Docket: IMM-444-11
Citation: 2011 FC 939
Ottawa, Ontario, July 27, 2011
PRESENT: The Honourable Mr. Justice
Mandamin
BETWEEN:
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JESICA JANNETTE VALENCIA
GUTIERREZ AND JUAN
MANUEL SANTAMARIA CERVANTES
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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]
The Applicants, Ms. Jesica Jannette Valencia
Gutierrez and her spouse, Mr. Juan Manuel Santamaria Cervantes, apply for judicial
review of the decision of the Immigration and Refugee Board’s Refugee
Protection Division [RPD] finding that the Applicants were not Convention
Refugees or persons in need of protection.
[2]
Ms. Valencia, the principal Applicant, testified she
received death threats from Los Zetas gang members after her attempts to report
the murder of her brother-in-law, a police officer, were met with inaction by
the local police.
[3]
The RPD found the Applicants to be generally credible, but
found it implausible that the police refused to investigate the incident on the
basis that country documents reported that police forces actively did
investigate police murders. The RPD found that the Applicants, being victims of
criminality, lacked the required nexus to a ground listed under the Convention
Relating to the Status of Refugees [the Convention] and that the Applicants
had internal flight alternatives [IFA] available to them in Mexico City and
Guadalajara. In coming to this conclusion, the RPD found that state protection
would be reasonably forthcoming to them in both cities, based on documentary
evidence that the government was making serious efforts to address police
problems.
[4]
The Applicants submit that the RPD erred in finding an IFA
in Mexico City or Guadalajara, as the
evidence indicates that the Los Zetas criminal gang is very sophisticated and
active throughout Mexico. The Applicants take issue with the
RPD’s state protection analysis. Finally, the Applicants dispute the RPD’s
implausibility finding, submitting that their personal experience showed that
state protection was not forthcoming.
[5]
I conclude that the RPD erred in coming to its decision on
the question of the availability of state protection in the IFA and grant the
application for judicial review for the following reasons.
Background
[6]
The Applicants are citizens of Mexico.
The principal Applicant’s brother-in-law, a police officer, had been approached
by Los Zetas gang to work with them but he refused. He then transferred from
Michoacan state to Mexicali, but was again confronted by Los Zetas
members and was murdered when he again refused to cooperate with them.
[7]
At her brother-in-law’s funeral, the principal Applicant
spoke of her intention to report the murder to the police. Her efforts to
report the murder to the police were ignored.
[8]
The principal Applicant believed her remarks at the funeral
were overheard by gang members and she received death threats. In September
2007, gang members attempted to abduct the principal Applicant. Her father
intervened to prevent her kidnapping but was injured as a result. The principal
Applicant tried to report the adduction attempt but the local police would not
act on her complaint.
[9]
The principal Applicant and her husband left Mexico in
November 2007 and filed claims for refugee protection in January 2008.
Decision under review
[10]
The Immigration and Refugee Board, Refugee Protection
Division member refused the Applicants’ claim for refugee protection in January
2011.
[11]
The RPD found the Applicants credible regarding the events
surrounding the murder of the brother-in-law and the threats to the principal
Applicant. However, the RPD found implausible the Applicants’ claim that the
police at all levels refused to investigate the incident because country
documents indicated that police forces actively investigate murders of police
officers.
[12]
The RPD also found that the Applicants’ fear of persecution
by criminals did not fall into one of the Convention nexus categories, as fear
of criminality does not constitute membership of a social group defined under
the Convention.
[13]
Finding that the Applicants did not meet the requirements
for s.96 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 [IRPA],
the RPD considered s.97 and the question of an IFA in Mexico.
[14]
The RPD found that an IFA was available for the Applicants
in Mexico City or Guadalajara. The
RPD considered the Applicants’ claim that they would not be safe anywhere in Mexico from
Los Zetas gang members but held that the documentary evidence demonstrates that
state protection would be reasonably forthcoming to them in either of the
cities.
[15]
The RPD relied on national documentation information that Mexico was
making serious efforts to professionalize the police and address problems of
corrupt officials, and that public officials are punished for misconduct. The
RPD listed some of the state protection resources it considered available in
particular the both cities specifically identifying the Federal Investigative
Agency, also known as the AFI. As such the RPD found there was no possibility
of the Applicants being persecuted or harmed in Mexico City or Guadalajara
because of the availability of state protection.
[16]
The RPD also found that it would not be unduly harsh for
the Applicants to move to Mexico City or Guadalajara,
noting that the male Applicant had prior experience as a cabinet maker and
would have no significant impediment in finding work in either city.
[17]
The RPD concluded the Applicants were neither Convention
refugees nor persons in need of protection and rejected their claims.
Legislation
[18]
The Immigration and Refugee Protection Act, S.C.
2001, c. 27 provides:
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96. A Convention refugee is a person who, by reason of a well-founded
fear of persecution for reasons of race, religion, nationality, membership in
a particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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97. (1) A person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not have
a country of nationality, their country of former habitual residence, would
subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country…
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97. (1) A qualité de personne à protéger la personne qui
se trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
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Issues
[19]
The Applicants raise the following issues:
i.
Did the RPD err in dismissing the Applicants’ claim that
the police at all levels would not investigate the brother-in-law’s murder?
ii.
Did the RPD err in its assessment of the internal flight
alternative issue?
iii.
Did the RPD err in its assessment of state protection?
[20]
The Respondent submits that the findings were supported by
the evidence and were not unreasonable.
Standard of Review
[21]
The standard of review for findings of an IFA is
reasonableness: Esquivel v. Canada (Minister of Citizenship and
Immigration), 2009 FC 468 and Dunsmuir v New
Brunswick, 2008 SCC 9.
[22]
Reasonableness is also the applicable standard of review
for the RPD’s findings on state protection: Hidago v Canada
(Minister of Citizenship and Immigration), 2009 FC 707 at para
30; Perez v Canada (Minister of Citizenship and
Immigration), 2009 FC 1029 at para 25.
Analysis
Implausibility Finding
[23]
The Applicants take issue with the RPD’s finding that it
was implausible that the police would have refused to deal with the Applicants’
report of their relative’s murder by relying on one document saying that the
police would investigate murders of police officers but not accepting the
Applicant’s sworn testimony regarding the lack of police investigation together
with supporting documentary evidence of police corruption.
[24]
The Respondent submits that the RPD may make adverse
findings of credibility on the basis that the evidence is simply implausible:
Aguebor v Canada (Minister of Employment and
Immigration) (1993), 160 NR 315 (FCA) at para 4.
[25]
The Respondent points out that although the principal
Applicant reported in her Personal Information form (PIF) that the family
learned of the killing from the police investigation report, she says she was
warned that she would be killed if she reported the crime to the police. The
Respondent argues that this appears to be a contradiction, given that a police
investigation report for the murder already existed at the time of the funeral.
[26]
The Court should not re-weigh the evidence. Justice Binnie,
speaking for the majority in Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 61, stated that finding it
unreasonable for a decision-maker to weigh one factor more heavily than another
factor is a form of reweighing the evidence:
[27]
The RPD found that Mexican police forces do actively
investigate murders of police and security officials. The document on which the
RPD relied in coming to this conclusion is a 2007 article by Benjamin Nelson
Reames titled “A Profile of Police Forces in Mexico.” The article
refers to the murders of police officers:
…in early 2005 Fox reorganized and revamped the federal
public security apparatus on his own in the wake of three incidents: the
lynching of several police officers, a massacre in Cancun (related to
police corruption), and narco-related murders of prison officials. (page 117).
Widely seen as responding to the lynchings of federal
police officers in the outskirts of Mexico City, President Fox revamped the federal public security
apparatus. (page 125)
(emphasis added)
[28]
I note that there was evidence before the RPD of a police
investigation report of the brother-in-law’s murder. The principal Applicant
had stated in her Personal Information Form [PIF] that “The family learned of
this event from the police investigation report.” Thus, there is evidence in
the principal Applicant’s own PIF statement upon which, in addition to the
country documentation, the RPD could find it implausible the principal
Applicant’s claim that the police would not investigate the murder of a
policeman. The RPD considered the Applicants’ testimony and the documentary
evidence.
Internal Flight Alternative
[29]
The availability of an IFA is explained in Thirunavukkarasu
v Canada (Minister of Employment and
Immigration) [1994] 1 F.C. 589 (FCA) at para 13:
It is not a question of whether in normal times the refugee
claimant would, on balance, choose to move to a different, safer part of the
country after balancing the pros and cons of such a move to see if it is
reasonable. Nor is it a matter of whether the other, safer part of the country
is more or less appealing to the claimant than a new country. Rather, the
question is whether, given the persecution in the claimant's part of the
country, it is objectively reasonable to expect him or her to seek safety in a
different part of that country before seeking a haven in Canada or elsewhere.
Stated another way for clarity, the question to be answered is, would it be
unduly harsh to expect this person, who is being persecuted in one part of his
country, to move to another less hostile part of the country before seeking
refugee status abroad?
(emphasis added)
[30]
The Applicants dispute the reasonableness of the RPD’s
conclusion of the availability of an IFA in Mexico City or Guadalajara.
The Applicants point out that they had testified that:
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the Los Zetas gang is everywhere in Mexico;
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they had heard of Los Zetas gang members being present in
Mexico City and Guadalajara; and
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they could not relocate within Mexico due
to criminality throughout the country.
[31]
In addition, the Applicants submit that the documentary
evidence supports their position. The Immigration and Refugee Board’s Response
to Information Request [RIR] noted that:
Los Zetas is “the most technologically advanced,
sophisticated cartel operating in Mexico” . . . Los Zetas are present in 13 Mexican states and in
43 cities in the US … The area they cover extends from El Paso to the US/Mexico
border, south through the state of Veracruz and east through the state of
Tabasco, and into the Yucatan peninsula. According to NPR, their territory
crosses through the State of Chiapas and extends to Guatemala…
[32]
The Applicants submit that the RPD did not state why it
believed the gang members could not reach the Applicants in the two IFAS
despite the Los Zetas gang is reported to have an extensive network and
presence in Mexico, and is a technologically advanced,
sophisticated and violent gang. The Applicants say the RPD focused on the male
Applicant’s employment prospects instead of the threat of Los Zetas in the IFA
location.
[33]
The Respondent submits that the available evidence did not
contradict the findings of the RPD. The Respondent submits that the RPD
carefully analyzed the Applicants’ allegations but found that the evidence
presented was not sufficient to rebut the presumption that the state could
protect them in the IFA locations.
[34]
Essentially, it would appear that the RPD had accepted
widespread problems of criminality throughout Mexico, but
found that state protection from criminality was available to the Applicants in
the identified IFAs of Mexico city and Guadalajara. The
gang members threatening the principal Applicant were local members and not
likely to locate the Applicants in the large metropolitan IFAs. In that respect
the RPD’s finding is reasonable aside from the report that the Los Zetas’ reach
was widespread.
State Protection
[35]
The Applicants submit that the RPD erred in only focusing
on the efforts of the Mexican government to fight crime and corruption when
determining there was state protection. The Applicants submit that “serious
efforts” is not the correct test in assessing state protection, and instead,
the proper test requires “actual effectiveness of the protection”: Lopez v Canada
(Minister of Citizenship and Immigration) 2010 FC 1176 [Lopez].
[36]
The Respondent reminds that the onus is on the Applicant to
provide clear and convincing evidence of the state’s inability to protect them:
MPCR v Canada (Minister of Citizenship and Immigration), 2005 FC 772 at
para 45 and that one must not set too high a standard for state protection:
Ferguson v Canada (Minister of Citizenship and Immigration), 2002 FCT 1212
at para 7.
[37]
In Rovirosa v Canada (Minister of Citizenship and
Immigration) at para 8, Justice Snider noted that the determinative finding
in Lopez was not whether Mr. Lopez had made sufficient efforts to seek
protection, but rather that the RPD had failed to properly consider the
documentary evidence before it. Since it is presumed the RPD is expert in
assessing country conditions, the RPD is expected to give proper consideration
of country condition documentation.
[38]
The RPD is presumed to have considered all the
documentation before it even if not referred to: Khosa v Canada
(Minister of Citizenship and Immigration), 2010 FC 83, When the
RPD specifically refers to a country condition document, I take it that it is a
document upon which the RPD relies.
[39]
The RPD specifically refers to two country condition
documents. In addition to the cited 2007 article “A Profile of Police Forces
in Mexico” in paragraph 27 above, the RPD also refers to a 2010 article by
Daniel Sabet titled “Police Reform in Mexico: Advances and Persistent
Obstacles”.
[40]
In assessing the 2007 article, the RPD states: “As the
country documents cited in Exhibit 5 indicate that police forces do actively
investigate murders of police and security officials, I find it implausible
that police at all levels would have refused to take any action to investigate
this murder.”
[41]
What I find significant is that this article refers to the
AFI, an agency to which the RPD indicates as a police agency the Applicants may
turn to for assistance. The 2007 article stated:
The PGR reconfigured and renamed the Federal Judicial
Police which was much maligned for corruption and ineffectiveness. The Federal
Investigation Police replaced the Federal Judicial Police and, at least
nominally invited comparisons to the U.S. Federal Bureau of Investigation
(FBI). In 2004 AFI had a budget of 2.62 billion pesos, thus accounting for
about a third of PGR spending. That same year the AFI’s forces consisted of
more than 5,000 judicial police officers, 1,600 investigators, and 450
specialists.
[42]
The RPD states in its 2010 decision:
If by some chance the claimants were located by those they
fear from Michoacan, the documentary evidence demonstrates that state
protection would be reasonably forthcoming to them in Mexico City or Guadalajara.”
[43]
The RPD reasoned:
I agree with counsel and the claimants that criminality and
corruption do exist throughout Mexico. While the claimants fear that the criminals and public
officials can commit criminal or corrupt acts with impunity, country documents
show that Mexico is making serious efforts to professionalize the police and address
problems of corrupt officials. There are many state agencies that address
criminality and corruption to assist Mexicans in obtaining state protection.
The documentary evidence also shows that public officials, including the police
and the army, are punished for their misconduct.
Furthermore, there are many resources available to lodge a
complaint in Mexico City or Guadalajara such as the AFI, the Federal Investigative Agency, whose
mandate includes dealing with corruption in police and other officials.
(emphasis added)
[44]
However, when reading the 2010 article, Police Reform in
Mexico: Advances and Persistent Obstacles, cited by the RPD, one finds the
following passages reporting problems besetting the AFI:
The centerpiece of the Fox era police reform, however, was
the dissolution of the scandal ridden PJF and the creation of what was intended
to be a new model of professional investigative policing, the Federal
Investigations Agency (Agendcia Federal de Investigaciones – AFI).
…
… News reports suggest a decline in the AFI’s ability to
carry out its functions due to a drop in personnel, resources, and
infrastructure. Much of the AFI’s newer recruits transferred over to the SSP,
leaving critics to allege the remaining officers were holdovers from the old
and discredited Federal Judicial Police. …
Second, when the AFI was created in 2001 it was heralded as
a new model of policing and the solution to Mexico’s policing problems. The subsequent
dissolution of the agency seemed to repudiate this message and increased
skepticism towards yet another police force.
…
(emphasis added)
[45]
The AFI appears to have started out with great promise but
by the time the Applicants had need of state protection, the AFI was in serious
decline. Reviewing the timeline of events, the attempted abduction of the
principal Applicant occurred in 2007 and the Applicants fled Mexico 2008
because they feared the Los Zetas gang and did not believe state protection was
available to them. They maintained this belief in 2010 when the RPD issued its
decision finding the AFI was a police agency the Applicants could turn to for
protection. The 2007 Reames article reported on the 2001 creation of the AFI
but by 2010 the Sabet article was reporting on its “dissolution”.
[46]
It is clear to me that the RPD misinterpreted the country
documents it relied upon in its state protection analysis in its IFA analysis.
The very country documents cited by the RPD support the Applicants’ fears
rather than the RPD’s assurances of the availability of state protection.
[47]
I conclude that the RPD misinterpreted the country documents
it relied upon. In such circumstances, the application for judicial review
succeeds.
Conclusion
[48]
I grant the application for judicial review. The matter is
to be referred for re-determination by a differently constituted panel.
[49]
Neither the Applicants nor the Respondent proposed a
question of general importance for certification and I do not certify any
question.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
The application for judicial review is granted and the
matter is remitted for reconsideration by a differently constituted panel.
2.
I do not certify a question of general importance.
"Leonard S. Mandamin"
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