Date: 20080606
Docket: IMM-4422-07
Citation: 2008
FC 706
Ottawa, Ontario, June 6, 2008
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
ALEJANDRO
PEREZ NAVA
MARIA DEL CARMEN AGUILAR ROCHA
(A.K.A. MARIA DEL CARME AGUILAR ROCHA)
DANIEL ALBERTO PEREZ AGUILAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Nava family is comprised
of the male applicant (Alejandro), his common-law wife and their minor son.
They claim to fear persecution in Mexico
on the basis of perceived political opinion. The Refugee Protection Division
(the board) concluded that the applicants had not rebutted the presumption of
state protection and that, in any event, state protection exists for the family
in Mexico. Consequently, it rejected
their claims.
[2] The
applicants contend that the standard to rebut the presumption of state
protection applied by the board was too high. Further, they assert that the
board erred in determining that state protection exists in Mexico. For the reasons that
follow, I conclude that the board did not err as alleged. Consequently, the
application will be dismissed.
Background
[3] The
applicants claim to fear a “corrupt but influential magistrate” (Perez-Zarate),
a political enemy of Alejandro’s father (Perez-Cordova). The contextual
background concerns Perez-Cordova’s replacement of Perez-Zarate, as Magistrate
of the Superior Tribunal of Justice, when Perez-Zarate was accused of fraud.
[4] Distilled,
the facts (as stated by the applicants) are set out here. Alejandro worked, as
his father’s assistant, part-time in 2003, and full-time beginning in February
of 2004. The investigation into Perez Zarate’s alleged fraud began in 2002 and
continued through to his reinstatement in January of 2005. Alejandro claims
that his father became a target of Perez-Zarate because he had filled
Perez-Zarate’s position and was privy to information regarding the fraud case.
The media paid close attention to the situation and provoked a rivalry between
the two men.
[5] In
mid-2004, Alejandro entered into a common-law relationship with the female
applicant. In June of 2004, because he started a new job, he worked for his
father only three days per week. Near the end of November, Alejandro began to
receive anonymous, threatening telephone calls wherein the callers demanded
that he stop passing information to the media about Perez-Zarate.
[6] When
Alejandro spoke with his father about the calls, he learned that his father had
received threatening calls as well. His father advised him to ignore the calls
and to change his cellular phone number. Alejandro followed his father’s
advice.
[7] In
late December, while staying at his partner’s parents’ home, Alejandro received
a call from a neighbour informing him that shots had been fired at his house.
Alejandro reported the incident to the police in Tlaxcala state. At the
suggestion of the police, he reported it as a crime against “whoever is
responsible” because he had no specific information that it was perpetrated by
people working for Perez-Zarate. Alejandro was dissatisfied with the response
of the police. He learned from his father that the police report was not an
official one. Moreover, the police did not come to his home to investigate.
[8] Alejandro
and his partner had a son in December of 2005. In February of 2006, two men
grabbed Alejandro, twisted his arm behind his back and put a gun to his head.
The men threatened him and told him not to start a lawsuit against Perrez-Zarate.
Alejandro did not report the incident due to fear of retaliation. He believed
the police would not help him.
[9] Alejandro
arrived in Canada in April of 2006 on a
six-month visitor visa. He decided to wait until his partner, his son, and his
father arrived before approaching immigration authorities. His partner and son
arrived in May of 2006. His father informed him in late August that he did not
intend to come to Canada.
[10] On
September 8, 2006, the family claimed refugee protection and, alternatively,
claimed to be persons in need of protection. The basis for their claim was
amended to include not only political opinion, but also membership in a
particular social group.
The Decision
[11] The
Refugee Protection Division concluded that the applicants were neither
Convention refugees nor persons in need of protection. Elements critical to
the board’s conclusion include the following:
• The
determinative issue is whether the applicants have a well-founded fear of
persecution (including whether they have rebutted the presumption of state
protection);
• State
protection is available to the applicants if they return to Mexico. The totality of the evidence
does not support a conclusion of state breakdown nor does it rebut the
presumption that the state is able to protect its nationals;
• The
applicants did not exhaust their potential remedies for obtaining protection in
Mexico. Although Alejandro
approached the authorities in December of 2004 to report the shooting at his
home, he did not go back to the police when he was allegedly attacked at
gun-point in February of 2006;
• The
factual allegations that Alejandro’s father is a lawyer, was chosen to replace
Perez-Zarate, and subsequently had to step down to give the position back to
Perez-Zarate were accepted. The fact that the father is still residing in Mexico was specifically noted. The
idea that Alejandro’s father was not subjected to any incidents of persecution
because of his high position was rejected. Rather, the father’s high rank would
make it more likely for him (rather than Alejandro) to be subject to
persecution since Alejandro never held a political position and was not paid by
the government for his work with his father. Additionally, the father’s
position would enable him to be aware of the avenues available for his son to
seek protection in Mexico;
• Mexico has a deeply entrenched
culture of impunity and corruption. However, documentary evidence provides
clear evidence that there are processes in place to solve crimes and assist
victims of crimes. Greater probative value was assigned to the documentary
evidence than to the testimony of the applicants in relation to the
availability of state protection in Mexico;
• The section 97
claim fails due to the existence of adequate state protection.
The Standard of Review
[12] Dunsmuir
v. New Brunswick,
2008 SCC 9 directs that where the standard of review can be ascertained by
reference to existing jurisprudence, there is no need to engage in a standard
of review analysis. The issue of state protection, a question of mixed fact
and law, has been determined to be reviewable on a standard of reasonableness
in Chaves v. Canada (Minister of Citizenship and
Immigration) (2005),
45 Imm. L.R. (3d) 58 (F.C.) and a host of subsequent decisions of this Court.
Analysis
[13] The
applicants’ position can be succinctly stated. They argue that, regarding
their obligation to displace the presumption of state protection, the board
erred in requiring that it be “convinced” by the evidence. Further, it erred
by looking for “serious efforts” from the state rather than “effective
protection”.
[14] With
respect to the issue of the burden of proof, the Federal Court of Appeal’s
decision in Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94 resolves all
doubt or confusion. An applicant must “first introduce evidence of inadequate
state protection and then must convince the trier of fact that the evidence
adduced establishes that the state protection is inadequate…the [applicant] must
assume his or her legal burden on a balance of probabilities” (paras. 18-20).
Thus, the balance of probabilities is the requisite standard. The quantity and
quality of evidence required to rebut the presumption of state protection is
“some clear and convincing evidence”: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
However, it is evident that, in accordance with Carillo, the “clear and
convincing” requirement does not constitute a licence for the board to impose a
standard higher than the normal, civil standard.
[15] That
said, it does not necessarily follow that merely because a board uses the word
“convince”, it is imposing an incorrect burden. The board’s decision must be
read in totality. It bears noting that in Carillo, Justice Létourneau,
while defining the burden as balance of probabilities, states that the claimant
must convince the panel (on the civil standard).
[16] Reading
the decision as a whole, I am satisfied that the board is not applying anything
other than the balance of probabilities standard in relation to the rebuttal of
the presumption of state protection. The board’s decision is cogent,
comprehensive, well-reasoned and fair. Apart from one instance where the word
“convince” appears, there is nothing in the board’s reasons to indicate than an
onus higher than balance of probabilities was applied. Put another way, the
decision displays the existence of justification, transparency and
intelligibility within the decision-making process and falls within the range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.
[17] The
applicants’ position regarding the board’s use of the phrase “serious efforts”
is misconceived. Again, regard must be had to the context in which the phrase
is used. In this case, the board examined the question of whether the state
“would not be reasonably forthcoming with serious efforts to protect the
claimants if they were return to Mexico”.
It concluded that “the totality of the evidence does not support a conclusion
of state breakdown, nor does it rebut the presumption that a state is able to
protect its nationals. A state is not expected to be able to provide perfect
protection to its citizens.”
[18] The
applicants rely on Garcia v. Canada (Minister of Citizenship and
Immigration),
2007 FC 79 to advance their position that “serious efforts” is not sufficient.
Notably, Garcia also states that the test in relation to “serious efforts” will
be met where it is established that the capability and expertise is developed
well enough to make a credible, earnest attempt” (para. 16). In other words,
“serious efforts” must be viewed at the operational level. Is the state
attempting to put its policy for state protection into operation? Here,
following a comprehensive review of the documentary evidence and the evidence
of the applicants, the board concluded that state protection is available and
adequate. Nothing turns on the use of the words “serious efforts” in this
situation.
[19] The
applicants also submit that the board erred in concluding that the inability of
the police to assist Alejandro, on the one occasion that he sought assistance,
was insufficient to rebut the presumption of state protection. The Federal
Court of Appeal in Hinzman v. Canada (Minister of Citizenship and
Immigration)
(2007), 362 N.R. 1 (F.C.A.), at paragraph 37, identified the threshold issue in
matters of state protection as follows:
However, to qualify for refugee status,
the [applicants] would have to first satisfy the [board] that they sought, but
were unable to obtain, protection from their home state, or alternatively, that
their home state, on an objective basis, could not be expected to provide
protection.
[20] At
paragraphs 56 and 57 of Hinzman, the Court instructs that applicants
cannot easily avoid the requirement that they approach their home countries for
protection before seeking international refugee protection. Applicants are
faced with the burden of establishing that all possible protections available
have been exhausted.
[21] The
authorities relied upon by the applicants do not assist them because, in those
cases, the police were the agents of persecution. That is not the situation
here. The panel specifically notes that Alejandro approached the authorities
in December of 2004 to report the incident of the shooting at his home. It
also accepted that the police informed Alejandro that there was no direct
evidence against Perez-Zarate. Nonetheless, the board concluded that the
applicants “did not exhaust their potential remedies for obtaining protection
from the Mexican government”. It cited a number of factors in support of its
conclusion, none of which are disputed.
[22] The
board’s determination in this respect constitutes a finding of fact. As such,
it is reviewable on the grounds enumerated in paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F-7: Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 100 at para. 38. See also: Colistro
v. BMO Bank of Montreal, 2008 FCA 154. The
applicants have not demonstrated that the board’s finding in this respect is
flawed.
[23] As to
the whole of the reasons, the board turned its mind to the problems associated
with state protection in Mexico. It assessed and weighed the
evidence in totality and concluded that, in this case, adequate state
protection is available. For me to conclude otherwise would require that I
usurp the function of the board. That is not my role. My intervention is not
warranted.
Counsel did not suggest a question for
certification and none arises.
JUDGMENT
The application for judicial
review is dismissed.
“Carolyn
Layden-Stevenson”
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