Federal Court Decisions

Date: 20060214

Docket: IMM-2084-05

Citation: 2006 FC 159

Ottawa, Ontario, February 14, 2006

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

ALBERTO PALENCIALARENAS

HAYDEE MONSERRAT GUERRERO TEJEDA

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

OVERVIEW

[1]                It is the burden of the applicant to establish that he or she falls within the definition of a Convention refugee if, in fact, it is the Refugee Convention that is to be applied. Each element of the definition must be established by the applicant. (Rizkallah; Alifanova) [1]

JUDICIAL PROCEDURE

[2]                This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (IRB) dated March 14, 2005, wherein it found the Applicants not to be Convention refugees or persons in need of protection.

BACKGROUND

[3]                The Applicants, Mr. Alberto Palencia Larenas and Ms. Haydee Monserrat Guerrero Tejeda, are citizens of Mexico. They claim refugee protection pursuant to sections 96 and 97 of IRPA.

[4]                Mr. Palencia Larenas and Ms. Guerrero Tejeda allege a fear of persecution and risk to life from corrupt union officials, who were associated with the subway system in Mexico City. This was due to Ms. Guerrero Tejeda having paid a bribe to secure a union job in June 2002. When the job did not materialize by October 2002, she wanted her money back. After she went public with her story on the radio in January 2003, Mr. Palencia Larenas was attacked, both Mr. Palencia Larenas and Ms. Guerrero Tejeda were threatened and shot at and Mr. Palencia Larenas was pressured to resign his job, which he did in February 2003.

[5]                On August 5, 2003, they left Mexico and went to Arlington, Texas. On August 30, 2003, they were allegedly again threatened by an individual connected to union officials in Mexico. This individual allegedly had information of a compromising nature which the couple felt would put them at serious risk. This same individual attempted to extort money from Mr. Palencia Larenas and Ms. Guerrero Tejeda in order to silence them. Allegedly recognizing the serious of their situation, on September 15, 2003, they took a bus to the Canadian border and arrived in Canada on September 18, 2003. They made a refugee claim on October 1, 2003.

DECISION UNDER REVIEW

[6]                The IRB determined that Mr. Palencia Larenas and Ms. Guerrero Tejeda were not Convention refugees or persons in need of protection. Although it generally accepted most of their allegations, it found that the presumption of state protection had not been rebutted by clear and convincing evidence. It also found that there was no nexus to a Convention ground so that their fears were not well-founded.

I find that the claimant and his spouse are victims of corrupt officials in a system that took advantage of them to swindle their money on the promise of employment to the female claimant and forced the male claimant out of his job. While corrupt officials took advantage of them I find that being swindled has no nexus to a Convention ground as defined in the Convention refugee definition.

[7]                In the result, the IRB found that Mr. Palencia Larenas and Ms. Guerrero Tejeda did not have a well-founded fear of persecution for a Convention ground and also that there was no serious possibility that removal to Mexico would subject them personally to a risk to life or a risk of torture or cruel and unusual treatment.

ISSUES

[8]                The issues in this case are:

1.       What is the appropriate standard of review?

2.       Did the IRB err by finding that there was no nexus to a Convention ground?

3.       Did the IRB err by finding that the presumption of state protection had not been rebutted?

ANALYSIS

Standard of review

[9]                The case law is not clear on the issue of standard of review for the determination of nexus or the issue of state protection. Some cases state that the determination of nexus is within the expertise and scope of the IRB and a Court should only interfere if the decision is patently unreasonable. (Nosakhare; Umuhoza)[2] Other cases state that the determination of nexus is question of mixed fact and law and therefore should be reviewed on the standard of reasonableness simpliciter.(Jayesekara; Chen; Zhao)[3]

[10]            In the same manner, some cases state that the issue of determining if there is adequate state protection is purely a question of fact and should therefore be reviewed on the standard of patently unreasonable (Nawaz; Ali) [4] while others state that the appropriate standard is reasonableness simpliciter as the issue of state protection involves a mix of fact and law. (Chaves;Danquah; Machedon)[5]

[11]            As the determination of nexus and the assessment of state protection both involve the application of the law to the facts and questions of mixed fact and law, this Court determines that the appropriate standard of review in this case is reasonableness simpliciter. According to this standard of review, a reasonable decision is supported by reasons that can stand up to a somewhat probing examination. (Southam) [6]

Nexus

[12]            The case law is clear that it is the burden of the applicant to establish that he or she falls within the definition of a Convention refugee if, in fact, it is the Refugee Convention that is to be applied. Each element of the definition must be established by the applicant. Therefore the events alleged are to be related to a Convention ground. (Rizkallah; Alifanova) [7]

[13]            It is for Mr. Palencia Larenas and Ms. Guerrero Tejeda to show that their claim is related to a Convention ground. Failure to do so leads to a determination that they have not established a nexus between the events alleged and a Convention ground. The determination that Mr. Palencia Larenas and Ms. Guerrero Tejeda's fear resulted from criminality rather than a Convention ground was supported by the evidence before the IRB, including the applicants' testimony, and is not clearly wrong.

[14]            The IRB determined that Mr. Palencia Larenas and Ms. Guerrero Tejeda's fear resulted from criminality.    This does not constitute a fear of persecution based on a Convention ground. (Bacchus; Kang; Karaseva; Suarez)[8]

Membership in a particular social group is a recognized ground under section 96 of the Act. Moreover, while personal targeting is not required, refugee claimants must nonetheless establish a link between themselves and persecution for a Convention reason. They must be targeted for persecution in some way, either personally or collectively: Rizkallah v. Canada(Minister of Employment and Immigration)(1992), 156 N.R. 1 (F.C.A.). On this matter, victims or potential victims of crime, corruption or personal vendettas, generally cannot establish a link between fear of persecution and Convention reasons. In my opinion, the Board's finding that there is no nexus is consistent with the case law and accords with the cautionary remarks found in the Guidelines which provide that "[w]hen an assessment of a woman's claim of gender-related fear of persecution is made, the evidence must show that what the claimant genuinely fears is persecution for a Convention reason as distinguished from random violence or random criminal activity perpetrated against her as an individual." (Kang, above)

State protection

[15]            An applicant must provide clear and convincing proof of the state's inability to protect him or her. Absent this evidence, the claim should fail as there is a presumption that states can protect their citizens. (Ward)[9] It is not enough for an applicant to show that the government is not always effective at protecting people in his or her particular situation. (Villafranca)[10]

State protection does not have to be perfect. As long as the protection provided by the state is timely and adequate, even if not perfect, it is considered to be available. In the case at bar, the Board found that the applicant did not succeed in rebutting the presumption of state protection. The 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. A number of cases suggest that when the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force or other judicial authority and that his or her efforts were unsuccessful (see Kadenko et al. v. Canada (Solliciteur général) (1996), 206 N.R. 272 (F.C.A.); Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (F.C.T.D.). Indeed, it has been decided that a local refusal to provide protection is not state refusal in the absence of evidence of a broader state policy to not extend state protection to the target group (Zhuravlvev, supra).[11]

[16]            The IRB is entitled to rely on documentary evidence in preference to that of the claimant. There is no obligation on the panel to point out specifically any item of documentary evidence on which it might rely.(Zhou)[12]

[17]            In this case, the IRB specifically mentioned that police corruption is widespread as well as some of the efforts made by the government to address the problems. Although the IRB may not have mentioned every quotation from the evidence referred to by Mr. Palencia Larenas and Ms. Guerrero Tejeda, it is clear that both views of the evidence were considered by the IRB before coming to a decision. The contrary view argued by Mr. Palencia Larenas and Ms. Guerrero Tejeda was considered fully, however the IRB ultimately found that the presumption had not been rebutted. This was a finding which was open to the IRB on the facts of the case, which is supported by the evidence and which is not unreasonable.

[18]            Furthermore, independent documentary evidence regarding general country conditions is not the type of evidence which must necessarily be detailed in an IRB decision, given that it is not evidence personal to the Applicants which relates directly to the application, such as a psychological report. Given the volume of country conditions reports, it is not surprising that the IRB did not specifically reference each fact contained in all the documents. It is enough to show that the documents were considered, by setting out the views expressed in those documents rather than referring to each document for similar opinions.

[19]            The IRB also considered the Applicants' testimony, that Ms. Guerrero Tejeda had no evidence supporting her bribery claims and that Mr. Palencia Larenas signed the resignation form (allegedly under pressure), thereby limiting his future options for redress. This evidence supports the view that the presumption of state protection had not been rebutted.

[20]            On judicial review, a tribunal's decision is not to be subjected to a microscopic examination of individual statements contained in the reasons. It must be analyzed as a whole and in the context of the evidence itself in deciding whether the conclusions reached were reasonable. (Ahmed; Liang)[13]

CONCLUSION

[21]            The decision of the IRB is not unreasonable. It is supported by the evidence. The IRB did consider all of the evidence before them before making a decision. Although Mr. Palencia Larenas and Ms. Guerrero Tejeda were generally believed to be credible, they did not show that their fears were linked to a Convention ground and they did not rebut the presumption of state protection. Due to this lack of rebuttal in respect of state protection, therefore, it was reasonable for the IRB to determine that they are not Convention refugees nor are they persons in need of protection. As the decision was not unreasonable or clearly wrong, there is no reason for this Court to interfere.

ORDER

THIS COURT ORDERS that

1.         The judicial review be dismissed.

2.          No question be certified

"Michel M.J. Shore"