Date:
20091016
Docket: IMM-2183-09
Citation: 2009 FC 1057
Vancouver, British Columbia, October
16, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
LUCIA AVILA ORTEGA
MARIA CAROLINA AVILA ORTEGA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to section 72 of the Immigration
and Refugee Protection Act, R.S.C. 2001, c. 27 (the Act), of a decision by
the Refugee Protection Division of the Immigration and Refugee Board (the
Board). The Board determined that Lucia Avila Ortega and Maria Carolina Avila
Ortega were neither Convention refugees nor persons in need of protection
within the meaning of the Act. The determinative issue was whether they had
made adequate efforts to seek state protection prior to availing themselves of
international protection, and whether these efforts and their evidence had
rebutted the presumption of state protection.
[2]
For
the reasons that follow, this application is dismissed.
BACKGROUND
[3]
Ms.
Lucia Avila Ortega, 27, and her sister, Maria Carolina Avila Ortega, 25, are
citizens of Mexico who lived in
the neighbourhood of Tultitlan, in the Federal State of Mexico.
[4]
In
late 2004, the sisters began being harassed by two alleged narco-traffickers,
who had moved next door to the family home. One of these men was nicknamed
El Tigre. In the beginning, the harassment was limited to verbal abuse, sexual
harassment, and threats of violence. The harassment and threats made the sisters
fearful to leave their home, and as a result, they dropped out of school in
April of 2006. The sisters did not tell their family of their problems with
these men for fear that their family’s reaction could expose their family to
violence from the men.
[5]
On
February 25, 2007, the situation escalated dramatically. The sisters were
approached from behind by El Tigre and another man, held at gunpoint, and
sexually assaulted. The men threatened the sisters with further violence if
they made a report to the police. The sisters discussed this incident with
their older sister, but decided not to go to the police because they thought
that would make matters worse and because their attackers had previously
claimed responsibility for killing a police officer.
[6]
On
April 6, 2007, the sisters were again attacked. This time they were forced into
the neighbouring house where they were both sexually assaulted. The sisters’
memories of this incident are not very clear. Neither their Personal
Information Forms nor the Board’s decision appear to reference the fact that
one of these two men was El Tigre, but this appears to be implied by their
testimony. The sisters then told their family about the incident. It was agreed
that the women should go to Veracruz for a few days. The
police were not contacted with respect to either of the sexual assaults.
[7]
The
sisters went to Veracruz, a city hundreds of kilometres from their home
and in a different State, to stay with a family friend. They observed El Tigre outside
the home where they were staying. After disclosing this information to their
family friend, the sisters were convinced to file a report at the local police
station. The sisters went to the police station on April 8, 2007. The sisters
say that they were not interviewed by the police, but that they made a written
statement, and that they were told they would be contacted later. No immediate
form of protection was offered to them.
[8]
The
sisters state that, that same evening, their family friend observed the same
car El Tigre was driving the previous day, and that an unidentified person was
heard near the house. The sisters determined that they were not safe in Veracruz and returned
home. The sisters had previously purchased tickets to Vancouver for travel
on April 12, 2007. After coming to Canada, the sisters learned
that their brother had been attacked on April 28, 2007, by these alleged
narco-traffickers. This incident led the sisters to file claims for refugee
protection on May 1, 2007.
[9]
In
September 2007, the sisters were informed that the police investigation into
their complaint in Veracruz had been reserved, in part, because the
identity of the accused could not be determined. This notice informed the
sisters that they had ten days to make an appeal. No appeal was made; the
sisters were already in Canada.
[10]
The
Board found the claimants to be generally credible, and accepted their
explanations for any discrepancies that existed between their testimony
and the documentary record. The Board stated that the determinative issue in
the claim was state protection. It noted that the claimants had sought
protection for the events that occurred between late 2004 and April 2007 on
only one occasion. The Board stated:
The claimants never filed a complaint
with the police in the area where they lived, where the harassment had gone on
for years, where the men allegedly conducted their drug trade and where the two
violent sexual attacks on both sisters had occurred. The local police not only
could have been given the full details of what had occurred but also been
pointed right next door where the assailants lived. The failure to seek
protection in the area where they lived was unreasonable.
The above noted conduct is not consistent
with either a well-founded fear that the sisters might be further harmed or
reflective of any genuine attempt to obtain state protection. They did not do
everything they reasonably could to alert the police or to provide information
to them. The claimants also testified that the police never solicited any
bribes in order to provide protection.
[11]
The
Board cited Canada (Minister of Citizenship and Immigration)
v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.) for the proposition that
the “claimant’s burden of proof to rebut the presumption of state protection is
directly proportionate to the level of democracy in the state in question.” The
Board noted that Mexico is a “fledgling
democracy”, and that as a result, there is an expectation that the claimants
would have sought protection from the authorities.
[12]
The
Board cited Canada (Minister of Employment and Immigration) v. Villafranca
(1992), 99 D.L.R. (4th) 334 for the proposition that effective protection does
not mean a guarantee of protection at all times, and Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780
(T.D.) for the proposition that the level of effective protection must not
be set too high. The Board concluded: “as long as the government is taking
serious steps with an acceptable level of effectiveness to provide or increase
protection for individuals then the individual must seek state protection”.
[13]
The
Board summarized the steps that Mexico has taken to increase protection. It concluded
that even though the Mexican criminal justice system is flawed, “there is no
significant evidence which leads” to the conclusion “that the system is wholly
broken or that the police would refuse to investigate serious, non-domestic,
sexual assaults.” The Board, citing Carillo v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 94, stated that the burden is on
the claimants to rebut the presumption of state protection by adducing
relevant, reliable and convincing evidence of inadequate state protection.
[14]
The
Board noted that state protection would be determinative of both claims under sections 96
and 97 of the Act. On this basis, the Board concluded that the claimants were
neither Convention refuges nor persons in need of protection and rejected their
claims.
ISSUE
[15]
The
Applicants raise the following issue: Whether the Board erred in applying the
test for state protection to the facts.
ANALYSIS
[16]
The
Applicants raise a number of issues that they state indicates that the decision
is unreasonable.
[17]
They
submit that the decision was unreasonable because:
a. the Board
failed to engage in a contextual approach to assessing state protection;
b. the
documentary evidence before the Board supported the conclusion that effective
state protection was not available to them;
c. the Board
mentioned only documentary evidence from 2004-2006 and failed to consider more
recent evidence;
d. the Board
failed to explain why the relied upon evidence is preferred to contradictory
evidence;
e. the Board failed
to consider the response of the police in Veracruz, which they state is
indicative of the response that the claimants would have received in Mexico
City; and
f.
the
Board failed to consider evidence that the police in Mexico cannot
protect themselves, let alone ordinary citizens.
[18]
The
Respondent argues that the Board stated the test for state protection
correctly, and that its application of the test was reasonable. The Respondent
contends that the Board did consider and weigh all the evidence because it
stated that it had “considered the entirety of the evidence….” The Respondent
asserts that the Board’s reference to five specific pieces of documentary
evidence further suggests a detailed and careful engagement with the
evidentiary record, and characterizes the attack in this regard as an
unjustified attempt to reweigh the evidence: Zrig v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 178.
[19]
The
Respondent argues that the Board’s reasoning was clear and transparent and that
it adequately explained its reasons. The Respondent asserts that the Board’s
analysis of the facts was reasonable and that it was logical to assume that the
police in Mexico City would be more reactive and effective in addressing the Applicants’
complaint than the police in Veracruz, had the former been approached.
[20]
The
parties are in substantial agreement about the law regarding state protection,
but disagree about whether it was applied properly in this case. Whether
effective state protection is available is a question of mixed fact and
law and as such is reviewable on a standard of reasonableness: Zepeda v. Canada (Minister of
Citizenship and Immigration), 2008 FC 491 at paras. 8-10.
[21]
There
is a presumption that all states are able and willing to provide effective
protection to their citizens: Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689 at 725. This presumption is consistent with and reinforces
the notion of refugee protection as a surrogate system of protection: Ward
at 726. The presumption creates an evidentiary burden that must be rebutted by
an applicant adducing some clear and convincing evidence that is both relevant
and reliable, and sufficient to convince the Board, on a balance of
probabilities, that state protection is inadequate: Carillo v. Canada (Minister of
Citizenship and Immigration.), 2008 FCA 94.
[22]
An
applicant does not have to seek state protection where it is objectively
reasonable to presume that state protection would not be forthcoming. “[O]nly
in situations in which state protection ‘might reasonably have been
forthcoming’, will the claimant's failure to approach the state for protection
defeat his claim” [Emphasis added]: Ward at 724.
[23]
In
Ward, at 724-725, Justice LaForest described two types of evidence that
an applicant could provide to rebut the presumption of state protection: (1)
evidence of the claimant’s actual attempts to seek state protection that
resulted in no protection, and (2) evidence of similarly situated individuals
who were unable to obtain state protection. He did not intend that these
examples be exhaustive; however, they do reflect the most common types of
evidence led by claimants.
[24]
State
protection cannot be determined in a vacuum. The willingness and ability of
states to protect their citizens may be linked to the nature of the persecution
in question. In short, context matters. The Applicants argue, citing Garcia v. Canada
(Minister of Citizenship and Immigration), 2007 FC 79, that the
Board failed to take a contextual approach to assessing whether effective state
protection would have been reasonably forthcoming had they made subsequent
efforts at seeking protection. I agree that a contextual approach is required
in assessing state protection, but I disagree that the Board failed to do so in
this case. The Board acknowledged the nature of the persecution in question,
and it is apparent that the Board assessed the availability of state protection
on this basis. The Board concluded that there was no evidence to suggest on a
balance of probabilities that had the police been approached in a more
concerted manner that they “would refuse to investigate serious, non-domestic,
sexual assaults”. In this passage, the Board displays its awareness of the
context of the situation, that being serious, non-domestic, sexual assaults;
this is what the Board was required to do, and it is not evidence of a
reviewable error.
[25]
Before
turning to the one actual attempt the Applicants made to seek state protection,
I turn to the evidence the Applicants submitted to the Board. In their
Memorandum of Fact and Law they state the following concerning the evidence
that was submitted:
Approximately one hundred pages of
documentary evidence was filed with respect to the ability of the police force
in Mexico to protect citizens from
crime. In particular, the documentary evidence focused on the state’s ability
to protect citizens from the threats of violence of narco-traffickers and the
special problems faced by women who were the victims of sexual violence and/or
domestic violence. The article and reports were all very recent, dating from
May 2006 until November of 2008, a month prior to the hearing.
[26]
I
note that the Officer does state in his decision that he read and considered
all of the evidence submitted, including that which the Applicants state was
overlooked as it was not specifically referenced by the Officer.
[27]
The
documents submitted reflect the following topics: there is a failure to
sufficiently recognize violence against women in the home, Mexican drug cartels
are alleged to have caused the crash of an airplane carrying Mexican officials
involved in prosecuting those in the drug trade, that some North American
holiday seekers are avoiding Mexico because of its dangers relating to the drug
trade, that state police have been ambushed and shot by persons believed to be
connected to the drug trade, that the Chief of Police in Mexico resigned over
allegations of corruption in the force, that severed heads were sent to the
police located close to the US border, that school children in Tijuana were
traumatized after seeing a site where a number of men had been murdered by drug
cartel members, that there is a fear of kidnapping in Mexico, that police officers
have been arrested for their connections to the drug cartels, that women
arrested by police during a crack down on street vendors alleged that many had
been raped by the police officers, and similar stories.
[28]
While
all of these stories, if true, are tragic, they do not reflect the personal
circumstances of these Applicants. They do not provide evidence of similarly
situated individuals who were unable to obtain state protection. Similarly
situated individuals in this context are women who have been harassed and
sexually assaulted by non-family members. In this case the assaults were
conducted by persons who are alleged to be drug dealers. There is no evidence
in the material that the Applicants submitted that drug dealers are immune from
police investigation, despite their efforts to intimidate the police force. In
fact, the evidence of the murder of police officers and officials suggests that
the police are engaging with drug dealers; otherwise such action would be
unnecessary. Further, the police in Veracruz, when approached by the
Applicants, did not refuse to assist (even though the Applicants question the
level of assistance) despite the fact that the persons complained of were drug
dealers.
[29]
In
short, there is nothing in the evidence submitted by the Applicants that would
indicate that the Board’s finding that “the police would refuse to investigate
serious, non-domestic, sexual assaults” is unreasonable. Further, the record
does not reveal that there was more recent evidence submitted that was contrary
to that relied on by the Officer and which he ought to have considered,
mentioned and distinguished.
[30]
The
second type of evidence suggested by Justice LaForest that could rebut the
presumption of state protection is the claimants’ actual attempts to seek state
protection that resulted in no protection.
[31]
In
this case, that is the approach they made to the police in Veracruz. It is
submitted that the police there failed to provide them with protection. However,
this must be assessed in light of the complaint they made to the police. First,
no copy of the denunciation was submitted to the Board. Second, the only
document in evidence describes their complaint as the crime of “threats and
anything resulting from them”. Third, the police did investigate but took the
complaint no further because “the requirements dictated in Section 16 of the
General Constitution of the Republic were not met; in addition, the identity of
the alleged defendants has not been established.”
[32]
It
seems from the police report that the Applicants complained only of threats
made to them by El Tigre – no complaint was made regarding the sexual
assaults they had experienced. In fact, it is not at all certain what
was reported to the police. Accordingly, it cannot be said that the complaint
to the Veracruz authorities and
their response constitutes clear and convincing evidence of an attempt to
secure state protection that resulted in no protection.
[33]
There
is no question that the situation in Mexico is challenging, nor is there any
question that the level of state protection is not what one would hope for;
however, it has not been established that state protection is not reasonably available
in these circumstances. The Applicants submit that the evidence of police
deaths at the hands of the drug dealers shows that the police cannot protect
themselves. It is then argued that if they cannot protect themselves, how can
it be asserted that they can offer protection to the citizens they are to
protect? I do not think that the second proposition flows from the first, even
if the former is true. Criminals will often target those who wish to affect
their criminal activity. It happens everywhere, including Canada, albeit with
less regularity than in Mexico.
[34]
I
therefore find that the evidence before the Board did not support a conclusion
that effective state protection was not available to the Applicants.
[35]
This
application is dismissed. Neither party proposed a question for certification.
There is no certifiable question on these facts.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
- The application for
judicial review is dismissed; and
- No question is
certified.
“Russel
W. Zinn”
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