Thursday, May 05, 2011

Perez Mendoza–state protection analysis must be contextual

Perez Mendoza v. Canada (Citizenship and Immigration), 2010 FC 119 (CanLII)

Judge: Justice Lemieux

Date heard: November 19, 2009

Date decided: February 4, 2010

Counsel for Perez Mendoza: Alyssa Manning

Counsel for Minister: Khatidja Moloo

The Applicant was a citizen of Mexico who had applied for refugee protection in Canada and had been denied. The issue was whether he had rebutted the presumption of state protection (para. 1)

The Applicant identified his persecutors as high-ranking employees of two companies, TINEP and PEMEX. The Applicant worked for TINEP. TINEP did work for PEMEX. There was an internal investigation into whether TINEP had been paid for work it did not do, and the applicant initially cooperated with the investigation but was later told his supervisor would be dealing with the issue (paras. 2-5). 

In June 2007, the Applicant was assaulted by two men who told him to “go easy” on the investigation (para. 5). When he returned to work he was told he had been fired for tarnishing TINEP’s reputation and the political career of another PEMEX engineer involved in the scandal (para. 6). The Applicant made a complaint for wrongful dismissal, which appears to have lead to him being assaulted and threatened in a second incident (para. 7).

The Applicant now believed that the two companies were involved in a corruption scheme to funnel money towards the Institutional Revolutionary Party (IRP) and other political causes. He told a television station who covered the story. Soon he began receiving threatening phone calls, so he moved to another state. In August 2007 he was kidnapped and assaulted, and was told that it was because he had tarnished the reputation of TINEP’s owner and his son (paras. 8-10).

The Applicant made a denunciation to the police, and then again relocated. People continued to look for him. In October 2007 his car was shot at and he filed a second denunciation. He relocated again. He was advised by a lawyer to leave Mexico and he did so (paras. 11-13).

While the RPD did not doubt the Applicant’s story (para. 2), it found that he was targeted by criminals which did not provide a nexus, and furthermore that be relocating after making complaints he did not allow enough time to see if state protection would be forthcoming. Furthermore, the RPD appeared to have misapprehended the number of times the Applicant complained to authorities (paras. 14-20). As a result the RPD found that the Applicant did not “take all steps or even reasonable steps to seek protection in Mexico” (para. 23).

Justice Lemieux relied on Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94; Avila v. Canada (Minister of Citizenship and Immigration), 2006 FC 359; and Hurtado-Martinez v. Canada (Minister of Citizenship and Immigration), 2008 FC 630 to creat a summary of the steps of analysis for this issue:

1) The state is presumed to be willing and capable of protecting its citizens (Ward).

2) Evidence of the state’s willingness to protect cannot be imputed as evidence of adequate state protection (Ward).

3) Each case is sui generis so while state protection may have been found to be available in Mexico, maybe even in a particular state, this does not preclude a court from finding the same state to offer inadequate protection on the basis of different facts (Avila).

4) The claimant is expected to have taken all reasonable steps in the circumstances to seek state protection from his persecutors (Ward, Avila). A claimant who does not do so and alleges that the state offers ineffective or inadequate protection bears an evidentiary and legal onus to convince the tribunal (Carillo).

5) This exception to the general expectation that claimants approach the state supports the principle that the claimant is not required to put himself in danger in order to demonstrate ineffectiveness (Ward, Avila).

6) Where a tribunal determines the applicant has failed to take steps to seek protection this finding is only fatal to the claim if the tribunal also finds that protection would have been reasonably forthcoming. A determination ofreasonably forthcoming requires that the tribunal examine the unique characteristics of power and influence of the alleged persecutor on the capability and willingness of the state to protect (Ward, Avila, Heurtado-Martinez).

7) Similarly, where a non-state actor is alleged to have persecuted the claimant, the tribunal must examine the motivation of the persecuting agent and his ability to go after the applicant locally or throughout the country, which may raise the question of the existence of internal refuge and its reasonableness (Avila).

8) The kind of evidence that may be adduced to show that the state protection would not have been reasonably forthcoming includes: testimony of similarly situated persons, individual experience with state protection and documentary evidence (Ward).

9) The standard of proof is balance of probabilities (Carillo).

10) The quality of such evidence will be raised in proportion with the degree of democracy of a state (Avila).

11) The degree of democracy may be lowered if the state tolerates corruption in its institutions (Avila).

12) Evidence of remedies for corruption is not evidence of their practical effect (Avila). In order to neutralize impact of corruption on the evidentiary analysis, the Board must determine that these remedies have a positive practical effect.

13) The evidence must be relevant, reliable, and convincing to satisfy the trier of fact on a balance of probabilities that the state protection was inadequate (Carillo). (para. 33)

Justice Lemieux applied the principles above and found that the RPD had made two errors. It had ignored the Applicant’s explanation of why he had to leave the jurisdictions following his filing of complaints, and it did not make an analysis of whether state protection would have been reasonable forthcoming in the Applicant’s circumstances (paras. 39-43).

JUDICIAL REVIEW ALLOWED

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