Federal Court Decisions

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Date: 20061212

Docket: IMM-951-06

Citation: 2006 FC 1487

Toronto, Ontario, December 12, 2006

PRESENT:     The Honourable Mr. Justice von Finckenstein













[1]               Tania Elisa Segura Cortes (the “Applicant”), a citizen of Mexico, made a claim for Convention refugee status and for protection based upon her fear of Luis Antonio Castillo Flores (“Luis”), a former boyfriend, and the lack of adequate state protection in Mexico.


[2]               The Applicant and Luis lived together since September 2001. Their relationship deteriorated, he began abusing her and would not let her leave the house without him. The Applicant escaped to her cousin’s house on November 3, 2004. On the advice of counsel she laid no charges. When Luis discovered and made new threats she decided to seek protection in Canada. On April 23, 2005, she arrived in Canada and she sought asylum on May 12, 2005. She never sought any help from officials in Mexico.


[3]               While the Applicant was in Canada, her sister filed a complaint in Mexico City on July 17, 2005. The Police Report stated that an investigation would be initiated but the Applicant testified that the police took no action.


[4]               The Immigration and Refugee Board (the “Board”) denied her refugee claim finding she had not established lack of state protection in Mexico.


[5]               The Applicant seeks to set that decision aside arguing two points namely:

a.                   that  the Board failed to determine whether she fell into the exception (for persons who failed to report their persecution to local authorities) in A.G. Canada v. Ward, [1993] 2 S.C.R. 689, and


b.                  that the Board failed to address all the evidence before it.


[6]               In my view this application cannot succeed as the Applicant misunderstood the onus. The relevant paragraph of Ward supra states:

50) 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 [page725] 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. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.


[7]                The onus is on the Applicant to establish lack of state protection. And in cases such as this, where the Applicant did not seek help from local authorities she also has a second onus to establish that she falls into the exception mentioned in Ward as set out above. Applicant argues that it is up to the Board to determine if she falls into the exception relying on Tufino (also known as M.L.R.T.) v. Canada (MCI) 2005 FC 1690 where Campbell J. stated:

The Applicant is a citizen of Mexico. On the record produced before the RPD, there is cogent evidence going to prove that the police in Mexico fail to protect women who have suffered violence occurring in a relationship. In its reasons, the RPD correctly found that the Applicant has an obligation to seek state protection "unless it is objectively unreasonable to do so" (Decision, p. 5). However, in rejecting the Applicant's claim for protection under the IRPA, the RPD failed to apply this test which requires an analysis of the reality of state protection in Mexico, and a determination as to whether the Applicant's reasons for not seeking it are reasonable. 


[8]               In my view, Tufino cannot stand for that proposition as this would be a complete reversal of a long line of jurisprudence on the issue of onus. I can only surmise that the ‘cogent evidence’ referred to in Tufino discharged the two onus that is on the Applicant in such cases.


[9]               As far as the Board is failing to address all the evidence before it, I note that the Board twice reiterated that it had looked at all the evidence. Particularly, it had looked at the most recent country reports from the IRB and the Department of State. In addition, it freely acknowledged during the hearing that protection of women from domestic violence was problematic in Mexico. However, it looked at all of this in light of the failure of the Applicant to contact local authorities. Under such circumstances the following excerpt from the order of Heneghan J. in Palomares  v. M.C.I. file number IMM-5447-05 is right on point:

The Principal Applicant focuses her arguments on the manner in which the Board dealt with the issue of state protection, particularly the way in which it assessed the documentary evidence.


The problem with this position is that it ignores the uncontradicted evidence that the Principal Applicant did not seek state protection at any time during the period of cohabitation with her spouse in Mexico. The Board heard her evidence. It is mandated to weigh the evidence. It is not enough for the Principal Applicant to refer to documentary evidence that, admittedly, paints a mixed picture about the state response to domestic violence and say that the Board committed a reviewable error in her case.


The conclusions of the Board were reasonably open to it, in view of the evidence submitted, including the personal testimony of the Principal Applicant. In the absence of an adequate evidentiary foundation to support her arguments, there is no basis for judicial intervention.


[10]           For all these reasons, I find the Board’s decision was reasonable and this application cannot succeed.



THIS COURT ORDERS that this application be dismissed.


“Konrad W. von Finckenstein”







DOCKET:                                          IMM-951-06



                                                            MINISTER OF CITIZENSHIP AND IMMIGRATION



PLACE OF HEARING:                    Toronto, Ontario


DATE OF HEARING:                      December 12, 2006



AND ORDER:                                   von FINCKENSTEIN J.


DATED:                                             December 12, 2006





Ron Shacter                                                                 FOR THE APPLICANT


Bridget O’Leary                                                           FOR THE RESPONDENT





Maureen Silcoff

Barrister and Solicitor

Toronto, Ontario                                                          FOR THE APPLICANT



John H. Sims, Q.C.

Deputy Attorney General of Canada                             FOR THE RESPONDENT


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