Date:
20130129
Docket:
IMM-3223-12
Citation:
2013 FC 88
Ottawa, Ontario,
January 29, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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JOSE ARTURO GUERRA
DIAZ
ALEJANDRA MACIAS
CATILLO
JORGE EMILIANO
GUERRA MACIAS
ALMA KARINA GUERRA
MACIAS
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 98 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA] of a decision of the
Refugee Protection Division of the Immigration and Refugee Board [the Board],
dated February 29, 2012, wherein the Board determined that the applicants were excluded
from claiming refugee protection in Canada.
I. Background
[2]
The
applicants, Jose Arturo Guerra Diaz [the principal applicant, or PA], his wife
Alejandra Macias Catillo, and two children, Jorge Emiliano Guerra Macias (born
in 2004) and Alma Karina Guerra Macias (born in 2006) are citizens of Mexico where the PA operated a cellular telephone shop.
[3]
In
May 2007, four members of a criminal cartel called the Cartel del Gulfo [Gulfo
Cartel] visited the telephone shop and demanded to be paid a monthly extortion
fee. The PA gave the members half of the amount requested and did not inform
the police of the extortion incident.
[4]
One
week later, the same members returned demanding the remainder of the fee and
also demanded that the PA obtain and activate two untraceable cellular
telephones for the cartel. Such telephones are illegal. The members vandalized
the shop when the PA informed them that he was not familiar with the devices.
[5]
The
PA was able to obtain two untraceable telephones for the Gulfo Cartel. When
the members came to pick them up, they requested that he obtain an additional
four. By the end of June 2007, they had requested an additional eight
untraceable telephones.
[6]
When
the PA informed the members that he would not be able to obtain any more untraceable
phones, they vandalized his shop and threatened to kill him. This time, the PA
called the police to report the damage to his shop. The police indicated that
he could not make a report since he could not identify his attackers.
[7]
After
closing the business to repair the damage and recover from his injuries, the PA
was threatened at home by the same gang members asking for monthly extortion
money and untraceable telephones.
[8]
At
the end of July 2007, the applicants moved to a different address. Two months
later, the PA re-opened the shop, but under another person’s name, Ricardo
Zamarripa, with whom he only communicated by telephone.
[9]
In
July 2008, the Gulfo Cartel resurfaced and severely damaged the premises of the
new cellular business because the PA was almost a year in arrears of his
monthly extortion fees (plus interest). They also demanded to know his new home
address and his personal cellular telephone information as well as ten more
untraceable telephones.
[10]
In
August 2008, the applicants changed their address again and the PA also changed
the name of the business.
[11]
In
February 2009, Gulfo Cartel members entered the new shop and took money and
merchandise as payment for the extortion fees the PA owed. The members also
learned his new home address and attempted to run down the PA with a light
truck. They then threatened to kill him if he did not obtain the untraceable
telephones.
[12]
On
March 9, 2009, members of the Gulfo Cartel fired several shots at the PA in a
failed attempt to kill him.
[13]
On
March 18, 2009, the applicants decided to flee Mexico for Canada, because they
had received little assistance from the Mexican authorities.
[14]
On
March 31, 2009, they applied for refugee protection in Canada.
[15]
on
February 29, 2012, the Board decided that the applicants were not convention
refugees or persons in need of protection under section 96 and 97 of the IRPA.
II. Issues
[16]
The
applicant raises the following issues :
A.
Did
the Board err in determining that the PA is excluded from claiming refugee
protection on the basis of Article 1F(b) of the United Nations Convention
Relating to the Status of Refugees, July 28, 1951, [1969] Can TS No 6
[Convention]? More specifically, did the Board err in finding that:
i.
the
PA’s acts in Mexico, if committed in Canada, would constitute offences under s.
467.11 of the Criminal Code, RSC, 1985 c C-46 [CC],;
ii.
the
defense of duress does not apply; and
iii.
the
alleged offences are “serious crimes”?
B.
Did
the Board err in finding that the PA was not a credible witness?
C.
Did
the Board err in determining state protection was available for the applicants?
III. Standard
of review
[17]
In
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir],
the Supreme Court of Canada [SCC] held that a standard of review analysis
should only be undertaken where the standard of review applicable to a
particular question before the court is not well-settled by past jurisprudence.
[18]
With
regard to the first issue, there is varied jurisprudence as to which standard
applies. In December 2012, the Federal Court of Appeal held that the standard
of review applicable to the interpretation of section 98 of the IRPA and
Article 1F(b) of the Convention is correctness (Feimi v Canada (Minister of
Citizenship and Immigration), 2012 FCA 325 at para 14-15 [Feimi]; Febles
v Canada (Minister of Citizenship and Immigration), 2012 FCA 324 at para 22-25
[Febles]; Pineda v Canada (Minister of Citizenship and Immigration),
2010 FC 454 at para 18 [Pineda]).
[19]
However,
it has also been held the standard applicable to the application of
section 98 and Article 1F(b) to the facts of a particular case is a question of
mixed fact and law, reviewable on a reasonableness standard (Sanchez v
Canada (Minister of Citizenship and Immigration), 2012 FC 1130 at para
35-36; Pineda, above, at para 18; and Jawad v Canada (Minister of
Citizenship and Immigration), 2012 FC 232 at para 21 [Jawad]).
[20]
The
standard of review applicable for the defence of duress is reasonableness (Canada
(Minister of Citizenship and Immigration) v Maan, 2007 FC 583 at para 15 [Maan];
Canada (Minister of Citizenship and Immigration) v Hussain, 2002 FCT
209). The standard applicable when determining the seriousness of a crime in
regards to Article 1F(b) of the Convention is also reasonableness (Feimi,
above, at para 16).
[21]
Thus
the Board’s decision on the first issue should be reviewed on a correctness for
interpretation of Article 1F(b) and a reasonableness standard otherwise (Jayasekara
v Canada (Minister of Citizenship and Immigration), 2008 FC 238 [Jayasekara],
Murillo v Canada (Minister of Citizenship and Immigration), 2008 FC 996,
Jawad, above).
[22]
The
standard of review applicable to the second issue, that of credibility of the
PA, is reasonableness (Gecaj v Canada (Minister of Citizenship and
Immigration), 2012 FC 1369 [Gecaj]; Negash v Canada (Minister of
Citizenship and Immigration), 2012 FC 1164 at para 15; Hazell v Canada
(Minister of Citizenship and Immigration), 2012 FC 1501 at para 27; Aguebor
v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (FCA)
at para 4).
[23]
The
standard of review applicable to the third issue, that of the availability of
state protection, is reasonableness (Gecaj, above; Carrillo v Canada
(Minister of Citizenship and Immigration), 2008 FCA 94 at para 36 [Carrillo];
Bibby-Jacobs v Canada (Minister of Citizenship and Immigration), 2012 FC
1176 at para 2).
[24]
When
reviewing on the standard of reasonableness, as always, the court is concerned
with justification, transparency and intelligibility of the decision and to
determine if the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir, above,
at para 47).
IV. The
Impugned Decision
[25]
The
Board found that in supplying the Gulfo Cartel with untraceable telephones, the
PA had committed a serious non-political crime and was excluded under section
98 of the IRPA which states:
98. A person referred to in section E or F of
Article 1 of the Refugee Convention is not a Convention refugee or a person in
need of protection.
[26]
Article
1F(b) of the Convention, states:
F. The provisions of this Convention shall not apply
to any person with respect to whom there are serious reasons for considering
that:
[…]
( b ) He has committed a serious non-political crime
outside the country of refuge prior to his admission to that country as a
refugee;
[27]
The
Board found that the PA’s acts in Mexico would be considered offences under s.
467.11 of the CC, if they were committed in Canada.
[28]
The
Board noted that the PA admitted, during the hearing, to being aware that the
Gulfo Cartel was involved in serious crimes in Mexico. The Board rejected the
argument that the PA simply obtained the untraceable telephones through a third
party.
[29]
The
Board also rejected the argument that, pursuant to the UNHCR Handbook, which
uses the words “a capital crime or a very grave punishable act”, that based on
the foregoing, the principal claimant is not subject to exclusion, since the
penalty prescribed under s. 467.11(1) of the CC provides for a term not
exceeding five years.
[30]
The
Board also concluded that there was serious reason to believe that the PA
knowingly contributed and enhanced the Gulfo Cartel’s ability in Mexico “… to facilitate or commit an indictable offence…”.
[31]
The
Board further concluded that if theses crimes had been committed in Canada for
a criminal organization similar to the Gulfo Cartel, pursuant to subsection
467.11(1) of the CC, the PA may be subjected to a penalty of “… imprisonment
for a term not exceeding five years” for each offence or a total of fifteen
years.
[32]
On
the credibility issue, the Board believed that the existence of contradictions,
discrepancies, and implausibilities in the evidence of a claimant is a
well-accepted basis for a finding of a lack of credibility. On this note, the
Board found that the PA was not a credible and trustworthy witness with regard
to his allegations that he approached the Mexican police to seek assistance,
since he admitted in his oral and documentary evidence that he deliberately
withheld the pertinent information that he had supplied untraceable telephones
to the Gulfo Cartel from the Mexican police. The Board rejected the argument
that he withheld the information because he did not want to compromise himself
or his friends. Instead, the Board believed that the Mexican authorities’
investigations into the PA’s complaint would be seriously curtailed if they
were not given an accurate description of who, where, what, when and why the
events had occurred.
[33]
With
respect to section 96 of the IRPA, the Board then found that the applicants did
not have a link to any Convention ground. While the applicants stated that they
had a well-founded fear of persecution for reasons of their “membership to a
particular social group”, the Board determined that there was no evidence to
support the theory that refusing to participate in illegal criminal activities
or refusing to pay extortion monies to the Gulfo Cartel did not engage the
machinery of state, government or policy in Mexico, and as such the PA’s
actions are not an expression of political opinion.
[34]
With
respect to section 97 of the IRPA, the Board ultimately determined that the
claim should fail because state protection was available to the applicants.
V. Analysis
A. Did
the Board err in determining that the PA is excluded from claiming refugee
protection on the basis of Article 1F(b) of the Convention?
i. Did the Board err in finding that the PA’s acts
in Mexico, if committed in Canada, would constitute offences under s. 467.11 of
the CC?
[35]
Section
467.11 of the CC provides that:
(1) Every person who, for the purpose of
enhancing the ability of a criminal organization to facilitate or commit an
indictable offence under this or any other Act of Parliament knowingly, by act
or omission, participated in or contributes to any activity of the criminal
organization is guilty of an indictable offence and liable to imprisonment for
a term not exceeding five years.
[36]
The
applicants submit that it is not disputed that the Gulfo Cartel is a criminal
organization. What is disputed, however, is whether the PA supplied the
untraceable telephone to the members of the cartel “for the purpose of
enhancing the ability of” the cartel to “facilitate or commit an indictable
offence”.
[37]
The
applicants submit that the reason behind the PA’s participation was his safety
and that of his family. They further submit that there is no evidence in the
record to establish that the PA provided the telephones for the purpose of
enhancing the Gulfo Cartel’s ability to facilitate or commit a serious offence.
Nor is there any evidence to indicate that the cartel actually used the
telephones for criminal purposes.
[38]
The
applicants submit that this argument is buttressed by s. 467.11(3) of the CC, which
sets out factors that a court may consider in determining whether an accused
participated in or contributed to activities of a criminal organization.
Section 467.11(3) of the CC states:
(3) in determining whether an accused
participated in or contributes to any activity of a criminal organization, the
court may consider, among other factors, whether the accused
a) uses a name, word, symbol or
other representation that identifies, or is associated with, the criminal
organization’
b) frequently associates with
any of the persons who constitutes the criminal organization;
c) receives any benefit from the criminal
organization; or
d) repeatedly engages in
activities at the instruction of any of the person who constitutes the criminal
organization.
[39]
The
respondent submits that the exclusion finding by the Board is not unreasonable.
The respondent submits that, contrary to the applicants’ arguments with regard
to the Board’s assessment of the acts committed by the PA in Mexico, the
standard of proof is “serious reasons for considering”. As such, that it is
clear that the Board did not err in finding that the PA’s acts could constitute
offences under section 467.11 of the CC.
[40]
I
believe that the PA did not commit a serious non-political crime and should
therefore not be excluded from applying for refugee protection in Canada.
[41]
As
stated in Article 1F(b), the standard of proof for an exclusion finding is
“serious reasons for considering”, which is equivalent to “reasonable ground to
believe” which requires something more than a suspicion, but less than proof on
a balance of probabilities (Xie v Canada (Minister of Citizenship and Immigration),
2004 FCA 250 at para 23).
[42]
This
Court, in a number of cases, has considered what constitutes a serious,
non-political crime within the meaning of Article 1F(b). In Chan v Canada
(Minister of Citizenship and Immigration), [2000] 4 FC 390, [2000] FCJ No
1180, the Federal Court of Appeal stated at para 9:
This part of my analysis begins with the presumption
that the appellant's conviction in the United States constitutes a serious
non-political crime within the meaning of Article 1F(b). While this presumption
is contrary to the appellant's interests, it is consistent with the position
articulated by the Board and adopted by the Motions Judge. In this regard, the
Motions Judge held that the Board did not err in concluding that the
appellant's conviction arose out of an offence involving drug trafficking and
that such conduct amounted to a serious non-political crime. This was so
despite the fact that the appellant was convicted not for drug trafficking per
se but for the unlawful use of a communication device, an offence unknown to
[page399] Canadian law. Moreover, I am going to presume that, had the appellant
engaged in similar conduct in Canada, he would have been convicted of an
offence such as drug trafficking for which a maximum prison term of ten years
or more could have been imposed. In other words, for present purposes I will
presume, without deciding, that a serious non-political crime is to be equated
with one in which a maximum sentence of ten years or more could have been
imposed had the crime been committed in Canada. As will become evident, these
presumptions assist me in demonstrating the inconsistency in the Minister's
interpretation of Article 1F(b) when contrasted with other relevant provisions
of the Act.
[43]
In
Farkas v Canada (Minister of Citizenship and Immigration), 2007 FC 277,
Justice Judith A. Snider stated at para 22:
The second problem
with this argument is that it ignores the more recent jurisprudence. In Chan,
above at para 9, the Federal Court of Appeal accepted that, "a serious
non-political crime is to be equated with one in which a maximum sentence of
ten years or more could have been imposed had the crime been committed in
Canada." The ten-year threshold was affirmed by Justice Michael Kelen in Xie
v Canada (Minister of Citizenship and Immigration), [2004] 2 FCR 372 at
para34, aff'd [2004] FCJ No 1142, 2004 FCA 250, after a careful analysis. Other
Courts have endorsed the concept of referring to the penalty provided in
Canadian law (see, for example, Medina v Canada (Minister of
Citizenship and Immigration), 2006 FC 62, [2006] FCJ No 86 (FC).
Accordingly, with the evidence that the crime, if committed under Canadian law,
carries a penalty of ten years, the Board had an evidentiary base to conclude
that the crime qualified as "serious" within the meaning of Article
1F(b) of the Convention.
[44]
The
Federal Court of Appeal again considered the issue in Jayasekara, above,
at paras 44 and 45:
I believe there is a consensus among the courts that
the interpretation of the exclusion clause in Article 1F(b) of the Convention,
as regards the seriousness of a crime, requires an evaluation of the elements
of the crime, the mode of prosecution, the penalty prescribed, the facts and
the mitigating and aggravating circumstances underlying the conviction: see S
v Refugee Status Appeals Authority, (NZ CA), supra; S and Others v
Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal
Courts of Justice, England); Miguel-Miguel v Gonzales, no 05-15900, (US
Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other
words, whatever presumption of seriousness may attach to a crime
internationally or under the legislation of the receiving state, that
presumption may be rebutted by reference to the above factors. There is no
balancing, however, with factors extraneous to the facts and circumstances
underlying the conviction such as, for example, the risk of persecution in the
state of origin: see Xie v Canada, supra, at paragraph 38; INS v
Aguirre-Aguirre, supra, at page 11; T v Home Secretary (1995), 1 WLR
545, at pages 554-555 (English C.A.); Dhayakpa v The Minister of Immigration
and Ethnic Affairs, supra, at paragraph 24.
For instance, a constraint short of the criminal law
defence of duress may be a relevant mitigating factor in assessing the
seriousness of the crime committed. The harm caused to the victim or society,
the use of a weapon, the fact that the crime is committed by an organized
criminal group, etc. would also be relevant factors to be considered.
[45]
Respondent’s
counsel argues that there is no bright line established by the Court as to
whether a “serious non-political crime” requires that a maximum sentence of ten
years or more must be able to be imposed. I agree, but one must take into
account the factors as set out in Jayasekara by the Federal Court of
Appeal.
[46]
I
do not believe that the evidence demonstrates that the PA provided the
untraceable telephones “for the purpose of enhancing the ability of a criminal
organization to commit indictable offences.” As the evidence below demonstrates,
the PA was being extorted by the Gulfo Cartel and was providing them with money
and untraceable telephones in an attempt to avoid being killed and to protect
his family. In any event, the PA provided the telephones under duress as set
out below.
ii. Did the Board err
in concluding that the defense of duress did not apply?
[47]
The
applicants take issue with the Board’s application of the test in R v Ruzic,
2001 SCC 24 [Ruzic]. Firstly, the applicants submit that the Board’s
strict application of the “immediacy” standard was inconsistent with the
flexible approach endorsed by the SCC which only requires that “there must be a
close temporal link between the threat of harm and the commission of the
offence”. Second, the applicants submit that “safe avenue of escape” test does
not require an accused to move to another part of the country to avoid
committing a crime, nor does the law require an accused to seek the official
protection of the police in all cases (Ruzic, above at para 7). Finally,
the applicants submit that the proportionality of harm test was not properly
applied because no evidence was adduced about the harm inflicted by the PA in
providing the untraceable telephones to the Gulfo Cartel – that the harm was
speculative and remote.
[48]
The
respondent submits that the Board did not err in determining that the defence
of duress did not apply, and that the reasoning at paragraphs 27 to 35 of the
Board’s decision is clear, cogent and comprehensive.
[49]
The
respondent suggests that this case is different from those in Ruzic and Maan,
above, relied upon by the applicants. The main differences being that the Board
found that the police would be wiling to assist the applicants had they
reported the threats from the Gulfo Cartel, and that there was an internal
flight alternative available to the applicants. Thus, unlike the situations in Ruzic
and Maan, the PA did not lose his ability to act freely – there was an
alternative to breaking the law.
[50]
Finally,
the respondent also submits that the applicants’ argument that there is no
evidence to establish that the Gulfo Cartel used the illegal equipment for
criminal purposes is without merit. Indeed, the PA testified that the
equipment he obtained for the cartel was illegal and that the cartel engaged in
crimes such as drug trafficking, extortion, kidnapping, murder, etc. From these
admissions, the Board reasonably inferred that the untraceable telephones would
be used for illegal activity.
[51]
The
test of duress is outlined in the Ruzic decision. The tripart test
consists of determining if there is 1) an urgent situation of clear and
imminent danger; 2) no reasonable legal alternative to breaking the law; and 3)
proportionality between the harm inflicted and the harm avoided.
[52]
At
paragraph 56 of Ruzic, the SCC stated that: “in Canada, the common law
defence of duress has freed itself from the constraints of immediacy and
presence and thus appears more consonant with the values of the Charter.”
Indeed, Canadian courts have interpreted the immediacy in a much more flexible
manner than some of its international counterparts. In Ruzic, the Court
held that:
the immediacy test is interpreted as a requirement
of a close connection in time, between the threat and its execution in such a
manner that the accused loses the ability to act freely. A threat that would
not meet those conditions, because, for example, it is too far removed in time,
would cast doubt on the seriousness of the threat and, more particularly, on
claims of an absence of a safe avenue of escape. (Ruzic at para 65)
[53]
One
way of looking at duress is to ask whether the threat was effective to overbear
the accused’s will at the moment he committed the crime.
[54]
In
applying the Ruzic test, I find that the PA was in a situation of clear
and imminent danger. While I recognize that there was some delay between the
threats and the acquisition of the untraceable telephones, I believe that the
PA’s will was altered by the threats whenever he was obtaining the telephones
for the Cartel.
[55]
On
the second part of the test, I find that the PA had tried to reasonably avoid
obtaining the telephones: he told the gang members that they were unobtainable,
he closed his store and reopened it under a different name, he changed his
address – twice, and despite these efforts, and much time elapsing, he was
still a target of the Gulfo Cartel. Moreover, going to the police for
protection proved to be a futile experience, and was not a reasonable or
practical option.
[56]
On
the third part of the test, I do not agree with the applicants that there was
no evidence adduced about the harm inflicted by the PA in providing the
untraceable telephones to the Gulfo Cartel. I believe that the Gulfo Cartel was
able to communicate without being tracked by the authorities because of the untraceable
telephones and as such this may have delayed their ability to apprehend the
cartel, but there is no doubt that the threats of the cartel to the PA and his
family were real and the harm that was inflicted on the PA and the attempts on
his life was far greater than the speculation of what might have been done with
the untraceable telephones.
[57]
Accordingly,
in this case I find there was a valid defence of duress for the PA and that the
Board erred in this regard.
iii. Did the Board err
in concluding that the alleged offences were “serious crimes”?
[58]
The
applicants submit that the Board failed to properly consider the factors set
out in the Federal Court of Appeal’s decision in Jayasekara, above,
which must be weighed in determining whether a crime is a “serious
non-political crime” under Article 1F(b): a) the penalty prescribed; b) the
facts; and c) the mitigating and aggravating circumstances underlying the
conviction.
[59]
I
agree with the applicants that on the facts in this case, the Board was unreasonable
in determining the PA’s actions amounted to participating in a serious crime.
B. Did the Board err in
finding that the PA was not a credible witness?
[60]
While
judicial review should be granted on the first issue alone, I have considered the
second and third issues raised.
[61]
The
applicants submit that the Board’s credibility analysis does not meet the
minimum standards summarized by Justice Eleanor Dawson in KK v Canada
(Minister of Citizenship and Immigration), 2005 FC 873 at para 4: “…Those
aspects of the testimony which appear not to be credible are to be specifically
identified by the RPD and the reasons for such conclusion are to be clearly
articulated.” Particularly, the applicants find it difficult to discern what
particular evidence the Board found not credible as the Board’s reasons on this
topic are not “clearly articulated”.
[62]
The
applicants also submit that it was unreasonable for the Board to characterize
the PA as an untrustworthy criminal when he only provided the untraceable
telephones to the Gulfo Cartel under threat.
[63]
The
respondent submits that the Board did not err in drawing negative inferences
from the applicants’ evidence and that this argument is not one upon which
leave or judicial review should be granted.
[64]
The
respondent argues that the Board’s decision is clear: it indicates that the
Board took issue first with the delay in the PA’s denunciation, second with the
lack of important information from his Personal Information Form [PIF]. The
Board also noted the PA’s failure to declare to the authorities that he had
given untraceable telephones to members of the Gulfo Cartel. In the end, the respondent
argues that even if the Board erred as alleged, the error is immaterial given
the Board’s state protection finding.
[65]
The
case law in regards to credibility is clear as stated by Justice Ronald J. Rennie
in Khan v Canada (Minister of Citizenship and Immigration), 2012 FC 415
at para 16: “…Since the Board member had the advantage of hearing the testimony
and observing the applicant's demeanor, the Court must be deferential regarding
her credibility findings, so long as they were reasonably open to [the Board].”
[66]
I
believe that it was reasonably open to the Board to find that the PA’s testimony
was not credible. Moreover, the section of the Board’s decision that puts into
question his credibility is transparent, intelligible and justified. The Board
elaborated on the different inconsistencies including the omissions from the
first PIF, the delay in submitting a denunciation to the police, and the fact
that he had not reported the untraceable telephones to the authorities.
Nevertheless, the PA’s credibility should not be determinative of the outcome
of this application.
C. Did the Board err in
determining state protection was available for the applicants?
[67]
The
applicants take issue with the fact that Board admitted, at paragraph 55 of its
decision, that the documentary evidence does suggest that corruption continues
to be a problem in Mexico yet concluded that the conditions have improved to the
point where there is adequate state protection for victims of crime.
[68]
The
applicants contend that the evidence does not support this conclusion; on the
contrary, documentary evidence, which the Board did not refer to, indicates
that corruption remains a problem. The applicants suggest that the Board’s
failure to address one such document is a reviewable error.
[69]
The
applicants also take issue with the fact that the Board failed to address two
significant elements of the PA’s own evidence with respect to his attempts at
seeking state protection. The first omission was the fact that the PA was
warned by the members of the Gulfo Cartel not to contact the police. The
second omission is the fact that the gang members came to his home only after
he had reported the attack on his store to the police, which the applicants
suggest indicates that the members of the Cartel may have learned his home
address from the police.
[70]
The
applicants clarify that they are not asking the Court to re-weigh evidence, as
asserted by the respondent, rather, they are asking the Court to review whether
it was reasonable for the Board to deal with only a selection of the
documentary evidence and to downplay the evidence that contradicted the Board’s
finding on the availability of state protection as was the case in Huerta v
Canada (Minister of Citizenship and Immigration), 2008 FC 586 and Rodriguez
v Canada (Minister of Citizenship and Immigration), 2009 FC 262.
[71]
The
respondent reminds the court that the onus is on the applicants to “adduce
relevant, reliable and convincing evidence which satisfies the trier of fact on
a balance of probabilities that state protection is inadequate” (Carrillo, above,
at para 30). The respondent supports the Board’s finding that Mexico is a
democratic country, where the government is in effective control of its
territory with military, police and civil authorities in place.
[72]
The
respondent further submits that the Board did not ignore the evidence submitted
by the PA regarding corruption. Specifically, the respondent relies on the
decision in Clifford v Ontario Municipal Employees Retirement System,
2009 ONCA 670 at paragraph 40 which states:
As I have described, reasons need not refer to every
piece of evidence to be sufficient, but must simply provide an adequate
explanation of the basis upon which the decision was reached.
[73]
At
paragraph 50 of Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, the
SCC held that there is presumption that a state is capable of protecting its
citizens except in situations where the home nation is in a state of complete
breakdown. It also held that the onus is on the applicant to rebut that
presumption by providing clear and convincing evidence of the state’s inability
to protect its citizens.
[74]
There
is also a responsibility on the applicant to approach the state for protection.
Indeed, the applicants are obliged to make “determined efforts” to access state
protection and "additional efforts" may be required to rebut the
presumption (Carrillo, above, at para 34).
[75]
This
Court may intervene if it finds that the applicants were able to demonstrate
that the panel's findings concerning state protection were made in a perverse
or capricious manner or without regard for the documentary evidence or
testimony in the record (Castaneda v Canada (Minister of Citizenship and
Immigration), 2010 FC 393). That is not to say that a decision will be
overturned solely because the Board failed to consider a particular document.
However, as stated at paragraph 88 of Rios v Canada (Minister of Citizenship
and Immigration), 2012 FC 276 [Rios], boards must address
significant and important evidence (see Michel v Canada (Minister of
Citizenship and Immigration), 2010 FC 159 at para 40). As stated in the
often-cited case of Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425, 157 FTR 35 at para 17:
…the more important the evidence that is not
mentioned specifically and analyzed in the agency's reasons, the more willing a
court may be to infer from the silence that the agency made an erroneous
finding of fact "without regard to the evidence"…
[76]
The
applicants claim that the Board did not consider some documentary evidence that
went against the presumption of state protection. In Rios, above, a
similar claim is made, that the Board only mentioned once that “deficiencies
may exist in the Mexican criminal justice system”, without providing any
further analysis on the significant evidence that contradicts its finding that
“there is continuing progress in regard to the government's efforts to provide
adequate protection for citizens in Mexico”. In the case of Rios,
Justice John A. O’Keefe found that the Board made an erroneous finding of fact
on the question of state protection, without regard to the evidence before it.
[77]
In
the case at bar, the Board mentions at paragraph 57 of its decision, that it
“accepts that Mexico has had some difficulties in the past with addressing the
criminality and corruption that exist within the security forces in Mexico, but
concludes that the applicants had not provided clear and convincing proof that
state protection in Mexico was inadequate. The applicants take issue with the
fact that the Board does not give weight to the evidence provided by them and
the PA’s testimony.
[78]
I
find that while it was open to the Board to not refer to every piece of
evidence provided by the parties, it none the less should have provided further
analysis of significant evidence that contradicted its findings that “on the
whole, the issues of police corruption and deficiencies are being addressed by
the state of Mexico”.
[79]
Given
the PA’s testimony that he was beaten at home for the first time only after he
reported the damage to his shop to the police and the fact that corruption in
this case appeared to be readily apparent, the Board made an erroneous finding
of fact on the question of state protection for the applicants in this case.
[80]
The
parties agree that unless I decide the issue that a serious crime requires a
maximum sentence of ten years, no question need be considered for
certification. I have not done so.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.)
The
applicants’ application for judicial review is granted and the matter is
referred to a different panel of the Board for redetermination;
2.)
No
questions are certified.
"Michael D.
Manson"
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