Date: 20080124
Docket: IMM-3449-07
Citation: 2008 FC 98
Vancouver, British Columbia, January 24, 2008
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
Rogelio RODRIGUEZ CAPITAINE
Nancy Patricia PRATT NAJERA
Fernanda Andrea LORIA PRATT
Sara Ximena RODRIGUEZ PRATT
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Rogelio
Rodriguez Capitaine, his wife Nancy Patricia Pratt Najera and their two minor
daughters Fernanda and Sara are Mexican nationals. They seek judicial review of
the decision of the Refugee Protection Division (RPD) rejecting their claim
pursuant to section 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act) because the adult applicants "had an obligation
to approach the state for protection and [it] did not find that it was objectively
reasonable for them not to have sought protection for themselves and for their
children from the authorities against the criminal individuals who were
threatening to further kidnap and/or kill them, specifically for the revenge of
the high profile criminal, Martin Aguilar".
[2]
The
credibility of the adult applicants is not in dispute here. The RPD
specifically found their testimony credible and trustworthy. It accepted that
Mr. Capitaine, a doctor, had been the subject of harassment, threats and a kidnapping
orchestrated by the father of a newborn infant who had died after being
administered two routine vaccines by Mr. Capitaine at a rural clinic.
[3]
The
RPD also acknowledged that the applicants had made serious but ultimately
unsuccessful attempts at finding an internal flight alternative, having
relocated to three separate states in Mexico, namely Durango, Veracruz and
Yucatan.
[4]
The
applicants readily admitted in their Personal Information Forms (PIF) that they
had not sought the protection of the Mexican police, because they both believed
that doing so would not afford them any protection. They provided various
explanations in their PIFs and at the hearing to justify their position. They
also referred to documentary evidence which, according to them, objectively
establishes that their belief was well-founded. Firstly, based on the physical
appearance of his kidnappers, Mr. Capitaine suspected that policemen or former
policemen were directly involved in his kidnapping. Documentary evidence relied
upon by the applicants suggests that 70% of kidnappings in Mexico involve
policemen or former policemen. Secondly, the applicants had in the past sought police
assistance in vain with respect to different matters. For instance, they were
robbed three times in 2002. On one occasion, the police refused to come to
their apartment when asked to do so, ostensibly because they did not have a
warrant to enter. The applicants viewed this somewhat surprising answer (they
were the complainants) as evidence of total disinterest. Thirdly, Mrs. Pratt
Najera's father, a businessman, had twice been kidnapped and died of a heart
attack at the hands of his kidnappers during the second incident. Police help had
apparently been sought, but in vain.
[5]
The
applicants also put forth evidence to establish that their lack of faith in the
ability of the police to protect them relates to a broader pattern, that
is, their state's inability to extend its protection. In that respect, they
produced documentary evidence indicating that the majority of the
population has no faith in the state’s enforcement institutions (police and
courts), and that it has been estimated that only one in four or five crimes is
even reported. Of these, reform experts claim that fewer than 5% were actually
investigated and fewer than 2% went to trial.
[6]
The
applicants also pointed to documentary evidence relating to similarly situated
people, as evidence of the inability of the state to protect them from further
kidnapping and violence at the hands of their persecutor.
[7]
Finally,
as the RPD had indicated its reliance on the so-called "persuasive
decision" issued in TA4-18833 in February 2006, the applicants claim that
they have established, through more current documentary evidence, the
inadequacy of Mexican enforcement institutions (police, attorneys general and
courts) as of the present time. According to the applicants, their evidence
rebuts the findings on state protection in Mexico adopted in
the “persuasive decision,” which refers to measures adopted under former President
Fox to address and remedy corruption, drug trafficking and organized crime.
For example, in the applicants’ documentary evidence, the president of the Mexican
Supreme Court is quoted as saying, in November of 2006, that "the Mexican
penal system is in crisis. Public insecurity and the wave of violence that
affects the country call into question the efficacy of the Attorney General,
courts and tribunals…. Asked about the 90 per cent rate of criminal impunity,
the President of the court said that: 'Impunity is generated because police and
Attorney General offices' investigations are badly done. Because of the delay
in bringing cases to trial, because of the criminal's ability to escape
prosecution and the obvious reasons of corruption'."
[8]
Before
reviewing in detail the decision of the RPD, it is important to identify the
issues raised by the applicants. First, they say that the RPD applied the wrong
legal test, more particularly that it elevated to the level of a legal pre-condition
that an applicant must actually approach the state to request protection before
the RPD can make a finding that state protection is unavailable, and this
without first considering whether it was reasonable for them not to do so.
[9]
Second,
the applicants argue that the RPD failed to make an adequate analysis of the
evidence before it (particularly with respect to their personal experiences
with the police and those of similarly situated persons), or failed to provide
adequate reasoning for its finding that it was unreasonable, in this particular
case, for the applicants not to seek protection before leaving their country.
They also submit that apart from rendering the decision unreasonable, such
failures amount to a breach of procedural fairness.
[10]
There
is no dispute as to the standard of review applicable to all such issues. If
indeed there was an error of law (the respondent objects to this
characterization of the alleged error) the standard is correctness. However,
the finding of the RPD on the availability of state protection, including
whether it was unreasonable for the applicants not to have sought such
protection, is a mixed question of fact and law subject to review against the
standard of reasonableness simpliciter (Hinzman v. Canada (Minister
of Citizenship and Immigration) 2007 FCA 171, para. 38). If the inadequacy
of the reasons amounts to a breach of procedural fairness, the Court will
intervene without the need to proceed to a pragmatic and functional analysis (Sketchley
v. Canada, [2005] F.C.J. no 2056, paras. 53-55).
[11]
With
those issues in mind, the Court will now review the decision itself.
[12]
In
contrast to many of its decisions on state protection, in this case the
RPD barely discusses the evidence actually supporting its conclusions. Instead,
having adopted the general test applied in the persuasive decision
referred to above (the adequacy of which is not disputed), it states at
paragraph 22:
I have taken into consideration that the
persuasive decision states that the documentary evidence indicates that
drug trafficking and criminality are key areas of focus of the Government of
Mexico. It is, therefore, reasonable to assume that if the claimant
has (sic) made reasonable efforts to obtain protection from that
specific drug trafficking unit, such protection might have been adequate.
[13]
At
this stage, the Court must open a parenthesis and discuss in more detail what
the persuasive decision was about. It dealt with a claimant allegedly facing persecution
(he was not found credible) for having helped the police bust a drug operation.
The claimant argued he had rebutted the presumption of state protection, as he had
actually sought protection from a local police officer who refused to believe him
(a possible rogue officer, according to the decision). To support its finding
that the applicant had not rebutted the presumption, the RPD focused, as indeed
it should, on the documentation most relevant to the particular situation
before it. Thus, it referred to the Mexican government's efforts to combat drug
trafficking and criminality through the anti-narcotic unit. It also took note
of the particular job of the applicant (it is not clear if the applicant
was actually working for another security force) and the fact that he had, in
the past, successfully co-operated with the police in the prevention of drug
activities.
[14]
Apart
from his alleged attempt to seek protection from a local police officer, there
is no indication in that decision that the claimant had put forth other
objective evidence to defeat the presumption of state protection. The situation
was thus very similar to that at issue in Canada (Minister of Citizenship
and Immigration v. Kadenko (1996), 143 D.L.R. (4th) 532
(F.C.A.), in which the Federal Court of Appeal had to decide whether evidence
of a failed attempt to seek protection was sufficient to establish its
unavailability. In its decision, the RPD relied on Kadenko.
[15]
Returning
to the case at bar, having adopted the assumption made by the RPD in the
persuasive decision (see paragraph 12 above), the decision-maker goes on to
quote, without comment, several passages of documentary evidence relied upon by
the applicants, including certain extracts from the decision of Justice Luc
Martineau in Avila v. Canada (Minister of
Citizenship and Immigration) [2006] F.C.J. No. 439, particularly paras.
31 to 33. Presumably, those passages were chosen to indicate that the RPD was aware
that firstly, the degree to which a state tolerates corruption in the political
or judicial apparatus correspondingly diminishes its degree of democracy, and secondly,
that it was required to analyze the documentary evidence before it with regard
to the particular circumstances of the main applicant, whom the RPD describes
as "a victim of criminality" (para. 23 of the decision).
[16]
After
noting the applicants' argument that "the objective country documents in
the decision in [Avila] rebutted the [RPD] persuasive decision
TA-4-18833," and that said documents establish that state protection was
not available to them, the RPD reverts to the main concern it described at the
beginning of its decision, namely, the applicants’ failure to seek protection
before departing.
[17]
The
RPD does not engage in a discussion of the applicants’ personal experiences
with the police, or the evidence of similarly situated persons described in the
objective country documents with reference to the objective basis for the
applicants’ refusal or unwillingness to seek protection. Instead, it notes that
the death of Mrs. Pratt Najera's father supports the applicants' strong
subjective fear. This leads into the main statements to which the applicants
object and which, according to them, are in fact the RPD’s conclusions.
[31] However, on the same token I
have to take into consideration that the principal claimant and his wife, even
though they had a subjective far of seeking protection from the police and
believing it would not be adequate to protect their lives, still had an
obligation to seek state protection. The two adult claimants had very detailed
information that they could have given the police so that the police could have
made a thorough investigation pertaining to Mr. Aguilar and individuals
connected to him.
[32] Therefore, even though I
appreciate the extensive detailed submission by counsel in respect to current
objective country documents pertaining to serious problems with adequate state
protection in Mexico and the Federal Court
decision referred to above, I still find that the claimants had an obligation
to approach the state for protection. Further, I do not find that it is
objectively reasonable for them not to have sought protection from authorities
in their particular situation, even though I have taken in consideration their
sincere subjective fears from these criminals and their lack of confidence in
receiving adequate protection from Mexican authorities.
[18]
Looking
at the decision as a whole, it is not clear whether the RPD actually made an
error of law as opposed to an error in its application of the law to the
facts of this case.
[19]
To
claim the status of a person in need of protection, the applicants clearly
had the burden of establishing, on a balance of probabilities, that they met
the requirements set out in para. 97(1)(b) of the Act. Pursuant to subparagraph
97(1)(b)(i), the person must be unable or, because of the risk, unwilling to
avail themselves of the protection of their country of origin.
[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 (Hinzman, above, para. 45; Carrillo v. Canada (Minister
of Citizenship and Immigration), [2007] F.C.J. No. 439, para.19; Avila,
above, para. 30; De Leon v. Canada, [2007] F.C.J. No. 1684, para. 28).
[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. It appears from the decision of the Supreme
Court of Canada in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, paras.
48-50, that on a practical level, the evidence relevant to establishing the
inability of a state to protect its citizens is the same as that relevant to
the establishment of an objective basis for the refusal (unwillingness) to seek
one's state protection. The analysis that must actually be carried out is fully
described in Avila, above, at paras. 26
to 31.
[23]
In
the present instance, having read the decision under review several times, the
Court is unable to discern whether the RPD repeatedly refers to the applicants'
obligation to seek protection because: (i) it had assessed that Mexico was a
developed democracy similar to the U.S. and Israel; or (ii) whether it believed
that such obligation is to apply equally in all cases; or (iii) because it was unreasonable
in the particular circumstances of this case not to seek Mexico's protection.
[24]
If
the RPD meant (i), on the basis of the evidence cited in its decision, it
certainly failed to provide cogent reasoning supporting this implicit
conclusion.
[25]
If
instead it believed, as argued by the applicants, that this was a legal
pre-condition applicable in all cases, it made an error of law and the decision
should be quashed.
[26]
Finally,
if in spite of the way the decision actually reads, the RPD concluded as it did
solely because it found that it was unreasonable for the applicants, in their
particular circumstances, not to seek state protection, this last finding is
flawed for the following reasons:
a) There
is no indication that the RPD made an independent review of the documentary
evidence supporting this conclusion, as opposed to relying entirely on the
review carried out in the persuasive decision. The review in that case was made
focusing on circumstances that are clearly distinguishable from the one before
the decision-maker here. Kidnapping and general violence are quite different
from drug trafficking and organized crime activities. The RPD does not explain
why it was able to assume, as it did, that the anti-narcotics unit, which was
directly concerned on the facts of the persuasive decision, could be expected
to offer any protection to the applicants. The applicants had no personal
knowledge of the activities of their persecutor. Mr. Capitaine had only been
told by a nurse that he was a drug dealer. The vendetta was unrelated to his
drug activities.
b) The
statement at para. 31 to the effect that the police "could have made a
thorough investigation" is unsupported. This was a material finding, if it
was meant to distinguish the applicants' case from the vast majority of
kidnapping cases that were not investigated, according to the evidence cited in
the decision itself.
c) Finally,
the use of the word “objective” solely in reference to country documentation,
and the mention of the applicants' prior experiences solely for the purpose of
establishing a subjective fear, raises serious doubt as to whether the RPD
assessed the evidence with respect to the applicants' personal experience for
the purpose of determining whether their refusal was objectively reasonable.
[27]
In
light of the above, the Court concludes that the decision cannot withstand a
probing examination and is unreasonable. State protection is a difficult and
complex issue and the Court did not come to this conclusion lightly. Again, it
is important to stress the fact that the applicants bear a heavy burden here,
particularly under section 97 of the Act, and that my decision should not be
construed in any way as an opinion of the Court on whether they have met that
burden.
[28]
Both
sides agreed that in the particular circumstances of this case there is no
question of general interest to certify. Indeed, the matter turns on its own
facts. However, further clarification as to the burden of proof incumbent on claimants
with respect to the issue of state protection will be welcome when the Federal
Court of Appeal answers the question certified in Carrillo.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application is
granted. The decision is set aside and the applicants' claim pursuant to
section 97 shall be remitted for full reconsideration by a different panel.
"Johanne
Gauthier"
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