Date:
20130509
Docket:
IMM-9599-12
Citation:
2013 FC 490
Montreal, Quebec,
May 9, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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GILBERTO MIGUEL ROMERO OJEDA
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partie demanderesse
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et
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LE MINISTRE DE LA
CITOYENNETÉ
ET DE L'IMMIGRATION
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partie défenderesse
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant seeks judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board [RPD], wherein, it was determined
that he is not a Convention refugee nor a person in need of protection under
section 96 and subsection 97(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
II. Judicial Procedure
[2]
This
is an application under subsection 72(1) of the IRPA for judicial review
of a RPD decision, dated April 26, 2012.
III. Background
[3]
The
Applicant, Mr. Gilberto Miguel Romero Ojeda, a citizen of Mexico, was born in
1984 in Guadalajara.
[4]
The
Applicant worked at a bar called Krudalia in Cuernavaca where, in May 2007, he
was asked to sell alcohol to minors. He was fired for refusing but an
Arbitration Council Commission reinstated him and awarded him lost wages.
[5]
In
June 2008, a new owner of Krudalia instructed the Applicant to sell alcohol and
drugs to a minor. He was beaten and intimidated for refusing.
[6]
On
July 4, 2008, municipal authorities closed Krudalia for 20 days for serving
alcohol to minors. A newspaper clipping before the RPD showed that the
authorities fined Krudalia 9,000 pesos for this infraction (Certified Tribunal
Record [CTR] at p 127).
[7]
The
Applicant’s attempts to resign were refused. He was threatened and hit by two
men, who (even though he claimed ignorance) told him to stop informing against
Krudalia and to declare that Krudalia did not serve alcohol to minors.
[8]
On
August 5, 2008, the Applicant began to receive death threats over the
telephone.
[9]
On
August 7, 2008, the Applicant complained to the Attorney General of Justice of
the State of Morelos; a copy of the complaint was before the RPD (CTR at pp
85-87).
[10]
On
August 9, 2008, the Applicant followed up on the August 7, 2008 complaint.
[11]
On
August 10, 2008, the Applicant moved to Jojutla, a city two hours from
Cuernavaca. He was hired on probation at another bar after presenting his
resume, which listed his work experience at Krudalia.
[12]
On
August 29, 2008, the new employer questioned the Applicant regarding his
employment history. Upon learning of the events at Krudalia, his new employer
said that he did not like rebels.
[13]
On
August 30, 2008, the Applicant saw his new employer with his former employer.
He fled his place of employment and continued to receive threats.
[14]
On
September 16, 2008, the Applicant complained to the Attorney General of Justice
of the State of Morelos; a copy of the complaint was before the RPD (CTR at p
106-114). On September 18, 2008, a man followed the Applicant through
Jojutla and threatened him before he could escape.
[15]
On
September 20, 2008, the Applicant moved to Mexico City where, on or about
September 22, 2008, a child gave him a threatening note.
[16]
On
September 24, 2008, the Applicant left Mexico for Canada.
[17]
In
April 2011, the authorities again temporarily closed Krudalia after a surprise
inspection. The Applicant presented a newspaper article corroborating the raid
and temporary closure of Krudalia (CTR at p 125).
IV. Decision under Review
[18]
The
RPD found that the Applicant was neither a Convention refugee nor a person in
need of protection since he did not rebut the presumption of state protection
with clear and convincing evidence. Noting that the burden of proof in
rebutting this presumption is directly proportionate to the level of democracy
in the state in question and that Mexico is an emerging democracy with
corruption problems, the RPD concluded that the Applicant had not established
that the state would be unable or unwilling to adequately protect him from his
former employer.
[19]
The
RPD accepted that drug cartels trouble authorities in Mexico, where corruption
exists, but did not accept that the new owner of Krudalia had infiltrated the
authorities or was connected with a drug cartel that could influence them. The
RPD reasoned that the new owner had no influence because the authorities closed
his business twice for an infraction, fined the new owner, and had insufficient
access to determine who had actually reported Krudalia to the authorities. The
RPD did not accept the Applicant’s argument that the short duration of
Krudalia’s closure reflected a relationship between the new owner and the
authorities since the Applicant only speculated on how long a business in a
similar situation would have remained closed under habitual circumstances. The
publicity surrounding the April 2011 closure of Krudalia further suggested that
its owner probably had no connection to the authorities.
[20]
The
RPD also did not accept that there was a causal link between the Applicant’s
denunciation of the new owner of Krudalia and the threats against him. The
Applicant’s Personal Information Form [PIF] and testimony showed that he was
threatened on August 5, 2008 and reported these threats on August 7, 2008;
neither mentioned an increase in threats following the denunciation.
[21]
The
RPD also did not consider that continued threats by his former employer in
Jojutla established that Krudalia had a wide network or connections with the
authorities. The RPD reasoned that he obtained a position at a bar in Jojutla,
presenting a resume describing his employment with Krudalia. It was likely that
the Applicant’s former employer learned of his presence in Jojutla when his new
employer confirmed his employment history.
[22]
The
threats in Mexico City did not suggest that the Applicant’s former employer at
Krudalia had links to authorities in Mexico City. Since he received the
threatening note only two days after he arrived in Mexico City, it was more
likely that he was closely followed from Jojutla to Mexico City.
[23]
His
former employer’s continued enquiries regarding the Applicant did not suggest
that state protection was unavailable. The RPD reasoned that the former
employer asked the Applicant’s friend directly about him; this was inconsistent
with allegations that the former employer was connected with a powerful network
or the authorities.
[24]
Noting
that Mexico was required to provide the Applicant with effective, but not
perfect, state protection, the RPD found that the Applicant did not give the
authorities a reasonable opportunity to provide him with protection. The RPD
found that the Applicant did not avail himself of state protection in Mexico
City, even though he had documentary evidence of his former employer’s threats
in the form of a note. The RPD also noted that the Applicant fled Cuernavaca
and Jojutla shortly after approaching the authorities for assistance. From
this, the RPD reasoned that the Applicant did not give the authorities
sufficient time to investigate the threats.
V. Issue
[25]
Was
the RPD’s state protection analysis reasonable?
VI. Relevant Legislative
Provisions
[26]
The
following legislative provisions of the IRPA are relevant:
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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.
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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.
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VII. Position of the Parties
[27]
The
Applicant submits it was unreasonable to find that, on a balance of
probabilities, he had not rebutted the presumption of state protection in
Mexico because: (i) the country condition evidence corroborated his testimony
that state protection would not be forthcoming, that the authorities are
susceptible to corruption, and that state efforts to combat corruption have
been ineffective; (ii) the RPD did not assess the availability of state
protection in light of the country condition evidence on corruption; and (iii)
the RPD disregarded his evidence of corruption in Mexico.
[28]
From
the alleged inconsistency between the state protection finding and the country
condition evidence, the Applicant infers that the RPD did not look to the
country condition evidence on the record.
[29]
The
Respondent counters that the state protection finding was reasonable because:
(i) the Applicant did not give Mexican authorities a reasonable opportunity to
provide him with protection; and (ii) his agent of persecution did not have
influence with the authorities. In these circumstances, it was reasonable for
the RPD to decide that state protection would have been forthcoming and
effective and that the Applicant did not rebut the presumption of state
protection with clear and convincing evidence.
VIII. Analysis
[30]
The
RPD's state protection analysis is reviewable on the standard of reasonableness
(Smirnova v Canada (Minister of Citizenship and Immigration), 2013 FC
347).
[31]
The
RPD could reasonably find that state protection was available to the Applicant,
who failed to establish that Mexican authorities would be unwilling or unable
to protect him from his agent of persecution - his former employer.
[32]
In
Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, the Supreme Court of
Canada held that a claimant for refugee protection has the burden of rebutting
the presumption of state protection by producing “clear and convincing evidence”
that the state in question is unwilling or unable to protect that claimant. In Kadenko
v Canada (Minister of Citizenship and Immigration) (1996), 124 FTR 160, the
Federal Court of Appeal held that 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” (at para 5).
[33]
Justice
Leonard Mandamin held in Horvath v Canada (Minister of Citizenship and
Immigration), 2011 FC 1350 that a reasonable state protection analysis must
be individualized taking into account the Applicant's circumstances (at para
57).
[34]
Although
there was country condition evidence that Mexican authorities may be unable to
protect persons targeted by gang violence and that police corruption and
collusion with criminal gangs occurs, the Applicant needed to establish a link
between this evidence and his particular circumstances. This Court has
consistently held that a successful Applicant for refugee protection must
establish a link between the general documentary evidence and his or her
personal circumstances (Tamas v Canada (Minister of Citizenship and
Immigration), 2012 FC 1361 at para 69-72).
[35]
It
falls in the range of acceptable, reasonable outcomes to conclude that the
Applicant did not establish a link between country condition evidence of gang
violence, police corruption, collusion with criminal gangs and his personal
circumstances. First, the authorities had imposed legal sanctions on the
Applicant's agent of persecution in the past by temporarily closing and fining
Krudalia in July 2008 and April 2011 for serving alcohol to minors. Second, it
was reasonable to find that his agent of persecution did not trace him to
Jojutla or Mexico City through a gang network or police collusion since he
testified that he included Krudalia on a resume that he presented to his
employer in Jojutla. Given the short period of time between his departure from
Jojutla and the day he received the note in Mexico City, it was also reasonable
to find that he had been followed there. Third, it was reasonable to find that
there was no casual link between his complaints to the authorities and the
death threats against him because those threats preceded the complaints.
Fourth, it was also reasonable to find that the Applicant's agent of
persecution was not connected with a powerful gang since he inquired of the
Applicant's whereabouts from a friend.
[36]
The
Court also finds that the RPD could reasonably conclude that the authorities
were not reluctant to impose fines or legal sanctions on the Applicant's agent
of persecution, notwithstanding the relatively short temporary closure of 20
days imposed on Krudalia. The Applicant only speculated on what the normal
course of action would be in this situation (CTR at p 235). Rule 7 of the Refugee
Protection Division Rules, SOR/2002-228 specifies that claimants must
provide acceptable documents establishing elements of a claim and, in the
absence of these, must explain why they were not provided and what steps were
taken to obtain them. The RPD could reasonably expect some documentation
outlining the standard procedures in temporarily closing an establishment for
serving alcohol to minors since this evidence was central to the Applicant’s
claim.
[37]
Finally,
the RPD could reasonably find that the Applicant did not give the authorities
an opportunity to protect him by fleeing Cuernavaca three days after his
complaint, fleeing Jojutla two days after his second complaint, and fleeing
Mexico City without making any complaint. Ward, above, holds that
claimants must seek state protection unless “it is objectively unreasonable for
the claimant not to have sought the protection of his home authorities” (at
para 49). Since the authorities had applied legal sanctions to Krudalia in the
past and there was no evidence that Krudalia was connected with criminal gangs
that might prevent the authorities from acting, it was not objectively unreasonable
for the Applicant to seek state protection. It was reasonable to conclude that
fleeing immediately after complaining to the authorities did not afford them an
opportunity to protect the Applicant (Buitrago v Canada (Minister of
Citizenship and Immigration), 2009 FC 1046 at para 27).
IX. Conclusion
[38]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS
COURT ORDERS that the Applicant’s application for judicial
review be dismissed with no question of general importance for certification.
“Michel M.J. Shore”
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