Date: 20110127
Docket: IMM-2893-10
Citation: 2011 FC 96
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, January 27, 2011
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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GLADYS ARROYO GURROLA
JONATHAN CASTILLO ARROYO
JORGE SADAMI CASTILLO ARROYO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review in accordance with subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 (Act), of a decision
by the Refugee Protection Division of the Immigration and Refugee Board (panel),
dated April 26, 2010. In its decision, the panel found that the
applicants were neither Convention refugees nor persons in need of protection within
the meaning of sections 96 and 97 of the Act.
Factual background
[2]
The
principal applicant, Gladys Arroyo Gurrola, her spouse, Ricardo Castillo
Frausto, and their two minor children, Jonathan Castillo Arroyo and Jorge
Sadami Castillo Arroyo, are citizens of Mexico. They
arrived in Canada on February
5, 2008. They claimed refugee protection on the same day.
[3]
Since
their arrival in Canada, the applicants separated and the children are
in their mother’s custody. Consequently, this application concerns only Ms. Arroyo
Gurrola and her two sons.
[4]
The
applicants claimed refugee protection, alleging a fear of being killed by
Senator Manuel Bartlett Diaz and his men on the grounds that Ms. Arroyo Gurrola’s
half-brother, Omar, witnessed corruption and money laundering by these men.
[5]
Omar
allegedly worked for a private company as an information technology manager. In
December 2004, he apparently discovered that large sums of money had been
transferred to three people, including the Senator. A few days after speaking
with the company’s accountant, he was purportedly the target of a planned
attack by the Senator. He therefore left Mexico in January
2005 for Canada, where he
claimed refugee protection.
[6]
In
May 2005, Omar’s mother and father came to join him in Canada. Their
refugee claims were allowed.
[7]
In
March 2006, Ms. Arroyo Gurrola’s sister, Elizabeth, and her family came to Canada
and their refugee claim was allowed based on the fact that Elizabeth’s husband
was allegedly beaten because of Omar.
[8]
As
for Ms. Arroyo Gurrola, she and her family purportedly started to have problems
around December 2005. While living in Guadalajara, in the State of Jalisco, her son
Jonathan was apparently being followed. The family then allegedly moved to Tultitlan
in the State of Mexico.
[9]
In
January 2006, Jonathan was allegedly hit by an unlicenced black van. The family
apparently then moved to Querétaro, in the State that bears the same name, and
stayed there until April 30, 2006. The family then purportedly went
to stay in Coacalco in the State of Mexico.
[10]
In
January 2008, Ms. Arroyo Gurrola and her husband were riding a motorcycle. They
allegedly received a ticket from a police officer after running a red light.
Two days later, the applicants apparently received anonymous threatening
telephone calls telling them that they had been found. There was allegedly a
reference made about Omar and that even though Jonathan had pulled through, the
whole family would be targeted.
[11]
The
family then moved to Aculco, still in the State of Mexico. They then
left Mexico for Canada on
February 5, 2008.
Impugned
decision
[12]
The
panel first found that the claimants’ story was not plausible. In fact, the panel
noted that even if the incidents experienced by Ms. Arroyo Gurrola’s half-brother
were true, it was surprising, if not incredible, that his persecutors would still
be looking to seek revenge on him.
[13]
The
panel raised the point that the claimants never explained on what basis they
were making a connection between Ms. Arroyo Gurrola’s half-brother’s problems in
2004-2005 and the two incidents experienced by Jonathan in 2005 and 2006. When
the panel asked Ms. Arroyo Gurrola about this, she replied that she did not
know. The panel therefore found that there was no serious evidence to establish
the basis of the applicants’ allegations.
[14]
The
panel also found the female claimant’s explanation of the reasons why Omar’s
persecutors suddenly decided to go after her family in 2008 not credible. The panel
emphasized that five years had elapsed since the initial events at the heart of
the refugee claim and that it was therefore highly unlikely that Omar’s
persecutors would “wake the cat who had been sleeping” by going after a family
that is in no way in possession of any information that could incriminate
Senator Bartlett Diaz or his entourage.
[15]
For
these reasons, the panel found that it did not believe that the claimants were
subject to threats by Senator Bartlett Diaz or his associates so that they
could seek revenge on Omar.
[16]
The
panel also found that the claimants did not satisfy their obligation to seek
protection from the Mexican authorities. In fact, the panel noted that the claimants
stated that they had never asked the authorities in their country to protect them
from Senator Bartlett Diaz and his associates. The claimants explained that
they had failed to ask for protection because of fear and because they did not
trust that they would support and protect them.
[17]
Consequently,
the panel found that adequacy of state protection cannot be based solely on a claimant’s
subjective fear (see Martinez v Canada
(Minister of Citizenship and Immigration), 2005 FC
1050, [2005] FCJ No 1297).
[18]
The panel admitted that the state apparatus is
not free of corruption. However, on the basis of documentary evidence, it found
that the claimants had many means at their disposal but chose not to make use
of them.
Relevant statutory
provisions
[19]
The following provisions of the Act apply to this proceeding:
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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.
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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.
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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.
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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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Issue
[20]
In
this judicial review, the only issue is whether the panel’s findings on the
lack of credibility and state protection are reasonable.
Standard of review
[21]
The
Supreme Court of Canada recognized, in Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph
51, that “.
. . questions of fact, discretion and policy as well as questions where the
legal issues cannot be easily separated from the factual issues generally
attract a standard of reasonableness . . . ”.
[22]
Assessing credibility and weighing the evidence
fall within the jurisdiction of the administrative tribunal called upon to
assess the allegation of a subjective fear by a refugee claimant. The Court
will intervene only if the panel based its decision on an erroneous finding of
fact made in a perverse or capricious manner or without regard for the material
before it (Cepeda‑Gutierrez v Canada (Minister of Citizenship and Immigration),
157 FTR 35, [1998]
FCJ No 1425, at para 14; Aguebor v Canada (Minister of Employment and
Immigration), (1993),
160 NR 315, 42 ACWS
(3d) 886 (FCA); Perez v Canada (Minister of
Citizenship and Immigration), 2010 FC 345, [2010] FCJ
No 579).
[23]
Furthermore,
this Court stated that the panel’s findings on matters of state protection are
reviewable under the reasonableness standard (see Hinzman v Canada (Minister
of Citizenship and Immigration), 2007 FCA 171, [2007] FCJ No 584, at para 38; Huerta v Canada (Minister of
Citizenship and Immigration), 2008 FC 586, [2008] FCJ No
737, at para 14; Chagoya v Canada (Minister of Citizenship and Immigration),
2008 FC 721, [2008] FCJ No 908, at para 3).
Analysis
[24]
In
the case under review, the Court notes that the panel’s decision is founded on
two distinct findings: credibility and state protection. The applicants must
therefore establish the existence of an unreasonable error in each of these
findings.
[25]
At
the outset, the applicants submitted that the panel made an unreasonable
finding in attacking the credibility of the alleged facts since these facts had
been recognized in the protection claims of Omar, his mother and stepfather as
well as that of his sister and her family. This argument is not determinative
in itself since the panel focused on the credibility of the facts surrounding
the claim of the applicants and not that of Omar.
[26]
The
Minister argued that it is well established that it is up to the panel, which
has sole jurisdiction over the facts, to assess the credibility of an account. While
the Court recognizes that the panel is in a better position than the Court to
determine whether the applicants’ allegations are plausible, it is nevertheless
clear in reading and analyzing the decision in this case that the panel made
omissions in analyzing the credibility of the facts.
[27]
More
specifically, the panel failed to consider the fact that the applicants
received an anonymous telephone call two days after having been stopped by the
police for running a red light. Furthermore, the applicants submitted that during
the call, threats were uttered and Omar’s name was mentioned. The persecutors
allegedly told the applicants that they had found them again.
[28]
The
panel did not consider this important fact, that is, the mention of the name “Omar”.
Instead, it limited its analysis to the two incidents involving Jonathan. While
it is possible that these two incidents were coincidences, the evidence
suggests that the telephone call was connected with Omar and their persecution.
The Court is of the opinion that the failure to analyze this important fact, a
connection to Omar (whose refugee claim was allowed in Canada), is an
error on the part of the panel.
[29]
With
regard to the panel’s finding on state protection, counsel for the respondent
emphasized to the Court that even if the panel had found that the applicants’
account was credible, the refugee claim could not have been allowed on the
grounds that the applicants did not satisfy their obligation to seek protection
from the Mexican authorities.
[30]
The
Court agrees with the argument by the respondent’s counsel on this point.
[31]
In
fact, on matters of state protection, the Federal Court of Appeal found in Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] FCJ No 399, at paragraph 38, that the burden of proof, the standard
of proof and the quality of the evidence of an allegation of inadequate or
non-existent state protection towards one of its citizens is defined as follows:
[38] . .
. A refugee who
claims that the state protection is inadequate or non-existent bears the
evidentiary burden of adducing evidence to that effect and the legal burden of
persuading the trier of fact that his or her claim in this respect is founded.
The standard of proof applicable is the balance of probabilities and there is
no requirement of a higher degree of probability than what that standard
usually requires. As for the quality of the evidence required to rebut the
presumption of state protection, the presumption is rebutted by clear and
convincing evidence that the state protection is inadequate or non-existent.
[32]
The case law is consistent that when the
state in question is a democratic State, such as Mexico,
the applicant’s responsibility to seek state protection increases. It is up to
the applicants to rebut the presumption of state protection with clear and
convincing evidence (Canada
(Attorney General) v Ward, 2 SCR 689).
The applicants must show that they exhausted all the remedies available to them
to obtain the necessary protection (see Kadenko v
Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 1376, 68
ACWS (3d) 334).
[33]
In this case, the evidence on record is
that the applicants did not seek state protection. They made no effort to seek
protection. Under the circumstances, this factor alone is sufficient for
finding that the panel, on this point, did not err in concluding that the
applicants did not demonstrate the non-existence of state protection. The panel’s
finding on this point is therefore well founded.
[34]
Finally, with a lack of any effort on the
part of the applicants to obtain state protection, the argument that the remedies
proposed by the panel do not apply to the applicants on the grounds that they
are not victims of corruption by federal government officials turns out to be
irrelevant and inconclusive.
[35]
It
is therefore apparent that the applicants did not demonstrate the existence of
an unreasonable error in each of the panel’s two findings.
[36]
For these reasons, the Court’s intervention is
not warranted. The application for judicial review is dismissed. There is no
question to certify.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
“Richard Boivin”
Certified
true translation
Janine
Anderson, Translator
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