Date: 20091201
Docket: IMM-2359-09
Citation: 2009 FC 1231
Toronto, Ontario, December
1, 2009
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
David RAMIREZ ALBOR
Consuelo MONZALVO PEREA
XIADANI GUADALUPE RAMIREZ MONZALVO
(aka XIADANI GUADALU RAMIREZ MONZALVO
YAZMIN ITZEL RAMIREZ MONZALVO
DAVID RAMIREZ MONZALVO
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated April 21, 2009, wherein the Board determined that the Applicants were not
Convention refugees or persons in need of protection.
Issue
[2]
This
application raises the following issue: Did the Respondent err in finding the
Applicants had not reversed the presumption of state protection in Mexico?
[3]
For
the following reasons, the application for judicial review will be dismissed.
Factual Background
[4]
David
Ramirez Albor (the principal Applicant or the Applicant), his wife Consuelo
Monzalvo Perea and their children Xiadani Guadalupe Ramirez Monzalvo, Yazmin
Itzel Ramirez Monzalvo and David Ramirez Monzalvo are all citizens of Mexico.
The Applicants claim refugee protection pursuant to sections 96 and 97 of the
Act.
[5]
The
Applicant alleges that he lived with his family in Mexico City when his car
was vandalized and his belongings in the car were stolen at the end of 2005.
His daughter, Yazmin, informed him that a child living across the street named
Jonathan saw the perpetrator of the crime.
[6]
The
Applicant filed a complaint with the Attorney General’s office, but because
Jonathan’s mother refused to allow the child to be a witness in the case,
Benjamin Escudero Alarcon from the Prosecutor’s office forced the Applicant to
withdraw his complaint. Four judicial policemen allegedly began extorting money
from the Applicant who was forced to make monthly payments to the four judicial
policemen until he left Mexico.
[7]
Later,
during the 2006-2007 academic year, the Applicant’s son David became a target
of his teacher, Teresita Hernandez Perez, who mistreated him at school. With
the help of the principal from the school, the Applicant’s wife filed a
complaint against the teacher. However, before the school authorities took
action, the teacher turned other children against the Applicant’s son and they
psychologically and physically abused him. After the teacher was fired from her
teaching job, a union representative confronted the Applicant’s wife and issued
death threats to her and her family and accomplices made four telephone calls
to the Applicant’s wife to issue death threats. The Applicant thus decided to
flee from Mexico with his
family.
Impugned Decision
[8]
Based
on the totality of the evidence adduced, the Board found that adequate state
protection exists for individuals like the Applicant and his family in Mexico. The Board further
found the Applicant did not meet the burden of establishing “clear and
convincing” proof of a lack of state protection for people in his situation in Mexico.
Applicants’ Arguments
[9]
The
Applicants submit that the Board erred in its assessment of state protection
and that the obligation of a claimant to seek protection is not an absolute one.
Rather, according to the Applicants, the tribunal must explore the reasons for
which the claimant believes state protection would not have been forthcoming (Mallado
v. Canada (Minister of Employment and Immigration), (1994), 74 F.T.R. 54,
46 A.C.W.S. (3d) 743). The Applicants submit this was not properly done by the
Board in this case. The
Applicants contend that the examination of the availability of state protection
in the case at bar was neither thorough nor adequate (Espinoza v. Canada (Minister of
Citizenship and Immigration), 2005 FC 343, 137 A.C.W.S. (3d) 1204).
[10]
According
to the Applicants, the Board failed to consider Mexico’s real capacity to protect its citizens and
simply noted the government’s statements of its good intentions to improve the
situation.
[11]
The
Applicants submit that simple statements by a government indicating that it
wishes to address the problem do not result in adequate protection. If the
Applicant is of the belief that the police does not have the ability to protect
him and his family, and this belief is objectively justified, then there are no
other institutions in Mexico which can protect them
according to the Applicant.
Respondent’s Arguments
[12]
According
to the Respondent, the Applicants must establish their refugee claim with
credible and trustworthy evidence. The Applicants failed to meet this onus as
the independent evidence presented indicated that there was adequate, albeit
not perfect, state protection available to them in Mexico, should they
choose to access it.
[13]
The
Respondent submits that the Applicants’ aversion to obtaining state protection
was not objectively reasonable and was based to some extent on the Applicant’s
failure to explore options that were available to him and his family. In the
present case, the documents before the Board contained, inter alia,
evidence that indicated that both the police force and justice system operate
adequately in Mexico, and that
the state agencies in Mexico are making serious efforts to combat
crime, including corruption.
Analysis
[14]
Since
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, the Board’s conclusions on state protection are subject to review
under the reasonableness standard (Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 CA 171, 263 N.R. 1 at par. 38; Huerta
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 586, 167 A.C.W.S. (3d) 968 at
par. 14; Chagoya v. Canada (Minister of Citizenship and Immigration), 2008
FC 721, [2008] F.C.J. No. 908 (QL) at par. 3; Dunsmuir at par. 55, 57, 62
and 64). According to the Supreme Court, the factors to be considered are
justification, transparency and intelligibility within the decision-making
process. The outcome must be defensible in respect of the facts and the law (Dunsmuir
at par. 47).
[15]
The
central issue in the case at bar is state protection.
[16]
It
is well known that while Mexico is a democratic state and a NAFTA partner, it
suffers from an on-going and well documented problem of corruption (Zepeda
v Canada (Minister
of Citizenship and Immigration). Against this background, at hearing, counsel
for the Applicants and counsel for the Respondent outlined conflicting lines of
jurisprudence on the issue of state protection. One line of jurisprudence
holds that in seeking state protection, an Applicant should call upon
organisations if the police is unable or unwilling to provide protection. The
other line of jurisprudence holds that the police force remains the only entity
that can be taken into account in the context of state protection.
[17]
Counsel
for the Applicants argued that the Board erred in expecting that the Applicants
should have sought out the assistance of organisations or agencies other than
the police in the circumstances. In support of this argument, reference was
made to Zepeda where Justice Tremblay-Lamer of this Court recently
questioned the availability of state protection in Mexico and
concluded that although Mexico is a democracy willing to protect its
citizens, corruption problems remain an issue. Justice Tremblay-Lamer stated
that as a result, decision makers must engage in a thorough analysis of the
evidence before them to determine whether Mexico is able or
unable to protect its citizen.
[18]
It
is further noted that in Kaur v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1491, 143 A.C.W.S (3d) 1094, Justice de Montigny
stated that the protection offered by a state, even a democratic one (India in this
instance), must be “effective and real, and not just theoretical”. (See also D’Mello v. Canada (Minister of
Citizenship and Immigration), (1998), 77 A.C.W.S. (3d) 387, [1998] F.C.J.
No. 72 (QL) (F.C.T.D.); Bobrik v. Canada (Minister of Citizenship and
Immigration),
(1994), 85 F.T.R. 13, 50 A.C.W.S. (3d) 850 (F.C.T.D.)).
[19]
I
agree that alternate organisations or institutions put in place in order to
overcome corruption issues in a given state must be more than an empty shell
lacking the effective means to achieve their purposes and protect persons such
as the Applicants. Such organisations or institutions must reflect a genuine
alternative and translate into more than good intentions on the part of the
government. A mere expression of an intention on the part of a state to address
a corruption problem with no evidence of a follow-through will generally be
insufficient.
[20]
In
the case at hand, the Board’s decision (e.g. at pp. 18-19) refers to
documentary evidence that clearly demonstrate the existence of organisations
and institutions which are in fact producing results in terms of tackling
corruption in Mexico:
“In June 2004, President Fox stated that
federal authorities would work with state and municipal governments to
“co-ordinate anti-kidnapping efforts. Consequently, much of the law
enforcement efforts to combat kidnapping has involved primary federal police
agencies such as the AFI [Federal Agency of Investigations]. In September
2004, a Mexico City-based news magazine reported that the AFI’s reputation in
handling crime situations such as kidnapping was improving. Between December
2001 and June 2004, the AFI disbanded 48 kidnap gangs, arrested 305 suspected
kidnappers and solved 419 cases of kidnapping. In addition, the AFI assisted
state authorities with 91 kidnapping cases. Moreover, by August 2005, federal
authorities announced that the year-to-date AFI had taken into custody 72
suspected kidnappers and had “fully dismantled’ 11 kidnapping gangs. The same
document indicates that among those charged for several recent abductions are
current and former employees of the various branches of the federal and
municipal forces. […]
In 2007, the Secretariat of Public
Administration (SFP), which investigates corruption across federal government,
reported that 6,253 inquiries and investigations into possible malfeasance or
misconduct by 4,877 federal employees resulted in dismissal of 410 federal
employees, dismissal of an additional 1,023 employees with re-employment
restrictions, the suspensions of 1,664 employees, 2,173 reprimands and issuance
of 9 letters of warnings. In addition, 974 sanctions were imposed. Mexico is worked multilaterally to
promote efficient and effective counternarcotics and anti-corruption policies.
Documentary evidence indicated that the
government has enacted strict laws attacking corruption and bribery, with
average penalties of 5 to 10 years in prison. Although enforcement of
corruption was a challenge, officials have been sentenced and punished with
emprisonment [sic] and fines. The Fox administration has issued over 13,000
sanctions against public servants, resulting in 1,297 dismissals, 278 indictments
and 53 convictions.”
[21]
The
Court is therefore of the view that although corruption remains an issue in
Mexico, the evidence demonstrates in the circumstances that there are avenues,
albeit imperfect ones, for state protection that were accessible to the Applicants,
had they chosen to access it (Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589, 163 N.R. 232 at par. 5-6; Li
v. Canada (M.C.I.), 2003 FC 1514, [2004] 3 F.C.R. 501 at par. 50, aff’d Li
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3
F.C.R. 239; Ward; Villafranca). The evidence on record thus confirms
that the government’s intention and willingness to contain corruption is coupled
with serious efforts leading to tangible results.
[22]
In
Kadenko, the Federal Court of Appeal noted that one cannot automatically
conclude that a democratic state is unable to protect one of its citizens because
a local police officer refused to intervene. Further, the Applicants have not diligently
sought to obtain protection from their country in 2007 before coming to Canada and have not
provided clear and convincing evidence to rebut the presumption that the state
of Mexico was able to
protect them. The onus is on the Applicants to rebut the presumption of state
protection (Sanchez v. Canada (Minister of Citizenship and Immigration),
2008 FC 134, 165 A.C.W.S. (3d) 336) and, in order to rebut this presumption, a
claimant must adduce relevant, reliable and convincing evidence which
demonstrates, on a balance of probabilities, that state protection is
inadequate (Carrillo v. Canada (Minister of Citizenship and Immigration),
2008 FCA 94, [2008] 4 F.C.R. 636).
[23]
In
addition, the more democratic the state, the more the Applicant must do to
exhaust all reasonable remedies to obtain protection from the state before
seeking international protection (N.K. v. Canada (Minister of Citizenship
and Immigration), (1996), 206 N.R. 272, 68 A.C.W.S. (3d) 334 (Kadenko);
Ward). The evidence demonstrates that the Applicant could have
approached the organisations established by the Mexican government to face
corruption in 2005 and the authorities between 2005 and 2007 but failed to do
so.
[24]
The
Board determined that the Applicants had not provided clear and convincing
evidence of the inability of the Mexican government to ensure their protection
because they had not exhausted all remedies available in Mexico and provided
by the state before seeking international protection. It was reasonable for the
Board to find that the Applicants had not established by clear and convincing
evidence that Mexico was unable
to protect him and his family.
[25]
The
Court finds that the Board’s decision is reasonable. The Board conducted a full
assessment of the evidence, including the Applicant’s testimony and the
totality of the documentary evidence on file. The Applicants did not attempt to
seek out other means of state protection and they did not demonstrate that
state protection was not reasonably forthcoming in Mexico. The decision
was reasonable in the circumstances and the Court’s intervention is not
justified. The application for judicial review is therefore dismissed.
[26]
No
question was proposed for certification and there is none in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
"Richard Boivin"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2359-09
STYLE OF
CAUSE: David Ramirez Albor et al v. The Minister
of Citizenship and Immigration
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: November
26, 2009
REASONS FOR JUDGMENT: BOIVIN
J.
DATED: December
1, 2009
APPEARANCES:
|
Ms. Wennie Lee
|
FOR THE APPLICANTS
|
|
Ms. Monmi
Goswami
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Lee &
Company
Barristers and
Solicitors
|
FOR THE APPLICANTS
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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