Date:
20130614
Docket:
IMM-10867-12
Citation:
2013 FC 651
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
June 14, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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TORNER ALVARADO,
XIMENA
TORNER ALVARADO,
RAFAEL JOSE
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Applicants
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
applicants are seeking judicial review of a decision by the Refugee Protection
Division [RPD] of the Immigration and Refugee Board dated September 26,
2012, wherein the RPD determined that the applicants were neither Convention
refugees nor persons in need of protection under sections 96 and 97 of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
II. Facts
[2]
The
principal applicant, Rafael Jose Torner Alvarado, and his sister, Ximena Torner
Alvarado, are Mexican citizens.
[3]
In
the Personal Information Form [PIF] submitted in support of his refugee claim,
the principal applicant alleges the following facts.
[4]
The
principal applicant’s problems began on or about October 12, 2007,
following a police raid on a bar where he had been working since September
2007. The raid was the result of an anonymous tip that an illegal sale of drugs
had taken place in the bar and that alcoholic drinks were being sold to minors.
During the search, the police found drugs in the bar. They also arrested 37
minors and 14 employees, including the principal applicant.
[5]
On
October 14, 2007, the principal applicant was released after spending 48
hours in custody. However, the principal applicant claims that his rights were
not respected during the detention, that he did not have the right to call his
family until six hours after his arrest and that all the other employees remained
in detention when he was released through the services of a lawyer retained by his
family.
[6]
On
September 24, 2007, the principal applicant received a summons to appear
as a witness. A few days later, the principal applicant received calls from
unknown individuals threatening to kill him if he attended court to testify.
According to the principal applicant, his lawyer advised him to not appear and
to leave Mexico.
[7]
On
November 26, 2007, three strangers stopped the principal applicant while
he was returning home with his sister after a visit to a psychologist. The men struck
him and threatened to kill the principal applicant, but they let him go when
his sister threatened to call the police. The applicants produced in evidence a
certificate of the psychologist whom they met with prior to the incident and proof
of a medical appointment they attended following the incident.
[8]
The
principal applicant did not, however, go to the police to make a statement or
file a complaint because he was afraid he would be arrested again at the public
ministry. According to the principal applicant, his lawyer advised him not to
do it. Moreover, the principal applicant alleges that he feared the authorities
who he believed had colluded with the owners of the bar to have him arrested.
[9]
After
this incident, the applicants took refuge at their uncle’s home in Tabasco. They
claim that their persecutors traced them there.
[10]
The
applicants arrived in Canada on December 17, 2007. More than two months
later, on February 26, 2008, they filed a refugee claim, which was
rejected by the RPD.
III. Decision that is the
subject of this judicial review
[11]
The
RPD correctly noted that the applicants’ refugee claim had to be examined
solely on the basis of paragraph 97(1)(b) of the IRPA because the
jurisprudence is unequivocal that victims of crime are not considered a
particular social group under section 96 of the IRPA where it has
not been demonstrated that the state is involved in the harm feared.
[12]
The
principal findings that the RPD relied on in rejecting the applicants’ refugee
claim were credibility, the applicants’ lack of subjective fear and their
failure to request state protection.
[13]
The
RPD generally accepted that the events alleged by the applicants were true,
but, on a balance of probabilities, it was not satisfied
a. that
the Mexican authorities had colluded with the owners of the bar to pursue and
arrest the applicant;
b. that
the court was prepared to act in favour of the bar owners in exchange for a sum
of money; or
c. that
political interests had been at play because during the last elections for
mayor of Mexico City, where the applicants lived, one of the candidates
promised to [translation] “clean
up the bars”.
[14]
The
RPD correctly stated that the failure to seize the first opportunity to ask for
protection may be a factor to consider in assessing the applicants’ claim that
their life and safety were in danger although it is not determinative in
itself. The RPD therefore drew a negative inference regarding the applicants’
subjective fear because they waited more than two months after their arrival in
Canada to request protection.
[15]
With
respect to the applicants’ failure to seek state protection, the RPD stated
that the applicants’ simple assertion that political interests were at play and
that the bar owners themselves were not arrested because they were benefitting
from the collusion of police or judicial authorities, or their suspicion that
their assailants during the incident of November 26, 2008, were police
officers, were not sufficient to establish that the Mexican state was incapable
of providing them with the adequate protection they need.
[16]
The
RPD found that the applicants did not succeed in rebutting the presumption of
state protection as defined in Canada (Attorney General) v Ward, [1993]
2 SCR 689 because the principal applicant chose not to disclose the persecution
he was being subjected to and even refused to appear in court to testify.
[17]
Moreover,
the RPD noted that the fact that the applicant was released through the intervention
of a lawyer retained by his family suggested that, if there were subsequent
problems, the applicants had resources to assist them in seeking protection and
that it would probably be granted.
[18]
Finally,
the RPD found that, if returned to Mexico, the principal applicant would no
longer risk being inconvenienced because of incidents that occurred more than
five years ago since his mother, who still lives in Mexico City, has had no
such problem since the applicants left.
IV. Issues
[19]
(1)
Did the RPD err in its assessment of the applicants’ credibility?
(2)
Did the RPD err in its analysis of state protection in the applicants’ case?
V. Analysis
[20]
The
applicants’ arguments stem essentially from the fact that, according to them,
the RPD ignored a letter from the principal applicant’s counsel, Mr. Curevo Shuy,
that had been introduced in evidence to support their allegations. For clarity,
the pertinent excerpts of this evidence read as follows:
As lawyer of the mentioned, and upon the broken
penal system that rules out country, regretably corrupt and inefficient, I
suggested him to leave national territory, since it had been proved once again
that the authorities would act on his detriment, borderline or against the law.
His case would not have penal certainty; he would be deprived from his right to
a hearing, from presenting proof in his favour and from the guarantee of due
process.
For that reason, and upon imminent execution of
arbitrary and illegal acts from the authority against Rafael, it was highly suggested
that he left the country, because we were upon a case in which there were many
interests at stake since the authorities and the owners of the [bar] had
reciprocal ties of corruption and if my client showed up to testify, it would
generate a series of deep political and economical consequences for them.
. . .
Upon the death threats received by Rafael and his
sister Ximena, we were able to recognize that he was, involuntarily, involved
in a triangle of organized crime, corrupt authorities and drug trafficking, and this prevented to make a formal complaint
to the authorities. This was the mayor enough motive why, for the sake
of protecting the life of the mentioned that I, as a professional in the
matter, took the decision of asking his parents to analyse the possibility of
sending him out of the country, now with his sister, this way saving their lives, supreme value of
humanity. In Mexico, a death threat is, without a doubt, a sure and regrettable
truth.
To conclude, I highlight
the fact that I was forced to withdraw from the Torner Alvarado’s case, due to
the fact that when I went to file for a copy of the criminal proceedings of the
case, I was violently assaulted and was threatened to death, by unknown people
to me, so I had no other choice, for the sake of protecting my integrity and
the one of my family, to withdraw from the mentioned case.
(Applicant’s record at pp 24‑26).
[21]
It
is true that the RPD did not mention this letter in its reasons. It is also
true that the more or less relevant facts attested to by counsel for the
applicants in his letter contradict the RPD’s findings with respect to both the
applicants’ credibility and the issue of the adequacy of state protection that
they can hope to benefit from. However, in the circumstances of this case, the
Court is not prepared to infer from the RPD’s silence that it “made an
erroneous finding of fact ‘without regard to the evidence’” within the meaning
of Cepeda‑Gutierrez v Canada (Minister of Citizenship and Immigration)
(1998), 157 FTR 35 (at para 17), and the principle that the “burden of
explanation increases with the relevance of the evidence in question to the
disputed facts [and that] 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.”
[22]
First,
it should be noted that, according to the consistent jurisprudence of this
Court and of the Federal Court of Appeal, the RPD is assumed to have considered
all the evidence in the record and is not required to comment on each piece of
evidence in its reasons (Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ No 598 (QL/Lexis) (FCA)). Also, according to Aguebor v Canada ((Minister
of Employment and Immigration), [1993] FCJ No 732 (QL/Lexis) (FCA), assessing
the evidence and the probative value assigned to it falls within the RPD’s
jurisdiction, not the Court’s.
[23]
Second,
it would be simply unreasonable, when this evidence is examined in the context
as it must be, to give the comments made by applicants’ counsel the importance
that justifies applying the principle laid down in Cepeda‑Gutierrez,
above. All the facts that counsel for the applicants attested to, to the best
of his knowledge, were also alleged by the applicants themselves, and
indirectly analyzed by the RPD. As Justice Sean Harrington stated in Gomez
v Canada (Minister of Citizenship and Immigration), 2005 FC 859, “corroboration
does not make an incredible story credible.” The same is true for the letter
from applicants’ counselts, Carillo Estrada, who essentially
states in his letter that the principal applicant’s persecutors will be able to
find him if he were returned to Mexico and that his sister could also be kidnapped
or prosecuted.
[24]
Having
reviewed the evidence in the record and the parties’ representations, the Court
has reached the conclusion that the RPD’s findings with respect to the
applicants’ failure to rebut the presumption of state protection by their inaction,
as well as the complete lack of evidence to corroborate their doubts about
collusion between the Mexican authorities and the bar owners are entirely
reasonable within the meaning of Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 (at para 47). It is difficult to see why it was necessary that
the RPD explicitly quote the comments of counsel for the applicants, which are
essentially identical to their own allegations and explain why it did not assign
any weight to this evidence. The principle established in Cepeda‑Gutierrez,
above, is a crucial principle to ensure the fair assessment of all the relevant
evidence presented in support of a refugee claim and should not be reduced to a
mere technical requirement.
VI. Conclusion
[25]
For
all the foregoing reasons, the applicants’ application for judicial review is
dismissed.
JUDGMENT
THE
COURT ORDERS that the applicants’ application for judicial
review is dismissed with no question of general importance to certify.
“Michel M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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