OTTAWA, ONTARIO, April 07, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ROSA ELIA HERNANDEZ GONZALEZ
ELIAS ADRIAN CHAVEZ HERNANDEZ
ERIKBERTO CHAVEZ HERNANDEZ
BRISA ROXEL CHAVEZ HERNANDEZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicants are a family of five from Mexico. Adrian Chavez Arenas (the Principal Applicant) owned a shoe store that was broken into by one Ernesto Gonzalez. The Principal Applicant informed the police about Gonzalez and sued Gonzalez for the value of the stolen merchandise. As a result, he was threatened by Gonzalez, beaten and mistreated. The police refused to investigate the matter further considering it unnecessary to do so as he had already reported the first instance. His law suit was unsuccessful, and Gonzalez was acquitted in the theft proceedings.
[2] On the day of the decision, Gonzalez told the Principal Applicant that it would be better for him to leave Mexico because he might have an accident. The Principal Applicant did not tell the judge about this threat and did not file a public denunciation. Instead, he fled with his family to Canada.
[3] The Refugee Protection Division of the Immigration and Refugee Board (the "Board") refused his refugee claim finding:
a. that the Applicant's delay in making a claim, (six months after they came to Canada and three months after their visa expired) evidenced a lack of subjective fear of persecution; and
b. that the Applicants had not shown that state protection was not available in Mexico.
[4] The Applicants are seeking judicial review of that decision arguing only one point before me, namely that the Board, which made no negative finding on credibility, failed to explain why it preferred documentary evidence over the Applicant's testimony.
[5] In Zhao v. Canada(Minister of Citizenship and Immigration), 2004 FC 1059 Justice Blanchard found at paragraph 14:
Findings of fact can only be reviewed if they are erroneous and made in a perverse or capricious manner (Harb v. Canada (Minister of Citizenship and Immigration) (2003), 302 N.R. 178 (F.C.A.)) The applicable standard of review to findings of fact made by the Board relating to the issue of state protection is that of patent unreasonableness (Nawaz v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1584, 2003 F.C. 1255.
[6] I fully concur with that analysis and consequently will apply a patently unreasonable standard of review.
[7] It is well established that the Applicant has the onus of establishing a lack of state protection. His testimony (which was not found to lack credibility by the Board) was contradicted by the documentary evidence. The Board addressed this point when it stated:
The principal claimant alleged that his store was broken into at various items and a total of $US3,500 dollars was taken. The principal claimant alleged that he had witnesses who indicated that Mr. Gonzales was the perpetrator of the break-in. The panel finds that at all times the principal claimant was able to go to the authorities, the authorities took his denunciation, and the principal claimant was able to sue Mr. Gonzales in court. The fact that the judge did not rule in the principal claimant's favour is not an indication of lack of state of protection. In regard to further ramifications from Mr. Gonzales, the principal claimant indicated that Mr. Gonzales threatened him, yet he did not go back and report this to the police. Considering that the police did not ignore the principal claimant when he first made his claim against Mr. Gonzales, there is no reason to expect that they would not take the principal claimant seriously on another occasion if he were to be assaulted and went to the police to complain about a perpetrator in the future.
[8] Clearly the Board felt that the Applicant had not sufficiently established that he sought the protection of the state and that it was not forthcoming. The unsuccessful attempts to get the police to lay further charges are not sufficient to establish lack of state protection. As Justice Pinard observed in Soto v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 2107, 2005 FC 1654 at paragraph 11:
However, in this situation, the Board did not find that the State was the agent of persecution. This is not a patently unreasonable conclusion, as the actions of individual police officers do not necessarily make the State the agent of persecution, nor does it inherently show that there has been a complete breakdown of the State's ability to protect...
[9] Even more to the point is Justice Dawson's observation in De Baez v. Canada(Minister of Citizenship and Immigration), (2003) 236 F.T.R. 148, 2003 FCT 785 at paragraph 16:
Thus, the actions of some police officers does not obviate the need to seek protection from the authorities. Discrimination by some police officers is not sufficient proof of the state's unwillingness to provide, or inability on the part of the applicants, to seek protection.
[10] In light of this jurisprudence, I cannot see how the Board's finding can be considered patently unreasonable. Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4180-05
STYLE OF CAUSE: ADRIANCHAVEZ ARENAS
ROSA ELIA HERNANDEZ GONZALEZ
ELIAS ADRIAN CHAVEZ HERNANDEZ
ERIKBERTO CHAVEZ HERNANDEZ
BRISA ROXEL CHAVEZ HERNANDEZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 6, 2006
REASONS FOR
ORDER AND ORDER: von FINCKENSTEIN, J.
DATED: April 7, 2006
APPEARANCES:
| Terry Guerriero
|
FOR THE APPLICANT(S) |
| Jamie Todd
|
FOR THE RESPONDENT(S) |
SOLICITORS OF RECORD:
| Terry S. Guerriero London, ON |
FOR THE APPLICANT(S)
|
| MR. JOHN H. SIMS Deputy Attorney General of Canada
|
FOR THE RESPONDENT(S)
|