Docket: IMM-1774-14
Citation:
2014 FC 986
Ottawa, Ontario, October 16, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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S.M.G.L., J.C.M.R. AND L.C.R.
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Respondents
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JUDGMENT AND REASONS
[1]
The Minister seeks judicial review of a decision
of the Refugee Protection Division of the Immigration and Refugee Board
granting refugee protection to the respondents. While the story told by the
respondents was one that might more commonly be found in a spy novel, the Board
was satisfied that the respondents had a well‑founded fear of persecution
in Mexico based upon their political opinions and membership in a particular
social group, arising out of their attempts to expose an international plot to
launch cyber‑attacks on the United States of America.
[2]
The Minister does not take issue with the
Board’s conclusion that the respondents’ claims were credible, asserting only
that the Board erred in finding that adequate state protection was not
available to the respondents in Mexico. In particular, the Minister says that
the Board erred by conflating the respondents’ unsuccessful attempts to expose
the activities of those behind the cyber‑plot with an absence of state protection
for the threat to the respondents’ lives from these same individuals.
[3]
I agree with the respondents that the threat to
their personal safety was inextricably intertwined with their whistle‑blowing
activities. The respondents approached numerous authorities within Mexico for assistance in exposing the cyber‑attack plot, without success. In the
circumstances, it was reasonable for the Board to conclude that the respondents
had successfully rebutted the presumption that adequate state protection would
be available to them in Mexico. Consequently, the application will be
dismissed.
I.
Background
[4]
The respondents are Mexican nationals who
actively and publicly opposed terrorism. They were each part of a group led by
an individual that I will refer to as “M”. This group attempted to expose a
plot to launch cyber‑attacks on nuclear facilities and intelligence
centres in the United States.
[5]
The plot involved the governments of Iran, Cuba and Venezuela, along with extremists at the National Autonomous University of Mexico.
There was also evidence before the Board suggesting that the Iranian government
had links to Mexican drug cartels, and that the Mexican government may itself
have had some involvement in the plot.
[6]
Since his attempts to expose the cyber‑plot
became known, M has become very ill with a highly unusual strain of Hepatitis C
virus. A medical report provided to the Board states that the accelerated
progress of M’s disease suggests that the virus may have originated in a
laboratory in one of the countries involved in the cyber‑plot. From this,
the Board found that there was credible evidence that M had been intentionally
infected with the virus by one or more of the agents of harm feared by the
respondents. The Minister does not challenge this finding.
[7]
The respondents themselves evidently came under
suspicion by the plotters, as they were followed and photographed on a number
of occasions, in at least some instances by individuals identified as employees
of the Iranian Embassy. At least one of the claimants also received anonymous
death threats on several occasions.
[8]
The Minister intervened in the respondents’
refugee claims, presenting evidence, questioning witnesses and making
submissions to the Board. While the story told by the respondents was certainly
a most unusual one, counsel for the Minister acknowledged at the hearing of
this application that “for the most part” there
was no challenge to the credibility of the respondents’ story, which was
corroborated by a voluminous quantity of documentary evidence.
[9]
In addition to their testimony, the respondents
produced transcripts of recordings of various meetings and events, documents
originating from the American government, newspaper reports and medical
evidence. Information was also provided with respect to a television
documentary that had been made about the cyber-attack plot, and the
respondents’ role in attempts to expose it.
[10]
Based upon this evidence, the Board was
satisfied that the respondents had a well-founded fear of persecution in Mexico, and that adequate state protection would not be available to them in that country.
As noted earlier, the Minister is only challenging the Board’s state protection
finding.
II.
Analysis
[11]
The respondents put considerable evidence before
the Board regarding their attempts to engage the attention of Mexican
authorities in this matter. M approached the Mexican police, providing them
with details of the plot, including the names of some of the participants. M’s
claims were supported by audio and visual tape recordings that he had
surreptitiously made of various meetings involving participants in the plan at
which he was present. M also recorded his meeting with the Mexican police. A
transcript of the encounter reveals that the police had no interest in
investigating M’s allegations or otherwise assisting M, and instead ridiculed,
threatened and assaulted him.
[12]
M then contacted the Attorney General
responsible for combating organized crime in Mexico. He provided information
regarding both the cyber‑attack plot and his mistreatment at the hands of
the Mexican police. The Attorney General’s office confiscated M’s computer hard
drive, but nothing further appears to have been done in response to M’s
allegations.
[13]
The respondent S.M.G.L. contacted numerous
Senators in the Mexican government in an effort to alert them to the cyber‑attack
plot. Only one Senator responded. S.M.G.L. and M subsequently met with the
Senator, providing him with copies of the recordings substantiating their
claims. They also told him of their concern that they were being followed. The
Senator did not offer them any protection, nor did he direct them to any
government officials who could assist them in obtaining state protection. They
were just told to be careful, and to report back if anything happened to either
of them.
[14]
The respondents and their associates continued
their efforts to engage the attention of Mexican authorities, contacting several
of the major political parties in Mexico, amongst others. They provided the
Board with a list of numerous organizations and authorities contacted by the
respondents and their associates, all to no avail. Once again, the Minister
does not take issue with the respondents’ evidence on this point.
[15]
After their attempts to obtain assistance in Mexico failed, the respondents approached the American authorities. The actions of the
respondents led the U.S. government to declare a Venezuelan diplomat suspected
of complicity in the cyber‑plot to be persona non grata. The
respondents also approached the media, which ultimately led to the production
of the documentary about their case.
[16]
It is apparent from the Board’s reasons that it
understood that there is a rebuttable presumption that a state will ordinarily
be able to protect its citizens: Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1. The Board also clearly understood that
the test was the adequacy of the available state protection, and that states were
not required to provide perfect protection to their citizens. This is the
correct formulation of the test: Carillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636.
[17]
When reviewing a Board decision regarding the
adequacy of state protection available to individual claimants in their country
of origin, it is not this Court’s role to parse each line of the Board’s
reasons looking for error. The Court instead considers “the
justification, transparency and intelligibility of the decision‑making
process, and whether the decision falls within a range of possible acceptable
outcomes which are defensible in light of the facts and the law”: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47, [2008]
1 S.C.R. 190.
[18]
In this case, the Board looked at what had
happened to M, finding that “this was a strong indicator
of what the claimants may fear if they are returned to Mexico”. In evaluating the risk faced by the respondents, it was reasonably open to
the Board to look at what had happened to similarly-situated individuals: Ward,
above at para. 57.
[19]
The evidence adduced by the respondents also
demonstrated that the state of Mexico had refused them protection in the past,
and was disinterested in protecting them in the future. The Minister has not
pointed to anything else the respondents could have done to protect themselves
in Mexico.
[20]
The Minister submits that the Board only
considered whether adequate state protection would be available to the
respondents for their whistle‑blowing activities, and did not consider
whether such protection would be available in relation to the threats to the respondents’
personal safety. The fact is that the respondents were only at risk in Mexico because of their whistle‑blowing activities and the people that they feared
were those behind the cyber-plot. Given the Mexican authorities’ lack of
interest in the cyber‑plot, the Board’s finding that they would be
unwilling to protect the respondents from the fall‑out of their whistle‑blowing
was one that was reasonably open to the Board on the record before it.
III.
Conclusion
[21]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that given the extraordinary
facts of this case, it does not raise a question for certification.
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