Date: 20121022
Docket: IMM-6176-11
Citation: 2012 FC 1229
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, October 22, 2012
PRESENT: The Honourable Mr. Justice
Simon Noël
Between:
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TEODORO VALDES VIVIAN
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Applicant
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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
[1]
This is an application
for judicial review of a decision by the Refugee Protection Division [RPD] of
the Immigration and Refugee Board dated August 16, 2011, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001 c 27 [IRPA]. The tribunal dismissed the applicant’s appeal and found that Teodoro
Valdes Vivian [the applicant] was neither a Convention refugee as defined by
section 96 of the IRPA nor a person in need of protection under
section 97 of the IRPA.
I. Facts
[2]
The applicant is a
Mexican citizen. He opened a grocery store in February 2008. On August 12,
2008, some men approached him to ask him to help them sell drugs, which he
agreed to do because he was afraid of what might happen if he refused. The next
day, the same people returned, threatening his life and that of his spouse and
asking him to find people to sell drugs for them.
[3]
The same day, the
applicant closed his store and moved in with a cousin in a different
neighbourhood of Mexico City. He left his spouse with her mother in Mexico City
and left Mexico for Canada in September 2008, on his cousin’s advice, and
applied for refugee protection.
II. Decision under review
[4]
The RPD accepted the
applicant’s identity in light of the evidence in the file. It found that the
applicant had failed to make the necessary efforts to avail himself of the
protection of the Mexican state after being threatened. The applicant failed to
demonstrate substantial grounds to believe that he would be persecuted. The RPD
determined that the applicant was neither a Convention refugee nor a person in
need of protection.
[5]
The RPD was not
persuaded by the applicant’s explanations as to why he had not filed a complaint
with the Mexican authorities. The applicant claimed that the authorities only
helped the wealthy and that he no longer trusted them because they had done
nothing when he had complained about being evicted from his residence. The RPD
found that the applicant had not behaved reasonably and held his explanations
to be unsatisfactory.
[6]
The objective evidence
in this case does not indicate that the Mexican authorities only come to the
assistance of those with money. As for the eviction complaint, it is unrelated
to the death threats he received in August 2011.
[7]
While Mexico admittedly
has some problems with corruption, it cannot be considered a country where the
state apparatus is such that it is impossible for the applicant to avail
himself of state protection. Mexico has an established police and military
force. The mere fact that a state does not always succeed in providing
protection for its citizens does not justify the claim that the Mexican state
is unable to provide effective protection.
[8]
The fact that the
applicant decided to leave Mexico four or five days after the events took place
shows that he had no intention of availing himself of the protection of the
Mexican state.
[9]
The applicant failed to
provide convincing evidence that the individuals who had approached and
threatened him in his store were linked to a powerful group of drug traffickers
somehow connected with the Mexican state, in which case there would be no point
in seeking protection.
[10]
After he closed his
business and moved, the group did not search for him. Furthermore, his spouse
remained in Mexico and was not harassed by a member of the group.
III. Applicant’s submissions
[11]
The applicant argues
that the RPD erred in failing to give weight to his explanations as to the
reasons underlying his decision not to report the situation to the Mexican
authorities.
[12]
According to the
applicant, the RPD considered his testimony but failed to analyze those aspects
of the documentary evidence regarding the level of democracy that were contrary
to its determination that the Mexican state is willing and able to protect its
citizens effectively. The fact that legislation pertaining to the protection of
citizens exists does not mean that it will be effective in practice. Moreover,
it is unreasonable to require the applicant to put his life in danger to avail
himself of the protection of his government (Canada (Attorney General) v
Ward (1993), [1993] 2 S.C.R. 689 at paragraph 48, 103 DLR (4th) 1 [Ward]).
[13]
The applicant submits
that the RPD erred in basing its finding on the assumption that the Mexican
state could be associated with a developed democracy. The consequence of such a
finding was to put the onus on the applicant to establish that he had exhausted
all available recourses, in proportion to the level of democracy in Mexico.
Applying such a burden is an error, since Mexico’s level of democracy cannot be
considered high given its problems with corruption.
[14]
The applicant argues
that the RPD should have addressed in its decision not only the measures put in
place by the Mexican state, but also the problems with corruption and impunity,
which it did not do. It therefore conducted a selective analysis of the
evidence.
[15]
Thus, the RPD erred in
focusing on the efforts made by the Mexican government rather than on the
reality of the situation.
[16]
During the hearing,
counsel for the applicant made a specific argument that had only been vaguely
addressed in her memorandum. She argued that the RPD had failed to take into
consideration the applicant’s explanation that he could not turn to the
authorities because the police had been seen in the drug traffickers’ presence,
shaking hands with them.
IV. Respondent’s submissions
[17]
The respondent submits
that the RPD’s findings with respect to the level of state protection in Mexico
is reasonable and takes all of the evidence into account.
[18]
The onus was on the
applicant to provide clear evidence to rebut the presumption of state
protection on a balance of probabilities. The respondent argues that the RPD
validly rejected the applicant’s explanations for his decision not to file a
complaint. A convincing explanation based on clear evidence was required in
this case. The applicant did not provide one.
[19]
The respondent notes
that the applicant made no efforts to avail himself of state protection and
decided to apply for refugee protection in Canada within a few days of the
events that prompted him to leave Mexico.
[20]
As for the argument
presented by counsel for the applicant at the hearing to the effect that the
RPD had not addressed the fact that the drug traffickers had been seen with the
police, counsel for the respondent acknowledges that this is not addressed in
the decision, but adds that the decision must be read as a whole and that a
decision maker is not required to mention every point raised during a hearing.
V. Issue
[21]
Did the RPD err in
concluding that Mexican state protection is available to the applicant?
VI. Standard of review
[22]
The applicable standard
of review is reasonableness, as this is a question of mixed fact and law (Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraphs 164–66, [2008] 1 S.C.R. 190).
VII. Analysis
A. State protection in Mexico
[23]
At issue is the
reasonableness of the RPD’s finding with respect to the level of protection
offered to the applicant by the Mexican government and of its rejection of the
applicant’s explanations as to why he had refused to file a complaint with the
Mexican authorities.
[24]
In Capitaine v
Canada (Minister of Citizenship and Immigration), 2008 FC 98 at paragraph 20,
2008 CarswellNat 256, the Court established that “Mexico is a democracy to
which a presumption of state protection applies, even if its place on the
‘democracy spectrum’ needs to be assessed to determine what credible and
reliable evidence will be sufficient to displace the presumption”. Decision makers
have an “obligation to assess the evidence offered to establish that, in Mexico
for example, the state is unable (although willing) to protect its citizens, or
that it was reasonable for the claimant to refuse to seek out this protection”.
While Mexico faces documented governance and corruption problems, it is
nonetheless a functioning democracy (Yanez v Canada (Minister of Citizenship and Immigration), 2010 FC
1059 at paragraph 32, 93 Imm LR (3d) 144).
[25]
It is also well established
in Ward, above, at paragraph 50, that absent a complete breakdown
of the state apparatus, it should be assumed that the state is capable of
protecting the applicant.
[26]
Contrary to the
applicant’s contention, a review of the RPD’s decision reveals that it did not
compare the applicant’s conduct to that of a national of a country with a high
level of democracy. It did not fault the applicant for failing to exhaust all
courses of action open to him, as it would in the case of that type of
democracy (Kadenko v Canada (Minister of Citizenship and Immigration)
(1996), 206 NR 272 at paragraph 5, 143 DLR (4th) 532 (CA)). What it in fact
held against the applicant was the fact that he had done nothing to avail
himself of the protection of the Mexican authorities.
[27]
The RPD correctly
assessed the level of protection offered by Mexico to its citizens. In its
decision, the RPD considered the various mechanisms and resources put in place
by the Mexican government to protect persons at risk of retribution from
criminal groups. It then held that [translation]
“while Mexico may have certain problems with corruption, it cannot be described
as a country where the state apparatus has completely broken down or where it
is impossible to obtain state protection”.
[28]
In particular, the
applicant argues that the RPD erred in failing specifically to analyze the 2008
Department of State Report on Mexico. The report addresses cases of arbitrary
arrests, corruption, evidence gathering without regard for human rights and
other problems. The applicant cannot rely on this report to justify his
decision not to file a complaint with the Mexican authorities, as the problems
described therein are not indicative that it is impossible for a victim of drug
traffickers to file a complaint with the police.
[29]
Furthermore, contrary
to the applicant’s contention, the RPD did not assess the evidence of the
measures that Mexico is in the process of implementing, but rather the
resources that are already available to citizens, as it is required to do (Garcia
Bautista v Canada (Minister of Citizenship and Immigration), 2010 FC 126 at
paragraph 15, 2010 CarswellNat 1440).
B. The explanations provided by the
applicant to justify his refusal to engage the Mexican authorities
[30]
Overall, the RPD
reasonably concluded that the applicant had not provided a convincing
explanation or evidence to justify his failure to file a complaint and had
therefore not met his burden of rebutting the presumption that Mexico could
provide him with adequate protection. In this case, it was unreasonable not to
seek help from the Mexican authorities.
[31]
A presumption of state
protection exists for Mexico, even if it is not as strong as it would be for
other democracies. Therefore, the onus is on the applicant to demonstrate with
clear and convincing evidence on a balance of probabilities that the Mexican
state is unable to protect him adequately (Cortes Martinez v Canada (Minister
of Citizenship and Immigration), 2010 FC 1200, 2010 CarswellNat 4516; Flores
Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at
paragraph 30, 69 Imm LR (3d) 309 (CA)).
[32]
The applicant filed no
evidence found to be satisfactory by the RPD that was specific to his situation
and not based merely on generalized fear and a loss of trust in the Mexican
government (Escobar Martinez v Canada (Minister of Citizenship and Immigration),
2010 FC 502 at paragraph 14, 2010 CarswellNat 1296; Kim v Canada
(Minister of Citizenship and Immigration), 2005 FC 1126 at paragraph 10,
2005 CarswellNat 2443).
[33]
As
for his testimony that only the wealthy benefit from state protection, it was
open to the RPD to reject this in light of the fact that it was not
corroborated by the documentary evidence, which meant that the presumption that
testimony is true could be rebutted (Adu v Canada (Minister of Employment
and Immigration), (1995), 53 ACWS (3d) 158, 1995 CarswellNat 2559 (CA)).
[34]
The RPD recognized that
Mexico has problems with corruption and that it is not always unreasonable for
an applicant not to avail himself of state protection. However, it validly
concluded in this case that such conduct was unreasonable given that nothing in
the evidence filed suggests that the group of drug traffickers that had
threatened him had ties with the police. Therefore, his decision not to seek
police protection was unreasonable in the circumstances.
[35]
There was no evidence
before the RPD in support of applicant’s argument that exhausting his courses
of action would have endangered his life.
[36]
As for the applicant’s
argument that there had been no follow-up on his eviction complaint, the RPD
validly found that there was no connection between this and the threats he and
his family received and that it did not constitute an obstacle to his engaging
the authorities.
[37]
To conclude, in the
absence of a convincing explanation based on solid evidence, “a failure to
pursue state protection opportunities within the home state will usually be
fatal to a refugee claim – at least where the state is a functioning democracy
with a willingness and the apparatus necessary to provide a measure of
protection to its citizens” (Camacho v Canada (Minister of Citizenship and
Immigration), 2007 FC 830 at paragraph 10, 2007 CarswellNat 2555). The
RPD faulted the applicant for not having made even minimal efforts to avail
himself of state protection.
[38]
As for the oral
submission that one of the explanations for not turning to the authorities had
not been mentioned by the RPD in its decision (the meeting between the police
and the drug traffickers during which the applicant saw them shaking hands), it
would have been preferable to have mentioned it. However, a review of the
hearing transcript reveals that the RPD covered several topics with the
applicant and his counsel, while taking into account his hurry to leave Mexico,
leaving his spouse behind. On the whole the decision is reasonable.
VIII. Conclusion
[39]
The parties were asked
to submit a question for certification but no question was submitted.
[40]
In conclusion, it was
reasonable for the RPD to dismiss the applicant’s refugee claim on the basis
that, on the facts, state protection was available to him. Regardless of where
Mexico falls on the “democratic spectrum”, it was reasonable to conclude that
the applicant’s unjustified refusal to file a complaint with the authorities
makes it impossible for him to rebut the presumption of state protection.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review is
dismissed and no question will be certified.
“Simon Noël”
Certified true
translation
Francie Gow, BCL,
LLB
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