Date: 20080630
Docket: IMM-5068-07
Citation: 2008 FC 821
Ottawa, Ontario, June 30,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ROCIO ECHAVARRIA CONTRERAS
JESUS SALVADOR ECHAVARRIA DIAZ
JESUS ECHAVARRIA CONTRERAS
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
principal Applicant, Rocio Echavarria Contreras, is an adult female citizen of Mexico. The other
two Applicants are her father, Jesus Salvador and her brother, Jesus Echavarria
also citizen of Mexico. All three claimed refugee protection under
the provisions of sections 96 and 97(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA). By decision of the Refugee
Protection Division dated November 16, 2007 that claim was rejected, hence this
judicial review.
[2]
For
the reasons that follow, I find that the application is dismissed.
PRELIMINARY ISSUES
a) Evidence
[3]
The
principal Applicant filed an Affidavit in this application. That affidavit
attaches as exhibits certain articles that she downloaded from the internet all
dated in the period of January to April 2008, that is, after the date of the
decision under review. Those articles are said to support the Applicant’s
allegations that the police are corrupt, therefore untrustworthy, and that it
was reasonable for her not to attend to the police.
[4]
Such
an affidavit is inadmissible on this judicial review. The review undertaken
here is based on the record before the person making the decision. Further
affidavits are admissible only in respect of matters going to whether
procedural fairness was afforded or bias. The affidavit here does not address
these issues. This is not an appeal but a review. The affidavit is
inadmissible (Hussain v. Canada (MCI), 2005 FC 1194 at paragraph 10).
[5]
The
Applicant filed a further affidavit from a translator who testifies that she
listened to an audio track of the hearing and says that the interpreter at the
hearing did not translate some of the evidence given in Spanish by the principal
Applicant. Apparently no objection was made at the time during the hearing,
even though the Applicants’ counsel is fluent in Spanish. This affidavit was
not referred to in the hearing before me and I give it little weight.
b) Bias
[6]
The
Applicants’ allege that the Member was biased. At the hearing Applicants’
counsel made it clear that this allegation went only to the fact that there was
no Refugee Protection Officer present at the hearing and the Member did the
questioning himself. There is no evidence on the record to show that any
objection was raised before or during the hearing in this regard. The absence
of an Officer is not itself sufficient to give rise to a reasonable
apprehension of bias (Benitez v. Canada (MCI) 2006 FC 461, aff’d 2007
FCA 199).
STANDARD OF REVIEW
[7]
Since
Dunsmuir v. New Brunswick, 2008 SCC 9, there are
only two standards of review applicable in matters such as this, reasonableness
and correctness. The standard of correctness is applied to question of law and
jurisdiction and reasonableness to questions of fact and mixed fact and law
where the two cannot be separated. Credibility findings are to be reviewed on
the basis of reasonableness Khokhar v. Canada (MCI) 2008 FC 499 at
paras. 17-20. A question as to adequacy of state protection, post Dunsmuir
is also dealt with on the basis of reasonableness, Wong v. Canada (MCI),
2008 FC 534 at para. 5.
CREDIBILITY
[8]
It
is clear that the Member concluded that the principal Applicant lacked
credibility. In the hearing before me the Applicants’ Counsel went to
considerable pains to review the evidence and to point out a number of times
when the Board Member misconstrued or misunderstood the evidence.
[9]
Put
simply, the principal Applicant is a university graduate employed by the international
accounting firm, PriceWaterhouseCoopers. She resides in Chihuahua Mexico and
was sent by her employer to Juarez City, some four
hundred kilometres away, to do some audit work at a factory which was a client
of the firm. Some several weeks after she began, the Applicant was leaving
work late when she witnessed two men forcing a screaming woman into a car. One
of these men she recognized as a security guard who regularly inspected the
pass cards of those, such as the Applicant, entering the factory premises. The
Applicant fled by getting on a bus that was passing by. The bus stopped at a
vacant lot near the Applicant’s hotel where she was accosted, presumably by
somebody associated with the woman’s abduction. She was threatened with a
knife and presumably about to be killed when her assailant was called away by
some colleague. The Applicant was roughed up and warned not to go to the
police. Her purse was stolen, it included several identity documents. The
Applicant made her way back to her hotel where she was told by a friend and
hotel staff to report the incident to the police. She did not. Later the
friend agreed that, given the circumstances, it would be unwise to go to the
police. The Applicant subsequently sought medical attention, complaining only
of an assault. She quickly left Mexico for the United States and within a
few days, came to Canada.
[10]
I
accept that the Member, in his interpretation of the evidence and in
questioning the witness appeared to misunderstand some of the Applicant’s
evidence. He confused her fear expressed as “to people that are involved in
the mafia, kidnapping, torture, disappearance of young women’s death in Juarez
Chihuahua city of which I received threats”, a statement made by the Applicant
who has limited ability in English, when entering Canada, to mean that the
Applicant witnessed the death of two women. The questioning on this and
related issues as recorded in the transcript demonstrate that the Member did
not fully understand the principal Applicant’s experience.
[11]
However,
even given these misunderstandings, there remains the issue of the obligation
to seek state protection.
STATE PROTECTION
[12]
There
is no evidence that the Applicants at any time sought the protection of the
state whether from the police or others in Mexico. The
principal Applicant did not state the true nature of her injuries when
receiving attention from the hospital. The principal Applicant was advised by
the hotel management to report the matter. Her friend stated likewise but
later agreed that it would be more prudent not to.
[13]
The
principal Applicant gave no evidence that she reported the matter to her
employer, an international accounting firm, to seek their advice and
assistance. She simply fled Mexico and came to Canada.
[14]
Applicants’
counsel argues that there is widespread corruption in the Mexican police and
points to several articles in that regard.
[15]
The
Board Member found that while police abuse exists in certain circumstances, Mexico has in place
facilities for dealing with such matters.
[16]
The
onus rests on the Applicants to provide clear and convincing proof that state
protection is not available or that it would be futile to seek such
protection. It is argued that the Applicants subjective fear is sufficient.
It is not. The Supreme Court of Canada in Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689 has provided clear guidance, there is a rebuttable
presumption of state protection and while, in some circumstances, subjective
fear that such protection cannot be afforded may be sufficient, the Applicant
must provide clear and convincing proof that such protection is lacking.
[17]
Here,
the Applicant lived several hundreds kilometres away from where the events at
issue occurred. She never approached the police whether at home or where the
events occurred. There is no evidence that she spoke to her employer for the
purpose of seeking assistance. She reported the matter to no one, she simply
came to Canada. The Board
Member found that there was no clear and convincing evidence as to lack of
state protection. I find that such a determination was reasonable.
CONCLUSION
[18]
The
application is dismissed. The parties agree that the matter is fact specific
and that no question is required to be certified. No order as to costs.
JUDGMENT
For the Reasons
provided:
THIS COURT ADJUDGES that:
- The application is
dismissed;
- No question is
certified;
- No Order as to
costs.
"Roger
T. Hughes"
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