Ottawa, Ontario, December 11, 2006
PRESENT: THE HONOURABLE MR. JUSTICE YVES de MONTIGNY
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Antonio Leon Davila arrived in Canada in April 2005, seeking refugee status from Mexico. After a hearing before the Refugee Division of the Immigration and Refugee Board (the Board), Mr. Davila was found to be neither a Convention refugee nor a person in need of protection. This is a judicial review of that decision.
FACTS
[2] Mr. Davila is a Mexican citizen, born January 16, 1983. On January 14, 2004, he says he discovered a security breach on the website of Mas Fondos, a Mexican company in which he had invested. According to Mr. Davila, the breach meant the company’s confidential information and business records were vulnerable to being stolen or manipulated. Mr. Davila informed the company of the problem.
[3] In February 2004, however, Mr. Davila says Mas Fondos accused him of fraud. He received a citation to attend the public prosecutor’s office for investigations. Mr. Davila says he noticed “irregularities” in the accusation and raised them with the public prosecutor, but the prosecutor dismissed them.
[4] Next, in April 2004, Mr. Davila says he began receiving threatening phone calls. He also claims he was nearly attacked by several men in a pick-up truck. He informed the prosecutor of all these incidents, but claims the prosecutor’s response was to threaten to investigate Mr. Davila further.
[5] Mr. Davila made one phone call to Mexico’s National Commission of Human Rights to tell them what was happening with Mas Fondos and the public prosecutor. Soon after, he left for the United States. He arrived in Canada in April, 2005. He now claims the public prosecutor has been retained by Mas Fondos, and will make false accusations against him if he returns to Mexico. He has not had any contact with anyone at Mas Fondos since he first contacted the company to report the security breach, in January 2004. He has also never been formally charged with any crime.
THE IMPUGNED DECISION
[6] In the decision, dated November 24, 2005, the Board concluded Mr. Davila was neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
[7] The Board focused mainly on the fact that Mr. Davila had been unable to rebut the presumption of state protection in Mexico. The Board also noted other credibility issues, including: the allegations against him in Mexico, his claim that he had proof of his innocence, and his failure to claim refugee protection when arriving in the U.S. It also highlighted the fact that he only sought protection from the National Commission of Human Rights shortly before leaving Mexico. The Board thought Mr. Davila had been too quick to conclude that state protection was unavailable.
[8] With respect to his allegations against Mas Fondos and the public prosecutor, the Board noted Mr. Davila’s admission that there was never a warrant issued for his arrest. Nor was he ever brought into court or formally charged with any crime. While he testified that he showed the public prosecutor proof of his innocence, Mr. Davila later qualified that, explaining he had merely shown the prosecutor inconsistencies in the allegations against him.
[9] The Board concluded that Mr. Davila’s call to the National Commission of Human Rights was his sole attempt to get state protection from Mexico, and that this was not enough on its own to rebut the presumption of state protection. The Board noted that Mexico is a democracy, and that the burden to establish state protection increases in proportion to the particular state’s level of democracy.
ISSUES
[10] In his written submissions, Mr. Davila raised two arguments. First, he submitted the Board’s decision was patently unreasonable because it misapplied the test for state protection and ignored material evidence in determining whether he did attempt to seek help from the state. Second, he claimed the guideline issued by the Board’s chairperson about the standard order of questioning (Guideline 7) fettered the Board member’s discretion, relying on Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16.
[11] During oral argument, Mr. Davila’s counsel decided not to pursue the Guideline 7 argument. While I do not, therefore, have to rule on this issue, I venture to say that it was probably without merit in any event. The question at issue was whether a refugee claimant has the right to be questioned first by his counsel, before answering questions from the refugee protection officer and the Board member. Since Mr. Davila was not represented by counsel at his hearing before the Board, I fail to see how the decision in Thamotharem, above, could be of any relevance in the present context.
[12] Accordingly, the two questions to be decided in this application for judicial review are the following:
1. What is the appropriate standard of review?
2. Did the Board err in its conclusions about state protection?
ANALYSIS
[13] Both parties agree that Mr. Davila has made two different arguments with respect to state protection, each of which calls for a different standard of review. As recognized in a number of decisions, the pragmatic and functional approach is irreconcilable with the notion that all issues pertaining to a generic type of decision are subject to the same standard of review. This has been recognized more specifically in the context of state protection by some of my colleagues: see, for example, Kishun v. Canada (Minister of Citizenship and Immigration), 2006 FC 1289 at paragraphs 9-10; Pisniak v. Canada (Minister of Citizenship and Immigration), 2006 FC 824 at paragraph 8.
[14] To the extent that Mr. Davila’s submissions raise the question of whether he adequately rebutted the presumption of state protection, the applicable standard of review must be that of patent unreasonableness. This is a pure question of fact, and the Board’s findings on such questions are generally not disturbed since it has the benefit not only of seeing and hearing the witnesses, but also of its members’ expertise in assessing evidence relating to facts within their area of specialized knowledge.
[15] On the other hand, Mr. Davila has also raised a question of law: whether the Board applied the proper legal test for state protection. This is a pure question of law, which must be assessed against a standard of correctness: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Collins v. Canada (Minister of Citizenship and Immigration), 2005 FC 1403 at paragraph 10.
[16] The general legal framework governing state protection is well documented in the case law. It is well established, for example, that a state is presumed to have the ability to protect its citizens. To rebut this presumption, a claimant must provide clear and convincing evidence that the state is unable or unwilling to provide that protection: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraphs 49-50. This is not an all-or-nothing presumption, however. As the Federal Court of Appeal indicated in a subsequent decision, “[t]he 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” (Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532).
[17] In the present case, Mr. Davila submits the Board erred by concluding he only approached the state of Mexico once, when he phoned the National Commission of Human Rights shortly before leaving the country. He argues that the Board ignored material evidence, as he went to the public prosecutor on three occasions, and specifically requested protection from the prosecutor on two of those occasions.
[18] The Board’s reasons on this issue are quite sparse. Indeed, the entire decision was less than five pages long, and its analysis of state protection is contained in one single paragraph which reads as follows:
However, the determinative issue in these claims is the failure to rebut with clear and convincing evidence the presumption that the federal republic of Mexico can protect its citizens. The claimant placed a telephone call to the National Commission of Human Rights shortly before leaving Mexico and this single act does not represent a diligent attempt to seek protection in the country of origin prior to seeking asylum abroad. Mexico is a federal republic composed of 31 states and a federal district with an elected president and bicameral legislature and no evidence has been provided that it is in disarray or in a state of breakdown. In July 2000, the voters elected President Vicente Fox Quesada of the Alliance for Change Coalition in historic elections that observers judged to be free and fair. The burden of proof to establish absence of state protection is directly proportional to the level of democracy, and I find that he failed to rebut the presumption with credible and trustworthy evidence that the democracy of Mexico can protect its citizens.
[19] Counsel for the Minister attempted to justify this omission by arguing that Mr. Davila’s submissions defy logic. If, as Mr. Davila contends, this public prosecutor was conspiring with those who threatened him, or did not care about the threats, he cannot claim his interactions with the prosecutor qualify as attempts to seek protection.
[20] The problem with this argument is that it is pure speculation. We have no idea why the Board did not even mention the three encounters between Mr. Davila and the public prosecutor. It is not disputed that the failure of a local law enforcement agency to protect a claimant is in itself not indicative of lack of state protection, as the Minister claims. The case law is replete with decisions standing for the proposition that, where there is an allegation of lack of local protection, a claimant is required to proffer evidence of the failure or inability of the broader law enforcement infrastructure to protect him or her. In other words, there must be evidence not just of a single failure in the system, but of a broader systemic policy not to extend protection to the target group to which a claimant belongs: Syed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1556 (F.C.T.D.) (QL); Szorenyi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1382; Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999; Orban v. Canada (Minister of Citizenship and Immigration), 2004 FC 559.
[21] That being said, if the public prosecutor was himself an agent of persecution because of his links with Mas Fondos, then the applicant’s burden of proof goes down. While Mr. Davila may not have explicitly spelled out this thesis, it can certainly be inferred from his submissions. In such a case, the presumption of state protection does not apply with the same rigour and a claimant will not be expected to exhaust all possible avenues before leaving his or her country. As my colleague Justice Danièle Tremblay-Lamer wrote in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193 at paragraph 15: “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.”
[22] The problem with the Board’s decision is that we are left completely in the dark about why it concluded Mr. Davila had not rebutted the presumption that Mexico could protect him. It may be that the Board found Mr. Davila should have contacted the police or another office of the public prosecutor (if that was at all possible under Mexican law), or that this case had more to do with “prosecution” than persecution. It may even be that the Board did not find him credible, in which case the principle enunciated in Chaves, above, would not apply with equal force. The Board hints at this possibility at the beginning of its analysis when it mentions that, “[t]here are some credibility concerns relating to the allegations of the claimant relating to the accusations against him in Mexico.” But this is all there is, and once more, one is left to speculate as to the precise reason the Board concluded Mr. Davila had not rebutted the presumption of state protection. An applicant should not be left to guess why his refugee claim has been rejected, even if the Board was of the view that his was not the strongest possible claim.
[23] As to the test of state protection itself, Mr. Davila submits the Board made an error of law by elevating the proper test for state protection. He says the Board’s reasons imply it would be necessary to prove a country was in disarray or a state of breakdown to find an absence of state protection. Relying on Ward, above, Mr. Davila insists that the proper test is not whether the country is in disarray, but whether there is a complete breakdown of “state apparatus.” Moreover, Mr. Davila contends that an inquiry as to whether a country of reference is in a state of disarray or in a state of breakdown only applies to circumstances where the claimants fail to approach the state for protection. Otherwise, all that is required is clear and convincing evidence that the state would not be able to offer protection.
[24] While I agree that the Board could have been more careful in its choice of words, I am satisfied that read in context and as a whole, the Board applied the correct standard. Indeed, the Board wrote at the beginning of its analysis that “…the determinative issue in these claims is the failure to rebut with clear and convincing evidence the presumption that the federal republic of Mexico can protect its citizens.” The Board also cited Kadenko, above, for the proposition that the burden to rebut the presumption of state protection would be somewhat higher considering that Mexico is a democracy. These statements are unimpeachable.
[25] That being said, I must say that I find the Board’s analysis of the situation in Mexico, and more particularly of its ability and willingness to protect the claimant, rather sketchy and rudimentary. As my colleague Justice Luc Martineau wrote in Avila v. Canada (Le ministre de la citoyenneté et de l’immigration), 2006 CF 359, the Board must 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. In other words, it is not enough to state broadly that there are free and general elections, and that legislation has been enacted to ensure basic standards of human rights.
[26] For all of these reasons, I am of the view that this application for judicial review must be granted. The matter is therefore remitted to a differently constituted Board for redetermination. No question of general importance is certified.
JUDGMENT
THIS COURT ORDERS that this application for judicial review must be granted. The matter is therefore remitted to a differently constituted Board for redetermination. No question of general importance is certified.
"Yves de Montigny"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7645-05
STYLE OF CAUSE: Marco Antonio Leon Davila
v.
The Minister of Citizenship & Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 28, 2006
REASONS FOR JUDGMENT
AND JUDGEMENT: de Montigny, J.
APPEARANCES BY:
Mr. Waikwa Wanyoike Applicant
Mr. Bernard Assan Respondent
SOLICITORS OF RECORD:
Waikwa Wanyoike
Toronto, ON Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada Respondent