Date: 20101208
Docket: IMM-1554-10
Citation: 2010 FC 1245
Ottawa, Ontario,
December 8, 2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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GILBERTO PALACIOS NICOLAI
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Applicant
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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 of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated
February 16, 2010, concluding that the applicant is not a Convention refugee or
person in need of protection pursuant to sections 96 or 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (the Act) because the applicant
does not have a well-founded fear of persecution for a Convention reason and
his removal to Mexico will not subject him personally to a risk to life, or a
risk of cruel and unusual treatment or punishment, or a danger of torture,
because there is adequate state protection available to the applicant in
Mexico.
FACTS
Background
[2]
The
applicant is a 47 year-old citizen of Mexico.
He fled Mexico to Canada on June 14, 2007, and made a claim for
refugee protection on July 9, 2007. The applicant fears for his life at the
hands of his former employer.
[3]
The
applicant and his wife worked in different businesses that were both owned by the
same individual, who the Court will identify by his first name “Jose”. Both
businesses were in the city of Yautepec. Neither counsel knew where
this city was located. According to the atlas, it is situated in the State of
Morelos and is approximately 75 kilometres south of Mexico City.
[4]
The
applicant’s affidavit deposed that his wife was the assistant manager at a
restaurant owned by “Jose” and he, the applicant, was a salesman at a real
estate business owned by Jose. On July 17, 2005, the applicant’s wife was fired
by Jose after being employed at the restaurant for four years. The applicant
deposes:
We are unsure of the reasons that she was
fired.
Over the next two weeks, the applicant remained at his
position but found the work environment very tense. As a result, he quit his
job two weeks after his wife had been fired.
[5]
On August
19, 2005 the applicant’s wife filed a wrongful dismissal suit against her
former employer with the Board of Conciliation and Arbitration in the State of Morelos. The applicant and his wife
began receiving threats and harassment from their former employer, warning them
to drop the suit.
[6]
On
December 15, 2005, the former employer launched a countersuit in the Public
Ministry, accusing the applicant’s wife of fraud, theft, and breach of trust,
and accusing the applicant of uttering threats and attempted murder.
[7]
Both cases
remain ongoing.
[8]
On March
6, 2007, the applicant was physically assaulted by three men who warned him
that they would kill him if he refused to retract the wrongful dismissal suit against
his former employer. The applicant attempted to report the incident and threats
to the Public Ministry of the City of Yautepec
on that same day, but was told that he could not file a report because of the
outstanding lawsuit, and because of the charges against the applicant by Jose.
The next day the applicant went to the local human rights office, but was told
that there was nothing that they could do to help him. The applicant then asked
his lawyer what he could do to report the assault and get protection, but was
told that there were no other options available to him.
[9]
In late
April or early May of 2007, a former colleague of the applicant’s wife warned
them that she had overheard Jose indicate that he was going to kill the
applicant as a result of the lawsuit. In May of 2007, the applicant and his
wife moved to Mexico
City because
they were afraid of being attacked again.
[10]
The
applicant fled Mexico on June 14, 2007. He states
that he is afraid that should he return to Mexico he will be attacked because the court
case remains ongoing and because his former employer has the resources to find
out where the applicant is living.
[11]
The
applicant’s wife remained in Mexico
City. The
applicant has not been in contact with his wife, but before he left Mexico City, he had not received any
threats from his former employer.
[12]
When the
applicant entered Canada, he reported on the advice of
his “previous counsel” that he was seeking refuge because he had been sexually
assaulted by his former employer. This story was retracted and corrected when
the applicant retained his present counsel. At the hearing, the applicant’s
current counsel acknowledged that the applicant’s brother had also come to Canada and made a refugee claim. At
the hearing the applicant stated that he did not know the basis of his
brother’s refugee claim.
Decision under review
[13]
On
February 16, 2010, the Board dismissed the applicant’s claims because it found
that he does not have a well-founded fear of persecution for a Convention
reason, and his removal to Mexico would not subject him to a
risk to life, of cruel and unusual treatment or punishment, or of torture.
[14]
The Board
made no finding on the credibility of the applicant. The Board’s decision
depended on three findings regarding whether the applicant’s fear was
objectively reasonable: the adequacy of state protection in Mexico, the adequacy of the
applicant’s attempts to avail himself of state protection in Mexico, and the adequacy of the
applicant’s evidence in rebutting the presumption of the state’s ability to
protect him.
[15]
With
regard to the first issue, the adequacy of state protection in Mexico, the Board stated that where
a state is not in complete breakdown there a presumption that it is capable of
protecting its citizens. The Board further stated that perfect protection is
not required, but, rather, state protection must be adequate. In democratic
states, the Board recognized that there is a heavier onus on refugee claimants
to demonstrate that they have exhausted all courses of action reasonably
available to them to access state protection – a failure by local authorities
alone to provide protection does not mean that the state as a whole has failed
to offer adequate protection.
[16]
The Board
considered the documentary evidence before it regarding country conditions in Mexico. It found that Mexico is in effective control of
its territory. It found that Mexico has a functioning security
force that is hierarchical, and before which a complainant may seek redress at
higher levels if dissatisfied with services at the local level. The Board also
noted that there are a number of authorities and agencies before which citizens
may present complaints of corruption or other problems with the security
forces. The Board further detailed some of the efforts that the Mexican
government has undertaken to ensure police effectiveness and to purge
corruption within the security forces.
[17]
With
regard to the second issue, the adequacy of the applicant’s attempts to avail
himself of state protection in Mexico, the Board found that the
applicant’s efforts in this regard were insufficient. The Board recognized that
the applicant had attempted to report the March 6 physical assault to the
Public Ministry and to the human rights office, but had been rebuffed. The
Board further acknowledged that the applicant has spoken to his lawyer about
possible avenues of redress. The Board found that the applicant could have done
more. First, the Board found that the applicant should have been familiar enough
with the Mexican justice system and the options available to him to seek
redress at higher levels. At para. 20, the Board stated:
¶20. The claimant testified that
after he was unsuccessful in reporting the physical assault and threats to the
Public Ministry, he attempted to report it to the human rights office. The
official at the human rights office told the claimant that they could not help
the claimant and provided no further assistance or direction. The claimant then
spoke to his lawyer who told the claimant that there was nothing else the
claimant could do because of the inquiries that were ongoing with respect to
the lawsuits filed by the claimant’s wife against Jose’s firm and Jose’s
lawsuit against the claimant and his wife. Regardless of the pending lawsuits,
I find that the claimant should have sought redress at a higher level of the
security forces since his allegations were serious enough to warrant attention.
Since the claimant and his spouse have been successful to date in pursuing
their lawsuit against Jose’s firm and responding to the lawsuit that Jose
initiated against the claimant and his spouse, I find that the claimant should
be familiar with the Mexican justice system and all the options available to
him with respect to seeking redress.
The Board based this finding in part on the fact that the
applicant’s ongoing civil lawsuit should have familiarized him with Mexico’s legal system. However, the
Board did not identify which “higher security forces” could have provided
better redress.
[18]
Second,
the Board found that the applicant failed to report to the security forces the
death threat that he and his wife received prior to fleeing. The Board held
that the applicant stated that he did not report this threat because he did not
believe that he would be taken seriously. The Board found at para. 21:
¶21. . . . although the claimant was
unsuccessful in filing a report with the Public Ministry in the past, if the claimant
truly felt threatened, he should have reported the information to the police
and sought state protection in Mexico prior to seeking international protection
in Canada.
[19]
Finally,
with regard to the third issue, the Board found that the applicant had failed
to discharge his burden of providing “clear and convincing” evidence of the
state’s inability to protect him. The Board recognized at para. 22 that “there
is information in the documentation to indicate that inefficiency, bribery and
corruption remain issues in Mexican security forces at all levels, as well as
within the public service sector.” At para. 23 the Board concluded:
¶23. The Board recognizes that there
are some inconsistencies among several sources within the documentary evidence;
however, the preponderance of the evidence regarding current country conditions
suggests that, although not perfect, there is adequate state protection in
Mexico for victims of crime, that Mexico is making serious efforts to address
the problem of criminality, and that the police are both willing and able to
protect victims. Police corruption and deficiencies, although existing and
noted by the Board, are not systemic.
[20]
The Board
specifically considered the documentary evidence submitted by the applicant,
but found that the documents did not suggest a different assessment: while Mexico is facing problems with
respect to state protection, it is also making serious efforts to address those
problems. The Board concluded that the claimant had failed to rebut the presumption
of state protection with clear and convincing evidence, and that, therefore, Mexico would be “reasonably
forthcoming with state protection, should the claimant pursue it.”
[21]
At para.
25 the Board held:
¶25. I am of the view in perusing the
documentary evidence, that, as a whole, the issues of corruption and
deficiencies are being addressed by the state of Mexico. . . .
LEGISLATION
[22]
Section 96
of the Act grants protection to Convention refugees:
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96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by
reason of that fear, unwilling to avail themself of the protection of each
of those countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne
qui, craignant avec raison d’être persécutée du fait de sa race, de sa
religion, de sa nationalité, de son appartenance à un groupe social ou de
ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou,
du fait de cette crainte, ne veut se réclamer de la protection de chacun de
ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte,
ne veut y retourner.
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[23]
Section 97
of the Act grants protection to persons whose removal from Canada would subject them personally
to a risk to their life, or of cruel and unusual punishment, or to a danger of
torture:
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97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them
personally
(a)
to a danger, believed on substantial grounds to exist, of torture within
the meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself
of the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed
in disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
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97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à
la torture au sens de l’article premier de la Convention contre la
torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce
pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci
ou occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir
des soins médicaux ou de santé adéquats.
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ISSUE
[24]
The
applicant submits that the Board’s decision raises the following issue:
In its analysis of State Protection, the
Board erred by conducting a highly selective analysis, using outdated objective
evidence, thereby making a decision that is unsupported by the recent evidence
before it or by the actions of the Applicant.
STANDARD OF REVIEW
[25]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada held at paragraph
62 that the first step in conducting a standard of review analysis is to
“ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of (deference) to be accorded with regard to a particular
category of question”: see also Khosa v. Canada (MCI), 2009 SCC 12, per
Justice Binnie at para. 53.
[26]
Questions
of state protection concern determinations of fact and mixed fact and law. They
concern the relative weight assigned to evidence, the interpretation and
assessment of such evidence, and whether the Board had proper regard to all of
the evidence when reaching a decision. It is clear that as a result of Dunsmuir
and Khosa that such questions are to be reviewed on a standard of reasonableness:
see, for example, my decisions in Corzas Monjaras v. Canada (Minister of
Citizenship and Immigration), 2010 FC 771 at para. 15; and Rodriguez
Perez v. Canada (Minister of Citizenship and
Immigration) 2009 FC 1029 at para. 25.
[27]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider "the existence of justification, transparency and
intelligibility within the decision-making process" and "whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir, supra, at
paragraph 47; Khosa, supra, at para. 59.
ANALYSIS
Issue: Did the Board
err by conducting a highly selective analysis, using outdated objective
evidence, thereby making a decision that is unsupported by the recent evidence
before it or by the actions of the Applicant?
[28]
The
applicant submits that the Board erred in concluding that state protection is
reasonably available to the applicant, because the Board relied on outdated evidence
from 2008, ignored contrary evidence, and disregarded attempts made by the
applicant to gain state protection. The applicant makes three submissions in
support of his position:
1. The applicant submits that the
Board specifically cited only three sources, two of which date from 2004. The
Board made 6 references to a 2004 Report on conditions in Mexico. This report is from the
Research Directorate of the Board and it is entitled “Mexico: Possible Recourse for Victims of
Bribery Demands/Corruption by Government Officials…”. It is dated October 1,
2004. The applicant submits that updated documents in the Board’s national
documentation package provide contrary evidence regarding the adequacy of state
protection in Mexico, including problems of
corruption and violations of human rights.
2. The applicant further submits
that the Board merely cited the existence of initiatives and agencies created
to combat corruption and other problems in Mexico’s security forces without engaging with
the question of the effectiveness of those efforts. Relying upon Vigueras
Avila v. Canada (Minister of Citizenship and
Immigration),
2006 FC 359 at para. 27, the applicant submits that the Board must consider the
willingness and ability of the state to act to protect its citizens, and not
merely the existence of an intent to do so. Relying upon Zepeda v. Canada
(Minister of Citizenship and Immigration), 2008 FC 491 and Molnar v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 1081, [2003] 2
F.C. 339, the applicant submits that alternate institutions, like human rights
offices, do not constitute protection per se, because the police are the
only institution that is mandated with the duty of protecting the country’s
citizens.
3. Finally, the applicant submits
that by demanding that the applicant do more to avail himself of state
protection, the Board placed an improperly high burden on the applicant. The
applicant submits that going to the Public Ministry, the Human Rights Office
and seeking advice from his lawyer ought to have sufficed to discharge the
applicant’s duty to seek state protection. The applicant submits that it was
unreasonable for the Board to conclude that because of the applicant’s pending
civil lawsuit, the applicant “should be familiar with the Mexican justice system
and all the options available to him with respect to seeking redress.”
[29]
As the
Board in this case stated, except in cases where there has been a complete
breakdown in the home state apparatus, there exists a general presumption that
a state is capable of protecting its citizens: Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689. Moreover, this presumption can only be rebutted
where the refugee claimant provides “clear and convincing” evidence confirming
the state's inability to provide protection: Ward, at 724-725. The
evidence that state protection is unavailable must satisfy the Board on a
balance of probabilities that state protection is “inadequate” – no state is
expected to provide perfect protection to all its citizens at all times: see,
for example, Canada (Minister of Employment and
Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). The more democratic
is the state, the heavier is the burden upon the claimant to displace the
presumption of adequate protection and demonstrate that he has exhausted all
courses of action reasonably available to him: Flores Carillo v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 94 at para. 30; Canada (Minister of Citizenship and
Immigration) v. Kadenko
(1996), 143 D.L.R. (4th) 532 (F.C.A.), at 534.
[30]
The law is
clear that the Board need not explicitly refer to all of the material before it
and will be assumed to have considered all of the evidence unless there is some
contrary indication. However, as Justice Evans stated in Cepeda-Gutierrez v.
Canada (Minister of Citizenship
& Immigration),
157 F.T.R. 35, [1998] F.C.J. No. 1425, at para. 16, “the agency’s burden of
explanation increases with the relevance of the evidence in question to the
disputed facts.”
[31]
The
Board’s reasons in this case demonstrate that it considered all of the
evidence. The Board does refer to other documentary evidence besides the 2004
document. The Board uses the 2004 document as evidence of alternative
authorities and agencies that are available to members of the public to
complain about the security forces. The applicant has not pointed to evidence
that the availability of such organizations has changed since 2004. The Board
does not suggest that it has relied exclusively upon these reports in drawing
its conclusion regarding the adequacy of state protection in Mexico. To the contrary, in addition
to explicitly referring to the U.S. Department of State 2008 Report, Human
Rights Reports: Mexico, 25 February, 2009, the Board recognizes, as stated
above, that “there is information in the documentation to indicate that
inefficiency, bribery and corruption remain issues in Mexican security forces
at all levels, as well as within the public service sector.” The Board also
explicitly refers to the additional documentary evidence submitted by the
applicant. At para. 24 of its reasons, the Board expressly names certain
articles and an Amnesty International report submitted by the applicant. The
Board recognizes that these reports and articles support the other documentary
evidence considered by the Board. The Board states:
¶24. . . . Although most of the items
report on the problems Mexico is facing with respect to state protection, most
of them also outline Mexico’s efforts to identify and
resolve the problems they are having.
[32]
At para.
25, the Board concludes:
¶25. . . . Having considered the totality
of the evidence including the Board’s documentary evidence with respect to the
adequacy of state protection in Mexico,
I find that the claimant, in the circumstances of this case, has failed to
rebut the presumption of state protection with clear and convincing evidence.
[33]
The Court
therefore agrees with the respondent that the Board did consider all of the
evidence before it.
[34]
With
regard to the question of whether the Board failed to consider the efficacy of Mexico’s efforts to protect its
citizens, the Court similarly concludes that the Board’s reasons demonstrate
that it applied the appropriate considerations in its determinations of the
adequacy of state protection. It was reasonably open to the Board on the
evidence to find that the applicant did not undertake all reasonable efforts to
avail himself of the protection of the Mexican state. In particular, the Board
reasonably concluded that the applicant ought to have reported the murder threats
that he feared to the police and any other authority that might have been of
assistance. The Board reasonably concluded that the applicant’s failure to
report the 2007 death threat to police undermined his claim. It is reasonable
for the Board to expect that a specific death threat from a specific individual
would be reported to the police. The police would investigate such as specific
threat to murder the applicant.
[35]
However,
the Board finds that one conclusion of the Board was not reasonably open to it.
With respect to the assault which the applicant reported to the Public Minister
for the City of Yautepec, and the subsequent report to
the Human Rights Commission in the same city, the Board found at paragraph 20
as noted above:
¶20…Regardless of the pending lawsuits, I
find that the claimant should have sought redress at a higher level of the
security forces since his allegations were serious enough to warrant attention
… I find that the claimant should be familiar with the Mexican justice system
and all the options available to him with respect to seeking redress.
[36]
In making
these statements, the Board relies upon the Board’s document from the Research
Directorate dated October 1, 2004 which is entitled “Mexico: Possible Recourse for Victims of
Bribery Demands/Corruption by Government Officials …”. The Court has read this
document carefully and finds first, that it is not relevant to the applicant
filing a criminal complaint for assault and second, it does not identify any
“higher level of security forces” from which the applicant could have sought
redress. Accordingly, with respect to the assault complaint of the applicant,
the applicant did properly seek state protection and could not have done more.
However, the Public Ministry, which is the federal police, did not accept the
complaint because of the on-going dispute between the applicant and Jose. This
was reasonably open to the Public Ministry and the Court cannot criticise the
Public Ministry for discounting the attempt by the applicant to file criminal
charges against Jose or his accomplices. In addition it was reasonably open for
the Board to find that the applicant should have sought state protection with
respect to the subsequent murder threat, which is outlined above. Accordingly,
while it was not reasonably open to the Board to find that the applicant should
have done more to seek protection with respect to the assault, the Court finds
this error not material since the Public Ministry did not consider this
complaint and dismissed it for the reasons discussed.
CONCLUSION
[37]
For these
reasons, the Court concludes that the decision of the Board was reasonably open
to it and there is no basis upon which the Court should interfere.
CERTIFIED QUESTION
[38]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
This application for judicial
review is dismissed.
“Michael
A. Kelen”
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