Date: 20110720
Docket: IMM-474-11
Citation: 2011 FC 907
Toronto, Ontario,
July 20, 2011
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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LUIS ALFREDO OLIVERA LECHUGA
MARIA DEL ROSARIO GOMEZ HERNANDEZ
MICHELLE AYLIN OLIVERA GOMEZ
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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 of a
decision of a Member of the Refugee Protection Division dated December 13, 2010
wherein the Applicants’ claim for refugee protection was rejected. For the
reasons that follow I am dismissing this application.
[2]
The principal Applicant is an adult male citizen
of Mexico the other Applicants
are his wife and minor aged daughter. In brief they fear persecution and risk
of harm from a person identified as Alma and a group known as La Familia. The
principal Applicant borrowed money from Alma presumably to assist in maintaining his small business. He could
not repay. Alma was a loan
shark who pursued the principal Applicant and his family. At one point the principal
Applicant says he was beaten. At another point it is alleged that an attempt
was made to abduct his daughter. The principal Applicant and his family moved
to different locations in Mexico and made certain complaints to the police. They fled to Canada and sought refugee protection.
[3]
The decision of the Member turns on two issues,
the adequacy of state protection in Mexico and the efforts made by the Applicants to avail themselves of that
protection. On the evidence presented as to state protection the Member
concluded:
Mexico is making serious efforts to address the problem of criminality,
and that the police are both willing and able to protect victims. Police
corruption and deficiencies, although existing and noted by the Board, are not
systemic. I am of the view in canvassing the documentary evidence, that, as a
whole, the issues of corruption and deficiencies are being addressed by the
state of Mexico.
[4]
As to efforts made to seek police protection the
Member concluded:
In this
particular case, there is no information to suggest that police were not making
genuine and earnest efforts to investigate the claimant’s allegations and
apprehend the claimant’s perpetrator. The claimant’s choice to leave Mexico may
have resulted in the investigation being delayed or abandoned, given that he,
as the victim, was a key witness.
. . .
I reject a
lack of state protection as Maria did call the police but did not remain to
give a report and did not make any further attempts to follow up with the
police. Therefore, I conclude Maria has demonstrated only the merest attempt to
avail herself of the protection of the police. Without further contact with the
police, the police would be helpless in rendering support. Maria’s actions do
not support a contention of a lack of state protection.
[5]
In summarizing these conclusions the Member
wrote:
[22]
Therefore, having considered the totality of the evidence, I find that the
claimant, in the circumstances of this case, has failed to rebut the
presumption of state protection with clear and convincing evidence and that the
claimant did not take all reasonable steps in the circumstances to avail
himself of that protection before making a claim for refugee protection.
Therefore, I am not persuaded that the state of Mexico would not be reasonably forthcoming with state protection, should
the claimant seek it.
[6]
Applicants’ Counsel raised four issues in her
Memorandum and at the hearing, the first three of which are directed to the
adequacy of state protection, the fourth is directed to whether the Applicants’
made proper efforts to seek such protection:
15.
The Board Member made at least
four errors:
Issue 1: She erroneously characterized the test
for state protection as ‘adequate,’ rather than ‘effective,’ as mandated by the
Supreme Court in Ward;
Issue 2: She did not acknowledge a diminished
presumption of state protection for Mexico as merely a developing democracy;
Issue 3: She ignored relevant and directly
contradictory evidence on the availability of state protection; and
Issue 4: Her assessment of the claimants’
efforts to obtain state protection was unreasonable.
[7]
With respect to the adequacy of state protection
the Applicants bear the burden of rebutting the presumption of state protection
by clear and convincing evidence on the balance of probabilities (Carillo v
Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at paragraph
30). Each case concerning the adequacy of state protection must be examined
individually and on its own merits (Soto v Canada (Minister of Citizenship and Immigration), 2010 FC 1183 at paragraph 30).
[8]
Here the Member concluded that there was
adequate state protection available to the Applicants in Mexico. This finding is different from
other decisions of the Board where a Member found only that Mexico was improving or making efforts. In
the present case there was a finding that there was adequate protection.
Applicants’ Counsel pointed out parts of the evidence that would lead to a
contrary conclusion. Respondent’s Counsel pointed to evidence that supported
that conclusion. The Member acknowledged that there was evidence on both sides
of the issue. I am not prepared to reweigh that evidence. I have not been
persuaded that the Member made a palpable and overriding error in reaching the
conclusion that there was adequate state protection.
[9]
As to whether the Applicants made sufficient
efforts to avail themselves of state protection, the findings of the Member are
not unreasonable (see e.g. Canada (Minister of Citizenship and Immigration) v Carillo, 2008 FCA at paragraphs 31 to 36). This Court will not interfere
with those findings.
[10]
No party required certification.
JUDGMENT
FOR THE REASONS PROVIDED;
THIS COURT ORDERS AND ADJUDGES that:
1.
The application is dismissed;
2.
No question for certification;
3.
No order as to costs.
“Roger T.
Hughes”
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