Docket: IMM-5224-10
Citation: 2011 FC 821
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, July 4, 2011
PRESENT: The
Honourable Madam Justice Johanne Gauthier
BETWEEN:
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RICARDO DE JESUS MENDEZ CERVANTES,
VICTORIA GUADAL MONTIEL MANZO, AND
MARIAH FERNANDA MENDEZ
MONTIEL
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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
ORDER AND ORDER
[1]
In
view of the applicants’ application for judicial review of the decision of the
Refugee Protection Division (RPD) rejecting their refugee protection claim because
they had not established that their state, Mexico, was unable
to protect them from Mr. Munoz.
[2]
Having
reviewed the documentation filed by the parties, including the certified
record, and having considered the oral submissions of their counsel.
[3]
Having
noted that the RPD raised several points affecting the credibility of the
principal applicants, specifically their “complaint with a human rights
organization”, the death threats presumably uttered against Mr. Mendez
Cervantes on April 28, 2008, and how this applicant could have apparently left
his country while leaving behind his wife who, according to him, was being
terrorized following the theft of her clothing and underwear (and their
sporadic reappearances accompanied by obscene messages) and while a police
officer or former police officer, Mr. Munoz, was presumably obsessed with her.
[4]
In
fact, at paragraph 17 of its decision, the RPD indicated that, in its opinion,
the only complaint that was made by the applicants was that of October 14, 2007
(theft committed shortly after their arrival in Tijuana following Mr.
Mendez Cervantes’ removal from the United States where the two spouses
had lived illegally and were married). It also found that their testimony “is not trustworthy…[it] finds
the testimony implausible in terms of the key components of their claim”,
including the confusing explanations and the contradictions concerning their
assailant, and the reasons why he was able to find them again in Mexico City
(Federal District) and subsequently in Hidalgo.
[5]
These
comments and findings were not contested by the applicants in their memorandum
or at the hearing. In fact, the applicants instead focused their submissions on
the RPD’s analysis and finding that they had not presented clear and convincing
evidence that the presumption of state protection did not apply and that they had
left their country without having tried to take the appropriate reasonable
steps to obtain that protection. In fact, according to them, the RPD
disregarded the documentary evidence and did not take into account the
seriousness of the events they experienced. They argue that an in-depth review
of the record will enable the Court to find that they did everything that could
and should reasonably have been done in the circumstances.
[6]
Having
considered that the standard of review applicable to the issues described above
is reasonableness, since the applicants are raising question of fact and
questions of mixed fact and law (Dunsmuir v. New Brunswick, 2008 SCC 9,
at paras. 51, 53 [Dunsmuir]; Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, at para. 38; Canada (Minister of
Citizenship and Immigration) v. Gondara, 2011 FC 352, at para. 25).
[7]
Having
determined that despite the fact that the RPD indicated at paragraph 9 that its
finding concerning state protection would apply even if the alleged facts were
true, the Court cannot disregard its finding concerning the lack of credibility
of the principal applicants’ testimony. This is even more important when we
consider that, given the applicable standard of review, the Court cannot simply
substitute its own assessment of the evidence for that of the decision-maker. All
it can do is determine whether the decision falls within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law”
and meets the test of transparency, intelligibility and justification (Dunsmuir,
at para. 47).
[8]
The
grounds on which the applicants are claiming protection were not very specific.
In fact, Mr. Mendez Cervantes, in his Personal Information Form, indicated that
he is a member of an unidentified social group, while at the hearing he stated
that his fear is instead based on criminality. Even though he originally said
it concerned Mr. Munoz’s sexual obsession with his wife, he also said that it
results from an altercation between himself and Mr. Munoz at the police station
on February 14, 2008, when he was again complaining that the police had not
found the person responsible for the theft and the obscenities uttered against
his wife. On February 25, 2008, he allegedly complained about Mr. Munoz’s attitude
on February 14 with a human rights organization and it was after that that his
problems started. As for Ms. Montiel Manzo, she says that she fears Mr. Munoz
(police officer or former police officer from Tijuana) and she is making her
claim based on her membership in the group of Mexican women who are victims of
violence or, as the protection officer indicated at the hearing before the RPD,
as a victim of crime. However, she testified that during her rape, it was her
husband that Mr. Munoz was looking for. He also allegedly uttered threats
against her granddaughter.
[9]
That
is why the RPD focused its analysis (pp. 7 to 11) on the measures taken by the
Mexican state to counter corruption among police officers and public servants
and to improve staffing procedures, as well as the measures taken to ensure that
citizens can denounce them, and finally those taken to protect women victims of
violence (even though the documentary evidence deals generally with spousal
violence, which is not the case here). The RPD stated that it was satisfied
after examining the documentary evidence that the state has taken important
measures that have had concrete results, even if they are clearly imperfect. At
paragraph 28, it also noted that “local failures in maintaining order in an efficient manner
do not amount to a lack of state protection”.
[10]
The
Court is satisfied that the RPD took into account the explanations given by the
applicants that, according to them, all police officers are corrupt and that
they have read in the newspapers that there is a “blue law” which requires police
officers to cover for each other, and that when they complained to the police
about their theft and the obscenities uttered against Ms. Montiel Manzo, they
(Mr. Munoz) made fun of them.
[11]
The
RPD simply found more credible the documentary evidence that indicated, among
other things, that the complaints made to the organizations established for
that purpose have led to numerous investigations and that various concrete
corrective actions had been taken, which I previously mentioned. The RPD did
not close its eyes to the imperfections of the Mexican system.
[12]
The
Court cannot find that the RPD committed a reviewable error by not expressly
referring to the document cited by my colleague Justice James Russell in Villicana
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1205 (Professor Adler Hellman’s
report). The Court notes in this respect that the said document is not included
in the certified record or in the applicants’ record and that it was not
referred to at the hearing before the RPD in the oral submissions.
[13]
International
protection was never intended or implemented as front-line protection. As indicated in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, “[t]he international community intended that
persecuted individuals be required to approach their home state…”
(at para. 18).That is why the Federal Court of Appeal recently reiterated in a
matter involving a Mexican citizen, in Carrillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, that a refugee protection
claimant has a heavy burden of proof to meet in that respect.
[14]
No
one has contested that the applicants truly believe that the complaints
concerning the central facts of this claim (rather than those concerning the
theft) would not come to anything. It is precisely because of such prejudices
that their government has implemented awareness campaigns to encourage the
public to turn to the institutions and mechanisms that it has established.
[15]
Unfortunately,
such a belief is not sufficient in itself to meet their burden of proof,
particularly pursuant to section 97 of the IRPA (see Castillo v. Canada (Minister of
Citizenship and Immigration), 2011 FC 134, at para. 31).
[16]
There
is no similarity here between the steps they claim to have taken when they were
in Tijuana to obtain help following a minor theft, the obscene messages, and the
altercation of February 14, and the total lack of steps taken with regard to
the much more serious actions described by the applicants and committed in
jurisdictions where nothing in the documentary evidence indicates that a simple
police officer
or former police officer from Tijuana would have support.
[17]
After
a thorough review of the record, I have not been convinced by the applicants of
the existence of a reviewable error. I am satisfied that the RPD’s findings in
the specific circumstances of the case and its in-depth analysis meet the
standard of reasonableness.
[18]
The
parties did not submit any questions for certification. In my opinion, this
matter does not give rise to any questions of general importance.
[19]
The
application is dismissed.
ORDER
THE COURT
ORDERS that the application be dismissed.
“Johanne
Gauthier”
Certified
true translation
Susan
Deichert, LLB
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