Docket:
IMM-7536-10
Citation:
2011 FC 1065
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario,
September 9, 2011
PRESENT: The Honourable
Mr. Justice Shore
BETWEEN:
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MARIA ADRIANA TORRES
MARTINEZ CANDIDO JULIAN TORRES MARTINEZ ANGEL ADRIAN TORRES TORRES
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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
I. Introduction
[1]
For
a state to be in a position to protect its citizens, it needs to know whom or
what to protect its citizens from. Without knowing who the persecutors are,
even states that should (according to the terms of the classic decision in Canada
(Minister of Employment and Immigration) v. Villafranca, [1992]
F.C.J. No. 1189 (QL/Lexis)) protect their citizens, cannot do so.
II. Judicial proceeding
[2]
This
is an application for judicial review submitted under subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of
a decision by the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, rendered on November 29, 2010, that the
applicants are not refugees or persons in need of protection, because there was
no clear and convincing evidence to show, on a balance of probabilities, that
in their case state protection was inadequate.
III. Facts
[3]
The
applicants are Maria Adriana Torres Martinez, born on July 1, 1984, her
spouse, Candido Julian Torres Martinez, born on February 2, 1984, and
their son, Angel Adrian Torres Torres, a minor, born on September 3, 2006.
They are all Mexican citizens and come from the city and the state of
Querétaro.
[4]
The
applicants claim that they fear a certain Ugo Hernandez. He allegedly tried to
take revenge following an altercation with the principal applicant’s brother. The
principal applicant’s brother sought refuge in Canada on April 2007 after
having lived for some time with the applicants in Mexico.
[5]
The
applicants argue that some people allegedly attempted to kidnap their son on
June 2, 2007, and that these individuals then tried to approach them
posing as photographers. They apparently also received numerous telephone calls
from strangers looking for them and strangers trying to pass as friends in
their own home, then at the home of the female applicant’s mother, where she
had sought refuge after the events of June 2, 2007.
[6]
The
applicant was the first one to leave the country for Canada. She was
accompanied by her son Angel Adrian. They arrived in Canada on July 17,
2007, and claimed refugee protection the same day. The principal applicant,
Candido Julian Torres Martinez, left Mexico on August 5, 2007, and also
claimed refugee protection in Canada.
IV. Decision under judicial review
[7]
The
RPD determined that the applicants were not Convention refugees or persons in
need of protection. It found that the applicants were credible but that the
determinative issue was nevertheless one of state protection, in this case.
[8]
The
RPD also noted that according to the documentary evidence, the state was making
efforts to end corruption in Mexico. The procedure for making a claim is also
explicit in the documentary evidence.
[9]
The
RPD raised the fact that the applicants had explained that they filed a
complaint after the kidnapping attempt on their son and following the threats
they received, but that the police officer who processed their complaint
told them that he could not investigate if the female applicant could not
provide a better description of the aggressors. At the time, the applicants
did not know the aggressor’s identity and did not know that it was in fact
their son’s neighbour. In response to this concern, the RPD determined that the
police officers would not have problems identifying the aggressor because the
applicants knew, since their arrival in Canada, that in this case it was the
neighbour of the applicant’s brother and that this problem was therefore
resolved.
[10]
The
RPD further noted that if the applicants were dissatisfied with the services of
one of the police officers, they could turn to one of his colleagues, or
otherwise file a complaint with internal affairs at the Federal Prosecutor’s Office
or otherwise with the Human Rights Commission in Mexico.
V. Issue
[11]
Is
the decision of the RPD tainted by an error of fact or law warranting the
intervention of the Court?
VI. Relevant statutory provisions
[12]
Sections
96 and 97 of the IRPA are applicable in these proceedings:
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Convention
refugee
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.
Person
in need of protection
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,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2) A person in Canada who is a member
of a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection
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Définition
de « réfugié »
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.
Personne
à protéger
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,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
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VII. Position of the parties
[13]
The
applicants submit that the RPD failed to take into consideration the
contradicting documentary evidence. In their opinion, it is clear that the RPD’s
decision is patently unreasonable, considering the evidence it had before it. The
Applicants point out that the RPD did not question the applicants’ credibility.
[14]
As
for the respondent, he argues that the RPD’s decision relies on the evidence
submitted, draws reasonable inferences from it and complies with the applicable
legal principles. According to him, the applicants filed a complaint against
their aggressors on one occasion, but they failed to provide clear and
convincing evidence showing that, on the balance of probabilities, in their
particular situation, the protection of Mexico would be inadequate.
VIII. Standard of review
[15]
It
is established in the case law that the standard of review applicable in issues
that concern state protection is that of reasonableness:
[5] The standard of review for
determination of the issue of state protection, a question of mixed fact and
law, is the standard of reasonableness. On this standard, the Court should not
intervene where the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
(Dosantos v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1174)
IX. Analysis
[16]
The
Court considers that the RPD’s reasons relating to state protection were based
in fact and in law. It is clear that the RPD considered all of the facts
particular to the applicants’ situation. The RPD also referred to extensive
documentary evidence in its decision: in the National Document Package on
Mexico of March 17, 2010, tab 2.1: Country Reports on Human Rights
Practices for 2009; tab 9.5 of June 5, 2006, Procedures followed to
file a complaint with the Federal Prosecutor’s Office; and tab 7.4 of June 8,
2009, Kidnappings for ransom, including the types of kidnapping, protection
available to victims, the effectiveness of anti-kidnapping measures, and the
complicity of some police officers (Decision at pp. 4-5).
[17]
The
RPD mentioned that corruption is still a problem in Mexico; however, it did
take the trouble to study the methods used by Mexico to fight criminal
organizations. The RPD also reasonably reviewed the documentary evidence showing
that Mexico is a democratic state that generally respects the rights of its
citizens and has the necessary resources to provide a measure of protection to
Mexicans and more specifically with respect to the facts surrounding the
applicants’ situation.
[18]
Because
of the female applicant’s inability to describe the aggressors and the lack of
information about the aggressors, the police officers could not effectively
investigate the applicants’ aggressors. The Court agrees with the RPD’s opinion
that the discovery of Ugo Hernandez’s identity, and the reasons for his
actions, will help the police forces to respond more effectively.
X. Conclusion
[19]
For
all these reasons, the Court’s view is that the applicants failed to give
substantial grounds warranting the Court’s intervention. The applicant’s
application for judicial review is therefore dismissed.
JUDGMENT
THE COURT ORDERS that the application for
judicial review be dismissed. There is no question of general importance to
certify.
“Michel
M.J. Shore”
Certified true
translation
Catherine Jones,
Translator
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