Date: 20110525
Docket: IMM‑4226‑10
Citation: 2011 FC 587
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 25, 2011
Present: The Honourable Mr. Justice Pinard
BETWEEN:
German HERNANDEZ RODRIGUEZ
Irma
Gabriela ORTIZ BLANCA
German
HERNANDEZ ORTIZ
Applicants
and
MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review of a decision by a member of the Immigration and Refugee
Board’s Refugee Protection Division (the panel) filed under subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. (2001), c. 27, by German Hernandez Rodriguez,
Irma Gabriela Ortiz Blanca and German Hernandez Ortiz (the applicants). The
panel found that the applicants were not Convention refugees or persons in need
of protection, and therefore dismissed their refugee protection claim.
[2]
The applicants are
citizens of Mexico. Their claim for refugee protection was made on the basis of
the narrative of Irma Gabriela Ortiz Blanca (the female applicant), the spouse
of German Hernandez Rodriguez. German Hernandez Ortiz is their son.
[3]
On December 10,
1999, the business Distribution IGOB was established in Puebla. The business
sold and distributed prepaid telephone cards. The female applicant was the
legal representative of this business. The business established commercial ties
with the company Josper Communication, represented by Rafael Pellegrin Breton. The
female applicant submits that this person was friends with the state’s corrupt
governor, Mario Marin Torres, and affiliated with Carlos Slim, the extremely
wealthy owner of the Telcel communications company.
[4]
Mr. Pellegrin
Breton instituted an action against the female applicant, calling her a fraudster.
She states that he wanted to implicate her in a fraud for which he was
responsible. The female applicant was informed of the action on May 2,
2007, when three federal police officers entered her home without an arrest
warrant and then detained her in their vehicle. She states that she managed to
escape. The female applicant contacted a lawyer, who, she states, advised her
to leave Puebla. The applicants went to Phoenix, Arizona, for 25 days and
then stayed in the state of Chiapas for four months until the action was
decided. The female applicant was exonerated of any wrongdoing.
[5]
Afterwards, the
applicants began receiving death threats by telephone. The female applicant
submits that she tried to make a report to the authorities, but that her
complaint was not followed up on because of a lack of evidence.
[6]
The female applicant
states that, on February 19, 2008, Mr. Pellegrin Breton intercepted
the applicants, telling them that they would pay. The applicants reported him
to the public prosecutor. Mr. Pellegrin Breton was allegedly made aware of
this report because he and his friends intercepted and beat up the male
applicant. Mr. Pellegrin Breton threatened them once more, and then,
because of the female applicant’s delicate psychological state, the applicants
decided to come to Canada. They arrived here on June 9, 2008, and claimed
refugee protection that very day.
* * * * * * * *
[7]
The panel found that
the determinative issue in this case was the existence of state protection. The
panel essentially found that the applicants had not done enough to claim state
protection. The panel found that if the applicants did not trust the local
authorities, they should have gone to the Federal District or to Cancun to
complain to the authorities there. They could have taken their complaint to non‑government
organizations or taken their lawyer up on his offer to help them in the future.
The panel was also of the opinion that the applicants’ credibility was
undermined because they had not claimed refugee protection when they were in
the United States and because the proceedings Mr. Pellegrin Breton had
instituted against the female applicant in 2007 were dismissed by the court.
[8]
The panel noted that
the applicants stated that there were informants within the police who had
informed their persecutor of the complaint they had made against him. The panel
found that the documentary evidence shows that there is a tremendous amount of corruption
in Mexico and that, in general, citizens do not dare make complaints because
they fear retaliation or abduction. The panel noted having taken into account
the female applicant’s testimony, the positive and negative documentary
evidence, the persuasive decision by the Immigration and Refugee Board
concerning state protection in Mexico (TA6‑07453, November 2007),
the situation of the applicants, who were twice able to leave their country,
and the case law of this Court, which ruled that despite the high level of
corruption of public authorities, including the police, state protection is
still available in Mexico. The panel found that the applicants had failed to
satisfy it that state protection was inadequate or non‑existent or that
it would have been futile, aggravating or dangerous if they had gone to another
city to inform the authorities there. The panel’s view was that it was not
unreasonable to expect the applicants to take further steps.
* * * * * * * *
[9]
After reviewing the
evidence and hearing the submissions of counsel for the parties, the contested
ruling seems unreasonable to me, for the reasons that follow.
[10]
First, the panel was
incorrect in finding that the applicants’ failure to claim refugee protection while
they were in Phoenix undermined their credibility. Their stay in Phoenix took
place before several important events: the court’s dismissal of
Mr. Pellegrin Breton’s action (which allegedly irritated him), the death
threats by telephone and the attack on the male applicant. I find it illogical
to conclude that the applicants’ credibility is diminished because they did not
claim refugee protection at a time when they believed they did not need it.
[11]
Furthermore, the panel
found that Mr. Pellegrin Breton did not have the influence the female
applicant attributed to him because the court dismissed his action in 2007. The
applicants point out that even a corrupt system may sometimes work and submit
that the fact that Mr. Pellegrin Breton was unable to influence that
result should not have affected their credibility on the matter of his
influence. I agree, especially since the applicants were unable to obtain
police protection after the judgment.
[12]
Second—and this is even
more serious, since the matter of state protection was the determinative issue
for the panel—the panel did not give sufficient consideration to the specific
situation of the applicants with regard to all of the evidence. In this
respect, the applicants submit that the panel erred in selecting from the
evidence only the excerpts favourable to its opinion, while ignoring the
unfavourable elements. In this regard, the applicants note that at page 7
of its decision, the panel refers to the report entitled “2009 Human Rights
Report: Mexico” of the U.S. Department of State (USDOS) in support of its
finding that state protection exists in Mexico. The applicants quoted this
excerpt from the report used by the panel:
The government
generally respected and promoted human rights; however, the following problems
were reported during the year by the country’s National Human Rights Commission
(CNDH) and other sources: unlawful killings by security forces; kidnappings;
physical abuse; poor and overcrowded prison conditions; arbitrary arrests and
detention; corruption; inefficiency, and lack of transparency that engendered
impunity within the judicial system; confessions coerced through torture; violence
and threats against journalists leading to self‑censorship. Societal
problems included domestic violence, including killings of women, trafficking
in persons; social and economic discrimination against some members of the
indigenous population; and child labor.
[13]
With regard to the
panel’s statement that Mexico apprehends corrupt police officers and public
servants, the applicants also note that the same USDOS report states that only
one soldier was found guilty under Felipe Calderon’s presidency. The report
states as follows:
President
Calderon remarked in speeches in March and October that corruption was a
serious problem in the police forces and a primary reason for the use of the
military in the domestic counter narcotics fight. The CNDH reported that
police, especially at the state and local level, were involved in kidnapping,
extortion, and in providing protection for, or acting directly on behalf of,
organized crime and drug traffickers. Local forces in particular tended to be
poorly compensated and directly pressured by criminal groups, leaving them most
vulnerable to infiltration. According to a 2009 HRW report in impunity in the
country, impunity was pervasive; this lack of accountability contributed to the
continued reluctance of many victims to file complaints. . . .
[14]
Taking into account the
excerpts quoted in the contested decision and the excerpts above quoted by the
applicants, I am of the opinion, in the context, that the panel’s finding on
the existence of state protection is incorrect, considering the particular
situation of the applicants established by the evidence. It is important here
to reproduce the following relevant excerpt from Zepeda v. Canada (Minister
of Citizenship and Immigration), 2008 FC 491, [2009] 1 F.C.R. 237, a decision
by my colleague Madam Justice Danièle Tremblay‑Lamer:
[20] .
. . While Mexico is a democracy and generally willing to protect its citizens,
its governance and corruption problems are well documented. Accordingly,
decision makers must engage in a full assessment of the evidence placed before
them suggesting that Mexico, while willing to protect, may be unable to do so.
This assessment should include the context of the country of origin in general,
all the steps that the applicants did in fact take, and their interaction with
the authorities (Hernandez v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1211, at paragraph 21; G.D.C.P. v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 989, at paragraph 18).
[15]
Furthermore, I do not
agree with the respondent’s criticism that this is a situation in which the
applicants filed but one complaint and interacted with the authorities only
once, unsuccessfully, before giving up their efforts. The panel itself quoted
portions of the documentary evidence showing that when faced with corruption,
Mexican citizens are often too afraid to file additional complaints. In this
case, the female applicant had already been intercepted by police with no
arrest warrant because of Mr. Pellegrin Breton’s influence. The complaint
regarding the death threats made by telephone was not accepted. Later on, when
the applicants filed a complaint regarding Mr. Pellegrin Breton’s threats,
the male applicant was attacked and injured. I do not find it at all unreasonable
that the applicants made no further attempts to claim protection from
institutions that clearly had their antagonist’s interests at heart, rather
than their own. I find that the panel erred in accepting that corruption exists
while ignoring that the applicants suffered from this fact and in finding that
the applicants should have sought assistance from the institutions that had
breached their duties towards them.
[16]
For all of these
reasons, despite the assiduous presentation made by counsel for the respondent,
the application for judicial review is allowed. The matter is therefore
referred back to a differently constituted panel of the Immigration and Refugee
Board for redetermination.
[17]
I agree with counsel
for the respondent that the questions for certification proposed by the
applicants do not merit being certified in light of the tests set out in the
case law, particularly in Liyanagamage v. Canada (M.C.I.) (1994), 176
N.R. 4 (F.C.A.) and Huynh v. Canada, [1995] 1 F.C. 633 (T.D.), affirmed
in [1996] 2 F.C. 976 (C.A.).
JUDGMENT
The application for judicial review is allowed. The decision by
a member of the Immigration and Refugee Board’s Refugee Protection Division,
dated June 28, 2010, is set aside, and the matter is referred back to a
differently constituted panel of the Board for redetermination.
“Yvon Pinard”
Certified true
translation
Sarah Burns
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