2010 FC, 2010 FC 1183

Date: 20101125 Docket: IMM-1883-10 Citation: 2010 FC 1183 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario , November 25, 2010 PRESENT: The Honourable Mr. Justice Shore BETWEEN: RAFAEL ALBERTO AGUILAR SOTO SANJUANA CAUDILLO ZAVALA ANA PAOLA AGUILAR CAUDILLO RAFAELA ZAVALA BARRON GLORIA XIMENA AGUILAR CAUDILLO Applicants and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT SHORE J. I.

Introduction [ 1 ] Requiring a person to seek protection from the state when that person believes he or she is in danger as a result of the actions of someone who is a member of the forces of public order and when the state is both persecutor and accomplice is too stringent a burden of proof for a refugee claimant.

[2] The Federal Court has held on a number of occasions that, in seeking protection, a claimant is not obliged to “seekcounselling, legal advice, or assistance from human rights agencies if the police is unable to help”. According to Justice J. FrançoisLemieux, [21] . . . “[...] Canadian jurisprudence has repeatedly stated that there is no further burden on an applicant to seek assistance fromhuman rights organizations.” (Balogh v. Canada (Minister of Citizenship and Immigration) (2002), 2002 FCT 809 , 22 Imm.L.R. (3d) 93, at para. 44). (Malik v.

Canada (Minister of Citizenship and Immigration), 2003 FCT 453, 122 A.C.W.S. (3d) 1105; Molnar v.

Canada (Minister ofCitizenship and Immigration), [2003] 2 F.C. 339, 2002 FCT 1081, at paras. 23–24). [3] Moreover, the Immigration and Refugee Board (IRB) ignored evidence favourable to the applicants concerning the failure ofstate protection in their particular situation by disregarding the deficiencies of the system in their regard. [4] When analysing the issue of state protection, the IRB did not specifically refer to the documents submitted (the MexicoPackage, Exhibit A-1, a package of documents compiled by the IRB itself). [5] Thus, in the “Mexico: State Protection” document, dated May 2004, the following factors are mentioned: Nevertheless, various sources also contend that official statistics do not represent the actual situation because many citizens werereluctant to report crimes (ICESI 17 Mar. 2005; US 2002; Country Reports 2004 28 Feb. 2005, Sec. 1.c).

It has been estimated that thepercentage of crimes not reported, sometimes referred to as the “black number” (cifra negra), is between 75 (ICESI 17 Mar. 2005) and80 (US 2002; Freedom House 23 Aug. 2004) per cent, meaning that only one out of four or five crimes committed is actually reported tothe police. [Emphasis added.] (Exhibit A-1, Tab 9.2 Canada. May 2005. Immigration and Refugee Board. Mexico: State Protection). [6] Document MEX101376.E states: While the federal government has continued to support and promote initiatives to combat corruption (INCSR 2006 Mar. 2006, Sec.

I;Mexico Mar. 2006a, 367-377), corruption-monitoring organizations maintain that incidents of corruption in Mexico persist (TI 9 Dec.2005, 11; ibid.14-15, ibid., 19-23; Transparencia Mexicana 9 May 2006). . . . Public surveys conducted in 2005 in Mexico City showed that police corruption continues to be of concern to residents (EFE 20 Oct.2005; El Universal 15 Aug. 2005). “[m]ore than half of the participants” in an August 2005 survey by the Mexico City-based newspaperEl Universal “said that they had been victimized by extortion or bribetaking by uniformed police officers” (ibid.).

While several policeagencies were deemed corrupt by survey respondents, especially the local Preventative Police, other policing bodies such as the FederalAgency of Investigation (Agencia Federal de Investigacion, AFI), were seen as being somewhat less so (ibid.). According to TheEconomist, the AFI is a “relatively clean” police force that “is proving to be more effective than any other police body has been in thepast” (30 June 2005). . . . . . .

However, the report concluded, that human rights abuses related to, for instance, law enforcement misconduct continue to exist, andso government initiatives, “while ambitious on paper, have largely failed to achieve their principal goals” [Emphasis added.] (Exhibit A-1, Tab 7.3. MEX101376.E. 6 June 2006. Government efforts to combat corruption, including outcomes of investigations intoincidences of corruption; efforts within the Office of the Attorney General of the Federal District).

[7] A state’s willingness to protect its citizens without, for the most part, having implemented any practical or tangible measuresto, in fact, protect them does not suffice. Protection therefore remains academic for certain individuals in certain situations. As indicatedby Justice Edmond Blanchard in Burgos v. Canada (Minister of Citizenship and Immigration, 2006 FC 1537, 160 A.C.W.S. (3d) 696: [36] However, when it considers the issue of state protection, the Court cannot require that the protection currently available beperfectly effective. The following excerpt written by Mr.

Justice James Hugessen in Villafranca v. M.E.I., (FCA),[1992] F.C.J.

No. 1189 (F.C.A.) (QL), sets out this principle: On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes seriousefforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justifya claim that the victims of terrorism are unable to avail themselves of such protection. [37] In spite of this, the mere willingness of a state to ensure the protection of its citizens is not sufficient in itself to establish itsability.

Protection must nevertheless have a certain degree of effectiveness (Bobrik v. M.C.I., [1994] F.C.J. No. 1364 (T.D.) (QL). II. Judicial proceeding [8] This is an application for leave and for judicial review (ALJR) against a decision by the Refugee Protection Division (RPD)of the IRB, according to which the applicants are neither “Convention refugees”, as defined at

section 96 of the Immigration and RefugeeProtection Act, S.C. 2001, c. 27 (IRPA), nor “persons in need of protection”, as defined at

section 97 of the IRPA. III. Facts [9] The applicants’ refugee claim was heard by the RPD on October 20, 2009. [10] The applicants are citizens of Mexico. [11] Rafael Alberto Aguilar Soto; his common-law spouse, Sanjuana Caudillo Zavala; her mother, Rafaela Zavala Barron; andtheir two minor daughters, Ana Paola Aguilar Caudillo and Gloria Ximena Aguilar Caudillo, are seeking protection from a person whois the municipal leader of the Party of the Democratic Revolution (PRD), Enrique Alba Martinez. [12] Mr. Martinez is a powerful businessman with influence in the PRD. [13] Mr.

Aguilar Soto was personally threatened and assaulted on a number of occasions by Mr. Martinez and his associates, whoalso threatened his family. [14] On December 29, 2006, Mr. Aguilar Soto denounced the behaviour of Mr. Martinez to the Public Prosecutor of the AttorneyGeneral of Justice. [15] Mr. Aguilar Soto and his family nonetheless continued to receive threats from Mr. Martinez and his associates. [16] Indeed, following the filing of Mr. Aguilar Soto’s complaint and Mr. Martinez’s arrest, the threats escalated. [17] Starting January 25, 2007, Mr.

Aguilar Soto received several telephone calls at home, in which he was told that [translation]“they” knew of his complaint against Mr. Martinez and that if he did not withdraw it, he would [translation] “die”. [18] On February 15, 2007, an individual turned up at Mr. Aguilar Soto’s home in the middle of the night to make further deaththreats. Mr. Aguilar Soto later saw vehicles driven by his attackers on several occasions near his workplace.

[ 19 ] The complaint filed with the Public Prosecutor led to Mr. Martinez’s arrest on February 21, 2007 ; however, he was released the next day through an amparo suit. [ 20 ] On March 30, 2007, Mr. Aguilar Soto, while driving home, was cut off by a minivan, out of which jumped two armed individuals who threatened him with their weapons while telling him that they knew his family’s routine and that they could do what they wanted since Mr. Martinez was an influential politician. [ 21 ] Mr.

Aguilar Soto and his family immediately left their home and went to stay with his spouse’s aunt, Juana Zavala Barron. [ 22 ] On April 24, 2007, while his spouse was walking down the street on her way to her parents-in-law, a black jeep stopped next to her; two individuals came out, and one of them told her that if they did not drop their case against Mr. Martinez, they would bitterly regret it. The individuals tried to force Mr. Aguilar Soto’s wife into their vehicle, but thanks to the intervention of another driver and Mr.

Aguilar Soto’s father, she was able to escape. [ 23 ] Shortly afterwards, the applicants hid in a motel just long enough to get their passports and left Mexico for Canada as soon as possible; in Canada they claimed refugee protection. [ 24 ] The applicants claimed refugee status on May 13, 2007, upon arrival at Dorval airport in Canada . IV. Issue [ 25 ] Did the Board err in its treatment of the evidence concerning state protection in Mexico ? V. Standard of review [ 26 ] In accordance with case law, the issue of state protection is reviewed on the standard of reasonableness ( Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ; Hinzman v. Canada (Minister of Citizenship and Immigration) , 2007 FCA 171 , 362 N.R. 1 , at para. 38 ; Huerta v. Canada (Minister of Citizenship and Immigration) , 2008 FC 586 , 167 A.C.W.S. (3d) 968 , at para. 14 ). VI.

Analysis [ 27 ] The Court agrees with the applicants’ position. [ 28 ] The determinative issue is whether the state of Mexico is able to adequately protect the applicants from their persecutor, in this case, the municipal leader of the PRD, who is an authority figure. [ 29 ] In this case, the applicant filed a complaint against his attacker before the Public Prosecutor on December 29, 2006; however, despite this, he was repeatedly attacked afterwards (on January 25, 2007, February 15, 2007, March 30, 2007, and April 24, 2007), leading him and his family to hide in a motel before fleeing to Canada. [ 30 ] The IRB’s statement that Mexico is a democracy whose government is generally respectful of human rights within its borders does not change the fact that each case concerning state protection brought before the IRB must be examined individually ( Arellano v.

Canada (Minister of Citizenship and Immigration) , 2006 FC 1265 , [2006] F.C.J. No. 1622 , at para. 23 ) and on its own merits . [ 31 ] When the IRB considers the issue of state protection, it cannot require that the protection currently available be perfectly effective. [ 32 ] Contrary to what the IRB states (para. 17), the mere willingness of a state to ensure the protection of its citizens is not

sufficient in itself to establish its ability. Protection must have a certain degree of effectiveness (Burgos, above, at para. 37). [33] On a number of occasions, the Federal Court has highlighted the challenges Mexican democracy still faces today. In Zepeda v.Canada (Minister of Citizenship and Immigration), 2008 FC 491, [2009] 1 F.C.R. 237, Madam Justice Danièle Tremblay-Lamer wrote: [18] . . . Recently, Deputy Justice Orville Frenette in De Leon v.

Canada (Minister of Citizenship and Immigration), 2007 FC 1307, atpara. 28 indicated that as a developing democracy with problems including corruption and drug trafficking involving state authorities, thepresumption of state protection applicable to Mexico is more easily overturned. [34] The presumption of state ability is therefore rebuttable, even when dealing with a democratic state: [41] The Court acknowledges that Mexico is a democratic state generally able to protect its citizens and that President Fox is makingsignificant efforts to eliminate corruption.

The Court also acknowledges that it is impossible to expect perfect state protection.Notwithstanding these findings, case law recognizes that the presumption of state ability is rebuttable, even when dealing with ademocratic state. In fact, Laforest J. stated, as mentioned earlier, that this presumption must not “render illusory Canada’s provision of ahaven for refugees”. . . . [Emphasis added.] (Burgos, above.) [35] In Capitaine v. Canada (Minister of Citizenship and Immigration), 2008 FC 98, [2008] F.C.J.

No. 181 (QL), Madam JusticeJohanne Gauthier addressed the issue of state protection in the context of Mexico’s democracy: [20] Mexico is a democracy to which a presumption of state protection applies, even if its place on the “democracy spectrum” needsto be assessed to determine what credible and reliable evidence will be sufficient to displace that presumption (Hinzman, above, para. 45;Carrillo v. Canada (Minister of Citizenship and Immigration), 2007 FC 320 , [2007] F.C.J. No. 439, para.19; Avila, above,para. 30; De Leon v. Canada, 2007 FC 1307 , [2007] F.C.J.

No. 1684, para. 28). [21] In developed democracies such as the U.S. and Israel, it is clear from Hinzman (at paras. 46 and 57) that to rebut the presumptionof state protection, this evidence must include proof that an applicant has exhausted all recourses available to her or him.

It is also clearthat, except in exceptional circumstances, it would be unreasonable in such countries not to seek state protection before seeking it inCanada. [22] 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, inMexico for example, the state is unable (although willing) to protect its citizens, or that it was reasonable for the claimant to refuse toseek out this protection. . . . [Emphasis added.] [36] In Zepeda, above, Justice Tremblay-Lamer stated: [20] I find Madam Justice Gauthier’s approach to the presumption of state protection in Mexico to be persuasive.

While Mexico is ademocracy and generally willing to protect its citizens, its governance and corruption problems are well documented. Accordingly,decision-makers must engage in a full assessment of the evidence placed before them suggesting that Mexico, while willing to protect,may be unable to do so. This assessment should include the context of the country of origin in general, all the steps that the applicantsdid in fact take, and their interaction with the authorities (Hernandez v. Canada (Minister of Citizenship and Immigration), 2007 FC1211, at para. 21; G.D.C.P. v.

Canada (Minister of Citizenship and Immigration), 2002 FCT 989, at para. 18). [Emphasis added.] [37] In this case, an influential member of a political party was involved in the attacks and threats against the applicant and usedhis official position to make the threats and perpetrate the attacks. As stated by Justice Tremblay-Lamer, [15] . . . The very fact that the agents of the state are the alleged perpetrators of persecution undercuts the apparent democratic natureof the state’s institutions, and correspondingly, the burden of proof. . . . (Chaves v.

Canada (Minister of Citizenship and Immigration), 2005 FC 193, 137 A.C.W.S. (3d) 392; also Molnar, above).

[38] In this case, the applicant hired a lawyer and brought his complaint to the Leon office of the Public Prosecutor onDecember 29, 2006, without avail, since he was attacked a number of times after filing the complaints, and, on one of these occasions,someone even threatened to kill him with a firearm (March 30, 2007, attack). [39] Then, on April 24, 2007, his spouse was violently attacked in the street by some individuals. Given these circumstances, theapplicant discharged his burden of proof in presenting clear and convincing evidence of the inability of the state of Mexico to protecthim.

The IRB therefore erred unreasonably in deciding otherwise. [40] By determining that there was adequate protection in Mexico and that the applicant should have filed a complaint after theApril 24, 2007, incident, the IRB made an unreasonable decision in that it failed to take into consideration that the applicant’s situationworsened after he filed his complaint on December 29, 2006, which finally made him leave his country. [41] As Justice Tremblay-Lamer points out in Zepeda, above, refugee claimants are not required to put their lives at risk in order toshow that they exhausted all recourses available from the authorities in their country of origin.

This principle flows from the well-knowndecision of Canada (Attorney General) v.

Ward, (SCC), [1993] 2 S.C.R. 689. [42] The IRB stated that the applicant did not exhaust all possible recourses and notes that the applicant should have contactedother organizations for help if he believed the police to be corrupt and should have filed a complaint with those other authorities. [43] As stated by Justice Tremblay-Lamer in Zepeda, above, which also involved the issue of the protection offered by Mexicanpolice and where the applicant had also been criticized for not having approached public protection agencies other than the police: [24] In the present case, the Board proposed a number of alternate institutions in response to the applicants’ claim that they weredissatisfied with police efforts and concerned with police corruption, including national or state human rights commissions, theSecretariat of Public Administration, the Program Against Impunity, the General Comptroller’s Assistance Directorate or through acomplaints procedure at the Office of the Attorney General of the Republic (PGR). [25] I am of the view that these alternate institutions do not constitute avenues of protection per se; unless there is evidence to thecontrary, the police force is the only institution mandated with the protection of a nation’s citizens and in possession of enforcementpowers commensurate with this mandate.

For example, the documentary evidence explicitly states that the National Human RightsCommission has no legal power of enforcement (“Mexico: Situation of Witness to Crime and Corruption, Women Victims of Violenceand Victims of Discrimination Based on Sexual Orientation” . . .. [Emphasis added.] [44] Mr. Justice Luc Martineau came to the same conclusion in Vigueras Avila v. Canada (Minister of Citizenship andImmigration), 2006 FC 359, 295 F.T.R. 35: [33] . . .

Therefore, the Board could not simply state that if the claimant’s appeal to the police were made in vain, he could haveappealed to the CNDH and the CEDH, two organizations concerned with human rights. It is not the role of those organizations to protectthe victims of criminal offences; that is the duty of the police: see Balogh v. Canada (Minister of Citizenship and Immigration), 2002FCT 809 , 2002 FCTD 809, at paragraph 44, [2002] F.C.J. No. 1080 (F.C.T.D.) (QL); N.K. v.

Canada (Solicitor General)(1995), 107 F.T.R. 25, at paragraphs 44-45 (F.C.T.D.). [Emphasis added.] [45] These documents reveal that corruption is widespread in Mexico. [46] The IRB erred when it argued that “[s]tating that the police are corrupt or ineffective, and that they are scared are not goodexcuses” (para. 16). [47] It should also be noted that the facts alleged in support of the applicant’s refugee claim were not challenged by the IRB. [48] Further, the agent of persecution in this case was an authority figure who had the power to make threats and who had controlover his close and professional entourage through his influence.

He thus had considerable power.

[ 49 ] The IRB therefore had sufficient evidence to rebut the state protection presumption and therefore committed an unreasonable error in ignoring the abovementioned documents in its analysis of state protection and the applicant’s situation in that regard. [ 50 ] It should be recalled that counsel for Mr. Aguilar Soto made a request to have the hearing (set for October 20, 2009) postponed, since, on October 8, 2009, he did not have the documents necessary for making a full answer and defence on behalf of his client (see Exhibit B).

However, the postponement request was denied. [ 51 ] As pointed out by Justice Sean Harrington in Anand v. Canada (Minister of Citizenship and Immigration) , 2004 FC 302 , 248 F.T.R. 189 , the right to counsel is not confined to counsel being physically present on the day of the hearing but includes counsel having the time required to prepare for the hearing . [ 52 ] The Federal Court further ruled as follows in Austria v. Canada (Minister of Citizenship and Immigration) , 2006 FC 423 , 147 A.C.W.S. (3d) 1048 : [6] . . . What is absolute, however, is the right to a fair hearing.

To ensure that a hearing proceeds fairly, the applicant must be able to “participate meaningfully” : . . . [Emphasis added.] VII . Conclusion [ 53 ] By determining that there was adequate protection in Mexico and that the applicants should have made a complaint to other agencies, the IRB rendered an unreasonable decision in that refugee claimants are not required to put their lives at risk in order to show that they exhausted all recourses available from the authorities in their country of origin. [ 54 ] The IRB failed to consider that the applicants’ situation worsened after they complained to the authorities.

In doing so, it failed to consider the applicants’ personal situation in the context of the factual matrix in which the applicants found themselves. [ 55 ] Moreover, the unreasonableness of the IRB’s decision arises from the fact that the IRB did not make a balanced review of the documentary evidence concerning the extent of corruption in Mexico . The IRB’s decision in this specific case is unreasonable. [ 56 ] For the reasons cited above, the application for judicial review is allowed. JUDGMENT THIS COURT ORDERS that the application for judicial review be granted.

The panel’s decision that the applicants are neither Convention refugees nor persons to protect is quashed and referred back for redetermination by a different panel. There is no question to certify. “Michel M.J. Shore” Judge Certified true translation Johanna Kratz FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-1883-10 STYLE OF CAUSE: RAFAEL ALBERTO AGUILAR SOTO SANJUANA CAUDILLO ZAVALLA ANA PAOLA AGUILAR CAUDILLO RAFAELA ZAVALA BARRON GLORIA XIMENA AGUILAR CAUDILLO PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: November 16, 2010 REASONS FOR JUDGMENT AND JUDGMENT BY: SHORE J. DATED: November 25, 2010 APPEARANCES : Audé Exertier FOR THE APPLICANTS Evan Liosis FOR THE RESPONDENT SOLICITORS OF RECORD : AGUILAR ET ASSOCIÉS Montréal, Quebec FOR THE APPLICANTS MYLES J. KIRVAN Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT