Date: 20100622
Unrevised certified
translation Docket:
IMM-6670-09
Citation:
2010 FC 683
Ottawa,
Ontario, June 22, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
ALBERTO PADILLA OCHOA
SARA GONZALEZ TENORIO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This is an application for judicial review under section 72
et seq. of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act), filed by Alberto Padilla Ochoa (the male applicant) and
by Sara Gonzalez Tenorio (the female applicant), of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the panel), bearing
the numbers MA8-00845 and MA8-00846 and dated November 20, 2009. This
judgment is rendered by the undersigned judge as ex officio judge of the
Federal Court as provided for in subsection 5.1(4) of the Federal Courts Act,
R.S.C. (1985), c. F-7.
[2]
The application for judicial review will be dismissed for
the reasons set out below.
Background
[3]
The applicants are citizens of Mexico, and are now 39 and 42 years of age, respectively. They left Mexico and arrived in Canada on December 12, 2007; they claimed refugee protection that same day. The
male applicant’s claim is largely dependent on that of the female applicant.
[4]
The female applicant worked at a high school for troubled
youth. She caught a student selling drugs to fellow classmates and reported him
to the school’s principal; he was expelled. Following this expulsion, the
student wound up in a prison for juvenile offenders.
[5]
The female applicant states that the father of the student
in question threatened her. Following this she alleges that she was assaulted
and raped on June 22, 2007, that windows of her house were broken on July 13,
2007, and that she was raped again on November 7, 2007. The applicants
subsequently decided to leave Mexico for Canada.
Panel’s decision
[6]
The panel found the female applicant’s testimony to be
neither clear nor straightforward and found that it contained numerous
omissions and contradictions. However, the panel did take note of a medical
report by the female applicant’s attending physician in which she was diagnosed
as having a post-traumatic stress disorder that is consistent with the alleged
assaults. The attending physician concluded in his report that the female
applicant would have trouble defending her claim before the panel because of
her memory and concentration problems and because of her reluctance to talk
about her experiences.
[7]
Consequently, the panel gave the female applicant the
benefit of the doubt and accepted her narrative, which it deemed to be credible
and trustworthy.
[8]
Since the subjective fear of persecution had been
established, the panel then turned its attention to the issue of objective fear;
it determined that the applicants had failed to demonstrate that state
protection was unavailable to them in Mexico.
[9]
In fact, the applicants did not file a complaint following
the incidents in June and July 2007. They explained this omission by the fact
that they did not trust the police, who are corrupt, according to them. They
also believe that the people who are after them have the means to bribe police
in any part of Mexico to
which they might flee in the wake of these incidents.
[10]
The applicants did, however, file a complaint with the
police about the incidents which occurred in November 2007, but did not reveal
the name of their persecutor, although the person was known to them. The
refusal to cooperate with the police is perceived by the panel to be a lack of
effort in seeking the protection of the Mexican authorities on their part.
[11]
Thus, the panel found that the applicants had failed to
rebut the presumption that the Mexican state was able to protect them.
Applicants’ position
[12]
The applicants argue that the panel’s decision is unreasonable
since state protection is illusory in Mexico and that, consequently, they were correct not to seek it.
Respondent’s position
[13]
The Minister raises a preliminary issue regarding the
non-observance of time limits with regard to the filing of the application for
leave and judicial review. Given the decision on the merits of the case, it
will not be necessary to address this question.
[14]
With regard to the main issue, the Minister argues that it
was up to the applicants to provide clear and convincing evidence to rebut the
presumption that a state is able to protect its citizens. In this case, the
applicants did not file a complaint with the police after the incidents of June
and July 2007, nor did they reveal the name of their assailant to the police at
the time of the November 2007 incidents. In these circumstances, the panel
could reasonably find that the applicants had not made reasonable efforts to
seek the protection of the Mexican authorities.
Standard
of review
[15]
In Hinzman v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413, [2007]
F.C.J. No. 584 (QL), at paragraph 38, the Federal Court
of Appeal confirmed that questions as to the adequacy of state protection are
‘‘questions of mixed fact and law ordinarily reviewable against a standard of
reasonableness’’.
[16]
The
applicable standard of review for decisions of the Refugee Protection Division
of the Immigration and Refugee Board regarding the availability of state
protection is therefore reasonableness.
Analysis
[17]
When refugee claimants maintain that state protection is
not available to them, the fundamental rule is that the burden of proof rests
with them. This burden cannot be discharged by simply stating that state
protection is nonexistent or that security services are corrupt. In other
words, in this case the onus was on the applicants to provide precise facts
demonstrating that state protection was not available to them.
[18]
There are several ways in which this could have been done. For
example, applicants could testify to incidents they experienced that
demonstrate that the state refused to provide protection, or that such
protection was non-existent. They could establish that a third party in a situation
similar to theirs was unable to benefit from state protection. Another option
would be to establish, through documentation available in the National
Documentation Package or elsewhere, that no protection is available to people
in similar situations.
[19]
In this case, no such evidence was provided.
[20]
I note, for example, that according to the transcript of
the hearing before the panel, the applicants did not refer to information
provided in the National Documentation Package on Mexico to support their argument. They relied on vague allegations and personal
impressions that were not supported by any objective evidence.
[21]
Given these circumstances, I cannot conclude that the
panel’s decision is unreasonable.
[22]
In conclusion, the application for judicial
review will be dismissed.
[23]
The parties raised no question for
certification pursuant to paragraph 74(d) of the Act and none will
be certified.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review is dismissed.
‘‘Robert
M. Mainville’’
Certified true
translation
Sebastian Desbarats,
Translator
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