Date: 20101123
Docket: IMM-1748-10
Citation: 2010 FC 1176
Toronto, Ontario, November 23,
2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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JERONIMO OCAMPO LOPEZ
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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]
The
Applicant is an adult male citizen of Mexico. He fled Mexico and came to Canada where he
claimed refugee protection. That claim was considered by a Member of the Immigration
and Refugee Board of Canada who, in a decision dated March 2, 2010, rejected
that claim. That decision is the subject of this application for judicial
review. I am allowing this application and will send the matter back for
re-determination by a different Member. No question is to be certified.
[2]
The
relevant facts in this case are uncontradicted. There is no issue as to
credibility. The Applicant witnessed a drug transaction while out one evening
near his home. He reported this to officials of the Public Ministry. A few days
later the Applicant began to receive threatening phone calls. He subsequently
was assaulted by some of the same men involved in the drug transaction,
neighbours intervened and the police arrived. A report of the incident was
given to the police who promised to look into the matter. Nothing happened. The
Applicant fled to Mexico City with his family and then to another city in Mexico. Threatening
phone calls followed him. The Applicant fled to Canada. His wife
and child, because of limited funds went across the border to the United
States.
[3]
The
issue in this case is the adequacy of state protection. I am satisfied that, in
the circumstances, the Applicant did what he could to report the incidences of
threats and assault to the authorities and to seek refuge elsewhere in Mexico.
[4]
The
Board Member came to the conclusion that, on the whole the issues of corruption
and deficiencies are being addressed in Mexico and that
state protection is adequate although not perfect. The Member concluded that
the Applicant had failed to rebut the presumption of state protection with
clear and convincing evidence.
[5]
I
find that the Member’s decision was not correct in law and was not reasonable
having regard to the record before the Board in this case.
[6]
First
as to the legal issues, the Federal Court of Appeal in answering a certified
question in Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636 wrote at
paragraph 38:
38. I
would answer the certified questions as follows:
A refugee who claims that the state protection
is inadequate or non-existent bears the evidentiary burden of adducing evidence
to that effect and the legal burden of persuading the trier of fact that his or
her claim in this respect is founded. The standard of proof applicable is the
balance of probabilities and there is no requirement of a higher degree of
probability than what that standard usually requires. As for the quality of the
evidence required to rebut the presumption of state protection, the presumption
is rebutted by clear and convincing evidence that the state protection is
inadequate or non-existent.
[7]
The
Board Member in the present case confused the issue as to quality of
evidence which must be “clear and convincing” with the issue of standard
of proof which is the usual “balance of probabilities”. Thus vague evidence
as to a phone call or document that cannot be found possibly may not be “clear
and convincing” whereas, as in the case here, a report from an agency such as
Amnesty International and a news agency such as Reuters or the Wall Street
Journal is. Where such “clear and convincing” evidence is present it must be
weighed on the “balance of probabilities”.
[8]
Another
error of law is with respect to what is the nature of state protection that is
to be considered. Here the Member found that Mexico “is making
serious and genuine efforts” to address the problem. That is not the test. What
must be considered is the actual effectiveness of the protection. I repeat what
I said in Villa v. Canada (Minister of
Citizenship and Immigration) 2008 FC 1229 at paragraph 14:
14. The Applicants
lawyer was given an opportunity to make further submissions as to IFA and did
so in writing. In doing so reference was made to a number of reports such as
those emanating from the United Nations and the United States and to decisions
of this Court including Diaz de Leon v. Canada (MCI), [2007] F.C.J. No. 1684, 2007
FC 1307 at para. 28; Peralta Raza v. Canada (MCI), [2007] F.C.J. No. 1610, 2007
FC 1265 at para.10; and Davila v. Canada (MCI), [2006] F.C.J. No. 1857, 2006 FC
1475 at para. 25. Those and other decisions of this Court point to the fact
that Mexico is an emerging, not a full fledged, democracy and that regard must
be given to what is actually happening and not what the state is proposing or
endeavouring to put in place.
[9]
As
to the reasonableness of the findings, the evidence is overwhelming in the
present case that Mexico has failed to provide adequate protection. The
evidence shows ineptitude, ineffectiveness and corruption in the state agencies
that the Member suggested could offer protection.
[10]
As
to the Report of Professor Hellman, far from making “sweeping statements”
supported by “little empirical data” as the Member suggests at paragraph 21 of
the Reasons, the Report is carefully written and supported by reference to a
vast member of authoritative sources. Justice Russell of the Court in his
decision in Villicana v. Canada (Minister of
Citizenship and Immigration) 2009 FC 1205, especially at paragraphs 70
to 78 considered this Report and found it to be “authoritative” and the
conclusion “startling”.
[11]
The
decision at issue here is deserving of the kind of comments Justice Beaudry
made in his decision respecting state protection in Mexico in Bautista v.
Canada (Minister of Citizenship and Immigration), 2010 FC 126 at
paragraphs 10 and 11.
10.
I
believe that the Board erred on two grounds in coming to its finding. First of
all, it weighed the evidence of criticisms of the effectiveness of the
legislation against evidence on the efforts made to address the problems of
domestic violence. This is not enough to ground a finding of state protection;
regard must be given to what is actually happening and not what the state is
endeavoring to put in place (A.T.V. v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1229, 75 Imm. L.R. (3d) 215 at paragraph 14).
11. Secondly,
although the Board does acknowledge the contradictory evidence, it does not
truly address the reasons why it considers it to be irrelevant (Zepeda v. Canada (Minister of Citizenship and
Immigration), 2008 FC 491, [2009] 1 F.C.R. 237 at paragraph 28). The Board does
not say how this evidence was weighed against that of the Applicant that she
had sought help at the Public Ministry only to be turned away for various
reasons. Furthermore, many of the documents relied on by the Board also contain
portions which would bring one to reach a different conclusion, are never truly
addressed.
[12]
This
application must be allowed and the decision sent back for re-determination by
a different member who must apply the correct legal standards and give full
effect to all the evidence in the Record.
JUDGMENT
For the Reasons provided:
1.
The
application is allowed;
2.
The
decision of the Member of the Refugee Protection Board dated March 2, 2010 is
set aside and the matter is returned for re-determination by a different
Member;
3.
No
question is certified;
4.
No
Order as to costs.
"Roger
T. Hughes"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1748-10
STYLE OF CAUSE: JERONOMO
OCAMPO LOPEZ
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: NOVEMBER 18, 2010
REASONS FOR JUDGMENT
AND JUDGMENT: HUGHES
J.
DATED: NOVEMBER 23, 2010
APPEARANCES:
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Daniel M. Fine
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FOR THE APPLICANT
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Rafeena Rashid
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Daniel M. Fine
Barrister & Solicitor
Toronto, Ontario
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FOR THE APPLICANT
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Myles J. Kirvan
Deputy Attorney General of Canada
Toronto, Ontario
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FOR THE RESPONDENT
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