Date: 20090401
Docket: IMM-3474-08
Citation: 2009 FC 337
Ottawa, Ontario, April 1, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JOSE MANUEL JIMENEZ RUIZ,
MAYRA SORIA CUERVO,
HANNIA YUMEI JIMENEZ SORIA
and KENYA NAOMI JIMENEZ SORIA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
a Board of the Refugee Protection Division of the Immigration Refugee Board
(Board), dated July 9, 2008 (Decision) refusing the Applicants’ application to
be deemed Convention refugees or persons in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant, Jose Ruiz, is a 32-year-old citizen of Mexico. His
common-law wife, Mayra Cuervo (24 years old) and their minor daughters Hannia
Soria (6 years old) and Kenya Soria (5 years old) are all citizens of Mexico.
[3]
The
Principal Applicant claims that he was the victim of a robbery that took place
on August 3, 2006 in the State of Mexico. Two men, one with a
gun, got out of a car with tinted windows and accosted the Principal Applicant.
He says they stole his wallet, watch and ring. The Principal Applicant claims
that the robbery was politically motivated because his father used to work as
an employee of the Federal Government evicting squatters from land that the
government wanted to acquire. The Principal Applicant claims that his father
fled to the state of Matamoros four years ago and has
been in hiding ever since.
[4]
The
Principal Applicant claimed that the Partido Revolucionario Democratico Party
(RPD), which controls the government of Mexico City and deals
with land for the Federal Government, wanted to get to him so that they could
get back at his father. He says he has never been politically affiliated with
any party in Mexico at any time.
[5]
The
Principal Applicant claimed that between 1998 and 2004 his family resided in Tampico, Mexico and his
father used to visit them there. His father stayed for a period of five months
in 2004 but then moved to Mexico City and also travelled around.
The Principal Applicant claims that people asked him about his father, but he
believed that they were members of the PRD. His father had been threatened by
the PRD in the past. The Principal Applicant claims not to have seen his
father since the end of 2004 and, after 2004, the family has not known of the
father’s whereabouts.
[6]
The
Principal Applicant and his family moved to Mexico City at the beginning of
2005, where they stayed until they came to Canada on August
28, 2006 by air to Toronto.
[7]
The
Principal Applicant alleges that, on August 6, 2006, the same men who had robbed
him attempted to kidnap his children from school. The kidnappers warned both
the Principal Applicant and his wife not to approach the authorities. The
Principal Applicant also claims that his family received several threatening
phone calls that he attributed to the same individuals. They told the Principal
Applicant that they were watching him and they reminded him of the kidnapping
attempt.
[8]
The
Principal Applicant complained to the state Attorney General’s office on August
16, 2006, where he was told that one of the perpetrators, Luis, was a member of
the RPD. As a result of the complaint, the Principal Applicant was asked to
attend at the Attorney General’s office to identify a suspect who had been
detained. However, when he arrived, there was no record of him being called or of
anyone having been detained. The Principal Applicant claims that he then
realized that his life and the lives of his family were at risk and that there
could be no adequate protection from the Mexican authorities for them.
[9]
The
Applicants arrived in Canada at the end of August 2006. The Principal Applicant
discovered that his father was in Canada and had made a claim
for refugee protection in Montreal, which was denied. His
father was available to provide evidence as a witness in the Applicants’ claims,
which were facilitated by a telephone conference from Montreal. The father
claimed that his problems arose from a denouncement he had made against Julioa
Levya Guerrero and her confederate, Enrique Resendez Cuellar, concerning the
illegal possession of assets belonging to the Federal Government. He claimed that
Julioa belonged to the Patido Revolucionario Institucional (PRI) party.
[10]
The
Applicants allege that they have a well-founded fear of persecution in Mexico
because of their perceived political opinion, their membership in a particular
social group and as persons targeted by organized crime in Mexico. They claim
they are in danger of torture or a risk to their lives or a risk of cruel and
unusual treatment or punishment if they return to Mexico.
DECISION UNDER REVIEW
[11]
The
Board concluded that the Applicants were not convention refugees or persons in
need of protection. Specifically, the Board found that the Applicants had not
rebutted the presumption of state protection. Nor would their removal to Mexico cause them
to be subjected to a personal risk to their lives or a risk of cruel and
unusual treatment or punishment. The Board found that there were no substantial
grounds to believe that the Applicants’ removal to Mexico would
subject them personally to a danger of torture.
[12]
The
Board pointed out that the evidence of the Principal Applicant and his father
indicated that the agents of persecution were not from the same party. This
undermined the entire credibility of the Principal Applicant. The Board found
that the Principal Applicant had not been persecuted for either his or his
father’s perceived political opinions.
Criminality
and Nexus
[13]
The
Board found that victims of crime, corruption or vendettas generally fail to
establish a link between their fear of persecution and one of the five grounds
in the Convention refugee definition. The Board held that the Applicants’
claims were not linked to any Convention ground and that they did not fall
within any of the three categories of a “social group” as defined in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Ward). The
Board pointed out that “victims of crime” is not a Convention ground. As well,
the Applicants had not established an identifiable risk that was
distinguishable from risks faced by the general population in Mexico. For this
reason, the Board found that the Applicants were not Convention refugees.
State
Protection
[14]
The
Board was not convinced that the state would not be reasonably forthcoming in
affording them protection if the Applicants returned to Mexico. The Board found that
the totality of the evidence did not support the conclusion of state breakdown;
nor did it rebut the presumption that Mexico was able to protect its nationals. The state is
not expected to provide perfect protection to its citizens.
[15]
The
Board relied on N.K. v. Canada (Minister of Citizenship and Immigration), [1996]
F.C.J. No. 1376 (F.C.A.) (Kadenko) at paragraph 5:
When the state in question is a democratic state…the claimant must
do more than simply show that he or she went to see some members of the police
force and that his or her efforts were unsuccessful. The burden of proof that
rests on the claimant is, in a way, directly proportional to the level of
democracy in the state in question: the more democratic the state's
institutions, the more the claimant must have done to exhaust all the courses
of action open to him or her.
[16]
The
Board also cited Canada (Minister of Employment and Immigration) v.
Villafranca, [1992] F.C.J. No. 1189 (F.C.A.) (Villafranca) for the
proposition that just because a country is not always successful at protecting
its citizens is not enough to justify a refugee claim. As well, Milev v. Canada
(Minister of Citizenship and Immigration), [1996] F.C.J. No. 907
(F.C.T.D.) makes it clear that if the state does not provide perfect protection
that is not, in itself, a basis for determining that the state is unwilling or
unable to offer reasonable protection in the circumstances. International
refugee protection is not meant to permit a claimant the opportunity to seek
better protection abroad than they would receive at home.
[17]
The
Board again relied on Ward for what must be established to rebut the
presumption that a state is capable of protecting its citizens. There must be
“clear and convincing” evidence of the state’s inability to protect. This means
that a claimant must seek the protection of the authorities of his home
country, or establish that it was not objectively reasonable to do so.
[18]
The
Board accepted that, although Mexico is a federal republic and the government is generally
respected and has promoted human rights at the national level, cultural
impunity and corruption still exist there. The Board relied on several pieces
of documentary evidence which discussed Mexico’s corruption, the avenues of recourse and
victim assistance programs, protections for witnesses of crimes and the
traceability of individuals fleeing violent situations. The Board found that
the Applicants came to Canada approximately four
weeks after the initial incident had occurred and had not provided the Mexican authorities
with an opportunity to find the individuals who perpetrated the incident. This
was “too quick to assume that no state protection was available”: Hussain v.
Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 590 (Hussain).
[19]
The
Board concluded that the Applicants had not established that they would face a
risk of harm and they had not rebutted the presumption of state protection with
clear and convincing evidence.
ISSUES
[20]
The
Applicants raise the following issue:
1)
Are
the Board’s conclusions on the issue of state protection reasonable?
STATUTORY PROVISIONS
[21]
The
following provisions of the Act are applicable in these proceedings:
|
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.
|
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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STANDARD OF REVIEW
[22]
In Chaves v.Canada (Minister of Citizenship and Immigration)
2005 FC 193, the court held as follows:
11. … Deciding whether a particular claimant has rebutted the
presumption of state protection involves “applying a legal standard [i.e.
"clear and convincing confirmation of a state’s inability to
protect": Ward, supra, at para. 50] to a set of facts”, which according to
the Supreme Court constitutes a question of mixed fact and law: Housen v.
Nikolaisen, [2002] 2 S.C.R. 235 at para. 26. The RPD has relative expertise
with respect to the findings of fact and assessing country conditions. However,
the Court has relative expertise with respect to whether the legal standard was
met. Accordingly, the appropriate standard of review is in my view
reasonableness simpliciter. This is consistent with the rulings characterizing
the issue of state protection as a question of mixed fact and law: Smith,
supra and Racz, supra.
[23]
The
recent decision of Lozada v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 492
also describes the standard of review on state protection issues as follows:
In Carillo v. Canada (Minister of Citizenship
and Immigration), [2008] F.C.J. No. 399, 2008 FCA 94, the Federal Court
of Appeal considered the issue of state protection where an applicant claimed
refugee status in Canada because she felt she could not get state protection
from spousal abuse in Mexico. The Federal Court of Appeal determined the
standard of review for the Board’s assessment of state protection and the
failure to seek state protection was reasonableness (Carillo
(F.C.A.) at para. 36). While neither party made extensive written submissions
with respect to standard of review on decisions related to state protection,
there is a long line of jurisprudence emanating from this Court where it has
been found that the standard of review for a finding of state protection, using
pre-Dunsmuir, above, terminology, is reasonableness simpliciter (see: Monte Rey Nunez v.
Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No.
2067, 2005 FC 1661; Chaves v. Canada (Minister of
Citizenship and Immigration), [2005 F.C.J. No. 1508, 2005 FC 1249; and Fernandez v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 1389, 2005 FC 1132).
[24]
In Dunsmuir v.
New Brunswick, 2008 SCC 9,
however, the Supreme Court of Canada recognized that, although the
reasonableness simpliciter and patent unreasonableness standards are
theoretically different, “the analytical problems that arise in trying to apply
the different standards undercut any conceptual usefulness created by the
inherently greater flexibility of having multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[25]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[26]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to this issue to be reasonableness. When reviewing a decision on the
standard of reasonableness, the analysis will be concerned with “the existence
of justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARGUMENT
The Applicants
[27]
The
Applicants submit the Board found that Mexico has a “deeply entrenched culture
of impunity and corruption”; however, the Board went on to find that the
Applicants left Mexico only a month after the Principal Applicant complained to
the authorities and that they were “too quick to assume that no state
protection was available.” The Applicants submit that this was internally
inconsistent, illogical and unreasonable.
[28]
The Applicants
say that the Board did not make any adverse credibility findings concerning
their evidence. The Principal Applicant testified that he had been called by
authorities to identify a perpetrator, only for the Attorney General’s officer to
deny all knowledge of having called him when the Applicant appeared. The
Applicants submit that this evidence is consistent with two scenarios: (1) that
corrupt means were used by the perpetrator to evade prosecution; or (2) serious
incompetence on the part of the authorities. Neither scenario inspires “any
degree of confidence that the authorities would be willing and able to
apprehend the perpetrators if the Applicant had waited in Mexico for a longer time.”
[29]
Further,
the Applicants submit that the Board failed to identify any effective body or
avenue that would allow them to transcend the prevailing and systemic
corruption and impunity that the Board acknowledged exists in Mexico. The Applicants
highlight that “impunity” implies that there is no effective recourse for an
injustice suffered by a citizen.
[30]
The
Applicants state that the factors of the current case are distinguishable from Hussain
because of the fact that the Pakistani police in that case would have rendered
assistance if Mr. Hussain had returned to the police.
[31]
In
relation to Ward, the Applicants submit that, given the Board’s findings
about country conditions in Mexico and the unhelpfulness of the authorities, the Principal
Applicant was entitled to conclude that protection would not be forthcoming and
that it was reasonable not to incur any further risk to his life or his family
by staying in Mexico.
[32]
The
Applicants rely upon Zepeda v. Canada (Minister of Citizenship and
Immigration) 2008 FC 491 at paragraph 25 for the position that, unless
there is evidence to the contrary, a claimant is entitled to limit his/her
complaints to bodies with actual enforcement powers, such as the police, and need
not wait around to present complaints that are likely to be fruitless to other
bodies.
[33]
The
Applicants conclude that it is sufficient on judicial review to show that the
result might have been different if the Board had not made errors: Pankou v.
Canada (Minister of Citizenship and Immigration) 2005 FC 203; Alam v. Canada (Minister of
Citizenship and Immigration) 2005 FC 4 and Hussain.
The
Respondent
[34]
The
Respondent submits that the Board’s recognition that a deeply entrenched
culture of impunity and corruption still exists in Mexico is not
tantamount to a finding that the Mexican state is unwilling or unable to provide
its citizens with adequate protection. The Board accepted that the Principal Applicant
may have been a victim of crime at the hands of unknown assailants and that he
attended at the Attorney General’s Office where no suspect had been apprehended
for the Principal Applicant to identify.
[35]
However,
there was no indication from the Board that they accepted the Principal Applicant’s
speculation that this was due to political corruption in the Attorney General’s
office or that this occurrence was indicative of a serious threat to the
Applicant’s life. The Board, in the Respondent’s view, rejected the Applicants’
allegations that the threats were politically motivated, so there is no basis
to argue that the Board accepted that the Attorney General’s office would have
called the Applicant to inform him that they had detained a suspect with a
connection to the RPD.
[36]
The
Respondent further submits that even if the Court is of the opinion that the
Board did accept that the Attorney General’s office may have been acting
corruptly, this and the fact that corruption remains a serious problem in
Mexico does not constitute sufficient, clear and convincing evidence that the
state was unwilling or unable to provide the Applicants with protection in
Mexico. The Respondent points out that this Court has repeatedly and recently
held that state organizations other than the police may be of assistance where the
initial police response is not adequate: Sanchez v. Canada (Minister of
Citizenship and Immigration) 2008 FC 134.
[37]
The
Respondent points out that the Board concluded, in light of the evidence, that
it was not objectively unreasonable to expect the Principal Applicant to have
sought further assistance from the state before seeking international
protection. Having recognized the limitations of Mexico’s ability to
protect its citizens, it was up to the Board to weight the evidence before it
to determine whether available state protection was adequate. It is not the
task of the Court to re-weigh the evidence that was before the Board: Kadenko
and Gutierrez v. Canada (Minister of
Citizenship and Immigration) 2008 FC 971 at paragraph 22.
ANALYSIS
[38]
The
gravamen of this application is that the Board accepted the Principal
Applicant’s personal story about the robbery and the kidnapping attempt, and
his going to the Attorney General’s Office, and the Board also found that the
documentary evidence revealed “a deeply entrenched culture of impunity and
corruption in Mexico,” and yet the Board concluded that the Applicants had not
shown that state protection would not be available to them in Mexico and that
they had been too quick to leave Mexico and come to Canada.
[39]
In
other words, if impunity and corruption are so entrenched in Mexican culture, the
Applicants say that the Board does not explain how they could have sought state
protection by either remaining in Mexico longer than they did,
after concluding that their lives were in danger, or by accessing other forms
of protection. The Applicants say that the Board’s reasoning on this principal
point is illogical and incomplete and so cannot be regarded as reasonable
within the meaning of Dunsmuir. In fact, the Applicants say that there
are other signs of sloppiness and contradiction in the Decision that confirm
the Board was using “patterned reasoning” rather than looking at the specific
evidence before it.
[40]
When
I review the Decision as a whole, the essence of the Board’s reasoning on State
Protection is that the “totality of the evidence does not support a conclusion
of state breakdown, nor does it rebut the presumption that Mexico is able to
protect its nationals.”
[41]
The
Board certainly acknowledges that “a deeply entrenched culture of impunity and
corruption still exists” in Mexico, but “[a]ccording to the documentary
evidence, one cannot find that there has been a collapse of the state system as
far as protection of citizens is concerned … .”
[42]
In
other words, read in the context of the Decision as a whole, the Board’s
acknowledgement regarding impunity and corruption do not equate to a breakdown
of the state system, and the Applicants themselves provided little to suggest
that they had tried to avail themselves of state protection. The Applicants’
evidence concerning their own experiences remains somewhat tainted by the
negative credibility finding on political motivation but, even if that issue is
disregarded, it remains highly speculative and tenuous.
[43]
The
Principal Applicant claimed that he went to the State Attorney General’s office
on August 16, 2006 to report the incidents. On the same day, he says that he
later received a phone call asking him to return to the office to identify a
suspect who had been detained. However, he says that when he showed up at the
office there was no record of his having received a call to identify anybody
and there was no one in custody. He then decided that his life was in danger
and that he had to come to Canada.
[44]
The
Applicants ask the Court to consider this account as evidence of corruption or
gross incompetence so endemic that they were reasonable in their conclusion
that the Mexican state could not protect them.
[45]
But
there is really nothing to support the Applicants’ conclusions. They could have
attempted to find out what had occurred and, if it was corruption, accessed
those aspects of the state apparatus that deal with corruption. If it was
incompetence, it does not justify the Applicants quick decision to leave for Canada.
[46]
Even
though the Board conceded that impunity and corruption exist in Mexico, it
pointed out that steps have been taken to deal with these problems, and I do
not think it was unreasonable for the Board to conclude that, on the basis of
one unexplained phone call from the Attorney General’s Office, the Applicant
had done anything to refute the presumption of state protection.
[47]
I
cannot say that this conclusion was not reasonably open to the Board on the
basis of the Applicants’ subjective evidence and the documentation before it.
And I do not think that this conclusion can be offset by other anomalies and
inconsistencies in the Decision.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is dismissed.
2. There is no
question for certification.
“James
Russell”
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