Date: 20080609
Docket: IMM-4705-07
Citation: 2008 FC 721
Ottawa, Ontario, June 9, 2008
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
ROBERTO
NATAN RAMIREZ CHAGOYA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application to
review the legality of a decision dated October 17, 2007 (the impugned
decision), by the Refugee Protection Division of the Immigration and Refugee
Board (the Board) determining that the applicant is not a “Convention refugee”
or a “person in need of protection” under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, as amended (the Act).
[2]
The
applicant, Roberto Natan Ramirez Chagoya, is a Mexican citizen. He fears
persecution everywhere in his country by reason of his membership in a
particular social group, i.e., homosexuals. The Board did not question the
truthfulness of the applicant’s story or the seriousness of certain incidents
that took place, which, the Board said, “could be qualified as serious
mistreatment”. However, although “the repeated actions that were carried out
constitute persecution”, the Board found that “the claimant has not discharged
the burden of proof on him to show that the Mexican authorities were unable to
protect him”.
[3]
Prior to Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (Dunsmuir), a
finding of the Board regarding state protection was reviewable against a
standard of reasonableness simpliciter: see Chaves v. Canada
(Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No.
232 (QL) and Hinzman v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 171, at paragraph 38 (Hinzman).
Taking into account the fact that the reasonableness simpliciter standard
has been consolidated with the patently unreasonable standard into a single
standard, but with a variable spectrum, I do not believe that the Court’s
review of the legality of a finding by the Board on state protection is really
any different today; the Court’s analysis is concerned essentially with the
“existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” (Dunsmuir, at paragraph 47).
[4]
Let us
begin this analysis by reviewing certain principles. First, absent a complete
breakdown of the state, it should be assumed at the outset that the state is
capable of protecting its nationals: Canada (Department of Employment and
Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.) (QL). But this
presumption of fact can be displaced by clear and convincing evidence (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Ward)). In that
regard, it will not suffice for the refugee claimant to show that his or her
government was not always able to protect persons in the same position.
Likewise, it cannot automatically be said that a state is unable to protect one
of its nationals because some local police officers refused to take action (Kadenko
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1376
(QL) (Kadenko)).
[5]
That being
said, though government protection is not perfect, some protection must exist,
the minimum level of which does not have to be determined by the Court.
Moreover, it is not reasonable to require refugee claimants to put their lives
or the lives of their families in danger. In the same way, claimants do not have
to suffer greater persecution (which may consist of repeated discriminatory
acts amounting to persecution). This Court pointed out recently in Shimokawa
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 445, [2006] F.C.J. No. 555 (QL), at paragraph 21: “. . . in seeking
state protection, refugee claimants are not expected to be courageous or
foolhardy. It is only incumbent upon them to seek protection if it is seen
as being reasonably forthcoming. If the refugee claimants provide clear and
convincing evidence that contacting the authorities would be useless or would
make things worse, they are not required to take further steps.” [My
emphasis.] In short, it is unreasonable to force refugee claimants to ask for
protection that has little chance of materializing or that will be a long time
coming, simply to demonstrate that state protection is ineffective.
[6]
Assessing
whether a state is capable of, and willing to, provide protection to its
nationals is not an abstract exercise. The Board must examine the personal
situation of each refugee claimant in a practical manner. Its findings in this
regard must be evident from reading the decision and must be supported by the
evidence in the record. On this point, in Avila v. Canada (Minister of
Citizenship and Immigration), 2006 FC 359, [2006] F.C.J. No. 439 (QL) (Avila),
I myself noted at paragraph 27:
In order to
determine whether a refugee protection claimant has discharged his burden of
proof, the Board must undertake a proper analysis of the situation in the
country and the particular reasons why the protection claimant submits that he
is “unable or, because of that risk, unwilling to avail [himself] of the
protection” of his country of nationality or habitual residence
(paragraphs 96(a) and (b) and subparagraph 97(1)(b)(i)
of the Act). The Board must consider not only whether the state is actually
capable of providing protection but also whether it is willing to act. In this
regard, the legislation and procedures which the applicant may use to obtain
state protection may reflect the will of the state. However, they do not
suffice in themselves to establish the reality of protection unless they are
given effect in practice: see Molnar v. Canada (Minister of Citizenship and
Immigration), 2002 FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi v.
Canada (Minister of Citizenship and Immigration), 2003 FCTD 429, [2003] 4 F.C. 771 (F.C.T.D.).
[7]
The
presumption of state protection applies equally to cases where an individual
claims to fear persecution by non-state entities and to cases where the state
is alleged to be the persecutor (Hinzman, paragraph 54). This
presumption is even more applicable when the country of origin is a democratic
country like Israel (Kadenko) or the United States (Hinzman) whose
independent and strong state institutions are universally recognized. In fact, Kadenko
and Hinzman refer to “democracies” that do not face endemic and flagrant
corruption in the state apparatus or in the police forces or the judiciary,
which may be the case in some “emerging” democracies.
[8]
Also, at
paragraphs 30 and 31 of Avila, I noted that the Board had to qualify the
application of Kadenko somewhat. In the impugned decision, the Board
actually relied on this case in a general way to deny the refugee claim in the
alternative:
At the same time, Kadenko, supra,
indicates that it cannot be automatically found that a state is unable to
protect one of its nationals when he has sought police protection and certain
police officers refused to intervene to help him. Once it is established that a
country (in that case Israel) has judicial and political institutions capable
of protecting its nationals, from the refusal of certain police officers to
intervene, it cannot by ipso facto inferred that the state is unable to
do so. It is on this account that the Federal Court of Appeal mentioned obiter
that the burden of proof on the claimant is to some extent directly
proportional to the “degree of democracy” of the national’s country. The degree
of democracy is not necessarily the same from one country to another. Therefore,
it would be an error of law to adopt a “systemic” approach as to the protection
offered to the nationals of a given country. This is what is likely to happen
when the reasons for dismissal given by the Board are too general and may apply
equally to another country or another claimant (Renteria et al. v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 284, 2006 FC
160).
Whether the issue be the best
interest of the democratic state in question and of civil society in general,
or the individual interest of the victim or perpetrator of an alleged criminal
offence, the payment of a monetary or other benefit of any kind to a police or
law officer is illegal. Of course, if corruption is widespread it may
ultimately lead to undermining the trust individuals may have in government
institutions, including the judicial system. As the Supreme Court has noted,
“democracy in any real sense of the word cannot exist without the rule of law”
(Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, at
paragraph 67). Due process of law and equality before the law are the
vital strength of any democracy and create a legitimate expectation in
individuals that the state will do what is necessary to go after criminals and
bring them to justice, and if necessary to stamp out corruption. The
independence and impartiality of the judiciary and its components are not
negotiable. These are fundamental values in any country which claims to be a
true democracy. Therefore, the degree to which a state tolerates corruption in
the political or judicial apparatus correspondingly diminishes its degree of
democracy. That being said, I do not have to decide here whether the
documentary evidence established, as the applicant vigorously claimed, such a
degree of corruption that it can be said it was not unreasonable in the
circumstances for the applicant not to approach the police of his country
before seeking international protection. Due to its special expertise and its
knowledge of the general conditions prevailing in a given country, the Board is
in a much better position than this Court to answer such a question. Nevertheless,
the Court must still be able to understand the Board’s reasoning.
[9]
My
colleague, Madam Justice Danielle Tremblay-Lamer, in Zepeda v. Canada
(Minister of Citizenship and Immigration), 2008 FC 491, [2008] F.C.J. No.
625 (Zepeda), at paragraphs 17-20, addresses the more or less probative
nature of the presumption of state protection in the case of Mexico. Justice Tremblay-Lamer
refers, inter alia, to Madam Justice Johanne Gauthier’s analysis in Capitaine
v. Canada (Minister of Citizenship and Immigration), 2008 FC 98, [2008]
F.C.J. No. 181 (QL) (Capitaine), which, incidentally, refers to the Avila
case:
With respect to the strength of the
applicable presumption in Mexico, the respondent cites the case of Velazquez
v. Canada (Minister of Citizenship and Immigration), 2006 FC 532, [2006]
F.C.J. No. 663 (QL), at para. 6, in which Justice Michael Phelan stated “Mexico
is a functioning democracy, and a member of the NAFTA, with democratic
institutions. Therefore, the presumption of state protection is a strong one.”
(see also Canseco v. Canada (Minister of Citizenship and Immigration),
2007 FC 73, [2007] F.C.J. No. 115 (QL), at para. 14; Alfaro v. Canada
(Minister of Citizenship and Immigration), 2006 FC 460, [2006] F.C.J. No.
569 (QL), at para. 18, highlighting the free and democratic nature of Mexican
society).
However, other jurisprudence has focussed
on the problems that remain in Mexico's democracy. Recently, Deputy Justice
Orville Frenette in De Leon v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1307, [2007] F.C.J. No. 1684 (QL), at para. 28
indicated that as a developing democracy with problems including corruption and
drug trafficking involving state authorities, the presumption of state
protection applicable to Mexico is more easily overturned.
Similarly in Capitaine v. Canada
(Minister of Citizenship and Immigration), 2008 FC 98, [2008] F.C.J. No. 181
(QL), at paras. 20‑22, my colleague, Madam Justice Johanne Gauthier,
addressed the presumption of state protection in the context of Mexico's
democracy:
20 Mexico is a democracy to which a
presumption of state protection applies, even if its place on the ‘democracy
spectrum’ needs to be assessed to determine what credible and reliable evidence
will be sufficient to displace that presumption . . .
21 In developed democracies such as the U.S.
and Israel, it is clear from Hinzman (at paras. 46 and 57) that to rebut
the presumption of state protection, this evidence must include proof that an
applicant has exhausted all recourses available to her or him. It is also clear
that, except in exceptional circumstances, it would be unreasonable in such
countries not to seek state protection before seeking it in Canada.
22 The Court does not understand Hinzman
to say that this conclusion applies to all countries wherever they stand on the
‘democracy spectrum’ and to relieve the decision-maker of his or her obligation
to assess the evidence offered to establish that, in Mexico for example, the
state is unable (although willing) to protect its citizens, or that it was
reasonable for the claimant to refuse to seek out this protection. . . .
I find Madam Justice Gauthier's approach
to the presumption of state protection in Mexico to be persuasive. While
Mexico is a democracy and generally willing to protect its citizens, its
governance and corruption problems are well documented. Accordingly,
decision-makers must engage in a full assessment of the evidence placed before
them suggesting that Mexico, while willing to protect, may be unable to do so.
This assessment should include the context of the country of origin in
general, all the steps that the applicants did in fact take, and their
interaction with the authorities (Hernandez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1211, [2007] F.C.J. No. 1563 (QL), at
para. 21; G.D.C.P. v. Canada (Minister of Citizenship and Immigration),
2002 FCT 989, [2002] F.C.J. No. 1331 (QL), at para. 18). [My emphasis.]
[10]
I am in
complete agreement with the analysis of Justices Tremblay-Lamer and Gauthier in
Zepada and Capitaine. After reviewing the entire record,
including the documents about the prevailing conditions in Mexico, I am of the
view that the Board’s analysis of the documentary evidence was superficial and
selective and did not take into account the applicant’s personal situation.
Specifically, the Board chose to disregard or not deal with relevant evidence that
could have supported the applicant’s arguments, and this makes the Board’s
finding that “the claimant has not discharged the burden of proof on him to
show that the Mexican authorities were unable to protect him” reviewable in
this case.
[11]
The
applicant alleges that his life has been [translation]
“a long voyage of discrimination, harassment and repeated persecution.” From a
young age, he suffered very serious sexual abuse by his family. According to
the applicant’s Personal Information Form (PIF), “it was at the age of 21 that
I accepted the fact that I was gay, fully aware and openly sharing the news to
my close friends and family. . . . My family then had two excuses for rejecting
me, the first one, my decision to become and [sic] actor and the second one
my homosexuality.”
Another way in which I experience
aggression and discrimination back in my country due to my sexual orientation
was in [sic] the hands of the police. On a street near the theater in
which Edipo Gay was playing, as I was walking home after work, two police
officers in their car stopped by me and got out of their car. They told me to
stop and to produce ID. They asked my name and where I lived, and one started
using his stick to rub it against my lower back and at one point pressing it
forcefully against my anus. After a few questions and insults towards me, I
realized that they had recognized me from my promotional posters of Edipo Gay.
They insulted me in regards to my homosexuality and in a threatening manner one
of them said to me to “watch out, be careful one day you might be found raped
and dead”.
[13]
Because of
his public image as a homosexual, people no longer wanted to offer him certain
advertising contracts or certain roles as an actor or comedian. He also had
problems with the director of the play, who sexually harassed him. In addition,
the applicant stated in his PIF, “[W]hen I walked on the street, I had to act
like a straight man, or I would be mocked or even attacked, especially in
certain neighborhoods.”
[14]
In April
2004, July 2004 and January 2005, graffiti was written on the walls near his small
restaurant, insulting him and telling him to go away. On each of those
occasions, in addition to the graffiti, furniture was stolen and items were
broken:
In 2004 and as a result of trying to
distance myself from acting circles I saw myself in need of work and as a
result of that decided to open a small restaurant. I rented a small space close
to a market, running the place with my mother. I was robbed several times and
graffiti was sprayed on the walls, the thieves left messages such as “go away
you little faggot”, “whore”, etc. At times they destroyed some of the
furnishings, after a while I decided to close shop given that I didn’t have the
means to keep investing.
[15]
In short,
the applicant alleged in his PIF, “I think that I am blacklisted not only
because I am Gay, but because I was the protagonist in a politically charged
play, EDIPO GAY, which made me a sort of icon for the gays in Mexico, at least
for the straight community.”
[16]
As a
result of the actions taken against him in connection with the business
activities involving his restaurant, the applicant filed complaints with the
police on three separate occasions. According to the transcript of the
testimony, in April 2004, the applicant
[translation]
went to the police station in his
neighbourhood. [He] had to write [his] name in a notebook that they had;
everyone who filed a complaint had to write his or her name in the notebook. .
. . They had [him] meet with an officer. [The applicant] recounted the facts.
He was asked what was missing. They made a list. . . . They told [him] that
they would send someone to check out the location and . . . to commence an
investigation to find the people who had done this.
[17]
The same
day, two police officers arrived at the applicant’s restaurant: [translation] “They took some
photographs and left.” Two weeks after the incident, the applicant went to the
police station to ask questions. The police officers [translation] “simply said that they were conducting an
investigation.” In July 2004, after the second homophobic graffiti incident,
the applicant filed a second complaint. An officer took notes, but the police
did not even make a list of the missing items. Last, in January 2005, the
applicant filed his third complaint. The police refused to take notes, and one
of the officers said [translation]
“This was not the only case they had, and that [his] case would take its
course, that it was proceeding, that they could not do anything at that time,
that it was taking its course.” (see certified tribunal record, pages 314-318).
[18]
In the
impugned decision, the Board found that the applicant did not establish that
the incident that occurred in the street in 2002 (where police officers
insulted, assaulted and threatened him) constituted persecution. Nonetheless,
with regard to the graffiti and the thefts committed in his restaurant, the
Board was of the view that those repeated actions constituted persecution. In
considering the question of whether the Mexican state was able to protect the
applicant, the Board simply noted that even if “[t]he documentary evidence
clearly shows that the discrimination suffered by homosexuals in Mexico is a
serious problem”, the documentary evidence also shows that not only are efforts
being made to combat the prejudice suffered by these individuals, but that
legislative amendments have been passed, specifically to the Federal District
Penal Code, along with new laws intended to prevent and eliminate
discrimination. The Board observed: “The fact that certain victims feel
reluctant to avail themselves of administrative recourse against the
individuals who attacked them because they doubt the effectiveness of the
remedies involved does not constitute clear and convincing evidence that the
state is unable to protect them; it is simply evidence that such protection is
not perfect.” The Board determined that the applicant did not discharge the
burden of proof on him to show that the Mexican authorities were unable to
protect him, and his refugee claim was denied.
[19]
While it
is true that there is a presumption in law that the Board considered all the
evidence and that there is no need to mention all the documentary evidence that
was before it, where there is important material evidence on the record that
contradicts the factual finding of the Board, a blanket statement in the
decision that the Board considered all of the evidence will not be sufficient.
The Board must provide reasons why the contradictory evidence was not
considered relevant or trustworthy: see Zepeda; Simpson v. Canada
(Minister of Citizenship and Immigration), 2006 FC 970, [2006] F.C.J.
No. 1224 (QL) and Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1425 (QL). In the case before me, the Board
did not do so. It simply relied on the statement that Mexico is a democracy and
that no clear and convincing evidence was presented by the applicant to rebut
the presumption of state protection. However, the Board did not address the
contradictory evidence.
[20]
For
example, according to the Board’s report dated February 2007, “Issue
Paper Mexico. Situation of witnesses to crime and corruption, women victims of
violence and victims of discrimination based on sexual orientation” (available on the Board’s Web
site and filed by the applicant under P-8), “[A]ccording to the
CCCCOH [the
NGO Citizens' Commission Against Homophobic Hate Crimes, which publishes a report on the
incidence of homophobic crimes], there were 332 homophobic
killings across Mexico between 1995 and 2004. . . . [L]egislation
to address homophobic ‘hate crimes’ does not exist in Mexico.” Furthermore,
“publicly known homosexuals would likely face a higher risk . . . because of
their higher public profile.”
[21]
The report
prepared in December 2003 by Andrew Reding, “Sexual Orientation and Human
Rights in the Americas”, states, “It should be kept in mind, however, that
there is often a breach between law and practice in Mexico. . . . On the
weekend of April 6-7, 2002 city and state police raided gay bars in the city of
Aguascalientes, arresting 38 people. All were charged with ‘prostitution in
public areas’ . . . [P]olice used excessive force, and failed to substantiate
the charges. When the defendants were brought before a judge, the judge said he
‘was fed up with so many faggots’. . . ” (tab 6.1 of the National Documentation
Package on Mexico, filed under A-1).
[22]
Moreover,
according to the article prepared on August 13, 2004, by the International Gay
and Lesbian Human Rights Commission, “Mexico City: Protest Arbitrary arrests of
young gay men in Zona Rosa, Cuauhtemoc District” (applicant’s exhibit P-8),
“[a] group of seven young gay male students were arrested on July 20, 2004, in
Zona Rosa, Cuauhtemoc District, Mexico City and charged with engaging in sex
work. Police had no evidence that they were sex workers, and they had not made
any attempt to collect such evidence. . . . According to a policewoman, the
police targeted the friends because two men were holding hands. Similar
incidents have occurred in recent months; in flagrant violation of the country’s
very progressive Federal Law . . . ”
[23]
The
documentary evidence indicates, “[W]hile the homosexual community
has made some progress within the political and legal landscape of Mexico,
traditional attitudes of intolerance and evidence of mistreatment still persist
in certain areas. . . . Despite these gains, reports of homophobic crimes and
intolerance continue . . .
” (“MEX42621.E”, April 15, 2004, tab 6.3 of the National Documentation Package
on Mexico).
[24]
Last,
according to “The treatment of homosexuals and availability of state
protection” (“MEX101377.E”, June 5, 2006, tab 6.11 of the National
Documentation Package on Mexico), “[H]omosexuality is not a crime in Mexico . .
. However, the country has had a long history of [translation]
‘attacks and murders’ of homosexuals and transsexuals. [H]omophobic beliefs and
practices were common, reflected principally in entertainment programs and
every day attitudes”.
In particular:
The [CCCCOH] . . . stated that 15
homophobic or transphobic murders occur each month in Mexico. Other sources estimated that
between 100 and 180 homophobic killings take place each year in Mexico . . .
placing Mexico second on the continent for homophobic murders. According to the
CCCCOH, the majority of victims are men between 20 and 40 years old. . . . Most murders of homosexuals
occurred in the Federal District . . .
[T]he Mexican government does
not provide special protection for homosexuals, lesbians and transsexuals. . .
. [H]omosexuality is
considered a problem but homophobia is not . . . [W]hen a crime against a member
of the homosexual, transsexual or lesbian community is investigated,
authorities tend not to consider the fact that the crime has been motivate [sic]
by ‘hate’.
[25]
In this
case, it could reasonably be argued that the applicant presented clear and
convincing evidence that the state did not protect him effectively. This
involves more than a mere absence of local protection. In order to assess the
applicant’s personal situation, considering that his credibility was not challenged
in the decision at issue, credence must be given to the particular facts that
hastened his departure from Mexico.
[26]
Although
the Board determined that the applicant did not establish that the incident in
2002 where police officers insulted, assaulted and threatened him constituted
persecution, the Board was of the view that “the reprehensible actions of these
police officers constitute discrimination and assault against the claimant . .
. ”. Clearly, in the Board’s opinion, the applicant suffered “mistreatment . .
. [which] attacks certain of his basic rights . . . ”. It was in this
context that the applicant filed three complaints. This is not a situation
where the applicant never filed a complaint or where he tried to obtain state
protection only once. On the contrary, after suffering mistreatment by the
police themselves, the applicant filed a complaint numerous times, which, it
must be said, led to nothing for all practical purposes.
[27]
Having
reviewed the entire record, including the documents about conditions in Mexico,
the Court finds that the impugned decision of the Board is not supported by the
facts and is unreasonable. In determining that there was adequate protection in
Mexico and that the applicant should have filed more complaints, and in
requiring him to exhaust all the remedies available to him in his country, the
Board made an unreasonable decision: the Board failed to consider the
applicant’s particular situation and selectively read the documentary evidence
in the record, which is far from being univocal. I reach this conclusion
bearing in mind the Court’s limited role in this case. The Court is not sitting
on appeal of the Board’s decision but on a judicial review. Accordingly, I do
not have to substitute my judgment for that of the Board or make specific
findings of fact based on the evidence as a whole. It must be reiterated that,
with respect to “state protection”, each case turns on its own facts (Hernandez
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1211, [2007]
F.C.J. No. 1563 (QL), at paragraph 26). Again, at the risk of repeating myself,
the Board simply chose to disregard or not deal with relevant evidence that
could have supported the applicant’s arguments, and in the circumstances, this
makes its decision reviewable: see Avila, at paragraph 36. This is
sufficient to set aside the impugned decision and to send the decision back for
a new hearing.
ORDER
THE COURT ORDERS that the application for judicial
review is allowed and the matter is sent back for redetermination by a
different panel of the Board. There is no question to certify.
“Luc
Martineau”
Mary
Jo Egan, LLB
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