Date: 20110620
Docket: IMM-7006-10
Citation: 2011 FC 701
Ottawa,
Ontario, June 20,
2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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ADRIAN RUBEN DILLANES DAVILA AND
OCTAVIO GALVAN VERGARA
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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 pursuant to section72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision of the
Immigration and Refugee Board (the Board) made on October 28, 2010 where it
determined that the applicants are not Convention refugees and are not persons
in need of protection.
[2]
For
the reasons outlined below, this application shall be dismissed.
[3]
Adrian
Ruben Dillanes Davila and Octavio Galvan Vergara (the applicants) are friends
and neighbours and are both citizen of Mexico. Both
applicants rely on the same facts and allege that they are unable to return to Mexico because they
fear that they will be killed by Christian Hernandez (Christian), a
well-known member of a drug trafficking organization, Los Zetas.
[4]
The
applicants came to Canada on September 14, 2008 and made their
claims for protection on January 1, 2009.
[5]
The
Board found that the applicants testified in a
straightforward manner, and, there were no material inconsistencies or
contradictions in their testimony. It also accepted their explanations for
the delay in making their claims.
[6]
The
Board examined whether or not there was a nexus to a Convention ground
and determined that the harm feared by the applicants (criminality) does
not fall within one of the grounds enumerated in the Convention refugee
definition.
[7]
The
Board then went on to consider whether they could obtain protection under
section 97 of the Act and found that the applicants did not rebut the
presumption that Mexico is capable of protecting them. The
Board noted that the applicants did not provide “clear and convincing” evidence
that protection would not be forthcoming and referred to (Canada
(Minister of Citizenship and Immigration) v Kadenko, Ninal (FCA, no
A-388-95), 1996 143 DLR (4th) 532 (FCA)) for the proposition
that state protection is directly proportional to the level of democracy in the
state in question.
[8]
Both
parties agree that the standard of review for questions of facts
should be reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47). The Court agrees, and as such, will
only intervene if the Board’s decision is found to be outside of the range of
possible, acceptable outcomes that are defensible in respect of the facts and
the law (Dunsmuir, at para 47).
[9]
The
applicants submit that the Board erred in law when it
said that “as long as the government is taking serious steps to provide or
increase protection for individuals, the individual must seek state
protection”. The applicants state that simply because a government is taking
serious steps to provide or increase protection for individuals, it does not
necessarily mean that a particular refugee claimant must seek state protection.
For that error, the standard of correctness should apply. The
applicants underscore that an applicant is only required to approach his or her
state for protection in situations in which protection might be reasonably
forthcoming (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at 724).
State protection must be adequate and effective and an analysis of the
personal situation of the applicants must be conducted (Gjoka v Canada (Minister of
Citizenship and Immigration), 2010 FC 426, paras 24-25).
[10]
The
applicants do not agree with the Board's determination that Mexico is a
"well established democracy, they cite Diaz De Leon v Canada (Minister of
Citizenship and Immigration), 2007 FC 1307 to argue that such is
not the case.
[11]
The
applicants maintain that in the case at bar, it is pure speculation by
the Board to find that Christian’s release from prison and his exoneration 1.5
years after his initial arrest was due to the applicants’ departure from the
country one week after his arrest. Furthermore, the applicants state that
the Board made a reviewable error when it implied that the Witness Protection
Program in Mexico would
provide adequate protection for them. The applicants submit that the Board did
not review the country condition documents or conduct any assessment into
either the adequacy or effectiveness of the Witness Protection Program. They
refer to the Response to Information Request (RIR) in the National
Documentation Package Exhibit F of the certified tribunal record (Applicants’
Memorandum of Argument para 27, pages 163-165), which they submit
clearly outlines some of the deficiencies with the Witness Protection Program in
Mexico.
[12]
The
Court is of the opinion that the decision cannot be qualified as being unreasonable.
The Board mentioned contradictory evidence on country conditions in Mexico and
explained why it chose the one that show that the government of Mexico had taken
serious steps to increase protection. It also gave details of why it was not
satisfied that the applicants had not rebutted the presumption of state
protection.
[13]
The
Court agrees that the last sentence of paragraph 16 of the decision "…
Consequently, as long as the government is taking serious steps to provide or
increase protection for individuals, then the claimants must seek state
protection" is troublesome if taken in isolation. But, the Board
explained further on in its decision what it meant by state protection in Mexico.
[14]
It
analyzed the particular circumstances of the applicants in the case at bar (see
paras 17-28) and was not persuaded that Mexico would not be
reasonably forthcoming with state protection if the applicants had sought it. It
is not the role of this Court to re-weigh the facts unless it is not
supported by the evidence.
[15]
In
regards to the Witness Protection Program in Mexico, even if the Court assumes
without deciding that the Board made an error in not mentioning the
deficiencies in that program, since that determination is not central to the
decision (decision, para 14), the Court is not ready to disturb the
Board's conclusion that the applicants are not persons in need of protection if
returned to their country.
[16]
Finally,
the Court finds that the inference made by the Board that Christian's release
from prison and his exoneration may have been the consequence of the applicants'
departure from Mexico was logical and open to the Board based on the
facts it had before it. The Board at paras 17 to 20 gave cogent reasons why it
came to such a conclusion. Again, no reviewable error can be detected.
[17]
The
Court's intervention is not warranted.
[18]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that:
1.
The
application for judicial review be dismissed.
2.
No
question is certified.
“Michel
Beaudry”
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