Docket: IMM-1451-11
Citation: 2011 FC 1080
Ottawa, Ontario, September 20,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MARIA ESTHER CASTANON GARCIA PEDRO
ANTONIO MENDEZ CASTANON LESLI MENDEZ CASTANON
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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 the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated January 28,
2011. The Board determined that the Applicants were not Convention refugees or
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, RS 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
Maria
Esther Castanon Garcia (the Principal Applicant) and her two children, Pedro Antonio
Mendez Castanon and Lesli Mendez Castanon, are nationals of Mexico. They
arrived in Canada on February
8, 2009 and filed a refugee claim the following day. The Principal Applicant
claims a well founded fear of persecution and risk of harm at the hands of her
husband, Pedro Mendez Moctezuma.
[4]
The
Principal Applicant began a common law relationship with Pedro in 1992. The
couple had two children together in 1993 and 1997 and subsequently married on
November 27, 2000. Throughout their relationship, Pedro became increasingly
violent. He began beating and threatening the Principal Applicant. In particular,
he threatened to kill her and take away their children. Having become aware of
the abuse, the son tried to intervene and was hit by his father.
[5]
In
2007, the Principal Applicant sought assistance from the DIF (System for
Integral Family Development). Pedro was sent a notice to appear but he
disappeared before any action could be taken. Pedro returned in 2008 and beat
the Principal Applicant, causing her to be hospitalized. Following her
release, the family continued to be harassed by Pedro. The children feared
attending school as they might see him.
[6]
On
January 27, 2009, the Principal Applicant filed a final report with the help of
DIF. The outcome of this report is unknown as the Principal Applicant left for
Canada with her
children twelve days later. The Principal Applicant speculates that nothing
was done but has not followed up with authorities.
II. Decision under Review
[7]
The
Board found that the Principal Applicant had failed to rebut the presumption of
state protection. The Board examined evidence concerning corruption in the
police force in Mexico as well as efforts to address domestic
violence, specifically the introduction of new federal legislation. Although
the documentary evidence showed that state protection was not perfect for victims
of domestic violence in Mexico, serious efforts were being made by the
authorities to address the problem.
[8]
In
these circumstances, the Principal Applicant was able to approach the
authorities and receive assistance. She left Mexico following
the second report and before a proper investigation could be conducted. There
was no reason to believe that the police were not genuine in responding to the
Principal Applicant’s allegations of domestic violence. As a consequence, the
Board considered the level of state protection adequate.
III. Issues
[9]
This
application raises the following issues:
(a) Was it reasonable for the Board to
conclude that the Applicants failed to rebut the presumption of state
protection?
(b) Did the Board err in not making
a determination regarding the minor Applicants?
IV. Standard
of Review
[10]
The
adequacy of state protection is a question of mixed fact and law reviewable on
a standard of reasonableness (see Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 2007 Carswell Nat 950
at para 38; Mendoza v Canada (Minister of
Citizenship and Immigration), 2010 FC 119, 88 Imm LR (3d) 81 at paras
26-27.)
[11]
As
articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47, reasonableness is “concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
V. Analysis
Issue A: Was
it Reasonable for the Board to Conclude that the Applicants Failed to Rebut the
Presumption of State Protection?
[12]
Refugee
protection is a form of surrogate protection invoked only in situations where
the refugee claimant has unsuccessfully sought the protection of his or her
home state (see Canada (Attorney General) v Ward, [1993] 2
SCR 689, [1993] 2 SCJ 74 at paras 709, 724; Hinzman, above, at paras
41-44). To rebut the presumption of state protection, there must be clear and
convincing evidence that state protection is inadequate or non-existent (Carillo
v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, 2008 CarswellNat 605 at para
38).
(i) Corruption
in Mexico
[13]
The
Applicants submit that it was unreasonable for the Board to devote a portion of
its reasons to analyzing corruption in Mexico as it is
irrelevant to an assessment of the availability of state protection specific to
domestic violence. As they suggest, a state may not be corrupt but still fail
to provide adequate protection to victims of domestic violence.
[14]
The
Respondent argues, however, that the availability of state protection for
victims of crime generally was relevant to the Board’s overall assessment. The
Board also recognized that its corruption discussion would not necessarily be
determinative when it proceeded to evaluate the availability of state
protection specifically for victims of domestic violence.
[15]
I
am satisfied that it was appropriate for the Board to provide context by
considering the impact of police corruption in Mexico on the
availability of protection for victims of crime generally. More importantly,
the Board engaged in a detailed analysis of efforts made to address violence
against women in the country. This analysis, along with the relevant Gender
Guidelines, was given significant weight and serves as a primary basis for the
Board’s conclusion that the Applicants failed to rebut the presumption of state
protection. Including a discussion on corruption where other pertinent factors
were also considered does not make the decision unreasonable.
(ii) Effectiveness
of Legislation
[16]
The
Applicants further submit that the Board should not have based its decision on
the existence of new legislation when there was evidence that this legislation
had not been practically implemented and was ineffective. The Applicants
assert that state protection should be evaluated at the operational level,
particularly in cases involving violence against women (see Gilvaja v Canada (Minister of
Citizenship and Immigration), 2009 FC 598, 2009 CarswellNat 1725). The
Applicants point to several references in the Board’s decision that qualify the
existence of legislative reform, such as recognition that “sustained funding at
the state and local level remains an issue” and “there are insufficient
services to protect and attend to victims.”
[17]
As
the Respondent submits, the Board highlighted several legislative measures
taken by the authorities to directly address the problem of domestic violence.
It also conducted an extensive analysis of the challenges faced in implementing
new legislation. The Board expressly considered conflicting evidence by
recognizing the gap between legislation and implementation. This is evident in
the Board’s conclusion when it refers to its approach in weighing the totality
of the evidence. While state protection must be adequate, it need not be
perfect (see Canada (Minister of Employment and Immigration) v
Villafranca (1992), 99 DLR (4th) 334, 18 Imm LR (2d) 130 at para 7).
[18]
In
addition, the determination that the Applicants failed to rebut the presumption
of state protection was supported by the particular circumstances of this
case. In a democratic state, such as Mexico, the Applicants would
have to show that they exhausted all courses of action open to them without
success before seeking protection (Kadenko v Canada (Minister of Citizenship
and Immigration), 124 FTR 160, 1996 CarswellNat 2216 at para 5 (FCA)). The
Applicant sought police protection on two occasions. After the first report,
the police issued a notice to appear. Although no action was taken because
Pedro disappeared and the notice did not prevent him from returning two years
later, it did not represent inaction by the authorities. The Principal
Applicant did not wait for the outcome of the second report. It was reasonable
for the Board to conclude that the Principal Applicant was able to seek
protection.
[19]
Given
that evidence regarding the ineffectiveness of legislation was considered as
well as the supporting circumstances, the Board’s finding that the Applicants
did not provide clear and convincing evidence to rebut the presumption of state
protection was within the range of possible, acceptable outcomes.
Issue B: Did
the Board Err in Not Making a Determination Regarding the Minor Applicants?
[20]
The
Applicants submit that it was unreasonable for the Board not to independently
assess whether the minor Applicants would face persecution on their return to Mexico. In support
of this argument, the Applicants point to violence experienced by the son and
fears of both children that they would see their father, Pedro, while attending
school.
[21]
The
Respondent contends that the claims of the Applicants were appropriately joined
as they were based on substantially the same facts. The finding that the
Principal Applicant failed to rebut the presumption of state protection was
therefore also dispositive of the minors’ claims.
[22]
The
Respondent provides as an example the decision of Gilbert v Canada (Minister of
Citizenship and Immigration), 2010 FC 1186, 2010 Carswell Nat 4462. In
that case, this Court addressed a similar question as to whether the Board
should have reached a separate decision for minor claimants in a refugee claim
involving spousal and child abuse. The determination took into account that
the principal claimant at no time suggested her son’s claim be treated
differently. As Justice John O’Keefe stated at para 26:
[26] […] The joined
claims of the applicants were rejected on the basis that state protection was
available for them. It was not an error for the Board to consider implicitly
that the minor applicant would and could avail himself of that same protection
from the agent of persecution.
[23]
I
agree with the Respondent and the conclusion in Gilbert, above, that it
was reasonable for the Board not to conduct an independent analysis of the
minor Applicants’ claims. All claims were based on sufficiently similar facts,
the fear of continued threats and violence perpetrated by Pedro if returned to Mexico. Issues
specific to the children were discussed by the Principal Applicant, who did not
express a desire for them to be addressed separately.
VI. Conclusion
[24]
It
was reasonable for the Board to find that the Applicants failed to rebut the
presumption of state protection. The Board was not required to make an
independent determination regarding the minor Applicants.
[25]
Accordingly,
this application is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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