Date: 20081201
Docket: IMM-5283-07
Citation: 2008 FC 1336
Ottawa, Ontario, December 1,
2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PATRICIA TORRES SANCHEZ
DIANA RAMOS TORRES
LAURA RAMOS TORRES
DANIELA RAMOS TORRES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
the Refugee Protection Division of the Immigration Refugee Board (Board), dated
November 22, 2007 (Decision) refusing the Applicants’ application to be deemed
Convention refugees or persons in need of protection under section 96 and
section 97 of the Act.
BACKGROUND
[2]
Patricia
Sanchez (Principal Applicant) and her daughters Diana, Laura and Daniela are
citizens of Mexico.
[3]
The
Principal Applicant’s husband, Martin Rodriguez, was kidnapped on March 23,
2003 by the Los Macizos gang. He was released 20 days later after a
ransom payment was made to the gang. Some of the gang members were jailed for
the kidnapping. During a TV program, the Principal Applicant learned that gang
members had bribed jail officers and had escaped. The escaped kidnappers
harassed the Principal Applicant’s husband. Both he and his son fled Mexico and arrived
in Canada on November 4, 2004 and applied for refugee protection. After the
Principal Applicant’s husband fled Mexico, the Principal
Applicant and her daughters moved in with her mother.
[4]
The
Los Macizos gang began harassing the Principal Applicant and her
daughters after her husband’s departure. They followed her, asked her to disclose
her husband’s whereabouts, and attempted to kidnap her. They told the Principal
Applicant they would kill her and her daughters if she did not tell them where
her husband was.
[5]
The
Principal Applicant filed a formal complaint against the gang with the police,
but her complaint was dismissed on the grounds that her allegations lacked
evidence. The Principal Applicant says that the police promised to send a
police patrol to monitor her residence but they did not do so.
[6]
The
Principal Applicant and her daughters arrived in Canada on June 27,
2006 by plane and made claims for refugee protection in Toronto.
[7]
The
Applicants’ refugee hearing was held on October 29, 2007.
DECISION UNDER REVIEW
[8]
The
Board considered the Principal Applicant’s oral and written testimony, her
counsel’s submissions and all of the documentary evidence provided. The Board addressed
the documentary evidence pertaining to measures in Mexico for dealing with
crime, including kidnapping and corruption, as well as evidence about the
police, the availability of means for lodging complaints and, in general, the
level of democracy in Mexico.
State
Protection
[9]
The
Board found that there was adequate state protection for individuals like the
Applicants in Mexico and concluded that the Applicants had not met the burden
of establishing “clear and convincing” proof of a lack of state protection for
individuals like them in Mexico in accordance with the governing
jurisprudence.
[10]
The
Board found that the Principal Applicant’s testimony indicated that the
kidnapping incident occurred on March 23, 2003 and that members of the Los
Macizos gang were captured and jailed by the authorities, thus indicating
that the Mexican authorities had taken action against her husband’s kidnappers.
In addition, the Principal Applicant did not seek out state protection in Mexico, but only
sought help from the police on one occasion. No redress was sought for the
threats or mistreatment that the Principal Applicant allegedly received from
members of the gang.
[11]
The
Board also noted that the Principal Applicant did not seek assistance from the
Federal Agency of Investigations (AFI) that deals with corrupt state officials,
drug traffickers and violent kidnappers. The Principal Applicant indicated that
she knew about the Human Rights Commission that handled complaints about police
misconduct, and situations where citizens’ rights are violated, but she did not
seek their help. The Principal Applicant had no awareness of other services
available to her to deal with corrupt federal and state employees; however, she
was certain that these state institutions would have helped her had she applied
for help from them.
[12]
The
Board found that ignorance was no excuse for the Principal Applicant’s failure
to pursue the avenues of protection available to her in her own country,
instead of taking the extreme measures of seeking protection abroad. The Board
cited documentary evidence that Mexico is a federal republic
with a bicameral legislature that has federal and state police. There is also
state protection for individuals in similar situations to the Applicants. The
Board found no lack of police protection for victims of gang violence or
corruption, and no persuasive evidence to suggest that the Special
Investigations into Organized Crime (SIEDO) would not assist the Applicants
against the Los Macizos gang. The evidence showed that SIEDO had broken
up four gangs and had assisted in joint USA/Mexico investigations to arrest
members of organized crime groups.
[13]
The
Board recognized that, although corruption was still an ongoing problem in Mexico, the
Government of Mexico continued to promote anti-corruption efforts. The Board
was not persuaded that there was a lack of action by the state authorities
against corrupt government officials, including the police. The Board found
that the state and the Human Rights Commission would provide the Principal
Applicant with assistance. There was no evidence to suggest they would not
ensure that adequate state protection was available to the Principal Applicant
and her daughters should they return to Mexico.
[14]
In
conclusion, the Board found that the Principal Applicant lived in a democracy
and was therefore obliged to seek protection in Mexico before invoking
international protection. She had not discharged the onus upon her of showing
clear and convincing proof of the state’s inability or unwillingness to protect
her. The Board found adequate, although not perfect, state protection was
available to the Principal Applicant should she return to Mexico.
ISSUES
[15]
The
Applicants have raised the following issue:
1)
Did
the Board commit an error of law in preferring the documentary evidence over
the Applicants’ evidence?
2)
Does
the mere existence of “serious efforts” on behalf of a state equate to state
protection?
3)
Did
the Board err in their application of Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689?
STATUTORY PROVISIONS
[16]
The
following provisions of the Act are applicable in these proceedings:
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD OF REVIEW
[17]
In
Dunsmuir v. New Brunswick, 2008 SCC 9,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having multiple
standards of review” (Dunsmuir at para. 44).
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[18]
The Supreme Court of Canada in Dunsmuir also held that a
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[19]
Generally
speaking, this Court has held that refugee decisions be reviewed on a standard
of patent unreasonableness: Kovacs v. Canada (Minister of Citizenship and
Immigration), [2006] 2 F.C.R. 455 (F.C.). However, this is dependent on the
specific circumstances of the case being examined and the issues raised.
[20]
When
a board prefers documentary evidence over the testimony of a witness, this
involves an issue of credibility and invokes a standard of review of patent
unreasonableness: Li v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 1238 at paragraph 23 and Yener
v. Canada (Minister of Citizenship and Immigration) 2008 FC 372 at
paragraphs 28 and 29.
[21]
When
the Court is reviewing a decision involving state protection, the standard of
review is reasonableness simpliciter: Sanchez v. Canada (Minister of
Citizenship and Immigration) 2008 FC 66 except when reviewing the existence
of an internal flight alternative, when a standard of patent unreasonableness
has been used: Rosales v. Canada (Minister of Citizenship and Immigration)
2008 FC 257 at paragraphs 12 and 13.
[22]
The
application of the test in Ward is a mixed question of fact and law and
the standard of review is reasonableness simpliciter: Stapleton v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1320 at paragraph 18.
[23]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issues in this case to be reasonableness. When reviewing a
decision on the standard of reasonableness, the analysis will be concerned with
“the existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir at paragraph 47). Put
another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law”.
ARGUMENTS
The
Applicants
Board
Preferring Documentary Evidence
[24]
The
Applicants submit that it was not open to the Board to prefer documentary
evidence to the testimony of the Principal Applicant when there were no adverse
credibility findings made regarding the Principal Applicant’s testimony and
written evidence. The Applicants rely upon Coitinho v. Canada (Minister of
Citizenship and Immigration) 2004 FC 1037 at paragraph 7:
The Board goes on to make a most
disturbing finding. In the absence of stating that the Applicants’ evidence is
not credible, the Board concludes that “it gives more weight to the documentary
evidence because it comes from reputable, knowledgeable sources, none of whom
have any interest in the outcome of this particular refugee hearing.” This
statement is tantamount to stating that documentary evidence should always be
preferred to that of refugee claimant’s because the latter is interested in the
outcome of the hearing. If permitted, such reasoning would always defeat a
claimant’s evidence. The Board’s decision in this case does not inform the
reader why the Applicants’ evidence, when supposed to be presumed true (Adu
supra) was considered suspect…
[25]
The
Applicants point out that clear and convincing proof of a state’s inability to
protect can be found by relying solely on the testimony of a claimant: Torres
v. Canada (Minister of Citizenship and Immigration) 2005 FC 660 and Musorin
v. Canada (Minister of Citizenship and Immigration) 2005 FC 408. In the
present case, there are instances where the Board’s findings of credibility are
inextricably linked to its findings on state protection, so that an error in
the former invalidates the latter: Lebbe v. Canada (Minister of
Citizenship and Immigration) 2006 FC 564. The Board erred in preferring,
without any reasons, the documentary evidence to the oral and written evidence
of the Primary Applicant. The Applicants say this invalidates the Board’s
findings on state protection.
[26]
The
Applicants go on to submit that, in the absence of explicit findings of
non-credibility, it was not open to the Board to conclude that “the panel does
not have any persuasive evidence to believe that the claimant would not receive
state protection against the gang she fears should she return to Mexico.” The
Applicants rely on Kaur v. Canada (Minister of Citizenship and Immigration.)
2005 FC 873 where, in rejecting a claim, the board did not call into question
the applicant’s credibility and accepted her testimony. The board in Kaur
stated in its decision, however, that there was “no credible and trustworthy”
evidence to indicate that the applicant would be persecuted if she were
returned to Malaysia. Justice Dawson
found that the board could not make such a finding unless it rejected the
applicant’s testimony, which it appeared not to do. If the Board in the present
case did reject the Applicant’s testimony. Hence, it was under an obligation to
explain its rejection in clear terms, and a failure to do so is a reviewable
error.
Existence of “Serious Efforts”
[27]
The
Applicants submit that the Board erred by relying upon the Mexican Government’s
“serious efforts” in putting into place a legislative and procedural framework
to combat kidnappings and corruption. The Applicants argue that to require the Principal
Applicant to go to corrupt police officials for protection (officials who are
in all likelihood are involved with the criminal gangs in question) would
amount to requiring the Principal Applicant to risk her life in an effort to
seek police assistance merely to prove the unavailability of state protection: D’Mello v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 72
(F.C.T.D.) and Torres.
Application of Ward
[28]
The
Applicants submit that the Board’s conclusion that the Applicants should have
exhausted all existing remedies before claiming protection in Canada was an
incorrect interpretation of Ward and N.K. v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1376 (F.C.A.), as the law
does not impose any obligation on refugee claimants to “exhaust all courses of
action open to him or her.” The Applicants cite and rely upon Chaves v. Canada (Minister of
Citizenship and Immigration) 2005 FC 193 at paragraph 15:
In my view, however, Ward, supra and
Kadenko, supra, cannot be interpreted to suggest that an individual will
be required to exhaust all avenues before the presumption of state protection
can be rebutted (see Sanchez v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 536 (T.D.) and Peralta v. Canada (Minister of Citizenship and
Immigration) (1996),
123 F.T.R. 153 (F.C.T.D.))…
[29]
The
Applicants say that the Board erred in finding that they had failed to provide
clear and convincing evidence of a lack of state protection. There was evidence
before the Board which demonstrated the degree of corruption within police
forces in Mexico, and that
many police officials are involved in activities related to kidnappings by
various gangs. Documentary evidence also revealed that kidnapping remains a
serious problem at all social levels, regardless of whether the victim is
wealthy or not: U.S. Department of State: Country Reports on Human Rights
Practices: Mexico, 2006.
[30]
The
Applicants contend that they had good reasons not to seek protection in Mexico,
including the degree of corruption existing at all levels of the state and the
reprisals they would be exposed to if they filed a complaint with the Mexican
authorities. The Board rejected the Applicants’ explanations without taking all
of the documentary evidence and their testimony into account. The Applicants
submit that the Board misunderstood and misapplied Ward and N.K.. The
Board’s finding that the Applicants should have first approached the police in Mexico was
unreasonable.
[31]
The
Applicants also submit that the Board must weigh all the evidence in its
totality and cannot examine each part in isolation: Owusu v. Canada (Minister
of Employment and Immigration), [1989] F.C.J. No. 33 (F.C.A.); Lai
v. Canada (Minister of
Employment and Immigration), [1989] F.C.J. No. 826 (F.C.A.) and Hilo
v. Canada (Minister of Employment and Immigration), [1991] F.C.J.
No. 228 (F.C.A.).
[32]
The
Applicants further argue that the Board was selective in its choice of
documentary evidence. For example, the Board relied on reports that Mexico maintains
preventative and judicial police forces, yet the Board does not mention that
the state-level preventive police force is supposed to be the most corrupt of
all. As well, the Board relies on the fact that the Mexican Government
continues to push forward anti-corruption reforms, but failed to mention other
documentary evidence that expressed reservations about the commitment and the ability
of the government to achieve its stated goals. This selective reliance on
documentary evidence by the Board makes the decision non-sustainable: Manoharan
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J.
No. 356 (F.C.T.D.) at para. 3; Muralidharan v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 843 (F.C.T.D.)
and Balasingham v. Canada (Minister of Citizenship and Immigration), [1998]
F.C.J. No. 1387 (F.C.T.D.). The Applicants quote and rely upon Manoharan
and the words of Justice Reed:
3. A reading of the Board’s decision
leads one to conclude that the Board ignored significant parts of the evidence
and on several occasions made findings of fact which are contrary to the
evidence.
[33]
The
Applicants quote extensively from other parts of the documentary evidence in
order to support their submissions concerning corruption in Mexico. They conclude
by stating that the Board committed a reviewable error in not mentioning or
discussing in its Decision the evidence that corroborated the Applicants’
testimony that corruption is widespread in Mexico, and that in a case such as
the present it is pointless to contact the police.
[34]
The
Applicants also take issue with the reasonableness of the Board’s finding that
“[t]here is no persuasive evidence to suggest that the Human Rights Commission
will not ensure that adequate state protection is available to the claimant
should she return to Mexico.” The Applicants say that the case law demonstrates
that refugee claimants have no obligation to turn to a country’s human rights organization
for help. In Kaur v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1858 (FC), this Court
held that it was unreasonable for a board to have expected the Applicants to
have approached the country’s human rights organization for help. In coming to
that conclusion, Justice de Montigny at paragraph 31 in Kaur cites the
decision of Justice Lemieux in Balogh v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 1080 (F.C.T.D.) at para. 44:
…Canadian jurisprudence has repeatedly
stated that there is no further burden on an Applicant to seek assistance from
human rights organizations.
[35]
In
addition, the Applicants question the reasonableness of the Board’s finding
that the Human Rights Commission is effective when the documentary evidence
reveals that it has no legal authority or power to do anything, save making
recommendations which are non-binding and carry no legal weight.
[36]
The
Applicants argue that the Board again relied on selected portions of the
documentary evidence and chose those aspects which supported its conclusion, particularly
the anti-corruption efforts of the Fox administration. The Applicants cite and
rely upon P.K.R. v. Canada (Minister of
Citizenship and Immigration), [2004] FC 1460 at paragraph 17:
The law is clear that the Board need not
refer to every piece of evidence that was before it in its decision. However,
if there is documentary evidence that is central to the applicant’s position
and supports the position, then that evidence must be considered by the Board.
The failure to refer to this evidence is a reviewable error.
[37]
The
Applicants also rely upon Babai v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1341 at paragraphs 35 and 36 and Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.) at paragraphs
16 and 17.
[38]
The
Applicants point out that in Orgona v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1316 (F.C.T.D.) the Court faulted the
Board for making no reference to the significant documentary evidence which was
supportive of the claim in that case. The Court concluded that, when
documentary evidence is selectively relied upon, a tribunal errs in law by
ignoring relevant evidence. The Applicants also cite and rely upon T.M.C. v.
Canada (Minister of
Citizenship and Immigration) 2004 FC 1670 for the following:
8. In deciding
whether adequate state protection is available, the Board must consider not
only whether there are measures in place that could be used to protect a
refugee claimant, but also whether those measures are likely to be effective: Elcock
v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1438 (T.D.) (QL); Cho v. Canada (Minister of
Citizenship and Immigration), [2000]
F.C.J. No. 1371 (T.D.) (QL). There is no doubt that Grenada is beginning to take steps to address what appears to be a
serious problem of violence against women and children. However, as I read the
documentary evidence that was before the Board, these are merely incipient
measures indicating a growing willingness to respond to these forms of
violence. They fall far short of providing actual protection, except in a very small
number of cases.
[39]
The
Applicants agree that state protection does not need to be perfect, but it does
have to be effective. The Board must consider not only whether the state is
actually capable of providing protection but also whether it is willing to act.
Legislation and procedures in themselves do not suffice to establish the
reality of protection unless they are given effect in practice: Molnar v.
Canada (Minister of Citizenship and Immigration) 2002 FCT 1081 and Mohacsi
v. Canada (Minister of
Citizenship and Immigration) 2003 FCT 429. The Applicants say that the
Board did not pay sufficient attention to the “unable” part of the “unable or,
because of that risk, unwilling to avail of the protection” test found in the
Act.
[40]
The
Applicants conclude that the Board disregarded relevant evidence. The Board
cannot, without giving reasonable grounds, ignore or dismiss the contents of a
document dealing expressly with state protection in a given region: Renteria
v. Canada (Minister of Citizenship and Immigration) 2006 FC 160.
[41]
The
Board committed several reviewable errors which affected the fairness of the
Applicants’ hearing. The Board also erred in law in finding that the Applicants
were not Convention refugees or persons in need of protection. These errors are
important enough to constitute reviewable errors.
The
Respondent
Preferring
Documentary Evidence
[42]
The
Respondent submits that the Applicants’ argument that the Board ignored the documentary
evidence which identified deficiencies within the Mexican state protection apparatus
is incorrect. The Board recognized the prevalence of crime and corruption in Mexico, but
concluded that the state was dealing with those problems.
[43]
The
Respondent cites and relies upon Johal v. Canada (Minister of Citizenship
and Immigration), [1997] F.C.J. No. 1760 at paragraph 10:
In his argument, counsel for the
applicant underlines small excerpts from the documentary evidence. By using
such tactics, counsel forgets a fundamental “rule” of the Court, i.e. to
recognize that a Board is entitled to weight the totality of the evidence as to
reliability and cogency. One cannot “dissect” the evidence and use only that
portion which underlines one’s point of view. In my respectful view, the
documentary evidence within, read as a whole, does not tend to disprove that
the applicant does not have a reasonable I.F.A.
[44]
The
Respondent points out that a Board has no obligation to list every piece of
evidence that it examines: Hassan v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 946 (F.C.A.) and Sanchez
v. Canada (Minister of Citizenship and Immigration) 2008 FC 134 at paragraph
11.
[45]
The
Respondent contends that the Board did not err in stating that it “preferred” the
documentary evidence to the evidence of the Applicants. The Board concluded
that the evidence of the Applicant, when viewed in context, along with all of
the documentary evidence, was not sufficient to establish a lack of state
protection for similarly situated persons in Mexico, and did not
rebut the presumption of state protection.
[46]
The
Respondent says that the Board’s giving more weight to the large amount of
documentary evidence, which did not support the assertions made in the
Applicant’s PIF narrative and testimony, is not a reviewable error. The Board
cannot simply accept the Applicant’s subjective belief that state protection is
not available without sufficient evidence to establish that this fear is
objectively reasonable: Kim v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1126.
Existence of “Serious Efforts”
[47]
The
Respondent relies upon Canada(Minister of Employment and Immigration) v. Villafranca,
[1992] F.C.J. No. 1189 (F.C.A.) for the proposition that it is not
enough for a claimant to show that her government has not always been effective
at protecting persons in her particular situation. Government protection is
adequate if serious efforts are being made by the authorities. The Respondent
also says that the Principal Applicant is not entitled to seek the surrogate
protection of Canada simply
because there is some risk that she may be the victim of a crime in her country
of nationality. Other states cannot be expected to meet a standard of
“effective” protection that police forces in Canada, regrettably, sometimes
only aspire to: Smirnov v. Canada (S.S.), [1995] 1 F.C. 780
(F.C.T.D.) at paragraph 11.
Application of Ward
[48]
The
Respondent submits that international refugee law is only intended to come into
play in situations where home state protection is unavailable, and then only in
certain situations: Ward. Absent a situation of the complete breakdown
of the state apparatus, it is presumed that a state is able to protect a
claimant. This presumption “serves to reinforce the underlying rationale of
international protection as a surrogate, coming into play where no alternative
remains to the claimant”: Ward at paragraph 51. A claimant must provide
a clear and convincing confirmation of the relevant state’s inability to
protect: Ward and Villafranca.
[49]
The
Respondent says that, in the present case, the Applicants did not approach
other government agencies to seek protection. She did not even approach the
police. The Applicant’s evidence that she did not believe the police would
protect her was not sufficient to rebut the presumption of state protection.
The Board’s review of the documentary evidence revealed that, while there were
problems with corruption and crime in the Mexican police force, there were
other agencies that could have assisted the Applicants. As well, Mexico is making
serious efforts to combat crime and corruption. The Principal Applicant agreed
at the hearing that there were other agencies which could have helped her had
she approached them.
[50]
The
Respondent relies upon Villafranca, Kadenko at paragraphs 4-5, Milev
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J.
No. 907 at paragraph 12 (F.C.T.D.), Hinzman v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 4518 and Sanchez
for the principle that the Board may reasonably expect refugee claimants to
exhaust other avenues of redress that may exist in democratic countries before
seeking international protection. Moreover, as Mexico is a
functioning multiparty democracy, the burden of proof on the Applicants to
provide clear and convincing evidence to rebut the state’s presumed ability to
protect is also higher than in other cases.
[51]
The
Respondent cites Kim at paragraph 10 for the proposition that a refugee
claimant does not rebut the presumption of state protection in a functioning
democracy by asserting only a subjective reluctance to engage the state. The
Respondent submits that there was insufficient evidence to establish that the Los
Macizos gang in question had any influence over the local police force. The
evidence before the Board did not establish that it was unreasonable to expect
the Applicants to seek the protection of the police before seeking
international protection.
[52]
The
Respondent cites Hinzman as authority for the principle that the burden
of attempting to show that one should not be required to exhaust all avenues of
available domestic recourse is a heavy one. The Respondent submits it was
reasonable for the Board to conclude that the Applicants had not done so in
this case.
ANALYSIS
[53]
I
have reviewed each of the issues raised by the Applicant.
More Weight
to Documentary Evidence
[54]
With regard to the Board’s stated
preference for the “documentary evidence, prepared by reputable sources having
no interest in the outcome of this case, describing country conditions and
availability of state protection for individuals similarly situated as the
claimant” as opposed to the “written evidence and oral testimony given by the
claimant,” there is, in my view, a reviewable error in this case.
[55]
Citing Justice de Montigny in Pacasum v.
Canada (Minister of Citizenship and Immigration) 2008 FC 822, at paragraph
29, the Respondent points out that “an applicant’s account cannot be wholly
determinative” and “[o]ne must look at the overall picture to determine if it
was reasonable to expect an applicant to seek state protection.” This seems
incontrovertible to me, but that is not what occurred in this case. The Board
did not weigh the Principal Applicant’s credible subjective beliefs concerning
the unavailability of state protection against other documentary evidence that
suggested state protection was adequate, even though not perfect.
[56]
The Board says that it gives less weight to
the “written evidence” and “oral testimony” of the Principal Applicant because
the Principal Applicant has an interest in this case and the other sources are
reputable. There is no explanation as to why the “written evidence” of the Principal
Applicant is not as reputable as the other sources, and there is no explanation
as to why the Principal Applicant’s evidence should carry any less weight than
other sources apart from the stated reason that she has a personal interest in
the outcome.
[57]
This is the very assumption that Justice
Snider warned against in Coitinho v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1037 at paragraph 7, which warning has been reiterated
by this Court in other cases, including Kaur, where Justice Dawson found
that the Board could not make the finding it did unless it rejected the
applicant’s testimony and explained why it rejected it. Justice Dawson makes
the following observation at paragraph 4 of Kaur:
It is trite
law that it is the responsibility of the RPD to determine the credibility of
testimony given before it. However, it is equally trite law that where the RPD
rejects sworn testimony, reasons must be given for doing so. Those aspects of
the testimony which appear not to be credible are to be specifically identified
by the RPD and the reasons for such conclusion are to be clearly articulated.
Here, the RPD did not do so, and its failure is an error in law that requires
the decision to be set aside.
[58]
In the present case, the Board did not just
weigh the Applicant’s evidence against other evidence. The Board adopted as a
principle of its Decision that other evidence was to be preferred over the
“written evidence and oral testimony given by the Applicant” because the other
evidence came from sources having no interest in the case and because those
sources were more reputable. There is no explanation as to why the Applicants’
“written evidence” did not come from reputable sources, or sources that were
any less reputable. There is also no explanation as to why the Applicants’
evidence, without a negative credibility finding, should be discounted as less
reputable merely because she had an interest in the outcome of the case. As
Justice Snider pointed out in Ismael, this is “tantamount to stating
that documentary evidence should always be preferred to that of refugee
claimant’s because the latter is interested in the outcome of the hearing. If
permitted, such reasoning would always defeat a claimant’s evidence.” (para. 7)
[59]
This is a reviewable error that undermines
the whole Decision.
Exhausting All Courses of Action
[60]
It is true that, towards the end of the
Decision, the Board says that “the claimant, living in a democracy, simply did
not reasonably exhaust courses of action available to her prior to seeking
international protection.” Even here, however, the Board does not say that the Applicants
were obliged to exhaust “all” courses of action available to them. When the
Decision is read as a whole, the Board’s point is clearly that the Principal
Applicant never attempted to avail herself of “any” course of action available
to her.
[61]
The evidence is that the Principal Applicant
did not attempt to seek protection from the police, or to contact any other
agency or institution for assistance. The Board’s point was that the Principal Applicant
chose not to avail herself of any protection that might be available to her in
Mexico and “did not reasonably exhaust any course of action open to her in
seeking state protection in Mexico.”
[62]
I do not interpret the Board to be saying
that the Principal Applicant was obliged to exhaust all avenues of protection
in Mexico before claiming
international protection. The Board is simply pointing out that having made no
effort to contact any of the possible organizations that might have helped her,
including the police, the Principal Applicant cannot be said to have
“discharged the onus of showing clear and convincing proof of the state’s
inability or unwillingness to protect her.”
[63]
I can find no reviewable error on this
issue.
Serious Effort
[64]
The Applicants say that the Board relied
upon the Mexican government’s “serious efforts” to put in place a legislative
and procedural framework to combat kidnapping and corruption but did not
address whether those efforts have resulted in effective protection.
[65]
In my view, and reading the Decision as a
whole, the Board does not simply equate serious efforts with effectiveness. The
Board examines and discusses the actual impact of various initiatives and
concludes that they are having an impact and that real protection is available.
[66]
I can find no reviewable error on this
issue.
Error in Applying Ward and Failure to Deal with Contrary
Evidence
[67]
The decisive issue in this case is the Principal
Applicant’s contention that she declined to seek state protection because there
was no point in doing so. Her position is that the degree of corruption at all
levels and the inevitable reprisals that would follow any complaint to the
authorities made it entirely unreasonable for her to risk her life in order to
prove the unavailability of state protection.
[68]
As the Respondent points out, there is a
heavy burden on someone who does not approach the state for protection to
demonstrate that this was reasonable. The principle is stated clearly in Hinzman
at paragraph 57:
Kadenko
and Satiacum together teach that in the case of a developed democracy,
the claimant is faced with the burden of proving that he exhausted all the
possible protections available to him and will be exempted from his obligation
to seek state protection only in the event of exceptional circumstances: Kadenko
at page 534, Satiacum at page 176. Reading all these authorities together,
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. In view
of the fact that the United States
is a democracy that has adopted a comprehensive scheme to ensure those who
object to military service are dealt with fairly, I conclude that the
appellants have adduced insufficient support to satisfy this high threshold.
Therefore, I find that it was objectively unreasonable for the appellants to
have failed to take significant steps to attempt to obtain protection in the United
States before claiming refugee status in Canada.
[69]
As the Respondent points out, a refugee
claimant does not rebut the presumption of state protection in a functioning
democracy by asserting only a subjective reluctance to engage the state.
[70]
So the issue becomes whether, in the
present case, the Board was dealing with no more than a subjective reluctance
to engage the state.
[71]
The Applicants point out that there was a
significant amount of documentary evidence supporting their position that the
Mexican state cannot protect them and the Principal Applicant could not go to
the police because of their corrupt involvement with kidnappers and the
inevitable reprisals that would follow any complaint.
[72]
The Applicants say that the Board was very
selective in its use of the documentary evidence and simply chose passages that
would support its conclusions, while neglecting to deal with evidence that was
contrary to those conclusions.
[73]
The Respondent makes the usual arguments
that the Board was not obliged to mention every piece of documentary evidence,
and that the Board fully recognizes that corruption and kidnapping continue to be
a problem in Mexico, and that
state protection is not perfect. The Respondent says that the Applicants are
merely asking the Court to reweigh the evidence and come to a different
conclusion from the Board.
[74]
The Respondent points the Court to the
decisions in Gutierrez v. Canada (Minister of Citizenship and Immigration)
2008 FC 971 and Sanchez v. Canada (Minister of Citizenship and Immigration)
2008 FC 134. When faced with a similar issue in Sanchez, Justice Barnes
had the following to say at paragraph 11:
I also do not agree that the Board ignored documentary evidence
which detailed deficiencies within the Mexican criminal justice system. The
Board referred to problems of official corruption and to the prevalence of
crime (including kidnapping) in Mexico but found that the state was motivated and was taking active
steps to respond. The Board has no obligation to list every piece of evidence
that it examined: see Hassan v. Canada
(Minister of Employment and Immigration)(1992) 147
N.R. 317,
36 A.W.C.S. (3d) 635 (F.C.A.). I am satisfied that the Board's analysis of the
evidence was sufficient and that its conclusion that state protection was
available to the Applicants was, on this record, reasonable.
[75]
I also think the Respondent is correct to emphasize
that in Johal at paragraph 10 that “[o]ne cannot ‘dissect’ the evidence
and use only that portion which underlines one’s point of view.”
[76]
Notwithstanding these clear principles,
much will depend upon the facts of each case and the approach of the Board to
the particular situation before it and the evidence adduced.
[77]
In this regard, the Court must also keep in
mind the oft-stated principles enunciated by Justice Evans in Cepeda:
14. It is well established that
section 18.1(4)(d) of the Federal Court Act does not authorize
the Court to substitute its view of the facts for that of the Board, which has
the benefit not only of seeing and hearing the witnesses, but also of the
expertise of its members in assessing evidence relating to facts that are
within their area of specialized expertise. In addition, and more generally,
considerations of the efficient allocation of decision-making resources between
administrative agencies and the courts strongly indicate that the role to be
played in fact-finding by the Court on an application for judicial review
should be merely residual. Thus, in order to attract judicial intervention
under section 18.1(4)(d), the applicant must satisfy the Court, not only
that the Board made a palpably erroneous finding of material fact, but also
that the finding was made “without regard to the evidence”: see, for example, Rajapakse
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649
(F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration),
[1995] 1 F.C. 741 (F.C.T.D.).
15 The
Court may infer that the administrative agency under review made the erroneous
finding of fact "without regard to the evidence" from the agency's
failure to mention in its reasons some evidence before it that was relevant to
the finding, and pointed to a different conclusion from that reached by the
agency. Just as a court will only defer to an agency's interpretation of its
constituent statute if it provides reasons for its conclusion, so a court will
be reluctant to defer to an agency's factual determinations in the absence of
express findings, and an analysis of the evidence that shows how the agency
reached its result.
16. On
the other hand, the reasons given by administrative agencies are not to be read
hypercritically by a court (Medina v. Canada (Minister of Employment and
Immigration) (1990), 12 Imm L.R. (2d) 33 (F.C.A.)), nor are agencies
required to refer to every piece of evidence that they received that is
contrary to their finding, and to explain how they dealt with it (see, for
example, Hassan v. Canada (Minister of Employment and Immigration)
(1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose
upon administrative decision-makers who may be struggling with a heavy
case-load and inadequate resources. A statement by the agency in its reasons
for decision that, in making its findings, it considered all the evidence
before it, will often suffice to assure the parties, and a reviewing court,
that the agency directed itself to the totality of the evidence when making its
findings of fact.
17. However, the more
important the evidence that is not mentioned specifically and analyzed in the
agency's reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact “without regard to the
evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993),
63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation
increases with the relevance of the evidence in question to the disputed facts.
Thus, a blanket statement that the agency has considered all the evidence will
not suffice when the evidence omitted from any discussion in the reasons
appears squarely to contradict the agency's finding of fact. Moreover, when the
agency refers in some detail to evidence supporting its finding, but is silent
on evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact.
…
27. Finally, I must consider whether the Refugee Division made
this erroneous finding of fact “without regard for the material before it.” In
my view, the evidence was so important to the applicant’s case that it can be
inferred from the Refugee Division’s failure to mention it in its reasons that
the finding of fact was made without regard to it. This inference is made
easier to draw because the Board’s reasons dealt with other items of evidence
indicating that a return would not be unduly harsh. The inclusion of the “boilerplate”
assertion that the Board considered all the evidence before it is not
sufficient to prevent this inference from being drawn, given the importance of
the evidence to the applicant’s claim.
[78]
The Principal Applicant contends that she
fears kidnappers, so that the only relevant agency of protection is the police.
Other organizations that monitor and deal with corruption in the police force
are not relevant to the risks which the Applicants face.
[79]
She says she did not go to the police
because they are in league with kidnappers and reprisals would inevitably follow.
She also says that there was cogent evidence before the Board to support this
position, which evidence the Board did not address and, as was pointed out by
this Court in Petra Kimma Roberts v. Canada (Minister of Citizenship and
Immigration), [2004] FC 1460 at paragraph 17, this was a reviewable error:
The law is
clear that the Board need not refer to every piece of evidence that was before
it in its decision. However, if there is documentary evidence that is central
to the applicant’s position and supports this position, then that evidence must
be considered by the Board. The failure to refer to this evidence is a
reviewable error.
[80]
In the present case, the Board referred to
the initiatives of the Fox administration to support the Board’s conclusions,
but did not deal, for example, with the evidence in Lost in Transition: Bold
Ambitions, Limited Results Under Fox, a May 2006 report about Mexico’s
efforts to address human rights issues, which unambiguously concluded that
abuses related to law enforcement misconduct continue to exist and that “while
ambitious on paper,” the Fox initiatives “have largely failed to achieve their
principal goals.”
[81]
In addition, with regards to the Mexican
state’s initiatives against kidnapping, there was cogent evidence before the
Board that “while there has been success in dismantling major kidnapping rings,
the result has apparently been a proliferation of smaller groups that are ‘more
ruthless’ when the victims’ family is unable to pay the ransom demand…” These
so-called “amateurish outfits” have been known to be extremely violent towards
their captives, reportedly raping female victims and committing bodily harm
against abducted males.
[82]
There was also significant evidence before
the Board in this case of police complicity with kidnappers and that “citizens
are hesitant to report police abuse and many people are cautious about going
anywhere near a police station.”
[83]
There was also clear evidence that the
various Human Rights Commissions were “on the whole ineffective in holding
authorities accountable for their actions and that many national and
international human rights organizations question their competence.”
[84]
There was also evidence that the preventive
police are the most corrupt of the police organizations in Mexico.
[85]
All in all, there was cogent evidence
before the Board that the police in Mexico
are corrupt and have extensive involvement with kidnapping gangs, that human
rights commissions are ineffective, and that government initiatives to deal
with the problem have largely failed. All of this is highly relevant to the
issue of why the Principal Applicant did not go to the police.
[86]
In other words, it was the usual “mixed
bag,” but in this case the evidence that refuted the Board’s conclusions on
this point was so cogent and so important to the Applicants’ case, that the
Board’s failure to deal with it and to simply rely upon the usual presumptions of
state protection looks more like defending a general position on Mexico than
addressing the specifics of the evidence before the Board in this case.
[87]
If there is cogent evidence before the
Board that government efforts are failing and that many normal citizens will
not go near a police station, then I think great care is needed before the
Court can accept the frequently used “mixed bag” rationale for not mentioning clear
evidence that contradicts the Board’s conclusions.
[88]
I agree with the Respondent that, as a
general principle, a Board is not obliged to mention every piece of evidence.
However, the Board should not paper over compelling evidence that directly
contradicts its own conclusions with phrases such as “the panel does not
disagree,” or “based on the totality of the evidence.” The Board should engage
with that evidence and say why it can be discounted or why other evidence is to
be preferred.
[89]
Reading the Decision as a whole, it is my
view that the Board does not engage with clear evidence that contradicts his
own inclusions in the way that the jurisprudence of this Court says it should
engage with that evidence. This becomes particularly problematic in a case
where, as I have found, the Board also made a reviewable error by discounting
the Principal Applicant’s own testimony because she was not a disinterested
party.
[90]
This is a reviewable error and the matter
needs to be reconsidered.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. For the
reasons given, the application for judicial review is allowed and the matter is
returned for reconsideration by a different officer.
2. There is no
question for certification.
“James
Russell”