Date: 20061026

Docket: IMM-6706-05

Citation: 2006 FC 1286

Ottawa, Ontario, the 26th day of October 2006

Present: The Honourable Mr. Justice Lemieux

 

BETWEEN:

JOSE ANTONIO QUITL TLAPALTOTOLI

and

CARIDAD POLANCO ENCISO

Applicants

and

 

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               Only one issue is raised by this application for judicial review of a decision of the Refugee Protection Division (the panel) dated October 8, 2005, rejecting the claim for refugee protection made by Jose Antonio Quitl Tlapaltotoli, the principal claimant, and his spouse, Caridad Polanco Enciso, both citizens of Mexico.

 

[2]               This application essentially raises the issue of the circumstances in which the claimants are justified in not seeking protection from Mexican authorities before calling on the international community?

[3]               According to the Supreme Court of Canada judgment in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the issue to be determined is whether it was objectively unreasonable for the applicants not to have sought the protection of Mexico, where that protection might reasonably have been forthcoming.

[4]               I will briefly summarize the facts on which the claim for refugee protection is based. The panel found the principal claimant to be credible.

Facts

[5]               The principal claimant worked for a transportation company. He was in charge of production and truck co-ordination.

[6]               On May 27, 2004, Marcos Antonio Fabregas Janeiro, the principal claimant’s immediate superior and director general of operations, offered him the opportunity to earn a great deal of money. All he had to do was to follow his instructions for transporting drugs to various cities. The claimant had one week to accept this offer.

[7]               The principal claimant mentioned to Mr. Fabregas that this was dangerous and that they could be arrested by the police, to which Mr. Fabregas answered that he knew a high-ranking federal police officer named Ricardo de los Rios.

[8]               Mr. Fabregas told him to be careful with what he said and did, because some of his friends were watching them. The principal claimant then became aware of the presence of two federal police officers near them.

[9]               On May 31, 2004, Ms. Enciso told her husband that she had been approached by some individuals who told her that they were waiting for an answer from her husband as soon as possible. They allegedly put a hand over her mouth.

[10]           After telling his wife everything, the couple made the decision to leave Mexico. In the meantime, they went into hiding at the home of the principal claimant’s parents. They never asked Mexican authorities for protection.

[11]           They left Mexico on June 17, 2004, and claimed refugee protection from Canada on that same day.

[12]           I note the following facts from the testimony of the principal claimant.

1.         If he returned to Mexico today, he would fear Mr. Fabregas and Ricardo de los Rios, the head co-ordinator of the federal preventive police, as well as the police officers under his command (Certified Record, page 290);

2.         Mr. Fabregas was a member of a drug trafficking network and admitted this on May 27, 2004 (Certified Record, page 292);

3.         He acknowledges not having contacted the authorities after having learned about the drug trafficking going on in the company. When asked why, he answered, [translation] “I was afraid”. When asked whether he thought that the authorities could have helped him, he answered, [translation] “Not much”. When asked why, he explained that it was [translation] “because of the power that Ricardo de los Rios has in the federal police” (Certified Record, page 295);

4.         The presiding member asked him to explain his answers in more detail. The principal claimant answered, [translation] “I did not know which police officers were good and which ones were bad; I could have been dealing with police officers who were not corrupt but I could not take the chance. If I was making a complaint to the police which was involved or not” [Emphasis added] (Certified Record, page 305);

5.         He admitted that he had heard on the television that there were organizations in Mexico to counter drug trafficking, but he could not name them (Certified Record, page 306);

6.         The principal claimant was shown a document stating that the government of Mexico recognizes drug trafficking as a serious threat to national security and public safety. His comments on this point were as follows: [translation] “That is all well and good, but the truth is that we [inaudible]. We were living under threat from someone who was trafficking in drugs, and this person was very serious when he spoke about what he wanted to do and how far he could go” (Certified Record, page 306);

7.         The principal claimant was also confronted with other documents stating that President Fox and Attorney General Macedo had founded several new investigative bodies headed by professionals skilled in countering drug trafficking, organized crime and terrorism. These documents show that these efforts led to many arrests of very important persons, and in answer to this, the principal claimant replied, [translation] “The reality is very different than what is written down. The situation is very complicated and sad. We have seen first-hand how drug trafficking works: there is police corruption and senior officials are involved and I think that people were intimidated by the power that this kind of authority represents” (Certified Record, pages 307 and 308);

8.         He answered, [translation] “That’s correct”, to a comment made by the presiding member to the effect that [translation] “corruption does not affect all police officers in your country”. The presiding member went on to state, [translation] “I do not want to put words in your mouth, but ‘not much’, means to me that there was still some help available to you”. The principal claimant replied as follows: [translation] “The main reason why we did not call on the authorities was that we feared for our lives. I could not take the risk to obtain a lot or a little help, I do not know, when confronted with the fact of saving my spouse’s and [inaudible] son’s lives. This had to be assessed, meaning either I take the risk of making a complaint, or we save our lives by leaving the country. And this is what made me make the decision not to take the risk of going to the police” (Certified Record, page 308).

Decision of the panel

[13]     The panel relied on certain principles in defining the notion of State protection in immigration matters. I will summarize the panel’s analysis in the paragraphs that follow.

 

[14]     “The claimants told the panel that they had never asked the authorities in their country for assistance or protection. However, it is well established that a refugee claimant must seek the assistance of his or her country before seeking protection from another country, in this case Canada. Barring a complete breakdown in the government apparatus, the state is presumed to be able to protect its citizens”.

 

[15]     “This presumption can be rebutted only by ‘clear and convincing’ evidence of the state’s inability to protect . . . The claimants did not submit ‘clear and convincing’ evidence to the panel that their country could not protect them. They did not establish that they had acted reasonably in not seeking the protection of the state”.

 

 

[16]     The burden of proof to establish the absence of protection is directly proportional to the level of democracy in the State in question. Relying on the 2004 US - Country Report on Human Rights concerning Mexico, the panel was of the opinion that “[t]here is no information in the documentary evidence to the effect that Mexico is not a democratic country”.

 

[17]     “It is also well established that state protection does not have to be perfect, as indicated in Villafranca [a judgment of the Federal Court of Appeal (1992), 18 Imm. L.R. (2d) 130]”.

 

[18]     The panel noted that “[a]lthough Mexico has some problems with corruption, it cannot be described as a country where there is a complete breakdown of the state apparatus”. Citing several documents from Exhibit P-6 which make up the May 2005 documentation package on Mexico, the panel stated that, “[a]lthough corruption creates certain problems in the country, the documentation shows that authorities have been working hard to eradicate it. In addition, the Fox government arrested several security force members in 2002 . . . ”. [Emphasis added] 

 

[19]     Regarding corruption, the panel dealt with the most recent situation, referring once again to Exhibit P-6, which states that “the Fox government has been continuing its efforts to eliminate corruption”. The panel cited documentary evidence to the effect that, in 2004, several sources of information mentioned that the Fox government was continuing to endeavour to improve police practices at the federal level and to put an end to corruption within the police. The panel mentioned that the Federal Agency of Investigation had reportedly “developed into an excellent police institution”. The panel noted that from January to July 2004, some 500 corrupt Mexican police officers had been dismissed.

 

[20]     However, the panel also mentioned documentary evidence which was more favourable to the principal claimant. In these documents, public safety specialists and human rights advocates “have indicated that more profound changes are needed to entrench appropriate procedures and accountability within the police force”. They also “reported on recurrent cases of police misconduct, arbitrary detention and vigilante justice by citizens who lack faith in the police”.

 

 

[21]     The panel concluded as follows:

All this does not mean that there is no competent authority in Mexico to whom a complaint may be addressed, particularly concerning drug-related incidents. Problems still exist, but it would be false to say that there is no authority to whom a citizen having problems similar to those alleged to have been experienced by the claimant in his country can make a complaint, and that the Mexican authorities are powerless and ineffectual in dealing with the drug problem. [Emphasis added]

 

 

[22]     The panel cited some excerpts from the testimony of the principal claimant in which he explained why he did not seek protection from Mexico, as well as his opinion about documentary evidence from state organizations fighting against drug problems. I have already reproduced this testimony at page 12 of these reasons.

 

[23]     Referring once again to the documentation package on Mexico, the panel wrote, “Mexico has taken decisive action to combat drug trafficking”. The panel relied in particular on the document at pages 109 and 110 of the Certified Record. In addition, the panel referred to this document for a quotation on corruption to the effect that President Fox “placed high priority on combating police and judicial corruption during 2004. Mexican leaders made significant efforts to investigate and punish instances of corruption among Federal law enforcement officials and military personnel”. The excerpt cited by the panel mentioned that the PGR had undertaken more than 1,300 investigations concerning some 2,200 PGR officers, “  . . . resulting in 418 legal cases against 711 officers (including 267 prosecutors and 335 AFI agents), many of whom represented holdovers from the now-disbanded Federal Judicial Police”. The panel noted that “this information comes from trustworthy sources”.

 

 

[24]     The panel relied on the documentary evidence in stating that the armed forces were involved in the fight against drug trafficking and in drug seizures. The panel referred to this documentation to note that “there is a list of government-funded organizations that assist people who are having difficulty obtaining state protection”. These organizations include the National Human Rights Commission and state human rights commissions. However, it noted that although these organizations may receive complaints about federal, state or municipal public servants, they may only make recommendations to the authorities.

 

[25]     The panel concluded as follows on this point:

The claimant told the panel that he was afraid of Mr. Fabregas and federal police officers. If he did not know to whom he could turn, not knowing whether or not he would have to deal with a corrupt official, he could, among other things, have sought assistance from the National Human Rights Commission, which would have received his complaint and advised him as to what actions to take. [Emphasis added]

 

 

[26]     The panel then rejected a reference to documentary evidence made by counsel for the claimant (Exhibit P-6, Tab 9.2) to the effect that, in Mexico, “politicians or public servants can steal, bribe, or conspire to commit extensive fraud against the government and not spend a minute in jail”.

The panel noted that this statement came from the CPI (Center for Public Integrity), “which is a non-profit organization . . . . This very general opinion is contradicted by other government and non-government sources within the same document”. In addition, the panel referred to another documentary source which showed the progress of the Mexican state in its struggle against corruption, and it concluded that the document at Tab 9.2 of Exhibit P-6 also described federal-level recourse available to victims of corruption.

 

[27]     The panel stated that it had read the documents in the record in detail and wrote the following:

It cannot say that there is no corruption in Mexico. However, the documentary evidence shows that Mexico is taking decisive action to combat narcotics trafficking and that there are places where individuals can file complaints if they are victims of drug-related incidents; furthermore, even if federal police officers are involved, remedies against them are also available. [Emphasis added]

 

 

[28]     After noting that the applicant did not seek any assistance from his country, be it from the police or military authorities, organizations fighting against drug trafficking or Mr. Fabregas’ superiors (the transportation company was a subsidiary of an Australian company), the panel expressed its overall conclusion as follows:

In light of the above, the claimants did not establish to the panel’s satisfaction that they had acted reasonably in not seeking state protection. Obviously, they were not expected to put their lives in danger by asking for the ineffective protection of a state, simply to prove its ineffectiveness. However, the panel does not believe that this is the case in this proceeding. The claimants should have found out where to address a complaint about this incident before coming to Canada to seek assistance, because such places do exist, as shown in the documentary evidence. Once they found out about these places, they should have approached them for assistance instead of immediately coming to Canada to seek protection. The claimants did not offer the panel clear and convincing proof of their country’s inability to protect them. [Emphasis added]

 

 

Analysis

(a) Legislation  

 

[29]     Section 96 of the Immigration and Refugee Protection Act (“IRPA”) deals with the notion of Convention refugee, while section 97 lists the conditions a person must meet to be a person in need of protection. I will reproduce these two sections:

 

 

(b)  Standard of review

[30]     I agree with the analysis of my colleague Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, concerning the standard of review applicable to questions concerning State protection. According to my colleague, the application of a legal standard to a set of facts is a question of mixed law and fact, and the applicable standard of review is reasonableness simpliciter. However, if the main issue before the Court is whether or not the panel properly interpreted the legislation and case law, the soundness of that interpretation must considered according to the correctness standard (see Chaves, supra, at paragraphs 9, 10 and 11; Avila v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, at paragraph 23; and John Joseph Goodman v. Canada (Minister of Citizenship and Immigration) IMM-1977-98, February 29, 2000).

 

[31]     Iacobucci J. explained the standard of reasonableness simpliciter in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247:

[46]  Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline.  A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did (see Southam, supra, at paras. 78-80).… 

 

…

 

[48]    Where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable (see Southam, supra, at para. 61).  In Southam, at para. 56, the Court described the standard of reasonableness simpliciter: 

An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. [Emphasis added.]

 

[49]     This signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and "look to see" whether any of those reasons adequately support the decision . . .

 

…

[54]    How will a reviewing court know whether a decision is reasonable given that it may not first inquire into its correctness?  The answer is that a reviewing court must look to the reasons given by the tribunal.

[55]     A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.  If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56).  This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79) . . . . [Emphasis added]

[56]     This does not mean that every element of the reasoning given must independently pass a test for reasonableness.  The question is rather whether the reasons, taken as a whole, are tenable as support for the decision.  At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result.  Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. [Our emphasis]   

 

(c)  Case law on this issue

[32]     In this case, the persecutors are not State agents. The applicants fear a person involved in the drug trade and a high-ranking, corrupt police officer. This is also not the case of an individual who sought State protection because he was persecuted and state protection was refused to him. Finally, the State is neither the persecutor nor the accomplice. The present case involves applicants who failed to seek State protection.

 

[33]     In Arellano v. Canada (Minister of Citizenship and Immigration), [2006] FC 1265, I summarized the case law as follows:   

 

[23]                  The case law on the notion of the State’s protection in the context of refugee claims is nuanced; the factual framework is always of great importance. Each case must be examined individually.

 

[24]                  In this case, the agents of the State are not the persecuting agents. Nor is it a case where protection was refused after a person sought the State’s protection because he was being persecuted.

 

[25]                  In the case at bar, Mr. Arellano did not himself ask the State for protection and in fact he refused the protection that was offered to him.

 

[26]                  The role of State protection in refugee claims was analyzed by Mr. Justice La Forest, on behalf of the Supreme Court of Canada, in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.

 

[27]                  La Forest J. recognized that the notion of a well-founded fear of persecution is closely related to the State’s ability to protect. He explains that the international community was meant to be a forum of second resort for the persecuted, a “surrogate”, approachable upon failure of local protection. I refer to the following passage at page 709:

 

At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination.  International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national.  It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations.  The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.  For this reason, James Hathaway refers to the refugee scheme as “surrogate or substitute protection”, activated only upon failure of national protection . . . .

 

[28]                  He endorses the proposal found under paragraph 100 of the Office of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR’s Handbook (UNHCR’S Handbook) which reads as follows:

 

Whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. [Emphasis added.]

 

[29]                  At page 723 of Ward, supra, La Forest J. addresses whether claimants must first seek the protection of the State when their claim is based on the State’s refusal to provide protection in cases where the State is unable to protect them; he refers with some approval to these remarks by Professor Hathaway:

 

. . . there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming . . . however, he must show that he sought their protection when he is convinced, as he is in the case at bar, that the official authorities ‑‑ when accessible ‑‑ had no involvement ‑‑ direct or indirect, official or unofficial ‑‑ in the persecution against him. [Emphasis added.]

 

[30]                  La Forest J. distinguishes them as follows:

 

This is not true in all cases.  Most states would be willing to attempt to protect when an objective assessment established that they are not able to do this effectively.  Moreover, 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. [Emphasis added.]

 

[31]                  He writes:

 

Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows:  only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim.  Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.

 

The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection.  On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward.  Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided.  For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize.  Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens.  Security of nationals is, after all, the essence of sovereignty.  Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.

 

[32]                  He endorses the decision of the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Satiacum (1999), 99 N.R. 171. In Satiacum, supra, the Federal Court of Appeal held:

 

In the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing, as in an extradition hearing, Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a non-democratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself. [Emphasis added.]

 

 (d)  Conclusions

 

[34]     I am of the opinion that this application for judicial review must be dismissed.

 

[35]     I cannot agree with the arguments made by counsel for the applicants to the effect that the panel:

 

·        did not consider all the evidence, specifically the testimony given by the principal claimant concerning the reality of corruption in Mexico and the mortal danger to which they were subject;

 

·        analyzed the documentary evidence selectively by dismissing several findings which did not support its conclusions about corruption in Mexico.

 

[36]     Having read the documentary evidence, the testimony of the applicants and the decision of the panel, I conclude that the panel did not err in its statement of the legal principles surrounding State protection in claims for refugee protection and in its analysis of the evidence.

 

[37]     I am of the view that the panel properly directed itself with regard to State protection: the State is presumed to be able to protect its citizens when it is neither persecutor nor accomplice and when its institutions, such as the army and police, function normally, if not perfectly.

 

[38]     Moreover, the panel raised the right question and applied the correct test in the special circumstances in which the applicants found themselves. Accordingly, the panel asked whether it was objectively unreasonable for the applicants not to have sought State protection before claiming protection from the international community.

 

[39]     The conclusion reached by the panel to the effect that the applicants did not act unreasonably withstands analysis on the standard of reasonableness simpliciter, especially since this is essentially a case of drug trafficking, and the army is deeply involved in the struggle against this plague.

 

[40]     Finally, the panel carried out a balanced analysis of the documentary evidence regarding the extent of corruption in Mexico and access to State institutions. When it concluded that the State was reasonably able to ensure the protection of the applicants, the panel was able to rely more on the documentary evidence than on the testimony given by the principal claimant (see Zhou v. The Minister of Employment and Immigration, FCA, A-492-91).

 

[41]     This case bears no resemblance to Avila, supra, in which Martineau J. set aside a decision of the Refugee Protection Division because there had been a complete lack of analysis. In the present case, the panel thoroughly studied the documentary evidence concerning corruption in Mexico and the impact it had on the availability of protection for the applicants.

 

[42]     I am of the opinion that the cases which most resemble this one were those decided by de Montigny J. in Mendoza v. Canada (MCI) 2005 FC 634 and Villasenor v. Canada (MCI) 2006 FC 1080.  

JUDGMENT

 

1.  This application for judicial review is dismissed; no question of importance is certified.

 

“François Lemieux”

Certified true translation

Michael Palles

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-6706-05

 

 

STYLE OF CAUSE:                          Jose Antonio Quitl Tlapaltotoli et al. v. Minister of Citizenship and Immigration

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

 

DATE OF HEARING:                      May 29, 2006

 

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    THE HONOURABLE MR. JUSTICE LEMIEUX

 

 

DATED:                                             October 26, 2006

 

 

APPEARANCES:

 

Eveline Fiset	FOR THE APPLICANT
Caroline Doyon	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Eveline Fiset Montréal, Quebec	FOR THE APPLICANT
John. H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENT