Docket: IMM-553-11
Citation: 2011 FC 1487
Toronto, Ontario, February 22, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
|
|
[AB], [CD], [EF], [GH], [IJ], [KL]
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
Respondent
|
|
|
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
AB,
and his wife, KL, along with their son, CD, their daughter, EF, their
son-in-law, IJ, and their granddaughter, GH, applied for refugee protection in Canada based on their
fear of a corrupt public official in Mexico. A panel of the
Immigration and Refugee Board denied their claims because of a lack of
connection to the grounds recognized by the Refugee Convention and because
state protection was available to them in Mexico.
[2]
The
applicants argue that the Board treated them unfairly by denying them an
adjournment, and wrongly concluded that state protection was available to them
in Mexico. In my view,
the Board did not proceed unfairly and it did not err in its analysis of state
protection. I must, therefore, dismiss this application for judicial review.
[3]
There
are two issues. First, did the Board unfairly deny the applicants an
adjournment? Second, did the Board err in its analysis of state protection?
II. Factual Background
[4]
The
applicants are all citizens of Mexico. They claim to fear a corrupt individual who
threatened them, used his influence to have some of them arrested on false
pretences, and had AB dismissed from his job.
[5]
AB
is an architect. In 1999 he became involved with the political activities of Mr.
X, a judge in the Office of Vital Statistics. AB volunteered to assist with Mr.
X’s campaign for election to public office, and eventually became its
coordinator. AB claims that Mr. X began to tell him about various illegal
activities in which he was involved, including insurance fraud and money
laundering.
[6]
AB
feared Mr. X, but continued working for him until the date of an upcoming
election. In June 2002, Mr. X was not elected and went back to work with the
Office of Vital Statistics.
[7]
Two
months later, Mr. X contacted AB to discuss a joint venture in a construction
company. AB felt he had no option. However, on the day they were to meet, AB decided
not to attend, and he did not answer his phone when Mr. X called him.
[8]
In
December 2003, KL was arrested by the police, at the behest of Mr. X, who
alleged that she had stolen some tables and chairs from him. After her release,
the applicants retained a lawyer and filed a complaint of abuse of power with
the Mexican Human Rights Commission and the Public Ministry. Their complaint
was investigated but they did not have enough evidence to support it.
[9]
AB
and KL were re-arrested in 2005 for the same offence, and were released on
bail. They were ultimately acquitted of the charges for lack of evidence.
Later, they received random death threats from unknown persons by telephone.
They believed that someone was watching their house.
[10]
AB
believes he lost his job because Mr. X informed his employer about his arrest. AB
launched a claim for unjust dismissal.
[11]
In
2008, the applicants claim that someone fired shots at their house, but no one
was injured. The next day, Mr. X allegedly came to their house and threatened to
harm the family unless AB returned to work for him. AB told him that he needed
a few months to wrap up his business affairs but that after that he would return.
[12]
AB
and his son, CD, then made arrangements to leave Mexico and arrived in Canada in October
2008. Rodrigo fled to Canada the next month, and his wife and daughter
joined him in February 2009.
[13]
The
applicants say that the reason they did not leave all at once was because they
could not afford to do so. The female members of the family, not wanting to
leave by themselves, allowed the male members to leave first. In fact, KL did
not want to leave Mexico at all. However, after relocating to Guadalajara, she found
out that someone was asking if she was married to AB. At that point, she
believed she was under surveillance, and realized that she could not stay in Mexico any longer.
She flew to the U.S. before entering Canada in December
2009.
[14]
The
applicants were given a notice to appear dated October 27, 2010, advising them
that their hearing before the Board was scheduled for December 20, 2010. On
November 26, 2010, they requested a postponement to give them more time to
retain counsel and get certain documents translated for use before the Board.
Their request was denied.
[15]
When
they appeared before the Board, the applicants again requested an adjournment,
on the same grounds. The Board stated that it had considered all of the factors
listed in s 48(4) of the Refugee Protection Division Rules, SOR/2002-227
[Rules] but that the hearing should proceed. The Board advised the applicants
that if their credibility became an issue, they could submit additional documents
after the hearing.
III. The Board’s Decision
[16]
The
Board concluded that the applicants were not Convention refugees because their
fear was not based on one
of the five grounds recognized under the Refugee Convention. The applicants do
not challenge that conclusion.
[17]
The
Board then considered their claims under s 97(1)(b) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. It assumed, without
deciding, that the applicants were credible. The determinative issue was state
protection.
[18]
The
Board noted that the onus was on the applicants to produce clear and convincing
evidence of their state’s inability to protect them. A subjective reluctance to
access state protection is not enough.
[19]
In
the case of KL, the Board accepted that her arrest was likely an “extremely
emotional experience”. However, it was difficult to determine whether there
were reasonable or probable grounds for it. Further, she had been released
without conditions, and with the assistance of a lawyer, the matter did not
proceed.
[20]
With
respect to their human rights complaint, the Board noted that their allegations
had been investigated, but there was insufficient evidence to support them. The
Board was unable to determine the adequacy of this investigation.
[21]
With
respect to the applicants’ arrest in 2005, the Board again noted that they had
been acquitted and released.
[22]
The
Board pointed out that AB had not gone to the police when he first realized
that Mr. X was a criminal. Nor did
he report any of the telephone threats to the police or report the shooting
that took place. He explained that after the outcome of the human rights
investigation, he had no faith in the authorities and believed that he would be
placing himself and his family in greater danger if he reported these events.
However, given their releases and acquittals after the prior arrests, there was
no objective support for the applicants’ subjective belief that the justice
system would not work for them.
[23]
The
Board considered the available documentary evidence, including a U.S. DOS
Report, which reported that:
- Mexico
is a democracy with free and fair elections;
- There
is a relatively independent and impartial judiciary;
- Mexican
security forces are described as hierarchical;
- In
the event of irregularities committed by government officials, complaints
can be submitted to the Office of the Inspector General, or the Internal
Investigations Department of the Office of the Attorney General;
- Other
avenues for members of the public aggrieved by a corrupt official or
security forces include the Human Rights Commission, or the Secretary of
Public Administration. Complaints can be made in person, by phone, email
or regular mail;
- While
corruption is a problem within parts of the Mexican administration, there
are ongoing efforts to purge corruption, and there is a 24-hour hotline to
report corrupt officials;
- In
January 2009 new legislation was enacted requiring the vetting of every
member of the country’s police forces using a series of testing
mechanisms;
- There
are reports of arrests by the police and military of corrupt officials.
[24]
The
Board concluded that the Mexican government is taking significant steps to deal
with corruption and to provide mechanisms for the public to report crimes and
corruption within the system. It also found that state protection was available
to the claimants on previous occasions and that there was no credible evidence that
similarly situated persons did not receive state protection. The Board found
that there was no clear and convincing proof of Mexico’s inability to protect the applicants.
[25]
The
Board also commented on the claimants’ apparent lack of subjective fear. It
found that if they had truly feared for their lives, it was unlikely that the
male members of the family would have fled first, leaving behind the female members.
[26]
For
the above reasons, the Board found that the applicants were not persons in need
of protection.
IV. Issue One - Did the Board
unfairly deny the applicants an adjournment?
[27]
The applicants
allege that the Board breached its duty of procedural fairness by: (a) refusing
a pre-hearing request for a postponement; (b) providing inadequate reasons for
refusing an adjournment request at the hearing; and (c) failing to meet a
legitimate expectation.
[28]
The applicants
submit that the Board erred by failing to discuss any of the relevant factors
listed in s 48(4) of the Rules. The Board simply stated that it had considered
those factors but its reasons did not refer to them. The applicants contend that
the factors listed in s 48(4), when properly considered, show that the Board’s
refusal to adjourn was unreasonable and unfair:
·
They had made efforts
to be ready, as translation was started before the hearing and was underway,
and they were attempting to get more evidence from Mexico;
·
They were not
represented by counsel;
·
There were no prior
delays in this matter;
·
They were only seeking
a short delay to finish translation and retain counsel.
[29]
In
addition, the applicants submit that they had a legitimate expectation that
they could submit further evidence after the hearing if credibility was an
issue. In particular, the Board seems to have made a credibility finding in
respect of their lack of subjective fear. Therefore, it should have provided them
an opportunity to submit documents after the hearing: Bayrami v Canada (Minister of Citizenship
and Immigration),
[1999] FCJ No 1167 (TD), at paras 5-6.
[30]
In
my view, the Board did not treat the applicants unfairly. The Board was not
required to go through each factor listed in s 48(4) of the Rules (Omeyaka v
Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 78, at para 29). Rather, it must demonstrate
that it has considered the factors that would support an adjournment request.
[31]
Here,
the applicants wanted an adjournment in order to be able to adduce corroborative
documentary evidence of their narrative and KL’s psychological condition. They
had had considerable time to assemble the evidence they required, and they had
confirmed their readiness for the hearing. In any event, this evidence was
directed at points that were not in dispute. Further, any expectation created
by the Board was limited to the specific circumstance where credibility was in
issue, and that circumstance did not arise. As for the question of the
applicants’ subjective fear, this was no longer a live issue by the time the
Board rendered its decision. I address this point below.
V. Issue Two – Did the Board err
in its analysis of state protection?
[32]
The applicants
submit that the Board erred in finding that state protection would have been
reasonably forthcoming to them. In particular, the applicants maintain that the
Board was required to consider the profile of their persecutor. Mr. X was an influential
government official.
[33]
The applicants
also claim that the Board erred in its analysis of the efficacy of state
protection by failing to recognize the inability of the state of Mexico to respond to
criminality.
[34]
Finally,
the applicants submit that the Board erred in finding that they did not have a
subjective fear of persecution. They suggest that this amounted to a veiled
credibility finding: Moreno v Canada (Minister of Citizenship and Immigration), 2010 FC 993, at paras
12-13.
[35]
In
my view, the Board’s analysis of state protection was reasonable. The applicants
shouldered the burden of showing they had a well-founded fear of persecution
and of adducing clear and convincing evidence of a lack of state protection.
[36]
The
evidence showed that the applicants had never sought any protection from police
and did not consider the other avenues available to them. Further, the evidence
about their experiences with the justice system and other authorities supported
the Board’s conclusion that the system had provided a measure of protection to
them in the past. Their evidence merely suggested a subjective reluctance to
approach the police or other authorities for protection.
[37]
In
addition, the Board did not fail to consider the profile of their persecutor or
the specific nature of the harms they feared. The Board specifically referred
to the status of the agent of persecution and the nature of his threats. However,
it also reviewed the documentary evidence showing there were agencies and
authorities in Mexico that could provide
protection and recourse against corrupt officials.
[38]
With
respect to the applicants’ complaints about the Board’s comments on subjective
fear, the Board stated that it had accepted the applicants’ testimony as
credible. However, it also suggested that their actions in leaving Mexico did not demonstrate
that they had a genuine fear of persecution. This conclusion was superfluous to
the s 97 analysis (the s 96 claim had already been dismissed). As I noted in Prasad
v Canada (Minister of Citizenship
and Immigration),
2011 FC 559, at para 13:
Given
that the Federal Court of Appeal has clearly found that s. 97 contains only an
objective component (Li v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 1
at para 33), I cannot conclude that the Board erred by not making a definitive
finding about the credibility of the applicants' subjective fear. At the same
time, I agree with Justice Mainville [in Flores v Canada (Minister of Citizenship and
Immigration), 2010 FC
503] that state protection should not be analyzed in a vacuum. The
nature of the applicant's fear should be at least identified and the capacity
and the will of the state to respond to the applicant's circumstances should be
then analyzed.
[39]
Therefore,
any error on the Board’s part with respect to subjective fear could not have
affected the outcome.
VI. Conclusion and Disposition
[40]
The
Board did not treat the applicants unfairly when it denied them an adjournment.
Its conclusion on state protection was reasonable – intelligible,
transparent, and a defensible outcome based on the facts and the law.
Accordingly, I must dismiss this application for judicial review. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex “A”
|
Refugee
Protection Division Rules,
SOR/2002-228
Application to change the date or time of a proceeding
Factors
48.(4) In
deciding the application, the Division must consider any relevant factors,
including
(a) in the case of a date and
time that was fixed after the Division consulted or tried to consult the
party, any exceptional circumstances for allowing the application;
(b) when the party made the
application;
(c) the time the party has had
to prepare for the proceeding;
(d) the efforts made by the
party to be ready to start or continue the proceeding;
(e) in the case of a party who
wants more time to obtain information in support of the party’s arguments,
the ability of the Division to proceed in the absence of that information
without causing an injustice;
(f) whether the party has
counsel;
(g) the knowledge and experience
of any counsel who represents the party;
(h) any previous delays and the
reasons for them;
(i) whether the date and time
fixed were peremptory;
(j) whether allowing the
application would unreasonably delay the proceedings or likely cause an
injustice; and
(k) the nature and complexity of
the matter to be heard.
Immigration
and Refugee Protection Act, SC 2001, c 27
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.
(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.
|
Règle
de la Section de la protection des réfugiés, DORS/2002-228
Demande
de changement de la date ou de l’heure d’une procédure
Éléments
à considérer
48.(4) Pour
statuer sur la demande, la Section prend en considération tout élément
pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la date et
l’heure de la procédure après avoir consulté ou tenté de consulter la partie,
toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été
faite;
c) le temps dont la partie a disposé
pour se préparer;
d) les efforts qu’elle a faits pour être
prête à commencer ou à poursuivre la procédure;
e) dans le cas où la partie a besoin
d’un délai supplémentaire pour obtenir des renseignements appuyant ses
arguments, la possibilité d’aller de l’avant en l’absence de ces
renseignements sans causer une injustice;
f) si la partie est représentée;
g) dans le cas où la partie est
représentée, les connaissances et l’expérience de son conseil;
h) tout report antérieur et sa
justification;
i) si la date et l’heure qui avaient été
fixées étaient péremptoires;
j) si le fait d’accueillir la demande
ralentirait l’affaire de manière déraisonnable ou causerait vraisemblablement
une injustice;
k) la nature et la complexité de
l’affaire.
Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
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.
(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.
|
Email this Content