Date: 20050505
Docket: IMM-4229-04
Citation: 2005 FC 634
Toronto, Ontario, May 5th, 2005
Present: The Honourable Mr. Justice de Montigny
BETWEEN:
CARLOS ABRAHAM MERCADO MENDOZA,
NURY ESTELA MOLINA MADUENO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division (RPD), dated April 20th, 2004, wherein the claim of Carlos Abraham Mercado Mendoza and Nury Estela Molina Madueno, the Applicants, was rejected, the RPD having concluded that they were neither Convention refugees nor persons in need of protection.
Background
[2] The Applicants are both citizens of Peru and are husband and wife. The male applicant imported cars from Japan to sell them in Lima. In August 2000, he alleged that while driving back cars, he (as well as two other drivers) stopped to give assistance to a truck that seemed to have broken down on the road. They were then approached by five masked men who stole their belongings and seized the import documents. The assailants beat the Applicant and threatened him that they would take the cars if he did not gave them money. They were released but told not to go to the police. They nevertheless went to the police station to report the attack. One of the drivers identified one of the assailants at the police station. The assailant was a policeman in uniform. While the male applicant was waiting for the police station to open, he received a phone call asking him what he was doing at the police. It was the same voice that threatened him before. As a result, he left the station without making a report.
[3] Later, the male Applicant was requested to pay the amount of 50 000$ US in three days. On December 12, 2000, while the applicant traveled to Lima for his business, the people who called in September for money called again. The Applicant told them he only had 12 000$; they agreed to meet somewhere and the Applicant gave them the money. The assailants took him for a ride. One person told him that the requested amount was not accounted for and the Applicant was assaulted. The applicant was released and he went to the hospital and asked that there be no report to the police. The Applicant then stayed with his wife's relatives and his wife came to join him a couple of weeks later. They stayed there until the end of January.
[4] In February 2001, the Applicants went back to their house and the male Applicant started to import cars again under an associate's name. On March 8, 2001, the same people as in September asked his wife to pressure him to pay the reminder of the initial amount.
[5] At the end of March, the Applicants left for Lima where they hid in the house of the wife's relatives, while waiting for their visas. They left Peru for Canada on June 29, 2001. They claimed refugee protection on February 8, 2002.
RPD's decision
[6] The RPD dismissed the Applicants' claim on the basis that they had not made serious efforts to find protection in their own country before seeking international protection. The Board found that the Applicants did not offer a clear and convincing proof that the state was unable or unwilling to protect them.
[7] The Board was also of the view that the Applicant's demeanour was not compatible with that of a person who has a fear of persecution in his country. Not only did he continued to drive purchased cars to Lima the week following the August 2000 robbery, testifying that he did not take seriously these events and the beating that followed, but he also continued to import cars (even though under an associate's name) even following the payment of the 12 000$ in February 2001.
[8] In the end, the Board was of the opinion that extortion has no link with any Convention grounds, and that section 97(1) of the Immigration and Refugee Protection Act could not apply since the applicants never asked for protection.
Applicants' submissions
[9] Counsel for the Applicants submitted that the Board erred in law as a result of not even considering whether they are persons in need of protection. Relying on s. 107 of the IRPA, it was argued that the Board has an obligation to do the section 97 analysis and to give reasons, whether or not the applicants specifically claimed that protection at their refugee hearing.
[10] If the Board meant that the Applicants could not raise s. 97 because they had not sought protection in their country before seeking protection in Canada, this would also be an error. According to the Applicants, there was evidence (both oral and documentary) establishing that the Applicants could not attempt to obtain protection in their own country because the police is corrupt and was responsible for the extortion.
[11] Indeed, the original notice of decision released by the Board shortly after the decision was made stated that the claimants "are not convention refugees and are not persons in need of protection", but was modified three weeks later to read only that the claimants "are not convention refugees". This, according to counsel for the applicants, is clear recognition of the fact that the Board did not address the section 97 claim; if the notice was modified, it was to better reflect the reasons given by the Board.
[12] Counsel for the Applicants also maintained that the Board erred in law in dismissing outright the possibility that extortion could amount to persecution in some circumstances. A number of cases from this Court were quoted in support of that proposition. Accordingly, it was submitted that the Board should have given reasons for concluding that "extortion has no link with any of the Convention grounds" in the particular context of this case.
Respondent's submissions
[13] The Respondent first argued that the Board did not ignore section 97 but found that the Applicant had not asked the authorities for protection. It further submitted that the Applicants cannot say that a state has failed to provide protection just because protection is denied by certain elements of the state. In the present case, the Board could conclude that the Applicants had not asked for state protection and were as a consequence not eligible to rely on s. 97.
[14] With respect to the absence of nexus between extortion and the Refugee Convention, the Respondent agrees that such a nexus may exist in some circumstances, for example when the extortion is linked with ethnicity or political opinion. Despite the fact that the Board's decision is worded as if this possibility was categorically ruled out, counsel for the Respondent was of the view that it should nevertheless be read to mean that the evidence does not warrant such a finding in this case.
Issues
[15] This application raises two issues: 1) Did the Board err in concluding that extortion has no link with any of the Refugee grounds? 2) Has the Applicant's claim under s. 97 of IRPA been dealt with appropriately?
Analysis
[16] Before dealing with the two issues raised by this application for judicial review, we must determine the proper standard of review. Both of these issues involve questions of mixed fact and law. Previous decisions from this court have applied the pragmatic and functional approach to each one of these questions and have concluded that the appropriate standard of review in both cases is reasonableness simpliciter: Chaves v. Canada (MCI), [2005] F.C.J. No. 232 (F.C.) and Jayesekara v. Canada (MCI), [2001] F.C.J. No. 1393 (F.C.).
[17] Accordingly, the decision of the Board should not be quashed unless there is no rational basis to support it. As the Supreme Court of Canada explained in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 270:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at par. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
[18] With respect to the question as to whether extortion can amount to persecution for the purposes of the Refugee Convention, I don't think there is much debate that it can in certain circumstances. Counsel for the Respondent readily admitted that proposition, and there are numerous decisions to that effect (see, for ex., Ponnuthurai v. Canada (MCI), [2004] F.C. 819 (F.C.); Nadarajah v. Canada (MCI), [2004] F.C. 796 (F.C.); Packiam et al v. Canada (MCI), [2004] F.C. 649 (F.C.)). Clearly, the extortion will have a nexus with one of the grounds enumerated in the Convention if it was politically motivated or was somehow related to the race, nationality, social group or religion of the person being the victim of extortion.
[19] In the present case, there is no evidence that the Applicant was extorted on the basis of any of these grounds. He was not specifically targeted; on the contrary, it appears to have been a random criminal offence. And if the assailants kept calling him back for more money, it is presumably because they figure he must have been wealthy since his name appeared on the import papers. There is not a scintilla of proof that the extortion was motivated by political opinion or by his membership in a particular social group.
[20] As my colleague Mr. Justice Kelen said in Bencic v. Canada (MCI), [2002] F.C.T. 476, at paragraph 17:
Refusal to bow to extortion, threats, and violence due to Mr. Bencic's status as a financially successful person in Slovak does not qualify him as a refugee under the Convention. The Convention only protects refugees with a reasonable fear of persecution due to their religion, race, nationality, political opinion and membership in a particular social group. Victims of crime are not protected by the Convention.
See also: Valderrama v. Canada (MCI), [1998] F.C.J. No. 1125 (F.C.); Yelda v. Canada (MCI), [2002] F.C.J. No. 1512 (F.C.); Espina v. Canada (MCI), [1998] F.C.J. No. 1755 (F.C.); Karpounin v. Canada (MCI), (1995) 92 FTR 219 (F.C.).
[21] It may be that the reasons of the Board could have been better drafted on that issue, since they can be read as excluding the possibility of extortion ever being a ground of persecution for the purposes of s. 96 of the Immigration and Refugee Protection Act. But considering the record and the oral evidence, the conclusion of the Board was certainly reasonable in this case.
[22] Turning now to the second issue, it is the Applicant's submission that the Board either declined to proceed to an analysis under section 97, or erred in coming to the conclusion that it could find no application since state protection was not sought in Peru.
[23] Before proceeding to analyze the Applicant's argument, it is worth reiterating what is required to rebut the presumption of state protection. La Forest J. had this to say in Canada (A.G.) v. Ward ([1993] 2 S.C.R. 689, at pp. 724-725) as to when and how a state's inability to protect can be demonstrated:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens.
[24] The Federal Court of Appeal later nuanced this statement somewhat by adding that "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" (Kadenko v. Canada (M.C.I.), (1996) 143 D.L.R.(4th) 532).
[25] My colleague Justice Tremblay-Lamer reviewed these cases most recently and summed them up in the following way:
In my view, however, Ward, supra and Kadenko, supra, cannot be interpreted to suggest that an individual will be required to exhaust all avenues before the presumption of state protection can be rebutted (seeSanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (T.D.)(QL) and Peralta v. Canada (Minister of Citizenship and Immigration) (1996), 123 F.T.R. 153 (F.C.T.D.)). Rather, where agents of the state are themselves the source of the persecution in question, and where the applicant's credibility is not undermined, the applicant can successfully rebut the presumption of state protection without exhausting every conceivable recourse in the country. The very fact that the agents of the state are the alleged perpetrators of persecution undercuts the apparent democratic nature of the state's institutions, and correspondingly, the burden of proof. As I explained in Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339 (T.D.), Kadenko, supra has little application when the "[...] police not only refused to protect the applicants, but were also the perpetrators of the acts of violence"¼ (Chaves v. Canada (M.C.I.), [2005] F.C. 193)
[26] In the present case, the Applicant testified that he did not ask the authorities for protection. The Board explained in its reasons that he was afraid to do so because he was robbed by a corrupted policeman. This is entirely consistent with the transcript of the Applicant's testimony in front of the Board, and it shows in my view that the Board did turn its mind to the possible application of s. 97 of IRPA.
[27] Now, was the Board mistaken in concluding that the Applicant should have done more to obtain the protection of the state, given the circumstances and the fact that a policeman may well have been involved in the extortion? Bearing in mind that Peru has a government that is in effective control of its territory, and based on the documentary evidence showing that there is a certain degree of corruption in the police forces but that those responsible for such illegal actions are brought to court and face stiff penalties, it was definitely not unreasonable for the Board to conclude that the Applicant had not made a reasonable effort to seek protection from the authorities of the state.
[28] The Applicant could have talked to a police officer of a higher rank, he could have gone to another police station, he could have contacted a lawyer or a human rights group (Kadenko v. Canada (M.C.I.), supra; Obi c. Canada (M.C.I.), [2005] F.C.J. no. 400; Barkai v. Canada (M.E.I.), [1994] F.C.J. No. 1417). It is not as if the police forces as a whole where involved in an extortion scheme, or if he had been warned by high ranking officials to refrain from going to the police or to talk about the incident.
[29] Given the evidence, it was entirely reasonable for the Board to conclude that the Applicant did not rebut the presumption of a state's ability to protect him. He had the onus of establishing either that he was physically prevented from seeking his government's aid, or that the government was in some way unwilling or unable to give it. Instead, he chose not to do anything or to say anything.
[30] I must confess that the modified notice of decision, removing any reference to the fact that the applicants were not found to be persons in need of protection, is difficult to understand. But it cannot have any impact on the outcome of the present application, since it originates from the registry of the Refugee Protection Board and does not change the reasons of the Board.
[31] For all these reasons, I am of the view that the decision of the Board was not unreasonable and should therefore stand. The application will be dismissed.
[32] Neither party submitted a question for certification, and none will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed; and
2. No question of general importance is certified.
"Yves de Montigny"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4229-04
STYLE OF CAUSE: CARLOS ABRAHAM MERCADO MENDOZA,
NURY ESTELA MOLINA MADUENO
Applicants
and
THE MINISTER IF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MAY 4, 2005
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR ORDER
AND ORDER BY: DE MONTIGNY, J.
DATED: MAY 5, 2005
APPEARANCES BY:
Mr. George J. Kubes FOR THE APPLICANTS
Ms. Patricia MacPhee FOR THE RESPONDENT
SOLICITORS OF RECORD:
George J. Kubes
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT