Date: 20111026
Docket: IMM-1641-11
Citation: 2011 FC 1182
Ottawa, Ontario, this 26th
day of October 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Andres SILVA PENA
Aurora CARRILLO MENDEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an
application for judicial review of a decision of a member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”),
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001 c. 27, (the “Act”) by Andres Silva Pena and Aurora Carrillo Mendez (the
“applicants”). The Board determined that the applicants were neither Convention
refugees nor persons in need of protection under sections 96 and 97 of the Act.
[2]
In
2007 and 2008, the applicants, citizens of Mexico, worked on an “adventure
tourism” initiative in Guadalupe y Calvo, in the State of Chihuahua. In March 2009, they
were invited by Mr. Pereda Lopez, President of Communal Land Commissariat,
to attend a conference on the sale of wood to buyers.
[3]
The
lumbermen at the conference attempted to secure a lower price for cutting
rights than they had previously paid. The applicants spoke out against this
proposal and spoke in favour of the preservation of the wooded areas in order
to advance eco-tourism rather than logging.
[4]
The
applicants allege that the following day, they were threatened by an
unidentified man who may have had a gun. The applicants fled and went home to Jalcomulco, Veracruz. They received a call
from Mr. Pereda Lopez implying that the lumbermen were looking for them. Later
that week, they received three threatening text messages. These messages were
received in various parts of Mexico, implying that the unidentified senders were aware of the
applicants’ movements.
[5]
The
applicants believed that the police would not or could not help them. They fled
to Canada in May 2009 and claimed
refugee protection in August of that year.
* * * * * * * *
[6]
The
Board considered the applicants to have told their story “in a clear fashion”,
though certain elements of their claim were implausible or overblown. The Board
concluded that the applicants came to Canada as a migration opportunity rather than as a
result of perceived threats from lumbermen.
[7]
The
Board found that there was no nexus to a Convention ground. The supposed agents
of persecution are lumbermen threatening the applicants because of the industry
in which they worked.
[8]
The
determinative issue was state protection. The Board noted that the applicants
did not inform any state agents or even Mr. Pereda Lopez about the threats.
They could have contacted the Director of Rural Development (a supporter of the
applicants’ development ideas) or the Mayor of Guadalupe y Calvo.
[9]
The
Board concluded that it was unreasonable of the claimants, after being
threatened once by one unidentified person and receiving three threatening text
messages, not to speak to anyone, including the police, and to instead make a
refugee claim in a foreign country. The Board also noted that the threats arose
in an objectively small town in an isolated part of Mexico.
* * * * * * * *
[10]
A finding
that state protection exists for an applicant is determinative of both a section 96
and a section 97 claim. The respondent cites several relevant cases to the
effect that Mexico is a democratic state
and is therefore presumed to be able to protect its citizens. In Navarro v.
Minister of Citizenship and Immigration, 2008 FC 358 at para 17, my
colleague Justice Yves de Montigny notes that the state “must at least be
offered a real opportunity to intervene before one can conclude that it is
unable to provide the protection required by one of its citizens”.
[11]
The
standard of review applicable to the Board’s finding on the question of state
protection is one of reasonableness, according to Justice François Lemieux in Mendoza
v. Minister of Citizenship and Immigration, 2010 FC 119 at paras 26-27.
Therefore, the Board’s conclusions on this issue must fall within the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para 47).
[12]
In
the case at bar, the applicants never once approached the state for protection.
Considering that the Board’s conclusion that the applicants have failed to
offer any reasonable explanation as to why they did not approach the state was
reasonable in light of the evidence before it, I find that the applicants have
not met the onus of demonstrating that state protection would not have been
reasonably forthcoming in their case.
* * * * * * * *
[13]
As
the issue of state protection is determinative in this matter, the application
for judicial review is dismissed.
[14]
The
parties agree that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board determining that the applicants were neither Convention
refugees nor persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1641-11
STYLE OF CAUSE: Andres SILVA PENA, Aurora CARRILLO MENDEZ
v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Montréal, Quebec
DATE OF
HEARING: September
12, 2011
REASONS FOR JUDGMENT
AND JUDGMENT: Pinard J.
DATED: October 26, 2011
APPEARANCES:
Me Mitchell
Goldberg FOR THE APPLICANTS
Me Gretchen
Timmins FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Blanshey,
Goldberg, Berger FOR THE APPLICANTS
Montréal, Quebec
Myles J. Kirvan FOR
THE RESPONDENT
Deputy Attorney
General of Canada
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