Toronto, Ontario, April 19, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant is an adult male citizen of Mexico. He sought refugee status in Canada as a Convention refugee. By a decision dated March 31, 2006 the Immigration and Refugee Board, Refugee Protection Decision, determined that he was not a Convention refugee. That is the decision for which judicial review is now sought.
[2] For the Reasons that follow I find that the application will be allowed and the matter is to be returned to the Board for re-determination by a different member.
[3] The record demonstrates that the applicant came from a dysfunctional family. His parents are divorced and many of the incidents relevant to the applicant’s circumstances here took place during the course of the family’s break up and thereafter. The matter is further complicated by issues relating to a woman named Laura who was in a relationship not only with the applicant but also with the applicant’s father who was, at least for a time, Laura’s employer.
[4] The uncontradicted evidence on record is that the applicant has been the victim of police beatings and harassment on more than one occasion. Medical evidence is corroborative of a beating by someone on at least one occasion. The applicant filed a “denunciation” with the police, which I take to be a rough equivalent of a complaint, alleging his father’s complicity in certain harassment suffered by the applicant. This denunciation was, however, filed some two years after the event and the applicant did not follow upon the matter.
[5] The evidence also shows that the applicant contacted an organization concerned with reporting police corruption who advised him to report an incident of police harassment to the local police station. When he arrived at the police station the applicant’s father was there with a lawyer. The applicant was charged with trespass and later absolved of that charge. The charge appears to have been related to the ongoing divorce of his parents and disputes as to who owned or could be in possession of certain property.
[6] The record, in brief, shows that the applicant suffered a number of incidents of police harassment and even violence and made at least two efforts to report them without success and, on the one occasion, found himself charged with trespass.
[7] The applicant fled to Canada but did not make a refugee claim at that time. He returned to Mexico for about four months in 2004 where he obtained work only to be once again embroiled with his father and the girlfriend Laura. He returned to Canada and shortly thereafter sought refugee protection.
[8] The Board rejected the applicant’s claim on two grounds. The first was that the Board determined that the applicant did not make a “determined effort” to avail himself of state protection. The second was what what the Board described as “Re-availment”.
[9] As to the second ground, counsel for the Minister agreed that re-availment does not apply in the circumstances here and that the Board was in error to call the situation one of re-availment. The Minister’s counsel asserted that the fact that the applicant returned to Mexico where he worked for a period of a few months is simply indicative of the fact that the applicant can be protected by the state. While this may or may not be so, the fact that the Board misdirected itself in law is indicative that the Board failed to appreciate the legal basis upon which the claim was to be determined.
[10] As to the first ground the Board stated its conclusions respecting state protection as follows:
As the panel finds that the claimant did not make a determined effort to avail himself of the state protection available in Mexico before fleeing to Canada, the panel finds it would not be unreasonable for him to return to Mexico to seek protection there. The panel recognizes that a refugee claimant is not entitled to perfect protection. What is necessary is that the state be reasonably forthcoming with serious efforts to protect. Canada’s protection for the claimant is not necessary because the panel is convinced, within the preponderance of probability, that the state of Mexico would be reasonably forthcoming with serious efforts to protect the claimant, if he were to return to Mexico and approach the state for protection.
[11] The Board in requiring a “determined effort” to be made by the applicant made an error of law which requires that the decision of the Board to be set aside.
[12] What the Board ought to have done is assess the steps actually taken by the applicant in the context of country conditions and the interaction that the applicant did have with the police authorities. As stated at paragraph 18 of Peralta v. Canada (M.C.I.), 2002 F.C.T. 989:
[18] In my opinion, the Applicants have succeeded in demonstrating that the Board applied the wrong test in determining whether the state protection was available. According to its reasons, the Board required the Applicants to show that they had exhausted all avenues of protection. This test was found to be erroneous by Justice Rothstein in Jane Doe v. Canada (Minister of Citizenship and Immigration) (21 November 1996), action number IMM-1514-95 (F.C.T.D.). In that case, Justice Rothstein said as follows:
I am not satisfied that the panel of the C.R.D.D. applied the correct test in respect of the Applicant seeking the protection of the state in this case. The words used by the panel and its references to the evidence suggest that it my[sic] have required the Applicant to exhaust absolutely all avenues of protection rather than taking all steps reasonable in the circumstances to seek protection in the country of origin. In this case the seeking of protection had to be considered not only in the context of the country of origin in general but also with respect to all the steps the Applicant did take and the interaction the Applicant had with the authorities in the very unusual circumstances of this case. The application for judicial review is allowed and the matter is remitted to a different panel of the C.R.D.D. for redetermination only in respect of the matter of state protection.
[13] Thus I find that the Board erred in law in respect of both issues before it. The matter must be re-determined by a different member. There is no question for certification.
JUDGMENT
For the Reasons given;
THIS COURT ADJUDGES that:
1. The application is allowed.
2. The matter is returned to the Board for re-determination by a different member.
3. There is no question for certification.
4. No Order as to costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2113-06
STYLE OF CAUSE: PACO DE JESUS GARCIA ALDANA v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2007
APPEARANCES:
Alesha A. Green FOR THE APPLICANT
A. Leena Jaakkimainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
GREEN, WILLARD LLP
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT