Date: 20091119
Docket:
IMM-1788-09
Citation: 2009 FC 1192
Montréal, Quebec, November
19, 2009
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
JESUS
FELIX VARGAS SANTIAGO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
[1]
Some
romantic relationships are also dangerous relationships. Mr. Santiago allegedly
had a relationship with Ms. Hernandez Torrez between September and December
2006. Even though he knew that she was also in a relationship with someone else,
he did not know that that someone else was José Alberto Garcia Vega, a federal
roads and bridges police captain.
[2]
Mr.
Santiago, whose credibility has not been questioned, was threatened and
assaulted on December 22 and 25, 2006, and on March 3, 2007.
[3]
On
December 22, 2006, in front of Ms. Hernandez Torres’s house, two unknown
individuals got out of a car and beat him while insulting him and threatening
him with death because he was dating Ms. Hernandez Torres.
[4]
On
December 25, 2006, while leaving a store, he saw two men hitting his car. They shouted
to him that the next time they would kill him like a dog. Mr. Santiago filed a
complaint with police, but he apparently did not know the identity of his
assailants. He claimed that friends purportedly told him that it was someone
from the federal authority. A few days later, he discovered the identity of Captain
Vega. At the hearing, he added that his friends in the police advised him to
not get involved with Captain Vega.
[5]
At
the beginning of March 2007, he met Captain Vega and the same two people in a
shopping centre. They threatened and insulted him. Captain Vega took out his
weapon and pointed it towards Mr. Santiago.
[6]
After
this incident, on March 3, 2007, Mr. Santiago decided to seek refuge with his
uncle in San
Marcos,
in the State of Acapulco de Guerrero. On March 8, 2007, his uncle phoned him to
tell him that two people were waiting for him. According to his uncle, these
two people were from the federal police. Mr. Santiago went to his house in
Pachuca, in Hidalgo State, to get a
passport and buy a plane ticket for a destination outside of Mexico.
[7]
He
left Mexico for Canada on March 13, 2007, and filed a refugee claim on
March 17, 2007.
[8]
Mr.
Santiago’s refugee claim was rejected because he had not rebutted the
presumption of state protection. The Refugee Protection Division of the Immigration
and Refugee Board acknowledged that there are “problems with corruption in
the [Mexican] police but note[d] that it is possible to lodge a complaint
against a federal officer with the Procuraduría General de la República (PGR)
[Federal Prosecutor’s Office] . . . . Thus, for instance, 284 federal police
commanders were relieved of their duties in June 2007.”
[9]
The
panel found that the applicant had not taken all reasonable steps to seek protection
from the Mexican authorities.
[10]
The
parties cited many decisions on Mexican state protection. In some of them, the
presumption of state protection had been rebutted; in others, it had not.
[11]
The
state of the case law was aptly summarized by Justice Sexton of the Federal
Court of Appeal in Hinzman v. Canada (Citizenship
and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413 where he
stated, at paragraph 57:
Kadenko and Satiacum
together teach that in the case of a developed democracy, the claimant is faced
with the burden of proving that he exhausted all the possible protections
available to him and will be exempted from his obligation to seek state
protection only in the event of exceptional circumstances: Kadenko at
page 534, Satiacum at page 176. Reading all these authorities together,
a claimant coming from a democratic country will have a heavy burden when
attempting to show that he should not have been required to exhaust all of the
recourses available to him domestically before claiming refugee status.
Kadenko refers to Kadenko
v. Canada (Minister of
Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532; Satiacum refers
to Canada (Minister of
Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.).
[12]
In
my opinion, the decision falls within the range of possible, acceptable
outcomes (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190).
[13]
Even
though Mr. Santiago was not obligated to put himself in danger to demonstrate
that state protection was not available, his inability to identify his
assailant, followed by his refusal to return to the police with Captain Vega’s name
once he had obtained it, demonstrates that he did not take all reasonable steps.
ORDER
THE COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
The matter
does not raise any serious question of general importance.
“Sean Harrington”
Certified
true translation
Susan
Deichert, Reviser
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