Date: 20100409
Docket: IMM-2407-09
Citation: 2010 FC 363
Ottawa, Ontario, April 9,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
GERARDO
MARINHO ENRIQUEZ PALACIOS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Mr. Gerardo Marinho Enriquez Palacios arrived in Canada in 2006 from Mexico.
He claimed refugee protection, alleging that he had been an eye-witness to a
murder in Acapulco and was being threatened by one of the perpetrators. A panel
of the Immigration and Refugee Board heard and dismissed his claim in 2009. The
Board found that Mr. Enriquez Palacios had failed to prove that it was
objectively unreasonable for him to seek the protection of state authorities in
Mexico.
[2]
Mr. Enriquez Palacios argues that the Board erred in its analysis of the
issue of state protection. He asks me to order another panel of the Board to
reconsider his claim. I agree that the Board erred and will grant this application
for judicial review.
[3]
Mr. Enriquez Palacios raised a number of issues. Given my conclusion
about the issue of state protection, I need not deal with the others. The issue
is whether the Board’s conclusion that Mr. Enriquez Palacios had failed to
prove an absence of state protection was unreasonable.
II. Analysis
(a) The Board’s
decision
[4]
Mr. Enriquez Palacios testified that he had been threatened after he had
spoken to police about the murder he had witnessed. These threats continued
even after he left Acapulco. In 2006, he was abducted and beaten. He moved
around to find a safe place to live, but the threats continued. At that point,
he fled to Canada.
[5]
Mr. Enriquez Palacios stated that he did not go to police to report the
abduction and beating because he did not trust the police. In Mexico, many
police officers are corrupt.
[6]
Based on this testimony, the Board concluded that there was no evidence
that it was objectively unreasonable for Mr. Enriquez Palacios to report his
mistreatment to the police. The Board acknowledged problems with corruption in Mexico.
However, it also observed that the state is attempting to curb dishonesty in
its police forces. In conclusion, the Board stated: “There is certainly no
reason, in the evidence in this case, which would show why the claimant could
not have approached the authorities to talk about what protection might be
available.”
(b) Was the Board’s conclusion on the issue of state protection unreasonable?
[7]
Refugees are people who have a well-founded fear of persecution and are
unable or, because of fear, unwilling to avail themselves of the protection of
their state of nationality (Immigration and Refugee Protection Act, S.C.
2001, c. 27, s. 96(a)). Therefore, a person who is unwilling to approach
the police out of fear of the consequences may still be a refugee.
[8]
At his hearing, Mr. Enriquez Palacios explained why he was afraid of
approaching the police. He said that the police had threatened him when he was
reluctant to provide information about the killing. In addition, through his
lawyer, he had filed a denunciation with the police complaining about the death
threats he had received. Shortly thereafter, he was abducted and beaten. His
abductors told him that if he went to the police again, he would be killed. He
stated: “I was too scared to do anything and I really didn’t want to contact
the police”.
[9]
The Board characterized Mr. Enriquez Palacios testimony as amounting to
a “general statement that corruption exists within the police in Mexico”. In
fairness, Mr. Enriquez Palacios’ evidence was not simply a general condemnation
of the police. He gave detailed testimony about threats directly from the
police, death threats received after he had provided police with a statement,
particulars of his abduction and beating after filing a complaint about those
death threats, and the final threat to kill him if he spoke to the police
again.
[10]
The Board erred when it stated that there was no evidence supporting Mr.
Enriquez Palacios’ claim that he could not obtain state protection. It is
possible that the Board did not believe Mr. Enriquez Palacios’ testimony on
that question. However, it did not give any explanation for rejecting it.
[11]
Accordingly, I find that the Board’s conclusion on the issue of state
protection, the ground on which Mr. Enriquez Palacios’ refugee claim failed,
was unreasonable. It does not fall within the range of possible acceptable
outcomes based on the facts and the law.
III. Conclusion and Disposition
[12]
The Board failed to respond to Mr. Enriquez Palacios’ explanation for
being afraid to contact the police. Therefore, its conclusion that he had
failed to provide any evidence justifying his decision not to seek police
protection was unreasonable. I must, therefore, allow this application for
judicial review. Neither party proposed a question of general importance for me
to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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