Montréal, Quebec, June 29, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
EDUARDO RUIZ MONROY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated October 20, 2005, by which the Immigration and Refugee Board—Refugee Protection Division (the Board) determined that Eduardo Ruiz Monroy (the applicant) was not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the Act.
RELEVANT FACTS
[2] The applicant is a citizen of Mexico. He is claiming refugee protection by reason of his membership in a particular social group. He alleged a well-founded fear of persecution at the hands of criminals, namely drug traffickers who are aided by collaborators within the police. The applicant also alleged that he is a person in need of protection, such that he would be personally subjected to a danger of torture, to a risk to his life, or to a risk of cruel and unusual treatment or punishment.
[3] The applicant stated that he began working in a discotheque in September 2004. In January 2005, the applicant allegedly discovered that his boss was involved in drug trafficking. The applicant stated that on January 19, 2005, he made a complaint to the Attorney General against his employer for drug trafficking.
[4] He alleged that on January 20, 2005, he was the victim of assaults and death threats by unknown persons who accused him of having filed a complaint with the police. Following this attack, he contacted a friend in the judicial police to obtain help in his dealings with the authorities. The consequences were not long in coming, and in fact the applicant was the victim of an attempted murder a few days later.
[5] Following that, the applicant was advised by his brother that the police were looking for him. When he spoke to the manager of the discotheque, he learned that he was wanted. At that time, he also learned that the owner of the discotheque, Luis Ariona, was a commander in the judicial police.
[6] The applicant then allegedly left the city of Guadalajara. However, the applicant stated that he was notified that his agent of persecution knew he was in Tijuana and was actively looking for him.
[7] Fearing for his safety, he decided to travel illegally to the United States. At his cousin’s suggestion, the applicant travelled to Charlotte to contact him. The cousin allegedly told the applicant that the situation in the United States was not good and advised him to take refuge in Canada. The applicant illegally entered Canada in a truck and claimed refugee protection a few days later.
ISSUES
[8] 1. Did the Board err in concluding that the applicant did not prove the inability of the Mexican state to protect him?
2. Did the Board err in drawing negative inferences?
ANALYSIS
1. Did the Board err in concluding that the applicant did not prove the inability of the Mexican state to protect him?
[9] The Board concluded that the applicant did not meet the burden of proof so as to show in a clear and convincing manner that the Mexican state could not provide adequate protection. The standard of review applicable to questions of state protection is reasonableness simpliciter (Chaves v. Canada (Minister of Citizenship and Immigration) 2005 FC 193, at paragraphs 9‑11).
[10] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada stated the following, at paragraph 50:
. . . [C]lear and convincing confirmation of a state’s inability to protect must be provided . . . . Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
[11] The Supreme Court affirmed that, in the absence of a complete breakdown of the state apparatus, it must be presumed that the state is able to protect its citizens. Moreover, it is up to the applicant to rebut the presumption by adducing clear and convincing evidence showing that the state is unable to protect him or her.
[12] The applicant alleged that the Board erred in concluding that he did not rebut the presumption that the Mexican authorities were able to ensure his protection. The applicant alleged that he undertook reasonable steps to obtain assistance from the Mexican state. However, every time he took steps, he suffered personal consequences. He claimed that he cannot be required to undertake other steps if they entail a threat to his life.
[13] In Chaves, supra, Madam Justice Danielle Tremblay-Lamer stated at paragraph 15 that when a state is the alleged perpetrator of the persecution, an applicant is not required to exhaust all possible recourses in the country to meet his burden of proof and show there is an objective fear:
Rather, where agents of the state are themselves the source of the persecution in question, and where the applicant’s credibility is not undermined, the applicant can successfully rebut the presumption of state protection without exhausting every conceivable recourse in the country. The very fact that the agents of the state are the alleged perpetrators of persecution undercuts the apparent democratic nature of the state’s institutions, and correspondingly, the burden of proof. As I explained in Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339 (T.D.), Kadenko, supra has little application when the “[...] police not only refused to protect the applicants, but were also the perpetrators of the acts of violence”; Molnar, supra at para. 19.
[14] In Espinosa v. Canada (Minister of Citizenship and Immigration) 2005 FC 1393, at paragraphs 7 and 8, Mr. Justice Yves de Montigny adopted the same position as Tremblay‑Lamer J.:
As a general rule, a refugee protection claimant must seek protection from his or her country before requesting international protection. As La Forest J. affirmed in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, page 726, “The presumption [that the State is capable of protecting the claimant] serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant”. To rebut this presumption, it would not be sufficient to allege that the police are corrupt or that a police officer did not follow up on a complaint. From this point of view, I, like many of my colleagues, am willing to admit that Mexico is able to protect its citizens even though this protection is far from perfect: Velazquez v. Canada (M.C.I.), [1999] F.C.J. No. 934 (QL); Garcia v. Canada (M.C.I.), [2004] F.C.J. No. 2058 (QL); Urgel v. Canada (M.C.I.), [2004] F.C.J. No. 2171 (QL); Valdes v. Canada (M.C.I.), [2005] F.C.J. No. 123 (QL); Balderas v. Canada (M.C.I.), [2005] F.C.J. No. 225 (QL); B.O.T. v. Canada (M.C.I.), [2005] F.C.J. No. 343 (QL).
Having said this, it is quite different when a representative of the state is the alleged perpetrator of the persecution or threats of violence. As my colleague Tremblay-Lamer J. affirmed, “The very fact that the agents of the state are the alleged perpetrators of persecution undercuts the apparent democratic nature of the state's institutions, and correspondingly, the burden of proof” (Chaves v. Canada (M.C.I.), [2005] F.C.J. No. 232, 2005 FC 193; see also Molnar v. Canada (M.C.I.), [2003] 2 F.C. 339). After all, it would be absurd to require that a claimant put his life in danger to prove the ineffectiveness of the protection in his country. This reasoning applies that much more when, as in the present case, the person allegedly responsible for the persecution is the one who is ultimately in charge of public safety within the state. The Board did not seem to take this into consideration in its decision. In fact, the documentary evidence it cited to show that recourse was possible does not take this part of the problem into consideration.
[15] The situation in the case at bar is different from the one mentioned by De Montigny J. In this case, the Board took into consideration the fact that the owner of the discotheque, Luis Ariona, was a commander in the judicial police. However, even taking into consideration the fact that an agent of the state could be the cause of the persecution in question, the Board was satisfied that the documentary evidence showed the applicant did not use all his recourses and that protection could be obtained from the Mexican state:
The claimant says that he filed a complaint with the Attorney General on one occasion only, and he could have also approached the superintendent’s office, which he did not do. He could have contacted other police stations, which he did not do. He was living in a big city. It is clear that he could have contacted another office and laid a complaint there.
Also according to the documentary evidence, the Attorney General was replaced in 2001 to beef up the internal fight against corruption and tackle drug trafficking and organized crime. The persons convicted of corruption within the system were suspended, dismissed, and in certain cases imprisoned. We understand the police too often protect each other. Apparently the claimant was hunted down and attacked by people who identified themselves as being from the police, but this in itself is not sufficient evidence to justify his lack of perseverance in obtaining protection from Mexican institutions or other police services.
The RPD is therefore satisfied that the representatives of the Mexican state have taken measures to fight against corruption in the police and the judiciary and that the claimant had no objective reason not to seek state protection and do all that was reasonable in the circumstances to obtain such protection.
In light of the documentary evidence, the panel finds that the Mexican government is making serious efforts to fight crime and protects its victims of crime and that state protection will be offered to the claimant even if the alleged agent of persecution is a person of influence or a person working in the justice system.
(Decision of the Board dated October 20, 2005, at page 5)
[16] Even though an agent of the state was the perpetrator of the attacks, the Board concluded that the Mexican authorities were able to ensure the applicant’s safety. The applicant did not adduce clear and convincing evidence to the contrary. The Board took into consideration objective evidence concerning Mexico. The Board made numerous references to this evidence and even noted that, in spite of the fact corruption was widespread in the police, including the judicial police, numerous measures had been taken by the state to fight crime, mount a more effective attack on internal corruption, and deal with drug trafficking and organized crime.
[17] The only thing the applicant did to seek state protection was to contact his friend in the police. In spite of the fact that he had been threatened and assaulted, the Board concluded that he had not undertaken sufficient steps to obtain adequate state protection.
[18] The applicant has not satisfied me that the Board erred in concluding that he had not succeeded in rebutting the presumption of state protection.
2. Did the Board err in drawing negative inferences?
[19] The applicant alleged that the Board erred in drawing negative inferences from the fact it had not received a copy of the complaint. Moreover, the applicant claimed that the Board also erred in drawing negative inferences about the duration of a certain trip between the American border and Los Angeles.
[20] I agree with the position of the respondent, who stated that a mere reading of the decision shows that the applicant’s claims are unfounded because the Board did not make any of the inferences to which he referred. The Board did not seem to doubt the applicant’s testimony concerning the lack of a copy of the complaint. As far as the trip from the American boarder is concerned, the decision simply did not deal with it.
[21] Accordingly, the applicant did not satisfy me that the Board had made an error that would warrant the intervention of this Court.
[22] Therefore, the application for judicial review will be dismissed.
[23] The parties did not submit any question to be certified.
JUDGMENT
· The application for judicial review is dismissed.
· No question will be certified.
“Pierre Blais”
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6794-05
STYLE OF CAUSE: EDUARDO RUIZ MONROY v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 27, 2006
REASONS FOR ORDER AND
ORDER BY: THE HONOURABLE MR. JUSTICE BLAIS
APPEARANCES:
|
Gisela Barraza
|
FOR THE APPLICANT |
|
Isabelle Brochu
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Gisela Barraza - Montréal
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |