Date: 20100901
Docket: IMM-6323-09
Citation: 2010 FC 864
Toronto, Ontario, September 1,
2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
JUAN MANUEL VALADEZ GALLEGOS
LAURA EDITH BARCENAS RAMIREZ
AND EVELYN YARENTZI VALADEZ BARCENAS
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a Member of the
Immigration and Refugee Board of Canada dated December 4, 2009 wherein it was
determined that the Applicants were not Convention refugees and not persons in
need of protection under the provisions of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA). For the reasons that follow this application
for judicial review is dismissed and no question is certified.
[2]
The
Applicants are a husband, wife and minor age daughter, all citizens of Mexico. The
Principal Applicant is the husband who, shortly before the Applicants fled to Canada, resigned
from his position as a sub-officer with the Municipal Police in the city of
Aguascalientes in Mexico. The Principal Applicant gave evidence to the
effect that he participated in a police organized raid on premises occupied by
a drug cartel. Shortly thereafter he says that he began to receive anonymous
phone calls threatening him and his family. He says that he made a complaint
to his superior officer and, a few days later, a further complaint to a higher
level authority. The Principal Applicant appears, within no more than six
weeks, to have made up his mind that he and his family should flee Mexico and seek
refugee protection in Canada. In seeking such protection the Principal
Applicant provided, among other things, photographs obtained from the Internet,
showing the shooting deaths of other police officers. The evidence is unclear
as to the linkage between those deaths and the anonymous telephone threatens
received by the Principal Applicant.
[3]
The
Board Member, in the decision under review, correctly stated the applicable law,
as agreed by the Applicants’ Counsel. There is a presumption that a state is
capable of protecting its citizens and that international protection only comes
into play when a refugee claimant has no other recourse available. The onus
rests on the claimant to provide clear and convincing evidence, in the absence
of a complete breakdown of the state’s control over its own territory, to
demonstrate that such protection is not available. The claimant must
demonstrate that sufficient efforts were made to seek out appropriate recourses
in the state, both those offered by the state and by others such as human
rights agencies.
[4]
Given
that the Member established the decision in the appropriate legal context, the
question for judicial review, is whether the Member overlooked relevant
evidence that would have had a material effect on the decision or whether,
having regard to all the facts, the Member’s decision was reasonable.
[5]
Here
the issue was whether there existed adequate state protection in Mexico and whether
the Applicant had made appropriate efforts to seek out all reasonable recourses
available. Applicants’ Counsel cited the decision of Zinn J. of this Court in Ortega
v. Minister of Citizenship and Immigration, 2009 FC 1057 at paragraph 24:
State protection cannot be determined in a vacuum. The willingness
and ability of states to protect their citizens may be linked to the nature of
the persecution in question. In short, context matters. The Applicants argue,
citing Garcia v. Canada (Minister of Citizenship and
Immigration), 2007
FC 79,
that the Board failed to take a contextual approach to assessing whether
effective state protection would have been reasonably forthcoming had they made
subsequent efforts at seeking protection. I agree that a contextual approach is
required in assessing state protection, but I disagree that the Board failed to
do so in this case. The Board acknowledged the nature of the persecution in
question, and it is apparent that the Board assessed the availability of state
protection on this basis. The Board concluded that there was no evidence to
suggest on a balance of probabilities that had the police been approached in a
more concerted manner that they "would refuse to investigate serious,
non-domestic, sexual assaults". In this passage, the Board displays its
awareness of the context of the situation, that being serious, non-domestic,
sexual assaults; this is what the Board was required to do, and it is not
evidence of a reviewable error.
I agree with what Zinn J. says, namely that
the question of state protection and the adequacy of efforts made to seek that
protection must be considered in context.
[6]
Here
Applicants’ Counsel argues, the Member failed to give adequate weight to the
imminent threats of death and the fact that, as a police officer, the Principal
Applicant apparently would know of the futility in seeking protection. The
Minister’s Counsel argues that the Member did take such matters appropriately
into consideration, and that the Applicants acted precipitately and without
seeking out many other available resources.
[7]
Having
reviewed the record and the authorities cited to me, I find that the Member
gave adequate consideration to the relevant facts and made a decision that was
reasonable. This is a judicial review, not an appeal or reconsideration of the
matter. I therefore find no basis for affording relief by way of judicial
review.
[8]
No
party required that a question be certified and I find no reason to do so.
There is no basis for an award of costs.
JUDGMENT
For the reasons provided:
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application is dismissed.
2. No question
is certified.
3. No order as
to costs.
“Roger
T. Hughes”
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