Date: 20080806
Docket: IMM-301-08
Citation: 2008 FC 933
Ottawa, Ontario, August 6,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
JAIME ALEJANDRO TELLEZ ALVAREZ
CITLALLI HERNANDEZ RINCON
ITZY JASMIN
TELLEZ HERNANDEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants are a family of Mexican citizens, whose refugee claims
were rejected by the Refugee Protection Division of the Immigration and Refugee
Board on the grounds that adequate state protection was available to the family
in Mexico.
[2]
The applicants now seek judicial review of the Board’s decision,
asserting that the Board erred in law in imposing too heavy a burden on them to
rebut the presumption that a state will be able to protect its citizens.
[3]
The Board further erred, the applicants say, in failing to properly
consider that the agents of persecution in this case were agents of the state,
or were acting with the complicity of the state. In addition, the applicants
assert that the Board also erred in treating Mexico as a fully developed
democracy, and in ignoring relevant evidence, thus rendering the Board’s
decision unreasonable.
[4]
For the reasons that follow, I am not persuaded that the Board erred as
alleged. As a consequence, the application for judicial review will be
dismissed.
Background
[5]
The applicants claimed to have a well-founded fear of persecution in Mexico
based upon the political opinion of the adult claimants, namely Mr. Tellez and
Ms. Hernandez.
[6]
While in university, Mr. Tellez and Ms. Hernandez were student
activists, supporting the Zapatista movement. They were also members of, and
activists within, the Partido de la Revolution Democratica. The applicants say
that these activities led to them being targeted for persecution by the
governing party in Mexico.
[7]
The applicants also say that the fact that Ms. Hernandez’ father was a
prominent figure within the PRD also contributed to their having been targeted
for persecution.
[8]
The Board accepted as credible the applicants’ claim that between 1999
and 2004 they were subjected to a variety of threats, police harassment and
attacks. The Board also accepted that Mr. Tellez had been kidnapped by
anti-leftists in 2004, who also stole the van that Mr. Tellez had been driving
at the time of the kidnapping.
[9]
The applicants themselves never sought state protection. Although the
police were evidently called in by a third party after the kidnapping, Mr.
Tellez did not tell the police that he had been kidnapped, because he was
fearful of losing his job, and because he did not want his employer to become
aware of his political activities.
[10]
One of the kidnappers evidently got away. However, the other kidnapper
was arrested and was subsequently convicted of stealing the van that Mr. Tellez
had been driving at the time of the kidnapping, and was sent to prison. No
further threats have been received by the applicants or their families since
2004.
[11]
In 2006, the applicants’ home was expropriated so as to allow for the
construction of a new airport. Realizing that nothing could be done to prevent
this, the applicants then decided to leave Mexico and come to Canada.
[12]
The Board found the issue of state protection to be determinative of the
applicants’ claim. Having found that such protection was available to the
applicants in Mexico, their claim for refugee protection was accordingly
dismissed.
Did the Board Err in its Application of the Law in
Relation to the Issue of State Protection?
[13]
The applicants say that the Board erred in law in its analysis of the
state protection issue, by imposing too high a standard of proof on them to
rebut the presumption that state protection would be available to them in Mexico.
[14]
That is, the applicants say that the Board erred in relying on
the decision of the Federal Court of Appeal in Villafranca v. Canada (Minister of Citizenship and Immigration), [1992] FCJ No. 1189, with respect to the nature and quality of the
evidence that an applicant must adduce to rebut the presumption of state
protection. This, the applicants say, amounts to an error of law, as the
Supreme Court of Canada changed the law in this regard in Canada (Attorney
General) v. Ward, 2 S.C.R. 689.
[15]
In support of this contention, the applicants
rely on the decision of Justice Campbell in Garcia v. Canada (Minister of Citizenship and
Immigration), 2007 FC 79.
[16]
I do not agree that the
Board erred as alleged by the applicants. Although the decision in Villafranca
is mentioned in the Board’s analysis, a review of the Board’s analysis as a
whole makes it clear that the Board assessed the applicants’ claim in light of
the standard prescribed by the Supreme Court in Ward.
[17]
That is, the Board considered whether the applicants had adduced “clear
and convincing evidence” of Mexico’s inability to protect them.
[18]
As a consequence, I am satisfied that the Board did not err in law in
this regard, and indeed applied the correct test in assessing the applicants’
claim.
Was the Board’s State Protection Finding
Unreasonable?
[19]
The applicants have several arguments as to why
the Board’s finding that state protection was available to them in Mexico was unreasonable.
[20]
Firstly, they say that the Board erred in
failing to consider that the agents of persecution feared by the applicants in
this case were either agents of the state, or those acting with the complicity
of the state. Citing cases such as this Court’s decision in Carillo v.
Canada (Minister of Citizenship and Immigration), 2007 FC 320 (rev’d 2008 FCA 94), the
applicants say that given that the agents of persecution were agents of the
state, the burden on them to rebut the presumption of state protection was
lower.
[21]
A review of the Board’s decision discloses that
the Board was well aware of the fact that the agents of persecution feared by
the applicants in this case were agents of the state. It was with this in mind
that the Board went on to consider the avenues of recourse that would have been
available to the applicants, had they attempted to seek state protection while
in Mexico.
[22]
The Board also observed that even though Mr.
Tellez did not tell the police the whole story behind his kidnapping, the
police appeared to have been willing and able to do their job in bringing at
least one of the kidnappers to justice for the only crime of which the police
were made aware.
[23]
The applicants also say that the Board erred in treating Mexico as a
fully developed democracy, without also acknowledging the well-documented
problems of corruption and human rights abuses within that country.
[24]
Here once again, this argument is not borne out by a review of the
Board’s reasons. Indeed, in observing that the public in Mexico are often
distrustful of public institutions, including the police, the Board expressly
recognized the problems of widespread corruption and human rights violations
within that country.
[25]
Finally, the applicants say that the Board erred in ignoring documentary
evidence when it found that the most recent documentary evidence did not
describe any politically-motivated violations of the human rights of leftist
activists.
[26]
The Board is presumed to have considered all of the evidence: see Woolaston v. Canada (Minister of Manpower and Immigration),
[1973] S.C.R. 102. There is no obligation on the Board to mention every
document entered into evidence, and that the failure of the Board to mention a
particular document does not mean that it did not take the document into
account: Hassan v. Canada (Minister of Employment and Immigration),
(1992) 147 N.R. 317.
[27]
Given that refugee claims involve a forward-looking analysis, it was not
unreasonable for the Board to have focussed its analysis on the most recent
documentary evidence available.
[28]
Moreover, the documentary evidence that was allegedly overlooked by the
Board related to a teachers’ strike in a different part of Mexico than that
where the applicants lived. As a consequence, the probative value of the
evidence that was allegedly overlooked by the Board is not so compelling as to
lead to the inference that the evidence must have been overlooked by the Board:
see Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) [1998] F.C.J. No. 1425, 157 F.T.R. 35 at paragraphs 14 to 17.
[29]
As a result, the applicants have not persuaded me that the Board’s state
protection finding was unreasonable.
Conclusion
[30]
For these reasons, the application for judicial review is dismissed.
Certification
[31]
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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