Date: 20101123
Docket: IMM-1715-10
Citation: 2010 FC 1174
Ottawa, Ontario, November 23,
2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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GERMAN IVAN FLORES DOSANTOS
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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
I. Background
[1]
The
Applicant is a citizen of Mexico who seeks protection in Canada pursuant to ss.
96 and 97(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (IPRA). The Applicant’s claim is based on his fear of a rival
businessman and the businessman’s brother, who is an employee of the state
attorney general’s office. The Applicant claims that both men have connections
with all levels of the Mexican police and with the Public Ministry. The
Applicant believes that he is being targeted by both men on account of his more
successful business venture and his religion as a Jehovah’s Witness.
[2]
In
a decision dated March 4, 2010, a panel of the Refugee Protection Division of
the Immigration and Refugee Board (the Board) determined that the Applicant was
not a Convention refugee or a person in need of protection. The determinative
issue for the Board was that of state protection. The Board concluded that the
Applicant had failed to rebut the presumption of state protection.
[3]
The
Applicant seeks to have the decision quashed.
II. Issues
[4]
The
following issues were raised by this application:
1.
Did
the Board err in applying the appropriate test for state protection?
2.
Did
the Board err in ignoring documentary evidence when considering the evidence on
state protection?
3.
Did
the Board err in applying an undue burden on the Applicant to demonstrate that
he had sought state protection?
A. Standard of Review
[5]
The
standard of review for determination of the issue of state protection, a
question of mixed fact and law, is the standard of reasonableness. On this
standard, the
Court should not intervene where the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
B. The Board’s Decision
[6]
In
its reasons, the Board began its analysis of state protection with a framework:
. . . I considered whether or not there
is adequate state protection in Mexico,
whether or not the claimant took all reasonable steps to avail himself of that
protection; and whether he has provided clear and convincing evidence of the
state’s inability to protect.
[7]
On
the first issue, of whether there is adequate state protection in Mexico, the Board
recognized the initial presumption that the state is capable of protecting its
citizens. The Board further observed that protection need not be perfect, and
that local failures to provide protection will not necessarily mean that a
state has failed to protect. The more democratic are a state’s institutions,
the greater the onus on the claimant to demonstrate that he has properly sought
state protection.
[8]
The
Board found that Mexico is a reasonably well-functioning democracy with
a number of law enforcement authorities and agencies, including anti-corruption
agencies. The Board detailed the many efforts undertaken by the Mexican
government to combat corruption within the public service. The Board also
considered the contrary evidence submitted by the Applicant.
[9]
At
paragraph 27 the Board concluded:
The Board recognizes that there are some
inconsistencies among several sources within the documentary evidence; however,
the preponderance of the objective 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 and
genuine efforts to address the problem of criminality, and that the police are
both willing and able to protect victims.
[10]
On
the second issue of whether the Applicant took all reasonable steps to avail
himself of available state protection, the Board noted the requirement from Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74
(Q.L.), that the refugee claimant must approach the state for protection in
cases where such protection might be reasonably forthcoming. The Board
concluded that the evidence demonstrated that the Applicant received proper
police attention each time that he reported an incident. At paragraph 23 the
Board stated:
There is no information to suggest that
the police were not making genuine and earnest efforts to investigate the
claimant’s allegations and apprehend the claimant’s perpetrators if warranted.
[11]
Furthermore,
the Board found that the Applicant failed to avail himself of the opportunities
to contact higher levels of the Mexican security forces or go through other
state channels that he ought to have pursued had he been dissatisfied with the
services provided to him at the local level.
[12]
At
paragraph 25 the Board stated:
Therefore, I find that the claimant
simply did not reasonably exhaust courses of action open to him to obtain state
protection in Mexico, and hence, he has not
discharged the onus of showing clear and convincing proof of the state’s
inability or unwillingness to protect him.
[13]
As
a result, the Board concluded that the Applicant had failed to rebut the
presumption of state protection with clear and convincing evidence.
III. Analysis
A. Issue #1: Did the Board err in
applying the appropriate test for state protection?
[14]
The
reasons of the Board demonstrate a careful and legally sound analysis of the
issue of state protection. The conclusion of the Board with regard to the
question of the adequacy of state protection in Mexico is quoted
above. As that paragraph makes clear, the Board was not solely relying upon
“serious efforts” made by the Mexican government to protect its citizens. To
the contrary, the Board clearly concluded that the “preponderance of the
objective evidence regarding current country conditions suggests that, although
not perfect, there is adequate state protection in Mexico for victims of crime.
. .”.
[15]
The
Board considered numerous indicators of the Mexican government’s ability to
provide state protection. These included the size of its security forces, the
extent of their control over Mexican territory, their structure and
hierarchical organization, and the mechanisms available to Mexican citizens to
respond to corruption within the Mexican security forces. The Board also
considered statistics regarding the number of people charged and sentenced
within Mexico, thereby
demonstrating that the system of bringing criminals to justice is working.
[16]
The
personal circumstances of the Applicant were considered and no evidence was
ignored. In my view, the Board’s analysis was complete.
[17]
As
the Federal Court of Appeal stated in Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R.
(2d) 130 (F.C.A.), 99 D.L.R. (4th) 334:
No government that makes any claim to
democratic values or protection of human rights can guarantee the protection of
all of its citizens at all times. Thus, it is not enough for a claimant merely
to show that his government has not always been effective at protecting persons
in his particular situation.
[18]
The
Board understood the meaning of “adequate state protection” and the evidence
required to demonstrate its existence.
B. Issue #2
Did the Board err in ignoring documentary evidence when considering the
evidence on state protection?
[19]
The
Applicant submits that the Board did not adequately address the issue of the
effectiveness of state protection for individual victims of abuse. The
Applicant submits that there was much evidence before the Board that, despite
the efforts of the Mexican government to assure the security of its citizens
and to fight corruption within its security forces, major problems persist.
[20]
In
its decision, the Board recognized that there are problems with corruption
within Mexico’s security services.
The Board also explicitly referred to some of the Applicant’s evidence
regarding the inadequacy of Mexico’s state protection, and noted that it had read all of the material
submitted by counsel, including that not explicitly cited in its decision.
[21]
Nevertheless,
as discussed above, after considering the contrary evidence submitted by the
Applicant, the Board concluded that the documentary evidence demonstrated that
there is adequate state protection available in Mexico. This was a finding reasonably open to the
Board.
[22]
The
Applicant asserts that much of the Board’s recitation of statistics was
irrelevant to the Applicant. I disagree. The Applicant was claiming that he was
unable to obtain justice for a situation involving allegations of corruption.
The Board was entitled to refer to the objective statistical evidence to show
that, on balance, the country was taking successful measures to curb
corruption.
C. Issue #3: Did
the Board err in applying an undue burden on the Applicant to demonstrate that
he had sought state protection?
[23]
The
Applicant maintains that the Board placed an “impossible burden” on him to
rebut the presumption of state protection. The Applicant submits that, because
of the fact that one of his agents of persecution was a state employee and the
fact that on two occasions two police officers accompanied that person when he
attacked the Applicant, the Applicant did not need to seek further protection
from the authorities. Moreover, the Applicant submits that in this case
complaining about the abuse that he received only made the incidents worse.
[24]
Furthermore,
the Applicant submits that the he did not need to approach the state
authorities on each occasion during which he was targeted. Instead, the
Applicant submits that the fact that he approached state authorities on a
number of occasions and that the persecution never stopped is sufficient to
constitute the “clear and convincing” evidence necessary to rebut the
presumption of state protection.
[25]
In
this case, the Board reasonably found that the Mexican state is a functioning
democracy and that the presumption of state protection therefore operated. The
burden was on the Applicant to provide clear and convincing evidence that, in
his case, the state was unable to provide such protection.
[26]
The
Applicant is correct that state complicity is not required in order to find
persecution on a Convention ground. Rather, persecution under the Convention
can exist where the state is unwilling or unable to provide adequate protection
to the refugee claimant. At paragraph 50 of Ward, the Supreme Court
explained how such a finding of persecution is to be determined:
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.
[27]
The
Applicant provided evidence of numerous instances of attacks made upon him by
his persecutors. He also noted several occasions on which he reported the abuse
to state authorities. The Board considered this evidence and found that the
state’s response was adequate in each case. The Board noted that when the
Applicant first went to the police, they recommended that he avoid the agent of
persecution. Once the Applicant reported threats and attacks, the police asked
the Applicant for evidence and told him that the threats were matters for conciliation.
Following the May 2005 shooting incident, the attorney general’s office
conducted months of investigations before deciding that there was insufficient
evidence to proceed. The Applicant’s final interaction with the authorities was
the denunciation that he filed on November 16, 2007. He was told that the
denunciation is a statement of facts that would be sent to the Public Ministry
office to determine the appropriate manner of following up.
[28]
The
Board concluded at paragraph 23:
I find that the claimant received police
attention every time the claimant approached the authorities. There is no
information to suggest that the police were not making genuine and earnest
efforts to investigate the claimant’s allegations and apprehend the claimant’s
perpetrators if warranted.
[29]
This
conclusion is reasonable on the facts. It can be contrasted to the cases cited
by the Applicant in which courts have found that refugee claimants did not need
to seek protection because of factual findings by the Board that either (1) the
state itself was involved in the persecution, or, (2) seeking state protection
would not remedy the problem. As the Federal Court of Appeal stated in
Kadenko v. Canada
(Solicitor General) (1996), 206 N.R. 272, [1996] F.C.J. No. 1376
(Q.L.), at paragraph 3:
Once it is assumed that the state (Israel in this case) has political
and judicial institutions capable of protecting its citizens, it is clear that
the refusal of certain police officers to take action cannot in itself make the
state incapable of doing so. The answer might have been different if the
question had related, for example, to the refusal by the police as an
institution or to a more or less general refusal by the police force to provide
the protection conferred by the country's political and judicial institutions.
[Emphasis added.]
[30]
The
Board reasonably concluded that the state authorities were properly
investigating the Applicant’s claims. The Board also reasonably found that, had
the state authorities found sufficient evidence to prosecute the perpetrators,
they would have done so, and that would have sufficiently protected the
Applicant. The fact that the perpetrator was a state employee does not affect
the reasonableness of this finding.
[31]
In
addition, the Board noted that, had the Applicant been concerned that he was
not receiving adequate police attention because of corruption arising from the
perpetrator’s relationship to the local authorities, the Applicant had a duty
to make use of the other avenues of protection reasonably available. The Board
concluded that the Applicant did not attempt to report his problems to any
authority beyond the local police station.
[32]
This
is similar to the case of Lozada v. Canada (Minister of
Citizenship & Immigration), 2008 FC 397, [2008] F.C.J. 492 (Q.L.), where
the court held at paragraph 31:
The Board took note of the documentary
record which included reports of problems with police corruption and measures
to address those issues. The Board concluded the Applicant had not pursued
further options available to him, namely providing further information to the
police or filing a complaint directly to Ministry officials. The Board
concluded the Applicant had not rebutted the presumption of state protection.
[33]
The
Applicant's evidence fell short of being sufficient to demonstrate that the
police investigation was deliberately curtailed and that state protection was
not available. The Applicant himself did not make further effort to secure
state protection by pursuing other options to obtain police or other state
protection. The Board could have been more explicit in its description of how
alternative options might have assisted the Applicant. However, its failure to
do so is far from a reviewable error.
IV. Conclusion
[34]
In
conclusion, the Board’s reasons were very clear, legally sound and supported by
the evidence. There are no grounds upon which this Court should intervene.
[35]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
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