Date: 20080828
Docket: IMM-1146-08
Citation: 2008 FC 977
Ottawa, Ontario, August 28, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SANTIAGO COSME MONTEMAYOR
ROMERO
MARIA SUSANA DE LA ROSA GOMEZ
MOISES MONTEMAYOR DE LA ROSA
Applicants
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
application for judicial review is dismissed because the applicants have failed
to establish that it was unreasonable for the Refugee Protection Division of
the Immigration and Refugee Board (RPD) to conclude that adequate state
protection exists for them in Mexico.
Background Facts
[2] Santiago Cosme Montemayor Romero, his wife,
Maria Susana De La Rosa Gomez, and their son, Moises Montemayor De La Rosa, are
citizens of Mexico. Mr. Montemayor and his family seek protection from an
individual (the individual) who is said to be a powerful businessman with
influence in the ruling National Action Party. Mr. Montemayor says that
the individual and his associates threatened him and his family.
[3] On
November 28, 2003, Mr. Montemayor filed a denunciation against the individual
with the Public Ministry of the Attorney General of Justice of Mexico State
(Public Ministry), citing fraud and threats committed by the individual.
[4] Mr.
Montemayor continued to receive threats from the individual and his associates.
[5] The
denunciation filed with the Public Ministry led to an unsuccessful conciliation
process and, ultimately, the dispute was to be referred to the Court.
[6] Mr.
Montemayor says that, after his complaint was to be referred to the Court, the
threats from the individual and his associates increased. On February 19,
2006, an unsuccessful attempt was made to break into Mr. Montemayor’s house.
The would-be intruders left behind a threatening note. On March 3, 2006, Mr.
Montemayor’s house was stoned and he received a threatening telephone call. On
March 6, 2006, another threatening phone call was received, telling Mr.
Montemayor that “they” knew the daily patterns of his wife and son. Mr. Montemayor
and his family immediately left their home to stay with friends. Shortly
thereafter, they left Mexico for Canada and made their claim for protection.
The Decision of the RPD
[7] In
support of its conclusion that Mr. Montemayor had failed to provide “clear and
convincing” evidence of Mexico’s inability or unwillingness to extend
protection, the RPD made a number of findings:
·
First, the RPD found that the Public Ministry made efforts to
resolve Mr. Montemayor’s complaint. The RPD noted that the parties
proceeded to a conciliation process and, when that process failed, the matter
was referred to the Court for determination.
·
Second, the RPD found that, after receiving threats from the
individual and his associates, Mr. Montemayor made no attempt to seek
protection from police or any other state authority.
·
Third, the RPD found that Mr. Montemayor elected to leave Mexico
and seek protection in Canada before his dispute with the individual was
determined by the Court.
·
Fourth, the RPD found that it was reasonable to expect Mr.
Montemayor to seek protection from state agencies in Mexico, including the
Human Rights Commission (Commission), the Federal Agency of Investigations and
the Secretariat of Public Services, before seeking international protection.
[8] The
RPD also reviewed the documentary evidence. The RPD made the following
observations:
·
While the RPD acknowledged that there continued to be problems in
Mexico regarding crime, it was not persuaded that Mr. Montemayor would not
receive protection from the individual and his associates.
·
The RPD also acknowledged that corruption was an ongoing problem
in Mexico, but noted that the documentary evidence indicated that Mexico was
aggressively targeting corruption and bribery.
·
Based on the whole of the evidence, the RPD concluded that
adequate, though not necessarily perfect, protection would be available to Mr.
Montemayor and his family in Mexico.
The Asserted Errors
[9] Three
errors are asserted by the applicants. They are that:
1. The RPD misapprehended the evidence about the nature of
protection provided to the applicants in Mexico, and erred by relying upon the
serious efforts test without considering the effectiveness of the available
protection.
2. The RPD ignored evidence concerning the agent of persecution
and the mandates, relevance and effectiveness of specific state protection
agencies.
3. The RPD erred by requiring the applicants to exhaust all
avenues of protection, to approach the state again after they did not initially
receive protection and to approach human rights commissions.
The Standard of Review
[10] A
finding as to the adequacy of state protection has been held to be reviewable
against the reasonableness simpliciter standard. See: Hinzman v. Canada
(Minister of Citizenship and Immigration) (2007), 362 N.R. 1 at paragraph 38
(F.C.A.). Following the decision in Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190 the Court has found that deference remains appropriate
where a finding of state protection is made and that the reasonableness
standard ought to be applied. See, for example, Eler v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 418 at paragraphs 6 to 7
and Cervantes v. Canada (Minister of Citizenship and Immigration),
[2008] F.C.J. No. 848 at paragraph 7.
Application of the Standard
of Review to the RPD's Decision
1. General Principles
[11] I
begin by briefly reviewing the principles that underlie the concept of state
protection. In Hinzman, cited above, the Federal Court of Appeal made
the following points:
41 In
evaluating the appellants' claims, the starting point must be the direction
from the Supreme Court of Canada that refugee protection is meant to be a form
of surrogate protection to be invoked only in those situations where the
refugee claimant has unsuccessfully sought the protections of his home state.
In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 709 ("Ward"), La Forest J., speaking for the Court,
explained this concept as follows:
At the outset, it is useful to explore the rationale underlying
the international refugee protection regime, for this permeates the
interpretation of the various terms requiring examination. International
refugee law was formulated to serve as a back-up to the protection one expects
from the state of which an individual is a national. It
was meant to come into play only in situations when that protection is
unavailable, and then only in certain situations. The international community
intended that persecuted individuals be required to approach their home state
for protection before the responsibility of other states becomes engaged.
[Emphasis added in original.]
[…]
43 In
Ward, the Supreme Court explained at page 725 that
in refugee law, there is a presumption of state protection:
...nations should be presumed capable of protecting their
citizens. Security of nationals is, after all, the essence of sovereignty.
Absent a situation of complete breakdown of state apparatus, such as that
recognized in Lebanon in Zalzali,
it should be assumed that the state is capable of protecting a claimant.
44 To
rebut the presumption, the Court stated that "clear and convincing
confirmation of a state's inability to protect must be provided": Ward at page 724.
45 In
Kadenko v. Canada (Solicitor General) (1996), 143
D.L.R. (4th) 532 at page 534 (F.C.A.), Décary J.A. elaborated on these
principles and highlighted that the more democratic a country, the more the
claimant must have done to seek out the protection of his or her home state:
When the state in question is a democratic state, as in the case
at bar, the claimant must do more than simply show that he or she went to see
some members of the police force and that his or her efforts were unsuccessful.
The burden of proof that rests on the claimant is, in
a way, directly proportional to the level of democracy in the state in
question: the more democratic the state's institutions, the more the claimant
must have done to exhaust all the courses of action open to him or her.
[Emphasis added in original.]
[12] Recently,
the Federal Court of Appeal applied those principles to a review of a decision
of the RPD that had concluded that adequate state protection existed in Mexico.
In Carillo v. Canada (Minister of Citizenship and Immigration),
[2008] F.C.J. No. 399 the Court wrote:
31 The
Board acknowledged the prevalence of domestic abuse in Mexico. It then reviewed
the various steps taken by the authorities to address the issue: see the
Board's reasons at pages 43 to 49 of the appeal book.
32 It
proceeded to review the law governing the presumption of state protection. It
stated that local failures to provide effective policing do not amount to a
lack of state protection. Relying upon the findings of this Court in Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R.
(4th) 532, leave to appeal to the Supreme Court of Canada, [1996] S.C.C.A. No.
612, refused on May 8, 1997, it stated that "the more democratic the
state's institutions, the more the claimant must have done to exhaust all the
courses of action open to him or her": ibidem.
It found that Mexico is a fledgling democracy governed by the rule of law: ibidem, at pages 43-44.
33 The
Board found that the respondent had failed to make determined efforts to seek
protection. She reported to police only once during more than four years of
alleged abuse: ibidem, at page 45.
34 In addition, the Board concluded based on the evidence
before it that the respondent did not make additional effort to seek protection
from the authorities when the local police officers allegedly did not provide
the protection she was seeking: ibidem. She could
have sought redress through National or State Human Rights Commissions, the
Secretariat of Public Administration, the Program Against Impunity, the General
Comptroller's Assistance Directorate and the complaints procedure at the office
of the Federal Attorney General: ibidem, at page 49.
35 Finally, the Board noted the respondent's omission to make
a complaint about the involvement of the abuser's brother, who allegedly is a
federal judicial police officer, when the evidence indicates that substantial,
meaningful and often successful efforts have been made at the federal level to
combat crime and corruption: ibidem, at pages 46 and
49.
36 Considering
the principles relating to the burden of proof, the standard of proof and the
quality of the evidence needed to meet that standard defined as a balance of
probabilities against the factual context, I cannot say that it is an error or
unreasonable for the Board to have concluded that the respondent has failed to
establish that the state protection is inadequate.
[13] I
now turn to the submissions made by the applicants in this case.
2. Did the RPD misapprehend the
evidence about the nature of the protection provided to the applicants in
Mexico, and err by relying upon the serious efforts test, without considering
the effectiveness of the protection that was provided?
[14] The
applicants argue that the RPD "misapprehends and exaggerates the evidence
of what steps the state actually took" in their case and further erred by
relying "on the serious efforts test without considering whether the past
protection was effective."
[15] In
my view, the RPD neither misapprehended nor exaggerated the steps taken by the
Mexican authorities. Mr. Montemayor’s own evidence was that he filed a
denunciation with the Public Ministry, the Public Ministry arranged for
conciliation between the parties and, when that process proved unsuccessful,
the dispute was referred to the court for determination. As the RPD noted, the
process, though perhaps delayed, was in progress at the time that Mr. Montemayor
and his family left for Canada. While perhaps more could have been done more
quickly, no state is required to guarantee the perfect protection of its
citizens at all times. See: Canada (Minister of Employment and
Immigration) v. Villafranca (1992), 150 N.R. 232 (F.C.A.).
[16] In
my further view, contrary to the applicants' submissions, the RPD did not fail
to consider the effectiveness of Mexico's efforts to provide protection. For
example:
·
At page 6 of its reasons, after the RPD referred to efforts to
reform the federal police, the RPD considered the steps taken operationally to
enforce the internal regulations of the Federal Preventive Police;
·
at page 7 of its reasons, after referring to the intent of the
Fox administration to target corruption, the RPD referred to steps taken to
give effect to that intent. Those steps included investigations, the
imposition of sanctions, improved pay and benefits for officials liable to be
corrupted, and improved hiring practices; and
·
at page 8 of its reasons, after referring to the enactment of
laws to eliminate corruption and bribery, the RPD reviewed the steps taken to
enforce that legislation.
3. Did the RPD ignore evidence
concerning the agent of persecution and the mandates, relevance and
effectiveness of specific state protection agencies?
[17] The
applicants essentially argue that the RPD relied upon the existence of state
protection agencies that had no jurisdiction to protect the applicants and
failed to appreciate that the agent of persecution was an individual. Further,
the applicants argue that the RPD failed to consider the effectiveness of the
protection provided by failing to grapple with the conflicting documentary
evidence.
[18] Again,
I respectfully disagree. In my view, the RPD did not err as alleged. I reach
this conclusion for the following reasons.
[19] First,
the applicants' submissions do not challenge the fact that one of the RPD's
findings was that the applicants had failed to seek protection by lodging any
complaint with the police about the threats and vandalism. Without doubt, the
police were a relevant state protection agency.
[20] Second,
the applicants' submissions ignore their own evidence about the nature of the
power and influence exercised by the individual. The individual was said to
have "political influence" such that the applicants would get no
police or state protection because of the individual's "political and
financial power". Given the alleged nature of the individual’s influence
and the nature of the alleged corruption, it was reasonable for the RPD to
point to state agencies such as the Federal Agency of Investigations, the
Secretariat of Public Services, the Commission, and the Telephone Assistance
System for Citizens. On this point, the RPD noted that the Federal Agency of
Investigations dealt with "corrupt state officials," the Secretariat
of Public Services dealt with "complaints regarding misconduct and
corruption," the Commission dealt with "police misconduct," and
the Telephone Assistance System for Citizens received "complaints
regarding misconduct of public servants."
[21] Third,
by recognizing the nature of the influence the individual was said to possess,
the RPD recognized that the alleged persecutor was an individual.
[22] Finally,
the RPD acknowledged the documentary evidence and submissions before it which
were to the effect that "crime and corruption continue to be problems is
in Mexico". However, the RPD found that "[b]ased on the totality of
the evidence adduced, the panel finds that adequate, though not necessarily
perfect" state protection was available to the applicants in Mexico.
There was documentary evidence to support the RPD's conclusion and its
conclusion was reasonably supported by the documentary evidence.
4. Did the RPD err by requiring
the applicants to exhaust all avenues of protection, to approach the state
again after they did not initially receive protection and to approach human
rights commissions?
[23] For
the following reasons, I find the RPD did not so err.
[24] First,
it was reasonable for the RPD to find that the filing of a denunciation and
subsequent departure from Mexico while that process was continuing did not
constitute clear and convincing proof of Mexico's inability to protect the
applicants. As to the effectiveness of that process, Mr. Montemayor testified
that the individual did ultimately comply with a notice to appear that was served
upon him because "if he had not appeared after having received the third
Notice to Appear, then the police would have taken him". He further
testified that the threats and violence that occurred in 2006 happened:
CLAIMANT: Because
[the individual] knew that if the case was referred from the Public Ministry to
the Courts, the Courts will have to issue an apprehension order against him.
MEMBER: Sorry,
what would they do?
CLAIMANT: That
because he knew that if the case was referred from the Public Ministry to the
Courts the Courts would have to issue an apprehension order against him.
[25] Second,
in Carillo, cited above, the Federal Court of Appeal approved findings
of the RPD, made in somewhat analogous circumstances, that where an initial
effort to seek state protection was unsuccessful, the claimant was obliged to
make "determined efforts to seek protection" and an "additional
effort" may well be required (see paragraphs 33 and 34 of the decision).
This is not to say that in every case repeated or determined efforts must be
made to access state protection. Such a result would be contrary to the
teaching of the Supreme Court of Canada in Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689 that a refugee claimant is only obliged to seek protection
where such protection might be reasonably forthcoming. But where, as in this
case, the state was bringing proceedings against the agent of persecution, it
was reasonable for the RPD to conclude that the making of the initial complaint
was insufficient to rebut the presumption of state protection. As the Court of
Appeal noted in Hinzman, at paragraph 57, "a claimant coming
from a democratic country will have a heavy burden when attempting to show that
he should not have been required to exhaust all of the recourses available to
him domestically before claiming refugee status."
[26] Finally,
with respect to the relevance of the Commission, I adopt the comments of my
colleague Justice Barnes in Sanchez v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 182. At paragraph 10 he
wrote:
10 I also do not accept that the Board
erred by referring to agencies which may not have a direct responsibility for
the provision of protective assistance, such as the Mexican Human Rights
Commission. State agencies which are outside of the criminal justice system,
and even a person's employer, can play a helpful role in cases like this where
the initial local police response may not be adequate. In this case there were
a number of alternate agencies noted by the Board which could have been
approached and it is surprising that the Applicants chose not to do so in the
face of the events they described.
Conclusion
[27] For
these reasons, the application for judicial review will be dismissed.
[28] Counsel
for the applicants posed the following question for certification: "Does
the Carillo decision require claimants to make determined efforts to
approach the state, even if they believe the approach would invite
persecution?" Counsel for the Minister opposed certification of the
question.
[29] In
my view, the law on this point is well-settled and the question would not be
determinative of this application. No question will be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
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