Date: 20071203
Docket: IMM-1948-07
Citation: 2007 FC 1242
Ottawa, Ontario, December 3,
2007
Present:
The Honourable Mr. Justice Blais
BETWEEN:
JESUS MEJIA
LAZCANO
Applicant
and
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated May 2, 2007,
where the Board determined that that the applicant was not a person in need of
protection within the meaning of paragraph 97(1)(b) of the Immigration
and Refugee Protection Act, S.C., c. 27 (the Act).
RELEVANT
FACTS
[2]
Jesus
Mejia Lazcano (the applicant) is a citizen of Mexico.
[3]
He
claims to have been persecuted through threats and assaults from his immediate
superior, Raoul Garcia Trejo.
[4]
On
March
6, 2006,
he received threatening phone calls advising him to return to work. He alleges
that he sent a letter of resignation that very day.
[5]
On
March 15, 2006, he complained to the Attorney General of the Federal
District,
stating that he had been beaten for sending the above-mentioned letter.
[6]
On
April 28, 2006, he sent a letter to the Human Rights Commission referring
to his complaint, asking the Commission to ensure his protection as well as
that of his family.
[7]
The
applicant arrived in Canada on May 1, 2006, and applied
for refugee protection.
IMPUGNED DECISION
[8]
On
May 2, 2007, the Board dismissed the applicant’s refugee claim, determining
that he was not a “person in need of protection” since he had failed in his obligation
to seek the protection of the State. According to the Board, he had not
established by clear and convincing evidence that the State of Mexico was unable
or unwilling to protect him.
ISSUE
[9]
Did
the Board err in determining that the applicant had not satisfied his burden of
establishing that the Mexican
State could not adequately
protect him?
RELEVANT LEGISLATIVE
PROVISIONS
[10]
Paragraph 97(1)(b)
of the Act reads as follows:
|
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
…
(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.
|
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:
[…]
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
|
STANDARD OF REVIEW
[11]
The
appropriate standard of review in regard to the State’s ability to protect a
claimant was recently determined by my colleague, Mr. Justice Michel
M.J. Shore, in Prieto Velasco v. Canada (Citizenship
and Immigration), 2007 FC 133, at paragraph 17. After pointing out that
there are two lines of case law on the issue, one tending toward the standard
of patent unreasonableness and the other toward reasonableness; he chose rather
to follow the reasonableness standard as dictated by a pragmatic and functional
analysis. As it is a mixed question of fact and law, the appropriate standard
is that of reasonableness.
ANALYSIS
[12]
Before
embarking on a detailed analysis of the case at bar, it seems important to me
to state that at the time of the hearing, the member read several passages from
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, explaining
in detail the presumption to the effect that States are able to protect their
citizens and that to rebut this presumption, claimants must file clear and
convincing evidence of the State’s inability to ensure their protection. The
member also referred to a passage from Canada (Minister of
Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189
(QL), leave to appeal to the S.C.C. dismissed [1993] 2 S.C.R. x.i., as well as
two passages from Kadenko v. Canada (Solicitor
General),
[1995] F.C.J. No. 889 (QL).
[13]
It
appears from the transcript of the stenographer’s notes that the member then
very clearly stated that the applicant had filed a formal complaint but that he
had not followed up on it at all and that he expected explanations to explain
the statement regarding the State’s inability to protect him.
[14]
In
Ward, supra, Mr. Justice Gérard V. La Forest states at
pages 724 and 725:
Like
Hathaway, I prefer to formulate this aspect of the test for fear of persecution
as follows: only 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. Put another way, the claimant
will not meet the definition of "Convention refugee" where it is
objectively unreasonable for the claimant not to have sought the protection of
his home authorities; otherwise, the claimant need not literally approach the
state.
The issue that arises, then, is how, in a practical
sense, a claimant makes proof of a state's inability to protect its nationals
as well as the reasonable nature of the claimant's refusal actually to seek out
this protection. On the facts of this case, proof on this point was
unnecessary, as representatives of the state authorities conceded their
inability to protect Ward. Where such an admission is not available,
however, clear and convincing confirmation of a state's inability to protect
must be provided. For example, a claimant might advance testimony of
similarly situated individuals let down by the state protection arrangement or
the claimant's testimony of past personal incidents in which state protection
did not materialize. Absent some evidence, the claim should fail, as
nations should be presumed capable of protecting their citizens. Security
of nationals is, after all, the essence of sovereignty. Absent a
situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it
should be assumed that the state is capable of protecting a claimant.
See also Torres Lopez v. Canada (Citizenship
and Immigration), 2007 FC 198, at paragraph 19:
19 I am of the
opinion that that the RPD, in view of the evidence that was before it, could
reasonably conclude that the applicants had not discharged their burden of
showing that the Peruvian government was unable to protect them. It is true that the
panel may have given the impression that the bar was very (too) high when it stated
that “no evidence was submitted allowing the panel to determine that the entire
police force was conspiring with the politician” and that Peru was not in a state of chaos and
complete breakdown. The fact remains that Mr. Lopez and his wife never
even gave the authorities of their country a chance to protect them.
[15]
In
the case at bar, the applicant’s testimony was deemed credible overall. It was
the issue of State protection that led to the member’s refusal of the claim.
[16]
The
events preceding the applicant’s departure from Mexico took place over a relatively brief period
of time. After he was threatened, he decided to resign and he was then
assaulted in the street. On March 15, he immediately addressed the Attorney
General of the Federal District in order to file a complaint, specifically
identifying the motives of the persons who were after him.
[17]
He
then left Mexico
City
for the State of Guanajuato, where he stayed with his family for one month,
until April 19, before he was threatened again. He then definitively decided to
leave his country and on April 28, i.e. two days before his departure, he sent
a letter to the Human Rights Commission referring to his complaint with the Attorney
General and seeking the Commission’s help for protection.
[18]
The
applicant did not follow up on the complaint that he made following his fears
and he sent a new letter to the Human Rights Commission two days before leaving
his country.
[19]
At
the very least, the applicant failed to take the time to examine whether his
recourse would be useful with the office of the Attorney General or with the Human
Rights Commission.
[20]
The applicant
relied heavily on the documentary evidence on Mexico. In his opinion, it established that the
police are corrupt and often resort to violence and abuse.
[21]
It
appears clearly from the applicant’s file that after attempting to secure State
protection by filing a formal complaint, he did not even wait to find out what
the outcome of his efforts would be. The complaint was addressed and the police
did not refuse to intervene. To the contrary, it noted all of the details of
the circumstances. However,
the applicant did not trouble himself to find out whether concrete actions had
been taken after his complaint was filed.
[22]
We
can understand that the applicant left Mexico City to go to another place with his family, but
in the Board’s opinion, these steps were not sufficient to establish that the applicant
had sought protection from the State of Mexico.
[23]
It
is clear that the applicant had initiated the process to obtain State
assistance, but he did not follow up on his actions. The Tribunal record
contains the index of all the documents found in the national binder on Mexico.
[24]
The
applicant claims that the Board did not refer to the documentary evidence filed
in the record and specifically Mexico’s regional binder. The applicant refers to many passages
from the documentary evidence regarding corruption within the police corps.
[25]
It
must be noted that among the documents filed, the applicant most specifically referred
to the difficulties he encountered with his employer, the Institutional
Republican Party (PRI) as well as its representatives. In his case, it appears
from the evidence that his complaint was considered and that he never verified
with the authorities whether they had taken steps to follow up on his case.
[26]
The applicant
also referred to the report “Mexico – State Protection (December 2003 to March 2005)”
according to which the criminal justice system is often ineffective and unfair
and that, accordingly, the State of Mexico could not adequately protect him.
[27]
Even
though this document raises many concerns about the Mexican government’s
ability to deal with all the crime in its country, this same document indicates
that the government has made improvements to the system of protection. In fact,
it reads:
As President Vicente Fox approached the
mid-term of his presidency in 2003, sources questioned whether he could achieve
the state protection reforms he had promised at the outset of his presidency (Los
Angeles Times 6 Dec. 2004; The Economist 23 Nov. 2004; ibid. 14 Aug.
2003; Freedom House 23 Aug. 2004). Nevertheless, in 2003 and 2004, Fox
reportedly remained committed to addressing issues such as crime, corruption
and human rights abuse, even though new incidents continued to be reported
under his administration (AI 2004; Country Reports 2004 28 Feb. 2005; International Narcotics
Strategy Report 2005 1 March 2005; HRW 8 Jan. 2005).
[28]
In
Yanez Alfaro v. Canada (Minister of
Citizenship and Immigration), 2006 FC 460 at paragraphs 16 and 17,
the Court stated the following:
[16] The
applicants submit that the conclusions of the panel as to the possibility of
availing themselves of state protection in Mexico
are contrary to the documentary evidence it had. The applicants submit that the
panel did not take into consideration an IRB report concerning state protection
in Mexico (Exhibit C of the principal applicant’s
affidavit), which established that Mexican courts did not offer any protection
to its nationals.
[17] The
excerpt from this report cited by the applicants in support of this argument
concerns corruption in the judicial system. However, it must be noted that the
same document mentions the determination of President Vicente Fox to carry out
the reforms undertaken at the beginning of his administration. It is therefore
not possible to conclude that the state apparatus has totally broken down as
far as the protection of its nationals is concerned.
[29]
I
have reviewed the file, and specifically the stenographer’s notes of the
hearing.
[30]
Although
in its decision the Board did not make any specific reference to the case law
or to the documentary evidence on Mexico, it could reasonably find as it did based
on the questions the applicant was asked and the analysis of the evidence in
the record.
[31]
It
is possible that if I had to make a decision at first instance in light of the
same evidence, I may have come to a different decision. However, this is not
the manner of proceeding on judicial review before the Federal Court. It is a matter of
whether it was reasonable for the decision-maker, in light of the evidence before
it, to find that the applicant was not a person in need of protection based on
the fact that he had not established clear and convincing evidence that Mexico was unable to protect
him.
[32]
In
my opinion, even though the decision is not very detailed, I cannot find that
the Court’s intervention would be justified under the circumstances. In fact, this
is not a matter where “there is no line of analysis within the given
reasons that could reasonably lead the tribunal from the evidence before it to
the conclusion at which it arrived”(Law Society of New Brunswick v. Ryan,
[2003] 1 S.C.R. 247, at paragraph 55).
[33]
I
therefore find that this application must be dismissed.
[34]
The
parties did not propose any questions for certification and no question will be
certified.
JUDGMENT
- The application for
judicial review is dismissed.
- No question will be
certified.
“Pierre Blais”
Judge
Certified
true translation
Kelley A.
Harvey, BCL, LLB
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