Date: 20100304
Docket: IMM-2831-09
Citation: 2010 FC 249
Ottawa, Ontario, March 4, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
GILBERTO VALDEZ CASTRO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant asks the Court to review and set aside a decision by the Refugee
Protection Division of the Immigration and Refugee Board,
which determined that he was not a person in need of protection within the
meaning of section 97 of the Immigration and Refugee Protection Act, R.S.C.
2001, c. 27.
[2]
The
determinative issue was whether the applicant had made adequate efforts to seek
state protection prior to availing himself of refugee protection, and whether
these efforts had rebutted the presumption of state protection. For the
reasons that follow, this application is dismissed.
Background
[3]
Gilberto
Valdez Castro is a citizen of Mexico. His fear stems from the fall-out of an
illegal immigration scam that he unwittingly helped to perpetrate.
[4]
He
was approached by a company to recruit would be emigrants to the U.S.A. with the
prospect of obtaining a work visa. He was to be paid 1500 Pesos per week and a
further 50 Pesos per recruit. In turn, the recruits were required to provide
their passports to the company, accompanied by a US$650 fee.
[5]
Mr.
Valdez Castro recruited 129 people. Among the 129 were six people whose
passports were suspicious because they were submitted twice with the same
photos, but with different personal details. Mr. Valdez Castro made an
anonymous report of his suspicions to the police.
[6]
The
company never provided work visas and disappeared with the recruits’ money.
Mr. Valdez Castro states that the defrauded individuals, and in particular the
six who submitted suspicious passports, became angry and started threatening
him.
[7]
On
November 20, 2006, the six men showed up at his office and demanded repayment
of their money and the return of their passports. The men made it known that they
were associated with Vicente Carrillo
Fuentes, allegedly one of the narco-trafficking families in Mexico. Mr. Valdez
Castro was threatened with death if he did not return the passports and money.
[8]
Two
days later, three of the six men returned to Mr. Valdez Castro’s office, this
time armed. They made similar threats and told him that they were aware he had
reported their suspicious passports to the authorities. Mr. Valdez Castro
states that he made a police report about this incident, but received no
follow-up.
[9]
On
November 30, 2006, the six men returned to collect their passports. The men
again threatened Mr. Valdez Castro if their money was not also returned. Mr.
Valdez Castro states that after this incident he noticed that he was being
followed and watched.
[10]
Out
of fear, Mr. Valdez Castro and his family relocated to Culiacan, a larger
city, hoping to escape the six but this relocation proved
unsuccessful. Mr. Valdez Castro states that he was again being followed as of
April 2007 and that his house was shot at in May 2007. He went to the police
but received no protection, and the next day he again relocated, this time to
Jalisco.
[11]
Mr.
Valdez Castro states that in Jalisco, on March 2, 2008, one of the six
attempted to run him off the road. He did not report this incident to the
police, but instead fled to Canada, arriving on March 19, 2008. He filed a
claim for refugee protection on April 3, 2008.
[12]
The
Board began by noting that as his fear was due to criminal acts already
perpetrated or which would be perpetrated against him, his claim would only be
analyzed under s. 97 of the Act.
[13]
The
Board reviewed the applicant’s allegations of violence and noted that he had moved
within Mexico to avoid
further violence. The Board also noted the efforts the applicant had made to
seek state protection, his allegations of non-response by the authorities, and
the fact that the applicant did not report every incident to the police. The
Board found that the applicant:
…had the experience to engage
authorities at different levels; he could have reported those individuals to
the local authorities where the incidents took place. … If a claimant believes
that the actions of some police officers are corrupt, the onus is on him or her
to approach other members of the security forces or authorities. He chose
not to engage the authorities in Culiacan and Acatlan de Juarez. … No evidence was
advanced to show that the authorities in Culiacan and Acatlan de Juarez were unable or
unwilling to help him.
[emphasis added]
[14]
The
Board reviewed the police structure in Mexico, and the
options that the applicant could have pursued if he thought that the lack of effectiveness
of the police response to his complaints was as a consequence of corruption.
The Board acknowledged that Mexico suffers from ongoing corruption issues,
but went on to conclude that the Mexican government are taking steps to address
these issues. The Board also reviewed the efforts that Mexico is taking to
address its narco-trafficking problem.
[15]
The
Board concluded that adequate, though not necessarily perfect, state protection
was available to the applicant in Mexico and that he had not
discharged the onus of providing clear and convincing evidence to rebut the
presumption of state protection.
[16]
The
Board cited the two-pronged internal flight alternative (IFA) test from Rasaratnam
v. Canada (Minister of
Employment and Immigration), [1992] 1 F.C. 706 (C.A.). The Board noted
that Mexico
City
would provide the applicant with even more protective options should he be
pursued by his assailants and not be satisfied with the protective response of
the local authorities. The Board concluded that state protection would be
available to the applicant in Mexico City and that based on his
education and employment history it would be reasonable for the applicant to
avail himself of this IFA.
[17]
Consequently,
the Board determined that the applicant was neither a Convention refugee nor
person in need of protection.
Issues
[18]
The
applicant raises two issues:
1.
Whether the Board’s decision that
there is adequate state protection available to the applicant against the
threat of death at the hands of Vicente Carrillo Fuentes based on a
misunderstanding of the facts and a selective reading of the documentary
evidence; and
2.
Whether the Board’s decision that Mexico City
represents a viable internal flight alternative was based on a misunderstanding
of the facts as they relate to the steps that the applicant took to protect himself
in Mexico and, in any event, was otherwise unreasonable.
1. State
Protection Finding
[19]
The applicant submits that the
Board’s conclusion is flawed because (i) the Board mistakenly determined that
the applicant failed to approach authorities in an instance where in fact he
had, (ii) the Board failed to consider documentary evidence that suggested
complaints about corrupt or inefficient police would go nowhere, and (iii) the
Board failed to consider documentary evidence that suggested the Mexican
government’s efforts to combat drug cartels had been largely unsuccessful.
[20]
The respondent submits that the
applicant is inappropriately asking this Court to reweigh the evidence as to
whether he rebutted the presumption of state protection. The respondent
submits that specialized administrative tribunals should be given deference in
their weighing of evidence: Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 at paras. 61, 62 and 66. The respondent
says that the Board reasonably assessed the avenues of potential protection
available to the applicant as well as the Mexican state’s efforts to combat
drug cartels, and that this Court should not interfere with the Board’s
determinations.
[21]
The respondent further submits
that for a factual determination to result in a reviewable error, it must be
erroneous and made in a capricious manner or without regard to the evidence,
and the decision must be based on this error; the respondent contends that
these condition precedents are not met in this case.
[22]
For
the reasons that follow, I agree with the respondent that the applicant’s
second and third submissions, as set out in paragraph 19 above, are submissions
that this Court should reweigh the evidence that was before the Board. That is
not the function of a court on judicial review.
[23]
The
Board provided a detailed discussion of the threats and violence that the
applicant faced in Mexico and the circumstances that led to these threats
and violence. The Board also noted the profile of the attackers and their
alleged link to one of Mexico’s notorious drug cartels. The Board
considered the authorities’ responses to the applicant’s complaints. The Board
also reviewed the options that existed if the applicant thought that the police
response was ineffective and the Board reviewed the efforts that the Mexican
state has taken to combat the drug cartels.
[24]
In
short, there is no evidence that the Board ignored or failed to consider any of
the documentary evidence the applicant submitted or relied upon. A different
decision-maker may have reached a different conclusion on this evidence but the
decision cannot be set aside on the basis submitted by the applicant because it
is “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law:” Dunsmuir v. New Brunswick, 2009 SCC 9, para 47.
[25]
More
troubling is that the Board did err in stating the applicant had not filed a
complaint with the police following the alleged shooting incident into his
house. While he did not go to the police after the incident in Acatlan de
Juarez, he did after the incident in Caliacan. Accordingly, the Board got the
facts wrong in this one aspect of the case. The Board’s statement that the
applicant had not sought police protection in that instance was erroneous and
made without regard to the evidence.
[26]
However,
in order to set the decision aside on this basis, I must be satisfied that this
erroneous factual finding was material to the outcome the Board reached. In
this case, I am of the view that the factual finding was not material to the
decision. The Board, as noted previously, examined the failings of the police
with respect to allegations involving members of the drug cartels and noted
that mechanisms were in place to deal with corrupt officials. In this case,
the Board noted that if local corrupt officials were ineffectual other avenues
of complaint were available to the applicant. That being so, I cannot conclude
that the Board’s determination on state protection would have differed had it
noted that there had been a compliant to the police in Culiacan but that it
was ineffectual. In short, I am of the view that the Board would not have
reached a different conclusion if it had gotten this factual determination
correct. Accordingly, this factual error does not constitute a reviewable
error.
2. Internal
Flight Alternative
[27]
The applicant argues that the
Board’s conclusion is unreasonable because it is based on its state protection
conclusion, which he has argued is unreasonable.
[28]
While the Board does state in
passing that it is unlikely that the applicant’s attackers would follow him to Mexico City,
the Board’s substantive conclusion rests on its state protection finding. The
applicant’s attackers had already shown their ability and intention to track
him to various locations within Mexico. However, as discussed, the Board’s conclusion
regarding the applicant’s failure to rebut the presumption of state protection
is not unreasonable. The conclusion, in this case, is equally transferable to Mexico City.
Consequently, the Board’s conclusion regarding the availability of an IFA in Mexico City is
also not unreasonable.
[29]
Neither
party proposed a question for certification and in my view there is none.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
question is certified.
"Russel
W. Zinn"
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