Docket: IMM-3963-11
Citation: 2012 FC 60
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Montréal, Quebec,
January 17, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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JOAQUIN MANUEL GONZALEZ
MOJICA YAZNIT LUNA PARRAL
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
It
was open to the Refugee Protection Division (RPD) to find that the applicant
had not availed himself of state protection since he did not follow up on his
complaints. The applicant merely reiterated his fear of
the authorities’ corruption. The RPD noted the following points from the
applicant's explanations:
[10] The male claimant explained that he had
not followed up on his complaints because either [translation] “they” do
nothing or his assailant has no fear of reprisals since he is well protected,
or because the police cannot do anything against a government entity. …
II. Judicial Proceeding
[2]
This is an application for judicial review,
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act
(2) (Act), of the decision by the RPD dated May 26, 2011, wherein the
applicants were found to be neither a Convention refugee as defined in section
96 of the IRPA nor a person in need of protection under section 97 of the IRPA.
III. Facts
[3]
Joaquin Manuel Gonzalez Mojica, the principal
applicant, and his common-law spouse, Yaznit Luna Parral, are Mexican citizens.
[4]
The applicant worked for the Federal Electricity
Commission, a Mexican government corporation, since1999. He claims that, during
the years he worked there, he witnessed drug use and sales during working
hours, done with impunity.
[5]
The applicant alleges that, in February 2009, he
refused to take cocaine offered by his direct supervisor for the first time
during working hours in a company vehicle.
[6]
Following this refusal, the applicant was
allegedly the victim of persecution, harassment and baseless sanctions from his
direct supervisor. The applicant filed a complaint with his union, which did
nothing.
[7]
Following this complaint, the applicant alleges
that his direct supervisor pointed a gun at his head because he was an
informant.
[8]
On March 15, 2009, the applicant filed a
complaint of death threats with the Mexican police. The police allegedly made
fun of him and discouraged him from filing a complaint against his direct
supervisor.
[9]
According to the applicant, he was threatened
with death again by his direct supervisor for having reported him to the
police. He claims that his direct supervisor told him that he was protected by
the “Zetas”.
[10]
On March 16 and 17, 2009, the applicant got
information about applying for refugee protection and took steps to purchase
airline tickets to leave Mexico.
[11]
The applicants arrived in Canada on May 10,
2009, and made a refugee protection claim that same day.
IV. Decision subject
to this application for judicial review
[12]
The RPD did not impugn the applicant’s
credibility. For the RPD, the pivotal issue for the refugee protection claim is
state protection. The RPD found that Mexico, as an organized democracy, is
presumed to be able to protect
its citizens. The onus was on the applicant to rebut
this presumption.
[13]
To make this finding, the RPD placed
considerable importance on documentary evidence (National Documentation Packages) that reveals, in its opinion, that the government of Mexico is
able to fight corruption, it can protect its citizens from reprisals and a number
of recourses are available to victims of corruption by federal public servants.
In the panel’s opinion, Mexico “makes serious efforts
to protect its citizens who are victims of crime or who are threatened with
criminal acts, the mere fact that it is not always successful at doing so is
not enough to justify a claim that victims or persons threatened with criminal
acts are unable to avail themselves of such protection” (Decision at
para 13).
[14]
The RPD concluded that the principal applicant “failed to act” in that he should have
followed up on his complaints to the union and the Public
Ministry (Decision at para 13). The RPD draws an unfavourable inference from
the fact that the applicant took steps to buy airline tickets three days after filing
his complaint with the Public Ministry.
V. Issue
[15]
Under the circumstances, is the RPD decision
reasonable?
VI. Relevant
statutory provisions
[16]
The
following provisions of the IRPA are applicable in the case at bar:
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Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those countries;
or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of
protection
97. (1) A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
(iii) the risk is not inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards, and
(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.
Person in need of
protection
(2) A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection
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Définition de
« réfugié »
96. A qualité de réfugié au sens de la Convention — le réfugié —
la personne qui, craignant avec raison d’être persécutée du fait de sa race,
de sa religion, de sa nationalité, de son appartenance à un groupe social ou
de ses opinions politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du
pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne
qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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VII. Position of the parties
[17]
First, the applicants submit that the RPD erred
by applying the wrong test to find that there was state protection. Consequently,
it committed a reviewable error. The applicants claim that the case law on
which the panel relied does not reflect the current situation in Mexico. Indeed,
it is allegedly easier to rebut the presumption of state protection in a
country like Mexico that is a developing democracy. Moreover, they maintained
that the RPD overlooked some documentary evidence showing that the
effectiveness of protection in Mexico, despite the government’s efforts, is
weak.
[18]
Furthermore, the RPD allegedly overlooked the
applicant’s testimony about his efforts to seek protection from Mexico.
[19]
The respondent argued that the RPD properly analyzed
the issue of state protection. It emerges from an analysis of the documentary
evidence that the applicant has not exhausted the all the recourses available
to avail himself of the protection of his country of origin, particularly human
rights organizations. Thus, the RPD is not required to comment on each and
every piece of evidence that was adduced. Moreover, the applicants did not file
the documents they refer to in support of their affidavit. In addition,
according to the respondent, it was reasonable for the RPD to give weight to
the fact that the applicant did not follow up on his complaints, and that he
left the country three days after he filed his complaint with the Public
Ministry. In the case at bar, the applicant’s situation demonstrates a local
problem and it does not appear that protection was ineffective throughout the
country.
VIII. Analysis
[20]
The appropriate standard of review for the RPD’s
findings regarding state protection is that of reasonableness. The Supreme
Court of Canada has stated that RPD decisions are owed some degree of deference
(Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.
[21]
It is important to recall that in issues of
state protection, each case has its specific context and facts, and the
objective evidence must be analyzed in light of the particular circumstances (Arellano
v Canada (Citizenship and Immigration), 2006 FC 1265).
[22]
In Burgos v Canada (Citizenship and
Immigration), 2006 FC 1537, Justice Edmond P. Blanchard explained the principle
of state protection as follows:
[35] Mr. Justice Denis Pelletier of the Federal Court, as he then was, stated
that the failure of local authorities to maintain order in an effective manner
is not equivalent to a lack of state protection (Zhuravlvev v. Canada
(M.C.I.), [2000] F.C.J. No. 507 (QL)). He added that the evidence must
establish a broader pattern of state inability or refusal to extend protection
in order to prove the lack of state protection.
[36] However,
when it considers the issue of state protection, the Court cannot require that
the protection currently available be perfectly effective. The following
excerpt written by Mr. Justice James Hugessen in Villafranca v. M.E.I., [1992]
F.C.J. No. 1189 (F.C.A.) (QL), sets out this principle:
On the other hand, where a state is in
effective control of its territory, has military, police and civil authority in
place, and makes serious efforts to protect its citizens from terrorist
activities, the mere fact that it is not always successful at doing so will not
be enough to justify a claim that the victims of terrorism are unable to avail
themselves of such protection.
[Emphasis
added.]
[23]
The reasoning of Justice Marie-Josée Bédard in Zepeda
v Canada (Minister of Citizenship and Immigration), 2008 FC 491, [2009] FCR
237, is relevant:
[20] I find Madam Justice Gauthier’s approach to the presumption of state
protection in Mexico to be persuasive. While Mexico is a democracy and
generally willing to protect its citizens, its governance and corruption
problems are well documented. Accordingly, decision-makers must engage in a
full assessment of the evidence placed before them suggesting that Mexico,
while willing to protect, may be unable to do so. This assessment should
include the context of the country of origin in general, all the steps that the
applicants did in fact take, and their interaction with the authorities (Hernandez
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1211, [2007]
F.C.J. No. 1563 (QL), at para. 21; G.D.C.P. v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 989, [2002] F.C.J. No. 1331 (QL), at
para. 18).
[24]
The RPD placed considerable emphasis on the
efforts of the Mexican government to combat corruption. The RPD reviewed the
evidence, set out at paragraph 12 of its decision, that the applicant could
have sought state protection through various mechanisms established by the
government to fight corruption, such as filing a complaint with the attorney
general, to name but one example.
[25]
The Court is of the opinion that in order for
the applicant to succeed in his argument about the ineffectiveness of
government measures, he must in fact demonstrate this ineffectiveness. He
cannot raise a subjective fear to justify his failure to avail himself of state
protection. As the Court explained in Castaneda v Canada (Minister of
Citizenship and Immigration), 2010 FC 393:
[26] In spite of this, the applicant claimed
that fear prevented him from going to the federal authorities. This
explanation cannot be accepted, for the adequacy of state protection cannot
rest on the subjective fear of an applicant. The presumption of state
protection cannot be rebutted on this subjective basis alone (Suarez
v. Canada (Minister of Citizenship and Immigration), 2005 FC
1050, 141 A.C.W.S. (3d) 116).
[27] To rebut the presumption of state
protection, an applicant must present clear and convincing proof of the state’s
inability to protect. The evidence must be relevant and reliable, and convince
the trier of fact that the state protection is inadequate (Ward; Carrillo
v. Canada (M.C.I.), 2008 FCA 94, [2008] 4 F.C.R. 636). [Emphasis added.]
[26]
As for the applicant’s argument that the RPD had
not taken into account the relationship of the applicant to the authorities as
an electrician in a government corporation, it has no merits and must be
dismissed. Indeed, this fact is explicitly mentioned in paragraph 10 of the RPD’s
decision. In this case,
persecution allegedly committed by a state official is not sufficient to
discharge the applicant of his burden to rebut the presumption of state
protection (Cardona v Canada (Citizenship and Immigration), 2010 FC 57).
[27]
The Court is of the opinion, in light of the
evidence on the record, that the RPD reasonably ruled that the applicant did
not discharge his onus of proof to rebut the state protection presumption. The
RPD considered the particular circumstances of this case, its finding
concerning state protection is reasonable.
IX. Conclusion
[28]
For all these reasons, the application for
judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS
the dismissal of the applicant’s application for judicial review. No question
of general importance is to be certified.
“Michel M.J. Shore”
Certified
true translation
Monica
F. Chamberlain
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