Date: 20100507
Docket: IMM-3708-09
Citation: 2010 FC 502
Ottawa, Ontario, May 7, 2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JUAN MANUEL ESCOBAR MARTINEZ
SANDRA LUZ
LOPEZ MIJANGOS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRAITON
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
principal Applicant (Applicant) and his wife fled Mexico claiming
that they feared a drug lord whom the Applicant had arrested but whom a judge
had released. The Immigration and Refugee Board (Board) rejected the refugee
application on the basis of an absence of nexus to a Convention ground. The
Board also found that the Applicants had not rebutted the presumption of state
protection in Mexico.
II. FACTS
[2]
The
Applicant was a municipal policeman in the City of Tampico. He arrested
a Mr. Gomez for drug trafficking. When Mr. Gomez appeared before some level of
the judiciary, the judge released him and warned the Applicant against
interfering with Gomez and his people. That type of warning was also issued by
the Applicant’s police commander.
[3]
Shortly
after the incident, the Applicant, through telephone calls to his family,
received death threats. He resigned his position 10 days later and left for Canada three weeks
after resigning. In summary, approximately 10 days after receiving the death
threats, the Applicant quit his job and three weeks after that he left Mexico without
reporting the threats or the judge’s comments to any governmental or other
agency.
[4]
The
Applicant claimed that he did not report the incident to any police
organization because he did not trust them. He felt the same way about every
other organization or agency to which he might complain.
[5]
The
Board held that police officers as a group did not constitute membership in a
social group for purposes of s. 96 of the Immigration and Refugee Protection
Act.
[6]
The
Board’s analysis of s. 97 was restricted to the issue of state protection. The
Board considered the steps taken (and not taken), found that aspects of his
story of threats were not credible and noted that the Applicant, while
acknowledging the mandate of certain federal agencies to deal with police
corruption, took no steps to engage any element of state protection.
[7]
The
Board also acknowledged that Mexico had its internal problems, that bribery
and corruption were prevalent. However, the actions of the Applicant were
insufficient even against the background of some of the problems in Mexico.
III. ANALYSIS
[8]
The
Applicant made no submissions on the question of standard of review. However,
the standard for a state protection finding is reasonableness (Eler v. Canada (Minister of
Citizenship and Immigration), 2008 FC 334). The Board’s interpretation
of the social groups covered by s. 96 was a determination of law and therefore
is determined on a correctness standard. The application of the test to the
facts would be subject to reasonableness.
[9]
The
Board was correct in its interpretation of s. 96. The Applicant experienced his
issues not because of what he was but because of what he did. As set forth in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, the groups included in s. 96 are
determined by reference to basic principles underlying the Refugee Convention
(e.g. anti-discrimination). I adopted Justice de Montigny’s analysis in Chekhovskiy
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 970 at paragraph 19.
[10]
The
Board’s finding that the Applicant, as a policeman, did not fall within that
notion of social group for purpose of s. 96 is sustained.
[11]
The
Board’s conclusion of state protection and the Applicant’s failure to engage it
without good reason is reasonable in the circumstances. The Board found that
the Applicant had not rebutted the presumption of state protection.
[12]
The
issue of state protection in Mexico has been the subject of much comment in
this Court of late. The Applicant relies on certain authorities to suggest that
the presumption of state protection for Mexico has been all
but displaced. I do not understand such cases as Zepeda et al v. Canada (Minister of
Citizenship and Immigration), 2008 FC 491 and Capitaine v. Canada (Minister of
Citizenship and Immigration), 2008 FC 98, as holding that this
presumption has been displaced. Nor do I think that the Court is mandated to
engage in political science analysis as to where a country sits on the scale of
state protection.
[13]
The
presumption of state protection is nothing more than a rebuttable presumption.
It is an applicant’s burden to rebut the presumption and evidence of the
existence of bribery and corruption is only one part of the analysis of whether
state protection exists. Factors such as democracy, judicial institutions and effective
agencies to address bribery and corruption are among many other factors to be
assessed. The burden of that assessment is for the Board; the reasonableness of
that assessment is for the Court.
[14]
The
Board’s brief but general description of the problems in Mexico was
sufficient in this case. It is difficult for the Board to speculate about what
each and every organization available to the Applicant to address his complaint
might do in the absence of any effort by the Applicant to engage those
organizations. The Board singled out the federal government institutions as
reasonable places for the Applicant to go but the Applicant had no evidence
that it was not a viable option other than a generalized fear.
[15]
The
Applicant’s submission that urgency precluded initiating complaints with other
agencies suffers from the fact that there was six weeks between the first
incident (the judge/commander’s comments) and his departure and five weeks from
the time of the death threat.
[16]
The
Board’s conclusion on the issue of state protection is reasonable.
IV. CONCLUSION
[17]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“Michael
L. Phelan”
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