Date: 20101217
Docket: IMM-1803-10
Citation:
2010 FC 1280
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, December 17, 2010
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
|
|
EMILIO GONZALEZ CHAVEZ
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review in
accordance with subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a
decision by the Refugee Protection Division of the
Immigration and Refugee Board (panel), dated March 4, 2010, that the applicant
is not a Convention refugee or a person in need of protection under the Act.
The
facts
[2]
The
applicant is a citizen of Mexico and a member of the National Action Party
(PAN). He is alleging that he fears persecution for political reasons at the
hands of members of the National Peasant Confederation (CNC), more specifically,
one of its directors, Jose Luis Gomez Luna, who is also a member of the Institutional
Revolutionary Party (PRI).
[3]
The
applicant was an auditor for the Agrarian Reform Secretariat in Mexico City. On
October 15, 2007, Mr. Luna threatened the applicant for refusing to
resign and for the disciplinary measures allegedly imposed on Mr. Luna’s
predecessor further to the auditor’s report prepared by the applicant.
[4]
In
the evening of November 24, 2007, as the applicant was getting into his vehicle,
his assailants, armed with bats, uttered death threats against him for refusing
to resign from his auditor position and for belonging to the PAN.
[5]
Shaken
by this incident, he filed a complaint with the Office of the Attorney General
of Justice in Mexico City that night and was purportedly told that they would act
on it within 48 hours.
[6]
On
November 26, he contacted the National Human Rights Commission. A clerk he
knows well advised him to leave the country given his membership in the PAN.
[7]
On
December 5, 2007, ten days after his complaint to the Office of the Attorney
General, he left the country and went to Montréal without following up with
this organization.
[8]
The
applicant filed a refugee claim upon his arrival in Canada on December 5, 2007.
The
impugned decision
[9]
The
panel first acknowledged that the applicant is credible, but rejected his
refugee claim on the grounds that he had not used all the necessary means, or
made serious efforts, to obtain state protection. According to the panel, he had
not exhausted all avenues of recourse available to him.
[10]
Furthermore,
the applicant had apparently not submitted clear and convincing evidence
establishing that the Mexican state was unable to ensure his protection.
Issue
[11]
The
following issue arises in this application for judicial review:
Did the panel err in finding that the
applicant had not exhausted all avenues of recourse to avail himself of the
protection of the Mexican state?
Standard
of review
[12]
Before
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the standard
of review that was applicable in comparable circumstances was patent
unreasonableness. Since that decision, the standard has been reasonableness.
[13]
The
applicable standard of review for state protection decisions is reasonableness (Dunsmuir,
above, at paragraphs 47, 55, 57, 62 and 64; Hinzman v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413 at paragraph
38; Huerta v. Canada (Minister of Citizenship and Immigration),
2008 FC 586, 167 A.C.W.S. (3d) 968 at paragraph 14; and Capitaine v. Canada
(Minister of Citizenship and Immigration), 2008 FC 98 at paragraph 10).
Analysis
[14]
The
applicant maintains that he is the subject of threats and persecution because
of his political opinion. The Supreme Court in Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689, cites, at paragraph 81, the work of Atle
Grahl-Madsen, The Status of Refugees in International Law, Netherlands,
A.W. Sijthoff-Leyden, 1966, and states the following:
Political
opinion as a basis for a well-founded fear of persecution has been defined
quite simply as persecution of persons on the ground “that they are alleged or
known to hold opinions contrary to or critical of the policies of the
government or ruling party” . . . .
[15]
In
the same paragraph, the Court continues by stating that “it is possible that a
claimant may be seen as a threat by a group unrelated, and perhaps even
opposed, to the government because of his or her political viewpoint, perceived
or real”.
[16]
In
the case before us, the panel found the applicant to be credible with respect
to his persecution. He therefore meets the first test of whether he had reason
to believe he was being persecuted because of his political opinion.
[17]
The
applicant is therefore criticizing the panel for not taking his complaint
seriously as it allegedly concluded without foundation that a period of nine days
was not sufficient for the police to act on the applicant’s complaint.
[18]
Furthermore,
the applicant relies on Avila v. Canada (Minister of Citizenship and Immigration),
2006 FC 359, 295
F.T.R.
35, to argue that the panel erred in stating that he had not exhausted all of
the avenues of recourse available to him in Mexico before seeking protection in
another state.
[19]
According
to the applicant, the ability of the Mexican state to protect its nationals,
particularly those who fear for their safety because of their political
opinion, must be decided in light of the specific facts and circumstances of each
claim.
[20]
At
the hearing, the applicant’s counsel, after reiterating the importance of the
IFA on the Mexican political scene, maintained that the panel erred by not
considering the documentary evidence submitted by the applicant regarding the degree
of impunity that exists in Mexico. Furthermore, it should have considered the degree
of corruption that exists in the country, which correspondingly diminishes its degree
of democracy.
[21]
Counsel
noted, among other things, the Amnesty International assessments submitted into
evidence by the applicant and criticized the panel for failing to consider this
evidence in its decision.
[22]
However,
the respondent objects to this on the grounds that the applicant had not
discharged his burden of proof because he was not able to establish, to the
panel’s satisfaction, that all available steps and avenues of recourse had truly
been exhausted before leaving Mexico. He raises, among others, Kadenko v.
Canada (Minister of Citizenship and Immigration), (1996), 143 D.L.R. (4th)
532, 206 N.R. 272 (F.C.A.), to argue that it was not enough for the applicant
to make a simple complaint to rebut the presumption of state protection and
that he should have at least followed up with the competent authorities.
[23]
Relying
on, among others, Castaneda v. Canada (Minister of Citizenship and Immigration),
2010 FC 393, the respondent argues the full importance of exhausting all avenues
of recourse, which the applicant purportedly did not do in this case.
[24]
Several
of this Court’s decisions have addressed the ability of the Mexican state to
protect its citizens and the resulting presumption of state protection (Luna
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1132,
2008 F.C.J. No. 1501 (QL) at paragraph 14; Canseco v. Canada (Minister
of Citizenship and Immigration), 2007 FC 73, [2007] F.C.J. No. 115 (QL) at paragraph 14;
and Alfaro v. Canada (Minister of Citizenship and Immigration), 2006 FC
460, [2006] F.C.J. No. 569 (QL) at paragraph 18).
[25]
In
the decision under review in the present application, the panel considered the
applicant’s allegations that he reported the threats he received and referred directly
to them, while considering the documentary evidence submitted by the applicant.
[26]
The
documentary evidence filed in the record also addresses the services available
to citizens in order to end the corruption in the public service and the measures
taken by the Mexican authorities further to complaints received.
[27]
The
applicant claims that the Mexican state cannot ensure his protection because he
submitted a complaint further to the threats he received as a result of his
membership in the PAN and nothing happened in the nine days that followed.
[28]
The
panel acknowledged that the applicant is credible, that he was persecuted for
his membership in the PAN and that he had filed a complaint with the Mexican
authorities. However, the panel found that there was insufficient evidence in
the record to corroborate his position that he had exhausted the avenues of recourse
offered by the Mexican state for his protection.
[29]
When
considering the panel’s decision, it appears to us that all of the evidence was
indeed considered and that the panel identified other avenues of recourse
available to the applicant in this case.
[30]
Under
these circumstances, it was reasonable for the panel to find that the applicant
had failed to discharge his burden of proof with respect to the inability of
the Mexican state to ensure his protection (see Carrillo v. Canada (Minister
of Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636).
[31]
For
these reasons, the application for judicial review is dismissed. Neither party
proposed a question for certification and this matter does not contain any.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
- The application for judicial review is dismissed.
- No question is certified.
“Andre
F. J. Scott”
Certified
true translation
Janine
Anderson, Translator
Email this Content