Date: 20141014
Docket: IMM-4572-13
Citation:
2014 FC 970
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 14, 2014
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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IGNACIO GERARDO RODRIGUEZ NOLASCO MAURICIO GERARD RODRIGUEZ
SALVADOR JULYSSA XIOMARA CANTO QUINTAL
IRMA FAJARDO PULIDO
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Applicants
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and
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CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
I.
The nature of the matter
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB), dated June 14, 2013, rejecting the applicants’ claim for
refugee protection and finding that the applicants are 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.
The facts
[2]
The applications of Irma Fajardo Pulido (the
principal applicant’s wife), Julyssa Xiomara Canto Quintal (the principal
applicant’s daughter-in-law) and Mauricio Gerard Rodriguez Salvador (the principal
applicant’s son), are based on the application of Ignacio Gerardo Rodriguez
Nolasco (the principal applicant).
[3]
In this case, the overall credibility of the
principal applicant and the evidence on file to consider as truthful most of
the facts set out in this decision. However, certain aspects of his testimony
are being questioned by the RPD, as noted below.
[4]
The principal applicant is a citizen of the state
of Veracruz, Mexico. Before leaving for Canada, the principal applicant practised
in a private clinic as a gynecologist.
[5]
In June and October 2010, the principal
applicant received extortion and death threats in the form of telephone calls. The
principal applicant reported these threats to the Attorney General but states that
he was not taken seriously.
[6]
In January and March 2011, a nurse working at
the principal applicant’s clinic was also the victim of threats. The principal
applicant did not report any of these threats as he considered that the Veracruz state police are corrupt.
[7]
On May 25, 2011, members of the drug cartel “Los
Zetas” kidnapped the principal applicant. Although the police went to the principal
applicant’s clinic, where he was kidnapped, they left at the request of the principal
applicant’s wife who feared that the presence of the police would endanger the
applicant’s life. The police did not investigate further. During the kidnapping,
the principal applicant’s wife did not seek help from police.
[8]
When the principal applicant was released, the cartel
members informed him that he should work as a doctor for the cartel in future.
[9]
Following his release, the principal applicant denounced
the kidnapping to the police, without following up on his complaint.
[10]
The applicants left Mexico on July 25, 2011.
[11]
Following his kidnapping, the principal
applicant experienced serious physical and emotional health issues, such as
post-traumatic shock.
III.
The RPD’s decision
[12]
The RPD based its decision on the principal
applicant’s testimony. Although the RPD considered the principal applicant to
be, by and large, credible, it concluded that the principal applicant failed to
rebut the presumption of state protection.
[13]
The RPD submitted that the female applicant and
wife of the applicant should have sought state protection when the principal
applicant was kidnapped. The RPD did not believe that the principal applicant’s
life could have been in danger if the female applicant and wife of the
applicant had contacted the police during the kidnapping and therefore rejected
that argument.
[14]
The RPD noted that although the principal
applicant mentioned that he had reported the kidnapping to the police before
leaving Mexico, he did not follow up on his complaint. The applicant alleges that
the police told him that he was making a mistake by contacting them, as the police
themselves were infiltrated by criminal organizations. The RPD noted that the
principal applicant did not mention that in his principal narrative. The RPD concluded
that the failure to do so was highly significant as it goes to the very heart
of the claim for refugee protection. Thus, the RPD rejected this submission by
the principal applicant. The RPD also found that the principal applicant did
not take the necessary steps to obtain state protection as he did not follow up
on his complaint before leaving Mexico.
[15]
It appears that
although the principal applicant was required to rebut
the presumption of state protection with clear
and convincing evidence, the RPD based its decision only on the
principal applicant’s behaviour. The RPD stated that the mere assertion that
corruption exists in a state is not enough to rebut
the presumption of state protection.
[16]
The RPD found that it was not necessary to
analyze the internal
flight alternative within the principal applicant’s home
state as the principal applicant failed to rebut the presumption of
state protection.
IV.
The issues
[17]
There are two issues:
1.
Did the RPD err in its analysis of state protection?
2.
Did the RPD err in failing to conduct a separate analysis under section 97 of the IRPA?
Because I am
answering “yes” to the first question, it is not necessary to answer the second
question.
V.
The parties’ arguments
A.
Principal applicant’s arguments
[18]
The principal applicant submits that the
presumption of state protection may be rebutted by clear and convincing evidence that the
state protection is inadequate (Flores Carrillo v Canada (Minister of Citizenship and Immigration),
2008 FCA 94, at paragraph 38 (Carrillo)). Whereas a refugee claimant from a democracy such as Canada
and the United States must show that he or she has
exhausted all recourses available to her or him, this requirement does
not apply to refugee claimants from all democratic
countries, as mentioned by Justice Gauthier in Capitaine v Canada (Minister
of Citizenship and Immigration), 2008 CF 98, at paragraph 22 (Capitaine):
The
Court does not understand Hinzman
to say that this conclusion applies to all countries wherever they stand on the
"democracy spectrum" and to relieve the decision-maker of his or her
obligation to assess the evidence offered to establish that, in Mexico for
example, the state is unable (although willing) to protect its citizens, or
that it was reasonable for the claimant to refuse to seek out this protection.
[19]
Accordingly, the presence of a democratic system
does not guarantee state protection. The RPD must assess in each case the
evidence submitted to determine whether effective protection exists. In Davila
v Canada (Minister of Citizenship and Immigration), 2006 FC 1475, at paragraph
25, Justice de Montigny rejected the RPD’s analysis because he was of the
opinion that the RPD did not “proceed with a fulsome and
contextualized analysis of each claimant's particular situation, taking into
consideration the basis of his or her claim, the precise state or region where
the persecution is alleged to have taken place, and the willingness of the
authorities to protect members of the same target group”.
[20]
The principal applicant submits that the RPD simply
based its conclusions on the principal applicant’s attitude while in Mexico. The
RPD erred in failing to consider the evidence describing state protection in
Mexico. Further, the RPD did not conduct an analysis of the documentation submitted
with respect to the particular circumstances of the principal applicant. Specifically,
the principal applicant alleges that the RPD did not assess the evidence on: (1)
the corruption
within Mexican police forces; (2) the problems of
kidnapping in Mexico; (3) the power and dangerousness of the agent of persecution
(Los Zetas); and (4) the psychological report pertaining to the principal
applicant’s mental health following his kidnapping. Thus, the principal
applicant submits that the RPD not only selected the documentation submitted, but
also completely ignored it. For these reasons, the principal applicant submits
that RPD’s decision is unreasonable and must not be allowed to stand.
B.
Respondent’s arguments
[21]
The respondent submits that the principal
applicant provides no clear and convincing evidence in support
of his assertion that the police are corrupt. On this point, the respondent
cites Justice Létourneau of the Federal Court of Appeal (Carrillo, at
paragraph 30):
[A] claimant seeking
to rebut the presumption of state protection must adduce relevant, reliable and
convincing evidence which satisfies the trier of fact on a balance of
probabilities that the state protection is inadequate.
[22]
The respondent then relies on the decision in Martinez
v Canada (Minister of Citizenship and Immigration), 2005 FC 1050 (Martinez)
to illustrate its point. In that case, Justice Phelan held that a victim of
spousal abuse who attempted to seek assistance on only two occasions, must have
“[done] more than she did given the evidence
of the nature of the political, judicial and administrative structure of Costa
Rica (Martinez, at paragraphs 7, 9). Justice
Phelan also mentioned that the
applicant provided no “direct,
relevant and compelling” evidence of the inadequacy of state protection (Martinez, at paragraph 7).
VI.
Standard of review
[23]
The assessment of the adequacy of a country’s
state protection within the meaning of the Act is a question of mixed fact and law
to be reviewed on the standard of reasonableness (G.M. v Canada (Minister of
Citizenship and Immigration), 2013 FC 710, at paragraph 27; Balogh v
Canada (Minister of Citizenship and Immigration), 2014 FC 771; Teofilio
v Canada (Minister of Citizenship and Immigration), 2014 FC 783, at paragraph
20). Thus, this Court ought not to interfere where the reviewable decision is one
of several acceptable and rational solutions (Dunsmuir
v New Brunswick, [2008] 1 S.C.R. 190, at paragraph 47).
VII.
Analysis
[24]
The analysis of state protection was specified
in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, and Flores v
Canada (Citizenship and Immigration), 2008 FC 723, at paragraph 10:
As
noted by the Federal Court of Appeal in Carillo, the decision of the Supreme Court in Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689
stressed that refugee protection is a surrogate for the protection of a
claimant's own state. When that state is a democratic society, such as Mexico,
albeit one facing significant challenges with corruption and other criminality,
the quality of the evidence necessary to rebut the presumption will be higher.
It is not enough for a claimant merely to show that his government has not
always been effective at protecting persons in his particular situation: Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
[25]
As mentioned by the principal applicant, whereas
in democracies such as the United-States and Canada, a refugee claimant must
show that he or she has
exhausted all recourses available to her or him to
ensure his or her protection, this conclusion does not apply to all democracies
(Capitaine, at paragraphs
20-22).
[26]
It is settled law that the presumption of state protection
can be rebutted where a refugee provides clear and
convincing evidence confirming the state's inability to provide protection (Espinoza v Canada (Minister of Citizenship and Immigration),
2005 FC 343, at paragraph 29; Kaleja v Canada (Minister of Citizenship and
Immigration), 2011 FC 668, at paragraph 26).
[27]
Where an applicant has provided sufficient
evidence to rebut this presumption, the RPD must consider and assess its value,
provide adequate justification for its decision to accept or reject it and explain
the basis for that determination (Wright v Canada (Minister of Citizenship
and Immigration), 2012 FC 320, at paragraph 13). In Simpson v Canada (Minister
of Citizenship and Immigration), 2006 FC 970, at paragraph 44, Justice
Russell defined those requirements:
While it is true that there
is a presumption that the Board considered all the evidence, and there is no
need to mention all the documentary evidence that was before it, where there is
important material evidence on the record that contradicts the factual finding
of the Board, a blanket statement in the Decision that the Board considered all
of the evidence will not be sufficient. The Board must provide reasons why the
contradictory evidence was not considered relevant or trustworthy: See Florea v. Canada (Minister
of Employment & Immigration), [1993] F.C.J. No. 598 (F.C.A.) and Cepeda-Gutierrez v. Canada
(Minister of Citizenship & Immigration), [1998] F.C.J. No. 1425 (F.T.D.). In this case, the Board
did not do this. It simply relies in its Decision on the statement that Jamaica
is a democracy with a police force and so must be presumed capable of providing
protection and that no clear and convincing evidence was presented by the
Applicant to rebut the presumption of state protection. The contradictory
evidence noted above and the specific circumstances of this case, however, were
not addressed. The Applicant presented compelling evidence that in Jamaica the
state does not provide protection to women like the Applicant who are
consistently at risk and without effective protection. This was more than a
local failure. The Applicant did provide clear and convincing evidence that the
reality was otherwise and, while I do not say that the Board was obliged to
accept the Applicant's evidence, it was certainly obliged to deal with it and
provide adequate reasons for rejecting what she had to say about her own
position and the state's inability to protect women from domestic violence in
Jamaica.
[Emphasis added.]
[28]
In Beltram Espinoza v Canada (Minister of
Citizenship and Immigration), 2010 FC 763 (Beltram Espinoza), this Court
applied the principles set out above to a case where two applicants, two citizens
of Mexico whose family who suffered severe persecution at the hands of the Sinaloa
cartel, claimed to be Convention refugees or persons in need of protection. In that case, Justice Kelen remitted the refugee claim to the RPD for
redetermination because, inter alia, the RPD erred in failing to
consider the particularly relevant Los Angeles Times article describing
the inability of the state of Sinaloa to provide adequate state protection. The
Court stated at paragraphs 29-31:
The
applicants in this case failed to approach the police or successive levels of
the Mexican state machinery to complain about Abel's kidnapping, the ransom
demands, or the rogue police officer. (The Court refers to this incident
earlier in these reasons under the heading "background facts".) However,
the evidence before the RPD from a Los Angles Times article dated December 22, 2008 cited earlier in these
reasons shows that the police in the state of Sinaloa cannot protect their
citizens from crimes related to the drug cartels because "the narcos have networks meshed into the fabric of
business, culture, politics - every corner of life".
. . .
The reasons given by the RPD are not to be read
hypercritically by a court and nor is it required to refer to every piece of
evidence that it received that is contrary to its finding, and to explain how
it dealt with it: Cepeda-Gutierrez v. Canada (MCI) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264
(F.C.T.D.), per Justice Evans (as he the was) at paragraph 16. However, Justice
Evans also held at paragraph 15 that the Court may infer that a finding of fact
has been made without regard to the evidence if the RPD fails to mention an
important piece of evidence which is relevant and directly contradicts the
Board's finding:
. . .
In
this case, I am satisfied that the RPD erred in failing to explain why the Los Angeles Times article about the breakdown of the state's
ability to control the drug killings in Sinoloa was not considered or followed.
This is one of the most credible newspapers in the U.S., and this article is
important, relevant and contradictory evidence. For this reason, the RPD
finding that there was adequate state protection for the applicants in the
state of Sinaloa is in error and must be set aside because it did not consider
this evidence.
[Emphasis added.]
[29]
In this case, the principal applicant submitted important
and relevant material pertaining to the state protection for Mexican citizens against
cartels, including:
1.
A document published by the RPD stating that
ICESI [the Citizens’ Institute for Crime
Studies, a Mexican think-tank specializing in the production of statistical
data on crime in the country] explains that in some cases of alleged extortion,
the Public Ministry refuses to initiate investigations for lack of evidence, or
minimizes the complaint and refuses to provide assistance to the victim. . . . The New York Times also reports that
victims of abduction and persons whose vehicle was stolen are ignored by
authorities when they go to file police reports.
2.
A document published by La presse on
November 22, 2012, stating that:
[Translation]
[O]nly 8% of the offences committed in Mexico
are reported and 99% of them go unpunished, says the National Human Rights
Commission (NHRC). . . . since 2005,
the NHRC has recorded 34,385 complaints against federal public safety officials.
3.
A document published by Amnesty International on
the complicity of police and other officials in murders and kidnappings perpetrated
by drug cartels and other criminal organizations.
4.
Documents published by the IRB indicating that (i)
purges of municipal, state, and federal police have not contained the problem
of police corruption (ii) the Mexican
President acknowledged that there is a problem with corruption among Mexican
judges (iii) the increase in the number of kidnappings in Mexico is due to
corruption, impunity and collusion between cartels and police; and (iv) the US
government stated that Los Zetas is the most dangerous and sophisticated cartel
operating in Mexico.
[30]
In my view, the RPD did not adequately consider
the evidence. Indeed, the RPD only considered: (1) the principal applicant’s
testimony, (2) the principal applicant’s Personal Information Form; and (3) the
principal applicant’s attitude. The analysis of paragraphs 30-35 of the RPD’s
decision regarding state protection in Mexico indicates that there was no assessment
of the documentary evidence, mentioned in the previous paragraph:
[Translation]
The mere assertion
that corruption exists is not enough to conclude that
the state is incapable of protecting its citizens.
There
is a presumption that a state is capable of protecting its citizens.
The onus is on the
applicants to provide clear and convincing evidence that the Mexican state and
its agents were unwilling or unable to provide protection.
In the
circumstances alleged, did the applicants make all efforts necessary to ensure
their protection and obtain state protection?
Were they able to
demonstrate that the state and its agents were unwilling or unable to provide
protection and that the protections of police authorities were non-existent and
inadequate?
These questions were
answered in the negative by the panel, owing to their attitude.
[Emphasis added.]
[31]
Upon a thorough reading of the RPD’s decision, I
cannot find any assessment of the documentary evidence submitted.
[32]
I therefore conclude that the RPD erred in its analysis
of state protection.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
1.
The application for judicial review is allowed.
2.
This refugee claim is
remitted to a different panel of the RPD for redetermination.
3.
There is no serious question
of general importance to certify.
“George R. Locke”
Certified true translation
Daniela Guglietta,
Translator
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