Ottawa, Ontario, December 20, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Reneir Morales Aguilar is a citizen of Mexico who claims refugee protection. He claims that he has a well-founded fear of persecution and that he faces a danger of torture, or a risk to his life, or a risk of cruel and unusual treatment or punishment in Mexico. These fears flow from his membership in the Zapatista Front of National Liberation and his involvement assisting the indigenous people of Chiapas state in Mexico.
[2] The Refugee Protection Division of the Immigration and Refugee Board (Board) dismissed his application for protection. While the Board accepted that Mr. Morales may have been apprehended by people who did not want him to assist the indigenous peoples, it found that he had failed to rebut, with clear and convincing evidence, the presumption of state protection.
[3] On this application for judicial review of that decision, Mr. Morales asserts that:
(i) The Board made perverse and capricious findings of fact without regard to the evidence before it.
(ii) The Board failed to conduct an analysis of the availability of state protection in Mexico.
[4] In my view, the determinative issue is the reasonableness of the Board's decision with respect to state protection. This is because even if the Board erred in some of its findings of fact as Mr. Morales alleges, none of those findings relate to the availability of state protection. For the reasons that follow, I have concluded that the Board did not err in finding that Mr. Morales had failed to rebut the presumption of state protection.
[5] Before setting out the applicable legal principles, it is necessary to describe the agents of persecution that Mr. Morales fears. In his Personal Information Form, Mr. Morales stated that he feared a certain named person who is the leader of a group working for the "local authorities". In his oral testimony before the Board, Mr. Morales stated that he feared the persons who had previously attacked him and the rich land owners of his state.
[6] Where the agents of persecution are not state actors, settled principles of law relevant to the issue of state protection, are:
· A refugee claimant will generally be expected to seek protection from the state.
· Where the state apparatus has not broken down, a claimant faces a heavy burden to rebut, with clear and convincing evidence, the presumption of state protection.
· The presumption of state protection may be rebutted by evidence of similarly situated individuals who were unable to obtain protection, or by evidence of past incidents where the claimant sought protection, but it did not materialize.
· There is no requirement for a claimant to seek such protection where the evidence establishes that protection will not be forthcoming.
See: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[7] Turning to the evidence before the Board, Mr. Morales testified that when his sister (who had also assisted indigenous people) was murdered a number of years previously, a report was made to the police and the specific group leader that Mr. Morales fears was arrested and detained for between five and seven months (although the matter ultimately did not proceed to trial). Mr. Morales also testified that at no time did he report any of the problems he encountered to the police in Chiapas, or to the police in Mexico City. In oral argument, counsel for Mr. Morales conceded that there was no evidence before the Board of persons similarly situated to Mr. Morales who had unsuccessfully sought state protection.
[8] On that evidence, the Board could reasonably conclude, as it did, that Mr. Morales failed to rebut the presumption of state protection with clear and convincing evidence. The application for judicial review is therefore dismissed.
[9] Counsel posed no question for certification, and I agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1143-06
STYLE OF CAUSE: MORALES AGUILAR RENEIR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 12, 2006
APPEARANCES:
RYAN S. PERSAD FOR THE APPLICANT
LEANNE BRISCOE FOR THE RESPONDENT
SOLICITORS OF RECORD:
RYAN S. PERSAD FOR THE APPLICANT
BARRISTER & SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA