Date: 20060727
Docket: IMM-7491-05
Citation: 2006 FC 928
Ottawa, Ontario, July 27, 2006
Present:
The Honourable Mr. Justice Harrington
BETWEEN:
RAUL
DANIEL MARTINEZ DORADO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1]
Youngsters
in love and disapproving parents is a universal theme. The youngster, Raul Daniel,
15 years old, was madly in love with his girlfriend, Ana. One day, when
accompanying her home, he met Ana’s father, who forbade Raul Daniel from seeing
his daughter. The father warned Raul not to go near her, or he would regret it.
To be sure that Raul Daniel understood the message, the father pulled his hair.
Ana’s father was not without influence. He was the head of investigations for
the judicial police in the state of Querétaro, Mexico.
[2]
This
forbidden romance continued. One day, the young Raul Daniel was suddenly
kidnapped by two unknown persons who threatened him and warned him to forget
Ana. They also tried to convince him to sell marijuhana at school. When Raul
Daniel refused, they burned his hands several times with a cigarette.
[3]
Raul
Daniel convinced his mother to send him to another school. However, he
continued to see Ana. A few months later, when they were walking in a park, Ana
and Raul saw her father with some other persons. A package exchanged hands and
they saw one of the men open it to taste the content. Raul Daniel feared the
worst.
[4]
A few days
later, two persons jumped out of an automobile and accosted Raul Daniel, who
managed to flee to a friend’s home.
[5]
Luckily
for Raul Daniel, his mother was planning a trip to Canada. Fearing for his
life, he decided to accompany her. Having decided to stay with an uncle in
Montréal, he did not go back to Mexico with his mother at the end of the trip.
[6]
When he
arrived, he did not immediately make a claim for refugee protection because he
did not know he could have done so. He made his claim for refugee protection
after having seen something about this in a Spanish newspaper in Montréal.
[7]
The Refugee
Protection Division of the Immigration and Refugee Board (IRB) determined that
he was not a Convention refugee or a person in need of protection. In its
reasons, the IRB focused on the fact that Raul Daniel did not do everything he
could have to claim protection from the state but did not question his
credibility. This is an application for the judicial review of the decision.
STANDARD OF REVIEW
[8]
Since the
decision in Chaves v. Canada (Minister of Citizenship and Immigration),
2005 FC 193, [2005] F.C.J. No. 232 (QL), in which Madam Justice
Tremblay-Lamer used a very comprehensive pragmatic and functional approach, the
current tendency of the Court concerning the standard of review applicable to
matters of state protection is to apply the reasonableness simpliciter
standard: Codogan v. Canada (Minister of Citizenship and Immigration),
2006 FC 739 (Teitelbaum J.), [2006] F.C.J. No. 1032 (QL); Moreno
v. Canada (Minister of Citizenship and Immigration), 2006 FC 833,
[2006] F.C.J. No. 1046 (QL) (Blais J.); Malik v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1189, [2005] F.C.J.
No. 1453 (QL) (Von Finckenstein J.); Muszynski v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1075, [2005]
F.C.J. No. 1329 (QL) (Dawson J.). This stringent standard is more
favourable to the applicant.
ANALYSIS
[9]
Regardless
of the standard of review, which may change according to the circumstances of
each case (Sketchley v. Canada (Attorney General),
2005 FCA 404, [2005] F.C.J. No. 2056 (QL)), in my view, the
conclusion reached by the Board to the effect that the applicant did not meet
the burden of proving that no state protection was available is quite
reasonable and should not be disturbed.
[10]
It is
trite law that, when state representatives themselves are the agents of
persecution, the applicant may rebut the presumption of state protection
without having to exhaust every conceivable recourse in the country: Chaves,
supra, at paragraph 15; Carrillo v. Canada (Minister of
Citizenship and Immigration), 2004 FC 944, [2004] F.C.J.
No. 1152 (QL), at paragraphs 6 to 8. However, “it
would be an overstatement to say that, as soon as a person alleges that the
agent of persecution is the police, he is not required to seek protection from
his country of origin”: Singh
v. Canada (Minister of Citizenship and Immigration), 2006 FC 136,
[2006] F.C.J. No. 153 (QL), at paragraphs 20 to 23. This case allegedly
involves a corrupt police officer, which is far from the situation in which the
state itself is the agent of persecution. I think it would be an overstatement
to elevate Ana’s father to the same rank as that of a state.
[11]
It is
clearly mentioned in the file that, once the applicant’s parents were advised
of the situation, they went to the human rights commission of the state of
Querétaro. The commission explained to them that it did not have jurisdiction
in this matter but told them about other steps to be taken. However, the
applicant’s parents withdrew their proceeding before the human rights
commission and did not contact any other higher state authorities.
[12]
The IRB
identified some information documents about the country, which explained how to
bring criminal charges. The applicant or his parents on his behalf did not seem
to be afraid, because they complained to another organization, the state human
rights commission. The applicant took advantage of his stay at his uncle’s home
to remain in Canada without having gone even once to the Mexican police or
asking someone to go for him.
[13]
In this
case, the general principle that persecuted persons must request protection
from their country of origin before the responsibility of other states is
entailed must apply: Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689 at paragraph 18.
[14]
The
applicant submitted that the IRB rendered its decision on the basis of country
information documents that were not up to date as far as Mexico was concerned.
At the hearing before the IRB, the applicant submitted a document published by
the IRB, “Mexico: State Protection (December 2003–March 2005)”, more
specifically in section 4.3.2, “Corruption”. In my opinion and, I
suppose, in the opinion of the IRB member who is presumed to have assessed and
taken into consideration all the evidence on record (Florea v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 598 (QL)
(F.C.A.)), this document hardly adds anything to the other documents cited in
the IRB decision. This document mentions that, although the Fox government took
several measures to fight corruption, acts of public and private corruption
still occurred regularly, and law enforcement officials in Mexico acknowledged
having difficulty in prosecuting cases of corruption because of problems with
detecting and investigating such matters. In this case, the authorities did not
even have a chance to investigate the applicant’s allegations against Ana’s
father because they had never been advised that there was a problem.
[15]
For these
reasons, the application for judicial review must be dismissed. The applicant
will have until August 1, 2006 to propose a question to be certified, and
the respondent will have until August 3, 2006 to answer.
“Sean Harrington”
Certified
true translation
Michael
Palles
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