Federal Court Decisions

Decision Information

Decision Content

Date: 20051013

Docket: IMM-1804-05

Citation: 2005 FC 1393

Montréal, Quebec, October 13, 2005


















[1]               On March 3, 2005, the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) dismissed the claim for refugee protection presented by Selena Angelica Ruiz Espinosa and her son Erubey Reyes Ruiz because of the lack of credibility of their narrative and of the protection that could be offered to them by Mexico, the country of which they are citizens. The applicants are contesting this decision by way of an application for judicial review, which was authorized last July 15 under section 72 of the Immigration and Refugee Protection Act.

[2]               The applicants arrived in Canada on August 13, 2004, and applied for refugee protection on August 19, 2004. They based their application on the fear of being persecuted by reason of their belonging to a particular social group. They also claimed to be “persons in need of protection,” to the extent that they would be subjected personally to a danger of torture and to a risk to their lives or to a risk of cruel and unusual treatment or punishment.


[3]               The applicant alleges having been the secretary and mistress of the Director of Public Safety of the State of Michoacan, Juan Jose Villanueva Toscano. Following a disagreement about holidays they were supposed to spend together, he supposedly slapped the applicant. On January 10, 2004, Villanueva Toscano supposedly used a revolver to threaten some youngsters who were looking at the applicant in a restaurant. Finally, on February 28, 2004, Mr. Villanueva Toscano allegedly forcibly kidnapped the applicant to have sexual relations with her and locked her in a room, from which she managed to escape.


[4]               The applicant allegedly sought shelter at her mother’s home and told Mr. Villanuevo Toscano’s daughter everything. When she learned that Mr. Villanuevo Toscano was looking for her with his guards, the applicant sought refuge at the home of an aunt. Mr. Villanuevo Toscano allegedly called her on her cell phone and threatened to torture and kill her son. Then, on August 9, 2004, after having received death threats from Mr. Villanuevo Toscano, a friend of the applicant revealed where she was hiding. The friend then immediately notified the applicant, who fled to Canada four days later, with her son.


[5]               For essentially two reasons, the Board reached the conclusion that the applicant and her son were not Convention refugees or persons in need of protection within the meaning of sections 96 and 97 of the Act. While admitting that the applicant was the secretary of the Director of Public Safety and had an intimate relationship with him, the Board was of the opinion it was highly improbable that he would contact the applicant’s friend five months after the last incident to obtain her address. The time elapsed suggested that he was not really interested in her, and, considering his position, he would have had other means to trace her. Accordingly, the Board considered that the applicant was not really in danger in Mexico. Moreover, the application was also dismissed because the applicant did not discharge her burden of proving that Mexico was unable to protect her, as she never complained to the authorities in that country.


[6]               In his oral and written submissions, the applicant’s counsel only dwelt on the conclusions reached by the Board concerning state protection. Relying on the documentary evidence, he submitted that the situation of women in Mexico who are victims of violence and sexual harassment was far from pleasant and that the Board performed selective reading of the objective evidence. He also insisted that it was unreasonable to expect that a woman who was threatened and vulnerable could complain about her abuser when he holds high office within the government. Finally, he submitted that it would be a much too stringent burden of proof to require that a person 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.


[7]               As a general rule, a refugee protection claimant must seek protection from his or her country before requesting international protection. As La Forest J. affirmed in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, page 726, “The presumption [that the State is capable of protecting the claimant] serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant”. To rebut this presumption, it would not be sufficient to allege that the police are corrupt or that a police officer did not follow up on a complaint. From this point of view, I, like many of my colleagues, am willing to admit that Mexico is able to protect its citizens even though this protection is far from perfect: Velazquez v. Canada (M.C.I.), [1999] F.C.J. No. 934 (QL); Garcia v. Canada (M.C.I.), [2004] F.C.J. No. 2058 (QL); Urgel v. Canada (M.C.I.), [2004] F.C.J. No. 2171 (QL); Valdes v. Canada (M.C.I.), [2005] F.C.J. No. 123 (QL); Balderas v. Canada (M.C.I.), [2005] F.C.J. No. 225 (QL); B.O.T. v. Canada (M.C.I.), [2005] F.C.J. No. 343 (QL).


[8]               Having said this, it is quite different when a representative of the state is the alleged perpetrator of the persecution or threats of violence. As my colleague Tremblay-Lamer J. affirmed, “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” (Chaves v. Canada (M.C.I.), 2005 F.C. 193; see also Molnar v. Canada (M.C.I.), [2003] 2 F.C. 339). After all, it would be absurd to require that a claimant put his life in danger to prove the ineffectiveness of the protection in his country. This reasoning applies that much more when, as in the present case, the person allegedly responsible for the persecution is the one who is ultimately in charge of public safety within the state. The Board did not seem to take this into consideration in its decision. In fact, the documentary evidence it cited to show that recourse was possible does not take this part of the problem into consideration.


[9]               Accordingly, I am willing to consider that the Board was mistaken in concluding the applicant did not prove that her country of origin was unable to protect her because she had not complained to the authorities. Considering the dysfunction and corruption which is rampant in the Mexican police forces, the culture of impunity which seems to dominate this country when dealing with violence of which women are often victims, and especially the position of authority held by the person who was threatening her, it was quite understandable that the applicant did not seek protection from her country.


[10]           However, this mistake does not seem to be decisive, insofar as state protection was only an alternative argument in the Board reasons. In fact, the Board dismissed her claim first and foremost because it did not believe that Mr. Villanueva Toscano continued to stalk the applicant until she left Mexico. The Board felt that he would not have waited for such a long time to try to trace her and that he would have taken other steps to do so if he really did want to attack the applicant, especially considering the fact that he was married, had children and did not want to cause a scandal.


[11]           The assessment of the plausibility of a narrative is clearly the Board’s responsibility, and it is not up to the Court to replace the Board’s opinion with its own unless the conclusions drawn from the evidence are completely unreasonable. This Court’s case law is replete with precedents that illustrate this principle: Augebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.); Gonzalez v. Canada (M.C.I.), [1999] F.C.J. No. 805 (QL); Khan v. Canada (M.C.I.), 2005 FC 403.


[12]           Applying recognized principles of judicial review, a question of fact may be subject to review only to the extent that the Court has committed a patently unreasonable error (Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982). This is especially the case with matters of credibility: R. K. L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (F.C.T.D.) (QL); Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at paragraph 13 (F.C.T.D.) (QL); and Moyo v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1297 at paragraph 4 (F.C.T.D.) (QL).


[13]           Because the Board’s error in its assessment of the protection the applicant could have hoped for in her country was not material, I reach the conclusion that this application for judicial review must be dismissed. No question will be certified for the Federal Court of Appeal.




THE COURT ORDERS THAT the application for judicial review be dismissed. No question is certified.

“Yves de Montigny”




Certified true translation

Michael Palles







DOCKET: IMM-1804-05






PLACE OF HEARING: Montréal, Quebec


DATE OF HEARING: October 11, 2005



ORDER BY: The Honourable Mr. Justice De Montigny


DATED: October 13, 2005






Serban Mihai Tismanariu



Simone Truong






Serban Mihai Tismanariu

Montréal, Quebec




John H. Sims, Q.C.

Deputy Attorney General for Canada

Montréal, Quebec




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