law that state protection is presumed and that an applicant must
rebut that presumption with clear and convincing evidence (Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689). In order to rebut the presumption
of state protection, an applicant must introduce evidence of inadequate state
protection; this is an evidentiary burden; in addition, as a legal burden of
persuasion, the applicant must convince the Board that the evidence adduced
establishes that state protection is inadequate (Canada (MCI) v. Carrillo,
2008 FCA 94 at paras. 17-19).
[8]
Here
there is uncontested evidence:
·
On
similar facts the Refugee Board allowed a claim for refugee protection made by
the male Applicant’s sister;
·
There
was pressing and persistent harassment of the male Applicant, the female
Applicant and even the male Applicant’s parents by Romero;
·
Romero
was a police officer; his father was well placed in the Attorney General’s
office. Romero was known to police colleagues as a rogue police officer.
·
Romero
physically threatened and assaulted the male and female Applicants.
·
The
male Applicant denounced Romero to the police on two occasions and nothing was
done about it.
·
The
female Applicant received advice from her sister, a lawyer, that it would be
futile to denounce Romero to the police and that she should simply leave the
country.
[9]
All
of those facts are established in the evidence and are not subject to any
issues as to credibility.
[10]
The
Board Member at page 8 of his Reasons writes:
If the claimants believe
certain members of the police force to be corrupt, the onus was theirs to
approach other members of the police force or another level of police. I am
guided in the analysis of De Baez which states: “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.”
[11]
The
Board Member does not refer to the fact that, at paragraph 14 of De Baez (De
Baez v. Canada (MCI) 2003 FCT 785) Dawson J. says that, in that case, the
Applicants never went to the police.
[12]
Here
the evidence shows that the male Applicant went to the police on two separate
occasions and, on my review of the oral transcript, there is credible evidence
that he went a third time. The evidence is clear that whether he went two or
even three times, the police did nothing.
[13]
The
female Applicant sought the advice of a lawyer and was told that it was futile
to go to the police.
[14]
Given
this evidence, the Board Member was required to weight it, not against an
arbitrary standard, but against clearly identified other evidence before the
Board, whether documentary or otherwise, and determine if the weight of the
evidence favours the Applicants or not. This did not happen.
[15]
The
matter must be returned for redetermination by a different Member.
[16]
No
party requested certification or costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
- The application is
allowed;
- The matter is
returned for redetermination by a different Member;
- No questions for
certification; and
- No Order as to
costs.
“Roger T. Hughes”
Email this Content