Date: 20080826
Docket: IMM-237-08
Citation: 2008 FC 971
Toronto, Ontario, August
26, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ALEJANDRO SANCHEZ GUTIERREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Alejandro
Sanchez Gutierrez is a citizen of Mexico, whose claim for refugee protection was rejected by the Refugee
Protection Division of the Immigration and Refugee Board on the grounds that
adequate state protection was available to him in Mexico.
[2]
Mr.
Sanchez now seeks judicial review of the Board’s decision, asserting that the
Board erred in ignoring or misapprehending the evidence before it, and in
finding that he had not rebutted the presumption that state protection would be
available to him in Mexico.
[3]
While I
am satisfied that certain aspects of the Board’s analysis were flawed, for the
reasons that follow, I have concluded that the Board’s finding that adequate
state protection was available to Mr. Sanchez in Mexico was one that was
reasonably open to it on the record before it. As a consequence, the
application for judicial review will be dismissed.
Background
[4]
Mr.
Sanchez worked as both a pastry chef and as a car salesman in the state of
Michoacan. He claims that he had an acquaintance by the name of José Luis Wong
Chow, who was involved in drug trafficking. When Mr. Wong asked Mr. Sanchez to
become involved in the drug trade, Mr. Sanchez says that he refused.
[5]
Mr.
Sanchez says that Mr. Wong then threatened to kill him. Over the next several
months, Mr. Sanchez says that he was threatened with death on several other
occasions. After the third threat on his life, Mr. Sanchez says that he went to
the judicial police and made a denunciation.
[6]
According
to Mr. Sanchez, the police told him that there could be no investigation
without evidence to support his allegations. He says that he was given a copy
of his police report, which he put in a box in his home which contained his
personal papers. Because he did not believe that the police would be able to
help him, Mr. Sanchez then fled to Canada a few days later.
[7]
A few
months later, Mr. Sanchez was advised by a relative that his home in Michoacan
had been broken into, and that although many valuables had been present in the
home, only a television set had been taken.
[8]
Some time
later, in preparation for his refugee hearing, Mr. Sanchez asked his relative
to retrieve the police report from his file box. It was then discovered that
the box was missing. Mr. Sanchez concluded that the box had been stolen in the
burglary.
[9]
Mr.
Sanchez then asked his brother-in-law to go to the police station to get a copy
of the police report. The brother-in-law was informed by the police that there
was no record of Mr. Sanchez’s denunciation. Mr. Sanchez believes that Mr. Wong
and his associates were informed of his denunciation by the police, and had the
record of his complaint erased. Mr. Sanchez also believes that Mr. Wong was
behind the burglary at Mr. Sanchez’s home.
Standard
of Review
[10]
The
standard of review to be applied with respect to Board findings regarding the
availability of state protection is that of reasonableness: see Hinzman v. Canada (Minister of Citizenship and
Immigration), [2007]
F.C.J. No. 584, at paragraph 38 (F.C.A.), and Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraphs 55, 57, 62, and 64.
[11]
In reviewing
a decision against the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision-making process,
and whether the decision falls within a range of possible acceptable outcomes
which are defensible in light of the facts and law: see Dunsmuir at
paragraph 47.
Analysis
[12]
As
is often the case with respect to refugee claims brought by citizens of Mexico,
the Board did not carry out any evaluation of the credibility of Mr. Sanchez’s
evidence whatsoever, and made no negative findings in this regard. Rather, it
confined its analysis to the issue of state protection.
[13]
In
the absence of any credibility analysis by the Board, Mr. Sanchez’s story must
be taken as having been accepted as true.
[14]
This
state of affairs renders two of the Board’s findings unreasonable: firstly, the
Board’s finding that Mr. Sanchez had not given Mr. Wong’s name to the police,
and secondly, the finding that Mr. Sanchez did not wait long enough to find out
what the outcome would be of the complaint that he had filed with the judicial
police.
[15]
Insofar
as the finding regarding the giving of Mr. Wong’s name to the judicial police
is concerned, Mr. Sanchez’s testimony before the Board was that he had told the
police that Mr. Wong was behind the threats. While his evidence on this point
may not have always been consistent, it was not open to the Board to simply
find that Mr. Sanchez had not advised the police of Mr. Wong’s identity without
at least addressing Mr. Sanchez’s sworn testimony in this regard, and providing
some explanation for rejecting it.
[16]
With
respect to the Board’s finding that Mr. Sanchez did not give the judicial
police the chance to investigate his case before fleeing to Canada, the Board
failed to address Mr. Sanchez’ evidence that the police had told him that they
would not be able to investigate his complaint without more evidence to support
it. Why would Mr. Sanchez wait for the results of an investigation that was
quite clearly not going to happen?
[17]
Furthermore,
having accepted Mr. Sanchez’s evidence as true, it was unreasonable for the
Board to have failed to consider Mr. Sanchez’s testimony regarding the
destruction of the police records of his complaint, as it clearly related to
the willingness of the police to investigate the matter.
[18]
That
said, the Board’s finding that Mr. Sanchez did not give the judicial police a
chance to investigate his case before fleeing to Canada was not the end of its
analysis. Indeed, the Board then went on to conclude that even if Mr. Sanchez
was dissatisfied with the response of the judicial police in Michoacan, there were a
number of other avenues of protection available to him in Mexico. Mr. Sanchez has not
persuaded me that the Board’s findings on this point were unreasonable.
[19]
In
this regard, the Board noted that there were a number of state agencies from
which Mr. Sanchez could have sought assistance, including the Federal Agency of
Investigations, the Deputy Attorney General’s Office of Special Investigations
into Organized Crime, the Secretariat of Public Administration, and the
Telephone Assistance System for Citizens.
[20]
As
Justice Barnes observed in Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 134, state agencies may be of assistance in providing
protection in cases where the initial police response is not adequate.
[21]
Moreover,
the Board was clearly aware of the limits of Mexico’s ability to protect its
citizens from drug traffickers, noting that state protection was not perfect.
In addition, the Board considered the evidence as to effectiveness of the
measures taken to protect citizens, and did not merely consider the existence
of laws “on the books”. The Board further recognized that corruption continues
to be a serious problem in Mexico.
[22]
Having
recognized the limitations in Mexico’s ability to protect its citizens, it was up to the Board to
weigh the evidence before it, in order to determine whether the available state
protection was adequate. This it did. It is not the task of this Court sitting on
judicial review to reweigh the evidence that was before the Board.
[23]
As
a consequence, and despite the able submissions of counsel for Mr. Sanchez, I
am not persuaded that the Board erred in ignoring or misapprehending the evidence before it in
relation to the state protection issue, or that it erred in finding that Mr.
Sanchez had not rebutted the presumption that state protection would be
available to him in Mexico.
Conclusion
[24]
For these reasons,
the application for judicial review is dismissed.
Certification
[25]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2.
No serious question of general importance is certified.
“Anne
Mactavish”
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