Date: 20060426
Docket: IMM-3310-05
Citation: 2006 FC 512
BETWEEN:
VICTOR HUGO ARREOLA DE LA CRUZ
ROSA HILDA PEREZ PADILLA
JESSICA VIRIDIANA PEREZ PADILLA
(a.k.a. JESSICA VIRIDIA ARREOLA PEREZ)
VICTOR HUGO ARREOLA PEREZ
NATALIA GUADALUPE ARREOLA PEREZ
(a.k.a. NATALIA GUADALU ARREOLA PEREZ)
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
The
Applicants are a family and citizens of Mexico. Victor Hugo Arreola de la Cruz is the principal Applicant.
The Applicants fled Mexico on the 27th of May, 2004 and arrived in Canada on the same day. On
arrival, or shortly thereafter, the Applicants claimed Convention refugee
status or like protection. They based their claim on a fear of a highly placed
government official and police officers who supported him. They alleged that,
because of the power and influence of the highly placed government official,
state protection was not available to them in Mexico.
[2]
In a
decision dated the 10th of May, 2005, the Refugee Protection
Division (the “RPD”) of the Immigration and Refugee Board rejected the
Applicants’ claims for protection. The Applicants sought judicial review of
that decision. These reasons follow the hearing of the Applicants’ application
for judicial review.
BACKGROUND
[3]
In
January of 2000, the principal Applicant began driving a taxi that was licensed
through Galaxy Group. He and other taxi drivers within the same Group were
offered an opportunity to purchase their own permits and plates. The principal
Applicant and a number of his colleagues took advantage of the offer and paid
deposits toward the full permit and plate costs. The permit and plates, that
would have been issued under the authority of the highly placed government
official that the Applicants allege they now fear, were never delivered.
[4]
On
the 8th of January, 2003, the Applicants participated in a protest
demonstration with others, demanding that the taxi permits and plates that had
been offered to them, and on which they had paid deposits, be delivered. The
protesters were confronted by police. Violence erupted and shots were fired.
The adult female Applicant and the youngest of the minor Applicants were
injured. Both were hospitalized.
[5]
In
August of 2003, the principal Applicant left Galaxy Group and joined another
similar organization. He found that the same offer that had been made to
Galaxy Group drivers was being made to drivers in the group he joined. The
principal Applicant alleges that he warned his new colleagues that the offer
being made to them was a fraud.
[6]
In
mid-February of 2004, the principal Applicant alleges that he was confronted
and threatened by men that he believed to be police. He alleges that in early
May of 2004, while he was en route to a police station to report his problems
and fears, he was assaulted and again threatened, once again by men he believed
to be police. As a result of the assault, he was hospitalized for some four
(4) days.
[7]
In
mid-May of 2004, shots were fired into the Applicants’ house when all of the
family members, other than the principal Applicant himself, were inside. The
Applicants moved to a different municipality.
[8]
Finally,
on the 20th of May, 2004, the Applicants were advised that police
were looking for them with an “apprehension order” for the principal Applicant.
The Applicants again changed their residence. Shortly thereafter, the
Applicants fled to Canada.
[9]
None
of the incidents that led to the Applicants’ flight were ever reported to the
police or to any other agency that might have been able to aid the Applicants
in obtaining state protection.
THE DECISION UNDER REVIEW
[10]
At
the opening of its reasons, the RPD wrote:
The claimants [here the
Applicants] fear Francisco Garduno…, the Secretary of Transport and Roads; the
police who support Garduno in Mexico, and the lack of adequate state protection for them in Mexico.
It is worthy of note that the RPD did not
indicate that the Applicants fear all police, but rather only those who
“support Garduno” and there was evidence before the Tribunal that, at least by
a time shortly after the Applicants left Mexico, Garduno himself was under
investigation. Garduno is the “highly placed government official” referred to
earlier in these reasons.
[11]
The
RPD further noted:
The determinative issue
in these claims is if there is adequate state protection available for the
claimants in the federal republic of Mexico today.
[12]
The
RPD, in its reasons, expressed a concern that the principal Applicant was not
of such a profile in his protests against the alleged taxi permit and plates
“scam” as to attract the particular attention of Garduno and the violent
actions of police who supported him. Indeed, the evidence on which the
principal Applicant relied to conclude that those who threatened and assaulted
him were police would appear to have amounted to nothing more than
speculation. The RPD wrote:
Despite all these
concerns related to the credibility of the claim that he [the principal
Applicant] was perceived to be a political agitator by the Secretary of
Transport and Roads because he protested the fraud where money was collected
under false pretence, the determinative issue is the failure of the claimant to
provide clear and convincing evidence to rebut the presumption that the federal
republic of Mexico can protect its citizens today. The claimants [Applicants]
did not report their problems to any police station or officer and they did not
even seek legal advice or recourse to recover the [deposit paid], nor did they
report their problems to either [of the taxi groups or agencies with whom the
principal Applicant had been associated].
[13]
The
RPD then turned to a brief review of the documentary evidence before it
regarding Mexico’s capacity to protect
its citizens. After finally noting that the principal Applicant “…did not even
make an effort to learn the names or the identities of his agents of
persecution”, the RPD concluded:
The burden of proof to
establish absence of state protection is directly proportional to the level of
democracy [and lies on an applicant] to rebut the presumption with credible and
trustworthy evidence that the democracy of Mexico can protect its citizens.
The RPD determined that the Applicants had not
met the burden of proof that lay on them.
THE ISSUES
[14]
In
the memorandum of fact and law filed on behalf of the Applicants, counsel
identified the issues on this application for judicial review in the following
terms: first, whether the RPD erred in failing to consider whether approaching
the police would have put the Applicants at further risk; and secondly, whether
the RPD erred by applying the wrong test in its state protection analysis.
Before the Court the foregoing issues were argued essentially as a single
issue, that being, whether, against the appropriate standard of review, the RPD
erred in a reviewable manner in concluding that the Applicants had failed to
rebut the presumption that state protection was available to them, in their
particular circumstances, in Mexico.
[15]
In a
further memorandum of argument filed after leave on this application for leave
and for judicial review was granted, counsel raised on behalf of the Applicants
the issue of whether or not the RPD denied fairness or natural justice to the
Applicants in conducting the hearing before it on the basis of “reverse order
questioning”, that is, with the RPD itself commencing the questioning and with
counsel for the Applicants only having an opportunity to question the
Applicants after the RPD itself had completed its questioning.
ANALYSIS
[16]
I
will deal first, and briefly, with the issue of reverse order questioning.
[17]
It
was not in dispute that no objection was made in advance of, at the beginning
of, or during the course of, the hearing before the RPD, with respect to the
order of questioning. Indeed, as earlier noted, the issue was not even raised
before this Court in the application for leave and for judicial review or in
the memorandum of argument that was before my colleague who granted leave in
this matter.
[18]
In Benitez
v. The Minister of Citizenship and Immigration,
my colleague Justice Mosley concluded with respect to the “reverse order
questioning” or Chairperson’s Guideline 7 issue, at paragraph 235 of his
reasons:
…If the issue of
Guideline 7 is only raised in a further memorandum of fact and law filed
subsequent to the granting of leave, there has been an implied waiver and the
applicants are restricted to the issues identified in the initial application
and memorandum.
While there is conflicting authority on this
issue in this Court, I adopt the foregoing conclusion as my own.
[19]
Justice
Mosley certified the following question with regard to his quoted conclusion:
When must an applicant
raise an objection to Guideline 7 in order to be able to raise it upon judicial
review?
[20]
In
light of the conflicting authority in this Court, I will certify the same
question with respect to this matter.
[21]
Turning
then to the issue of state protection, and it was not in dispute before the
Court in this matter that the Applicants made no effort to seek state
protection, in Chaves v. Canada (Minister of Citizenship and Immigration , my colleague Justice
Tremblay-Lamer concluded that the appropriate standard of review is reasonableness
simplicter, such a determination being a question
of mixed fact and law.
I adopt that standard here.
[22]
Justice
Tremblay-Lamer went on to write at paragraphs 15 to 18 of her reasons:
In my view, however,
Ward,…and Kadenko,…cannot be interpreted to suggest that an individual will be
required to exhaust all avenues before the presumption of state protection can
be rebutted… . Rather, where agents of the state are themselves the source of
the persecution in question, and where the applicant’s credibility is not
undermined, the applicant can successfully rebut the presumption of state
protection without exhausting every conceivable recourse in the country. The
very fact that the agents of the state are the alleged perpetrators of
persecution undercuts the apparent democratic nature of the state’s
institutions, and correspondingly, the burden of proof. As I explained in Molnar
v. Canada (Minister of
Citizenship and Immigration),…Kadenko,…has little application when the “[…]
police not only refused to protect the applicants, but were also the
perpetrators of the acts of violence”; ….
To require otherwise,
escapes reason, as LaForest J., on behalf of the Supreme Court of Canada,
clearly indicated in Ward, …:
[…] it would
seem to defeat the purpose of international protection if a claimant would be
required to risk his or her life seeking ineffective protection of a state,
merely to demonstrate that ineffectiveness.
Turning to
the case at bar, the RPD determined that the applicant did not adequately seek
state protection by going to the police for help; by engaging his lawyer in
relation to his difficulties in a more timely fashion; and by seeking the aid
of the Ombudsman’s Office.
The problem
is precisely the one envisaged in Molnar,… and underlying LaForest J.’s
comments in Ward, … the police … were the perpetrators of the applicant’s
persecution. Thus notwithstanding that not every member of the [police] was
implicated in the applicant’s persecution, seeking help from the [police] –
asking, in effect, the [police] to protect the applicant from itself – would
have in all likelihood placed the applicant in greater peril.
[citations
omitted]
[23]
Here,
the principal Applicant alleged that police who supported the highly placed
government official who had, once again it is alleged, defrauded the principal
Applicant and his fellow taxi drivers, were themselves the direct source of
persecution. Those police officers, if indeed they were police officers and
the evidence to support such a conclusion is very speculative indeed, were
likely very few in number. At least the number that threatened, wounded and assaulted
the principal Applicant and members of his family would appear to have been few
in number. On the facts of this matter, the principal Applicant’s credibility
was not directly challenged and it was certainly not challenged in clear and
unmistakable terms. As earlier indicated, not only did the Applicants not go
to the police to seek state protection, they sought help in the nature of state
protection from no institution and from no one.
[24]
On
the facts of this matter as determined by the RPD, and against a standard of
review on the determination regarding state protection of reasonableness simpliciter,
I can only conclude that the decision of the RPD was open to it. Here, the
Applicants were not held to a standard by the RPD of being required to exhaust
all avenues conceivably open to them before the presumption of state protection
could be rebutted; rather, they were simply held to a standard of making some
efforts to achieve state protection in Mexico. They simply failed to meet that standard.
CONCLUSION
[25]
For
the foregoing brief reasons, this application for judicial review will be
dismissed. As earlier indicated, a question will be certified with regard to
the “reverse order questioning” or Guideline 7 issue.
“Frederick E. Gibson”
Ottawa, Ontario
April
26, 2006
Email this Content