Date: 20110510
Docket: IMM-5264-10
Citation: 2011 FC 538
Ottawa, Ontario, May 10, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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SANDRA MARIA DE JESUS LIMA
CAMBRON
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Applicant
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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 of the decision of the Immigration and
Refugee Board of Canada, Refugee Protection Division (the Board), pursuant to section
72 of the Immigration and Refugee Protection Act [IRPA], of a
decision rendered on August 11, 2010, dismissing the Applicant’s claim for
refugee status.
1. Facts
[2]
The
Applicant is a citizen of Mexico, allegedly fearing her ex-boyfriend
Roberto. She began a romantic relationship with Roberto in 2005. About one year
after the beginning of their relationship, he told her that he worked for the Procuraduria
General but did not provide any other information. In February 2008, Roberto
became verbally violent with the Applicant and was physically violent in April
2008. The Applicant ended the relationship in August 2008. Later, Roberto
threatened the Applicant with a gun while she was sitting at a bar, which
resulted in Roberto’s arrest. The Applicant and her friend gave a statement.
Roberto was released and continued to harass the Applicant.
[3]
On
September 5, 2008, the Applicant moved to Guanajuato. In December 2008, she was
physically assaulted by Roberto. She reported the incident to the police in
Guanajuato.
[4]
In
February 2009, the Applicant moved back to Mexico City. On February
28, 2009, she was abducted and raped by Roberto and two other men. Roberto
threatened to kill the Applicant if she reported the incident to the police.
[5]
She
fled from Mexico on March 9,
2009, and filed a refugee claim on May 6, 2009.
II. Decision
of the review tribunal
[6]
In
its decision, the Board analyses the issue of state protection and states that
Mexico is in effective control of its territory and has in place a functioning
security force to uphold the laws and constitution of the country. After
analysing the general principles, the Board concludes that the Applicant has
not provided clear and convincing evidence that, on a balance of probabilities,
state protection in Mexico is inadequate.
[7]
The
Board notes that the Applicant made minimal efforts to seek protection in Mexico. She only
reported Roberto once to the authorities. She followed up on the denunciation
and was told that news would be sent by mail. However, the Board states that
there is no evidence to indicate that the police in Guanajuato were not
investigating the claimant’s allegations. The Applicant testified that she did
not denounce Roberto’s action after the August 2008 attack in the bar, as she
did not think the police would do anything. She gave the same reasons to
explain why she did not report the rape in 2009 but also added that she feared
Roberto. The Board also mentions its doubt about the connections between
Roberto and the police.
[8]
The
Board concludes that the Applicant did not take all reasonable steps to seek
state protection in Mexico before seeking international protection in Canada. The Board
adds that the Applicant is speculating that Roberto was a police officer, as
this information was never confirmed. Regarding documentary evidence, the Board
recognizes that Mexico has some difficulties addressing the criminality and
corruption that exists within the security forces in Mexico. However,
those deficiencies are systemic and many government legislative frameworks have
been implemented to resolve the issue. Particularly, the Board mentions that Mexico has enacted
civil, administrative and criminal legislation which prohibits domestic
violence and many sanctions, such as detention or fines, are in place. New
legislation allows victims to seek protection or restraining orders, and
provides various remedies to the victim.
III. Questions in issue
[9]
The issues
are as follows:
(1) What is the applicable
standard of review?
(2) Did the Board err in
concluding that the Applicant was able to receive appropriate state protection
in Mexico and failed to take all
reasonable steps to access that protection?
IV. Analysis
A.
Standard
of review
(1) What
is the applicable standard of review?
[10]
In
Dunsmuir v New Brunswick, 2008 SCC 9, 372 NR 1 [Dunsmuir], the
Supreme Court of Canada held, at paragraph 62, that the first step in
conducting a standard of review analysis is to “ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of defence
to be accorded with regard to a particular category of question”: see also Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa],
per Justice Binnie, at paragraph 53.
[11]
It
is clear that, as a result of Dunsmuir and Khosa, the Refugee
Protection Division’s determinations with respect to state protection are to be
reviewed on a standard of reasonableness: Hinzman v Canada (Minister of Citizenship
and Immigration),
2007 FCA 171, para 38.
[12]
In
reviewing the Board's decision, using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, above, at para 47; and Khosa, above, at
para 59.
(2) Did
the Board err in concluding that the Applicant was able to receive appropriate
state protection in Mexico and failed to take all reasonable steps to
access that protection?
B. Applicant’s
arguments
[13]
The
Applicant argues that there is no basis to the Board’s conclusion that it was
merely speculative that her former boyfriend was a police officer, as this was
the information given to the applicant by her former boyfriend. She cites the
decision of Valtchev v Canada (Minister of Citizenship
and Immigration), [2001] FCJ No 1131, with respect to plausibility findings
and adds that this conclusion of the Board is essential to the state protection
finding it reached.
[14]
The
Applicant argues that she did not take any steps to report the incidents to the
police because of the threat to her life and safety. Furthermore, the Board did
not take into account the effects of the rapes on the Applicant’s emotional and
psychological condition. She cites Garcia v Canada (Minister of
Citizenship and Immigration), 2007 FC 79, to support her argument that
the effects of such traumatic experience should be addressed by the Board.
[15]
The
Applicant also notes that it is perverse for the Board to suggest that she
should have filed a claim in Mexico City for an assault that
happened in Guanajuato because Roberto was living there. Furthermore, she
states that the Board found that the police authorities could be investigating
the complaint, even though she did not hear from them in the three months she
was in Mexico. Based on
her experience and documentary evidence, it was reasonable for the Applicant to
believe that state protection would not be forthcoming and therefore, she had
no further obligation to approach the authorities (Canada (Attorney General)
v Ward, [1993] 2 S.C.R. 689).
[16]
The
Applicant argues that the fact that Mexico adopted laws that, in
theory, would protect the women, is not sufficient for a finding that state
protection is available if the claimant was to return to Mexico. She cites Skelly
v Canada (Minister of
Citizenship and Immigration), 2004 FC 1244, to support her argument
that state protection for victims of domestic violence is ineffective.
[17]
Finally,
the Applicant refers to several documents that were not mentioned by the Board
in its decision, these documents support her position that state protection is
not available to women suffering from domestic abuse.
C. Respondent’s
arguments
[18]
The
Respondent argues that the Board, after a thorough assessment of the
documentary evidence, concluded that there was adequate state protection for
the Applicant, in Mexico, and reviews the evidence considered by the
Board in its analysis. The Respondent mentions that the Board acknowledges that
there remain problems with domestic violence in Mexico and argues
that this information was taken into account by the Board when it rendered its
decision.
[19]
The
Respondent also argues that the Board’s finding with regards to the
investigation was reasonable, as the Applicant did not adduce any evidence to
demonstrate that the authorities were not investigating her complaint.
[20]
As
their second argument, the Respondent states that the Applicant failed to take
all reasonable steps, in the circumstances, to seek state protection. The
Respondent adds that the Board did not find fault with the Applicant for
reporting the incident in Guanajuato, but it noted that she had not reported
the incident that happened in Mexico City, where she and Roberto
lived. The Applicant did not submit any evidence explaining how the rape
prevented her from reporting the situation to the police.
[21]
Finally,
the Respondent claims that the Applicant failed to rebut the presumption of
state protection, with clear and convincing evidence, as she did not have any
knowledge about Roberto ‘s occupation nor where he worked. Even if he were a
police officer, the Applicant did not adduce convincing evidence that the
authorities would not be able to protect her.
[22]
A
decision raising such an issue was rendered by Justice Near in Martinez v Canada (Minister of
Citizenship and Immigration), 2010 FC 1200, [2010] FCJ No 1495 (QL). In
that case, the Applicant was a woman from Mexico who feared
her abusive husband, who was a member of the police force. With regards to
state protection, Justice Near wrote, at paragraphs 29 to 32, that :
In my view, the Applicant has confused
where the onus lies in the matter of state protection. The Board is not obliged
to prove that Mexico can offer the Applicant effective state protection,
rather, the Applicant bears the legal burden of rebutting the presumption that
effective state protection exists by adducing clear and convincing evidence
which satisfies the Board on a balance of probabilities (Carillo v. Canada (Minister
of Citizenship and Immigration), 2008 FCA 94, 69 Imm. L.R. (3d) 309 at
para. 30). The quality of the evidence will be proportional to the level of
democracy of the state (Avila v. Canada (Minister of Citizenship and
Immigration),
2006 FC 359, 295 F.T.R. 35 at para.30). And, as Justice Russell Zinn noted in Sandoval
v. Canada (Minister of Citizenship and
Immigration),
2008 FC 868, [2008] F.C.J. No. 1084 (QL) at para. 16:
Where, as in this case, protection was
sought and provided, an applicant will have a challenge to show that it was an
aberration unless there has been some material change in personal or state
circumstances.
Here the Board found that Mexico is a functioning democracy.
This Court has recently held that Mexico is a democracy with the willingness
and ability to protect its citizens (Alvarez v. Canada (Minister of Citizenship and
Immigration),
2010 FC 197, at para.20) The Board also found that the Applicant had
successfully sought protection from the Mexican authorities. If anything has changed
in the decade plus since the Applicant fled Mexico, the documentary evidence before the
Board suggests that the awareness level and ability of the government to
appropriately handle the issues surrounding domestic violence have improved.
Although one needs to keep in mind that
the Federal Court of Appeal decided Villafranca, above, before the
Supreme Court reached their decision in Ward, above, the proposition that state
protection need not be perfect is still a correct one. The Federal Court of Appeal
confirmed in Carillo, above, that the test for a finding of state
protection is whether that protection is adequate, rather than whether it is
effective, per se (Carillo, above, at para. 32).
In the present case, the Board determined
that the Applicant failed to adduce persuasive evidence that protection would
be less forthcoming in the future than it was the three times she sought aid
from the authorities in the past. In this case, absent any failure by the Board
to appreciate the totality of the evidence, it was reasonable and open to the
Board to conclude that the Applicant failed to rebut the presumption of state
protection. The Board did not err in applying the test.
[23]
In
that case, Justice Near dismissed the application. However, it is important to
note that the police had intervened three times after the Applicant’s
denunciation of the situation to the authorities.
[24]
Furthermore,
as mentioned by Justice Pinard in Fuentes v Canada (Minister of
Citizenship and Immigration), 2010 FC 457, [2010] FCJ No 659 (QL), at
para 14:
[T]he applicant is required to seek
protection from protective agencies other than police because those agencies
are set up to protect women in the position of the applicant. The law is now
settled that local failures to provide effective policing do not amount to a
lack of state protection, and that an applicant may seek redress and protection
from protection agencies other than police. In The Minister of Citizenship
and Immigration v. Maria Del Rosario Flores Carrillo, 2008 FCA 94, the
Federal Court of Appeal, applying the proper principles to the case before it,
stated as follows:
[31] The Board acknowledged the
prevalence of domestic abuse in Mexico.
It then reviewed the various steps taken by the authorities to address the
issue: see the Board's reasons at pages 43 to 49 of the appeal book.
[32] It proceeded to review the law
governing the presumption of state protection. It stated that local failures to
provide effective policing do not amount to a lack of state protection. Relying
upon the findings of this Court in Kadenko v. Canada (Solicitor General)
(1996), 143 D.L.R. (4th) 532, leave to appeal to the Supreme Court of Canada
refused on May 8, 1997, it stated that “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”. It found that Mexico is a fledgling democracy governed by the
rule of law.
[33] The Board found that the respondent
had failed to make determined efforts to seek protection. She reported to
police only once during more than four years of alleged abuse.
[34] In addition, the Board concluded
based on the evidence before it that the respondent did not make additional
effort to seek protection from the authorities when the local police officers
allegedly did not provide the protection she was seeking. She could have sought
redress through National or State Human Rights Commissions, the Secretariat of
Public Administration, the Program against Impunity, the General Comptroller's
Assistance Directorate and the complaints procedure at the office of the
Federal Attorney General.
[35] Finally, the Board noted the
respondent's omission to make a complaint about the involvement of the abuser's
brother, who allegedly is a federal judicial police officer, when the evidence
indicates that substantial, meaningful and often successful efforts have been
made at the federal level to combat crime and corruption.
[36] Considering the principles relating
to the burden of proof, the standard of proof and the quality of the evidence
needed to meet that standard defined as a balance of probabilities against the
factual context, I cannot say that it is an error or unreasonable for the Board
to have concluded that the respondent has failed to establish that the state
protection is inadequate.
See also Florea v. Minister of
Employment and Immigration, [1993] F.C.J. No. 598 (C.A.) (QL); Ortiz v.
Minister of Citizenship and Immigration, [2002] F.C.J. No. 1558 (T.D.)
(QL); Pal v. Minister of Citizenship and Immigration, [2003] F.C.J. No.
894 (T.D.) (QL); Nagy v. Minister of Citizenship and Immigration, [2002]
F.C.J. No. 370 (T.D.) (QL); Zsuzsanna v. Minister of Citizenship and
Immigration, [2002] F.C.J. No. 1642 (T.D.) (QL), and Szucs v. Minister
of Citizenship and Immigration, [2000] F.C.J. No. 1614 (T.D.) (QL).
[25]
Justice
Pinard dismissed the application for judicial review.
[26]
The
Applicant, in the present case, has also relied on the following cases Bautista
v Canada (Minister of Citizenship and Immigration), 2010 FC 126 [Bautista],
and Lopez v Canada (Minister of Citizenship and Immigration), 2010 FC
1176, in support of her position that the Board erred, firstly in not
addressing why it considered the contradictory evidence to be irrelevant, and
secondly in support of the weigh that should had been assigned to Professor
Hellman’s report. I cannot agree with this proposition because the facts in the
present case are quite different from the facts in Bautista cited above.
Secondly, while I find the Board’s remarks with respect to Professor Hellman’s
report to be somewhat questionable that, in itself, is not sufficient to render
the Board’s decision unreasonable. I find that the Board did weigh the totality
of the evidence submitted.
[27]
In
the present case, the Applicant only contacted the authorities once with
regards to attacks and intimidation from her ex-boyfriend. She did not contact
the authorities for the other more serious incidents, nor did she discuss her
situation with a protective agency. As such, it was therefore open and
reasonable for the Board to conclude that she had not sought the protection of
the state before requesting the protection of Canada.
[28]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The application for judicial
review is dismissed.
2. No question of general
importance is certified.
"André
F.J. Scott"
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