Date: 20080709
Docket: IMM-5461-07
Citation: 2008 FC 852
Vancouver, British Columbia, July 9, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ARMANDO FALCONI MAZA and
SOFIA ABRIL ALTAMIRANO LARA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are husband and wife; both are citizen of Mexico. Immediately
before leaving Mexico for Canada, the Applicants owned and operated
an aquarium supply store in the Mexican state of Chiapas. Prior to
that, the male applicant, who is a Mexican lawyer, worked in various government
legal departments and in private practice in Chiapas. The
Applicants left Mexico in 2006, the husband preceded the wife by a few
months, having sold their business, and came to Canada. The husband
came first as a tourist, and a few weeks later made a claim for refugee
protection on the basis that he feared persecution at the hands of the state in
Mexico. By a
decision dated December 5, 2007, the Immigration and Refugee Protection Board
rejected that claim. This application is for a judicial review of that
decision.
[2]
For
the reasons that follow, I find that the application is dismissed without
costs. There is no question for certification.
FACTS
[3]
The
Board member made findings of fact without comment as to the credibility of the
Applicants. As such there appears to be no dispute as to the findings of fact
or credibility as far as this application is concerned.
[4]
The
male Applicant worked as a lawyer for a branch of the state government of
Chiapas in Mexico. The former
assistant Attorney General of that state, Granados, was accused of corruption
and fled to Spain. The
Applicant was asked to testify against him and refused to do so. His wages were
withheld; however, he retained a lawyer, sued and was ultimately awarded reimbursement
in the order of 386,400 pesos. He has not actually received the money. The
Board member does not consider why the Applicant does not actually have the
money in his reasons; a review of the transcript of the Applicant’s evidence in
this respect is equivocal, at one point he says that an agent can collect it
for him, at another time he says that he must be there in person, at another
time he says he does not know what must be done.
[5]
In
the meantime, the Applicant and his wife changed careers opening up an aquarium
store selling fish and turtles. At some point two unidentified men entered the
shop and claimed to be judicial police officers. They were not in uniform and
the Applicant did not ask for identification. While the Board member does not
mention it in his reasons the transcript shows that the male Applicant was
asked why he did not ask for identification. He answered that he was afraid
that they would slap him and rough him up. The male Applicant says that those
two persons asked him to testify against the former assistant Attorney General
and drop his lawsuit for unpaid wages.
[6]
These
two unidentified persons made subsequent visits to the Applicant making the
same requests. On the last of these occasions one of those persons brandished a
gun and threatened the male Applicant that if he were to disappear, they would
take reprisals against his wife.
[7]
At
this point, the Applicants decided to flee Mexico. They made a
private unadvertised sale of their aquarium business. The male Applicant came
to Vancouver first
claiming to be a tourist then, a few weeks later, made a refugee claim. The
female Applicant moved in with her parents located in a different state in Mexico and, a few
months later, came to Canada to join her husband.
[8]
It
is clear that neither Applicant ever made a complaint to the police or anyone
else in authority as to the visits by the two unidentified persons. It is also
clear that the Applicants, shortly before coming to Canada, were able to secure
Mexican passports without incident and to leave Mexico without
incident.
[9]
What
is also clear is that family members of the Applicants, including a son,
parents and a sister, remain in Chiapas without incident and without being
approached by anyone searching for or seeking retribution against the
Applicants.
[10]
The
Board member found that the Applicants did not have a well-founded fear of
persecution. He found further that, even if they possessed such a fear, state
protection was available in Mexico. The Board member stressed that the male
Applicant was a lawyer who worked for two state governments and would know what
avenues were available to seek state protection. Nonetheless the Applicants did
not approach Mexico for
assistance. He found that the Applicants had failed to provide clear and
convincing evidence to what the presumption of state protection.
ISSUES
[11]
The
Applicants raise two issues:
1.
Did
the Board err in requiring clear and convincing evidence that state protection
would not be effective given that the persecutors were Agents of the state; and
2.
Did
the Board member make unreasonable findings of fact in respect of the adequacy
of State Protection in Mexico?
STANDARD OF REVIEW
[12]
Since
the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9, a judicial review is to be conducted on the basis that two
standards only, reasonableness and correctness, are to be considered.
Correctness is to apply to questions of law and jurisdiction. Reasonableness to
questions of fact and mixed fact and law where the law cannot reasonably be
separated out. In considering reasonableness a range of reasonable
determinations may be possible with greater or lesser deference given in
respect of the particular tribunal and circumstances.
[13]
In
the present circumstances, while no privative clause exists, the determination
of the Board as to adequacy of state protection is a factual matter in respect
of which the Board has considerable expertise. Considerable deference to the
Board must be given in this respect.
ANALYSIS
Issue #1: Evidence
required where alleged perpetrators were agents of the state.
[14]
The
Supreme Court of Canada in the often referred to case of Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, dealt with the question of state
protection. A state is presumed to afford protection to its citizens and
international law steps in only when that protection is unavailable. To test
whether such protection is unavailable to a claimant a two-fold test is
applied: the claimant must subjectively fear persecution; and (2) that fear
must be well founded in an objective sense.
[15]
The
Federal Court of Appeal has very recently considered how the question of
sufficiency of state protection is to be approached in Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94. It answered a certified
question at paragraph 38 of its unanimous decision this way:
38 I
would answer the certified questions as follows:
A refugee who claims that the
state protection is inadequate or non-existent bears the evidentiary burden of
adducing evidence to that effect and the legal burden of persuading the trier
of fact that his or her claim in this respect is founded. The standard of proof
applicable is the balance of probabilities and there is no requirement of a
higher degree of probability than what that standard usually requires. As for
the quality of the evidence required to rebut the presumption of state
protection, the presumption is rebutted by clear and convincing evidence that
the state protection is inadequate or non-existent.
[16]
It
is important to note that in that case the applicant, a Mexican citizen, was
alleging that she was being abused not only by her estranged husband but also
by his brother a federal judicial police officer.
[17]
In
a different and unrelated case, even though the applicant has a similar name Carrillo
v. Canada (Minister of Citizenship and Immigration), 2004 FC 944, Justice
Snider of this Court held that where an applicant has failed to approach the
authorities, alleging that agents of persecution were state agents, the Court
must still consider whether it was objectively unreasonable not to have sought
such protection. She said at paragraphs 6 to 8:
6 In the case at bar, the
Applicant submits that there is no obligation at law for her to demonstrate to
the Board that she sought state protection, given that the agents of
persecution were state agents. I disagree.
7 In Ward, supra
at 724, the Supreme Court of Canada held that, when state protection
"might reasonably have been forthcoming", the Board is entitled to
draw an adverse inference based on a claimant's failure to approach state
authorities for assistance:
Like
Hathaway, I prefer to formulate this aspect of the test for fear of
persecution as follows: only in situations in which state protection
"might reasonably have been forthcoming", will the claimant's failure
to approach the state protection defeat his claim. Put another way, the
claimant will not meet the definition of "Convention refugee" where
it is objectively unreasonable for the claimant not to have sought the
protection of his home authorities; otherwise, the claimant need not literally
approach the state.
8 In my view, whether it
is objectively unreasonable for the claimant not to have sought the protection
of home authorities invites the Board to weigh the evidence before it and make
a finding of fact. For example, although the agent of persecution might be a
stage agent, the facts of the case might suggest that purely local or rogue
elements are at work and that the state in question is democratic and offers
protection to victims similarly situated to the claimant. It might, therefore,
be objectively reasonable to expect a claimant to seek protection. In other
instances, the identity of the state agent and documentary evidence of country
conditions might mean that state protection would not be reasonably forthcoming
and, therefore, the claimant is not expected to have sought protection. Given
that the Board's analysis of Costa Rica's
political and judicial institutions was not patently unreasonable, meaning it
was supported by the evidence before the Board, the imposition of an obligation
to seek protection based on this evidence does not constitute a reviewable
error, in my opinion.
[18]
In
the present case the evidence is clear that the Applicants made no effort to
approach state authorities in respect of their persecutors. The male Applicant
was a lawyer who had worked for the government and would have known how to go
about making a complaint. The Applicant says that his persecutors were state
judicial police officers but they were not uniformed and the Applicant made no
efforts to confirm their identities. Nonetheless the male Applicant had
sufficient confidence in the Mexican legal system to sue for recovery of
withheld wages.
[19]
The
Board member was entitled to weigh this evidence in coming to the conclusion
that he did, namely that the Applicants had not rebutted the presumption of
state protection by clear and convincing evidence. This decision was reasonable
and should not be set aside.
Issue #2: Findings of
Fact
[20]
The
Applicants assert that certain findings of fact made by the Board member were
sufficiently unreasonable on the evidence before him that his conclusion that
the presumption of state protection had not been displaced should be set aside.
[21]
The
Applicants argue that the Board member relies principally on an Amnesty
International report as to conditions in Mexico dated 7 February 2007 entitled
“Mexico Injustice and impunity: Mexico’s flawed criminal justice system”.
Their counsel argue that the member was selective in choosing which parts of
the report upon which to rely, overlooking those parts which spoke of
corruption and abuses particularly in Chiapas and the difficulties in securing
effective relief through the National Human Rights Commission or through the
Courts particularly in respect of a remedy called amparo.
[22]
It
is clear from his reasons that the Board member considered the report and made
reference to some of the remedial steps suggested in the report. The member did
so in the context that the male Applicant was a lawyer who had experience in
working with the government but took no steps whatsoever to approach Mexico for
assistance notwithstanding the fact that he sought assistance from the legal
system in respect of his withheld wages. To repeat part of what the member said
at paragraph 31 of his reasons:
As a Mexican trained law graduate, a lawyer, and as a lawyer
who has worked for two State Governments including but not limited to two
offices of the state attorney general, the principal claimants should have
known all the avenues that Mexico provides for its citizens to
obtain state protection in Mexico. In fact, the claimants
submitted evidence of the four basic avenues for seeking redress in Mexico. They nonetheless did not
approach Mexico for assistance.
[23]
The
Board member did not deal with the evidence in an unreasonable way nor make
unreasonable findings.
CONCLUSION
[24]
I
find that the Board member did not make any reviewable error in law or in fact
and thus this application for judicial review will be rejected.
[25]
The
Applicants proposed a question for certification as follows:
“When a refugee claimant faces
persecution at the hands of agents of the state, does the claimant’s
evidentiary burden of proof to show that the state is unwilling or unable to
provide state protection lower than in cases where the agents of persecution
are not agents of the state?”
[26]
The
Respondent says that there is no question for certification in this case. I
agree. The circumstances in this case are fact driven. The Federal Court
of Appeal in Carillo, supra, has recently addressed much the same issues
as arise here such that this case presents no new basis for a legal
interpretation.
JUDGMENT
For the reasons herein provided:
THIS COURT
ADJUDGES that:
1.
This
application is dismissed;
2.
There
is no question for certification;
3.
No
Order as to costs.
“Roger
T. Hughes”
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