Rangel Lezama v. Canada (Citizenship and Immigration)

Rangel Lezama v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2011-08-11
Neutral citation
2011 FC 986
File numbers
IMM-3396-09
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20110811
Docket: IMM-3396-09
Citation: 2011 FC 986
Ottawa, Ontario, August 11, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ORLANDO RANGEL LEZAMA,
CARMAN ELOISA VITAL RANGEL,
AZUL ESTEFANIA RANGEL VITAL,
DANIA ISABELA RANGEL VITAL
and
ORLANDO RANGEL VITAL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 8 June 2009 (Decision), which refused the Applicants’ applications to be deemed Convention refugees or persons in need of protection under sections 96 and 97 of the Act.
BACKGROUND
[2] The Applicants are citizens of Mexico. In addition to the Minor Applicants, who are named parties in this proceeding, the Male and Female Applicants have two younger children, who were born in Canada in 2008 and who are not named parties in this proceeding.
[3] The Male Applicant alleges that he unwittingly became involved with a drug trafficking organization when, in June 2007, he made an arrangement to sell at his wholesale fruit and vegetable business produce provided by Pascual Magana (Magana). On 4 July 2007, the Male Applicant discovered that Magana was hiding cocaine in produce shipments that were to be collected by other vendors. When the Male Applicant confronted him, Magana admitted that he was part of a large drug trafficking organization. He invited the Male Applicant to continue operating his business as a transfer point for drugs, assuring him that the police had been paid off and would not interfere. When the Male Applicant refused, Magana said that he would have to find a way to keep him quiet. The Male Applicant interpreted this as a death threat. He sold his store on 6 July 2007 and made plans to leave.
[4] On 8 July 2007, three men went to the Applicants’ house in Leon, told them that they were delivering a message from Magana and struck the Male Applicant, who fell unconscious. When he regained consciousness, he and the Female Applicant immediately brought their children to their grandparents’ house nearby and then, fearing that the men would pursue them, drove to Aguascalientes, 100 kilometres away, for medical treatment. Shortly thereafter, their children joined them and stayed at the nearby home of the Male Applicant’s sister. The truck in which the Male and Female Applicants drove to Aguascalientes was later set on fire, causing the Male Applicant to believe that Magana or his men had followed them to Aguascalientes.
[5] On 15 July 2007, the Male and Female Applicants obtained their passports and fled to Canada. Their children joined them two months later. On 14 January 2008, the Applicants made their refugee claims, all of which were subsequently joined to the claim of the Male Applicant.
[6] The RPD heard the claims on 26 May 2009. The Applicants were represented by an immigration consultant and an interpreter was present. In its Decision dated 8 June 2009, the RPD found that the Applicants had failed to establish a nexus to a Convention ground and that they had failed to establish, on a balance of probabilities, that they would be personally subjected to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture should they return to Mexico as state protection was available to them. For these reasons, both the section 96 and the section 97 claims were rejected.
DECISION UNDER REVIEW
Section 96 Analysis
[7] The RPD found that the Applicants were victims of crime. Their fear was not linked to any of the Convention grounds, namely race, religion, nationality, political opinion and membership in a particular social group. In light of Federal Court jurisprudence stating that victims of crime, corruption or vendettas generally fail to establish a nexus between their fear of persecution and a Convention ground, the RPD rejected the Applicants’ section 96 claims.
Section 97 Analysis
[8] The determinative issue in the section 97 analysis was the Applicants’ failure to rebut the presumption of state protection. The RPD noted that a state is presumed to be able to protect its citizenry unless the state has completely broken down. Refugee claimants can rebut this presumption by adducing clear and convincing evidence of the state’s inability to protect them. The test asks whether the state protection is adequate, although effectiveness is a relevant consideration. Evidence adduced to demonstrate inadequacy of protection must be reliable and probative and the standard of proof is the balance of probabilities. Claimants must approach the state for protection where it will be reasonably forthcoming. Where the state is a democracy, it will be difficult for a claimant to prove, on a balance of probabilities, that protection is unavailable.
[9] In the instant case, the RPD reviewed the documentary evidence and rejected the Applicants’ evidence in favour of it. The documentary evidence indicated that Mexico is a democratic country not in a state of collapse. Indeed “serious efforts” are being made by the Mexican state to combat crime and corruption. There are a number of vehicles for reporting corruption of public employees and state officials, drug trafficking and kidnapping, including the Secretariat of Public Administration and Secretariat of Public Services, the 24-hour Telephone Assistance System for Citizens and the Federal Agency of Investigation. The RPD commented that joint efforts between Mexico and the US to combat drugs and drug-related crime have resulted in considerable progress being made with respect to specialized police training, more sophisticated investigations and more major arrests.
[10] In light of these serious efforts, the RPD found that it is reasonable to expect persons in the Applicants’ position to seek the assistance of these state agencies before seeking international refuge. The Applicants failed to contact the authorities and failed also to provide clear and convincing evidence that state protection would not be reasonably forthcoming.
[11] The RPD acknowledged both the Applicants’ fear of reporting the incident to the police and their examples of unrelated incidents in the past when they had reported crimes to the police, particularly in domestic violence situations, without satisfactory results. However, the RPD commented that, in each of the examples put forward by the Applicants, the police had responded, even if the outcomes did not “bring about the conclusion desired by the [Applicants].”
[12] The RPD acknowledged that, in the instant case, the Male Applicant believed that the police were complicit in the operation of Magana’s drug network because Magana had told him this. However, the Male Applicant had no evidence of police involvement and he had never seen or been contacted by police officers associated with Magana. The RPD also noted the Male Applicant’s testimony that, after he had sold his business and fled Leon, Magana called him on his cell phone and sent men to his former residence. As the RPD pointed out, however, that was all Magana did. At no point did he or his men ever approach the Minor Applicants or the family members caring for them, either in Leon or in or near Aguascalientes. The RPD found that drug traffickers with connections to police would at least have visited the Male Applicant’s family members. Also, if Magana had wanted to silence the Male Applicant, it seems implausible that he would follow the Male Applicant to Aguascalientes, only to burn his truck and alert him to the fact that he knew where he was, thereby giving him an opportunity to escape. On this basis the RPD concluded that Magana was not as well connected as the Applicants believe him to be.
[13] The Male Applicant’s claim was rejected and, because the other claims were tied to his, the remaining claims were rejected as well.
[14] With respect to the best interests of the Male and Female Applicants’ Canadian-born children and the suggestion that sending them to Mexico would put them at an unacceptable risk, the RPD found that the Canadian-born children were not refugee claimants and as such the Decision did not apply to them. As a matter of practicality, the Male and Female Applicants would need to determine what is in the best interests of the Canadian children if the remainder of the family is removed from Canada.
[15] The RPD further found that, with respect to the submissions regarding the dangers that women in Mexico must face, gender was not raised as a ground of persecution and no evidence was adduced that any of the female Applicants feared returning to Mexico for reasons associated with their gender.
[16] Finally, with respect to the humanitarian and compassionate considerations raised, the RPD commented that the Applicants’ situation may be deserving but it was not within the RPD’s authority to make such an H&C determination.
ISSUES
[17] The Applicants raise the following issues:
i. Whether the RPD erred in its state protection analysis, particularly by making unreasonable plausibility findings;
ii. Whether the RPD failed to analyze the Applicants’ subjective fear;
iii. Whether the RPD erred in its section 96 analysis by misstating and misapplying the law;
iv. Whether the RPD erred in its section 96 analysis by fettering its discretion or providing inadequate reasons; and
v. Whether the Applicants were denied natural justice as a result of incompetent representation by their immigration consultant.
STATUTORY PROVISIONS
[18] The following provisions of the Act are applicable in these proceedings:
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Person in need of protection
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
STANDARD OF REVIEW
[19] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[20] This first issue challenges the RPD’s state protection analysis, particularly its plausibility findings. The adequacy of state protection is a question of mixed fact and law ordinarily reviewable against a standard of reasonableness. See Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at paragraph 38.
[21] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[22] The second issue concerns the alleged failure of the RPD to make findings regarding the Applicants’ subjective fear. This touches upon the adequacy of the Decision and as such is reviewable under a standard of correctness. See Martinez v Canada (Minister of Citizenship and Immigration), 2011 FC 13 at paragraph 21.
[23] The third issue asks if the RPD misstated or misapplied the law. This is a question of law. It is reviewable on the correctness standard. See Khosa, above, at paragraph 44.
[24] The fourth issue asks if the RPD fettered its discretion or failed to provide adequate reasons. These are questions of procedural fairness, reviewable on the correctness standard. See Boughus v Canada (Minister of Citizenship and Immigration), 2010 FC 210 at paragraph 22; and Khosa, above, at paragraph 43.
[25] The fifth issue, denial of natural justice, also is reviewable on the correctness standard. See Khosa, above, at paragraph 43.
ARGUMENTS
The Applicants
The RPD Erred By Failing to Determine the Applicants’ Subjective Fear
[26] The Applicants’ claim is based on their fear of violence at the hands of Magana and his drug trafficking organization, which allegedly has ties to the police. They argue that the RPD erred by failing to make clear findings with respect to the subjective element of their claim and with respect to the credibility and plausibility of their subjective fear. They rely on Flores v Canada (Minister of Citizenship and Immigration), 2010 FC 503 [Flores] at paragraph 31, wherein Justice Robert Mainville stated:
[S]ave in exceptional cases, the analysis of the availability of state protection should not be carried out without first establishing the existence of a subjective fear of persecution. The panel responsible for questions of fact should therefore analyze the issue of the subjective fear of persecution, or, in other words, should make a finding as to the refugee claimant's credibility and the plausibility of his or her account, before addressing the objective fear component which includes an analysis of the availability of state protection.
The Member Misstated and Misapplied the Law in Its Section 96 Analysis
[27] The Applicants argue that the RPD misstated and misapplied the law in its section 96 analysis and, in so doing, fettered its discretion. Alternatively, it failed to provide adequate reasons for rejecting their section 96 claim.
[28] The RPD’s finding that there is no nexus to a Convention ground where applicants are victims of crime or personal vendettas is, in the Applicants’ view, “extraordinarily simplistic.” The jurisprudence is more nuanced than the RPD appreciates. Moreover, the evidence does not support the findings.
[29] The Male Applicant is not simply a victim of crime, nor is he fleeing a vendetta. Rather, he was personally targeted for refusing to participate in criminal activity. Opposition to criminal activity can become opposition to state authorities when the criminal activity permeates state action or when state authorities are complicit in the criminal activity. See Klinko v Canada (Minister of Citizenship and Immigration), [2000] 3 FC 327 (FCA) [Klinko]. Also, the Male Applicant’s reasons for believing that state authorities were complicit in this activity were sound based on the information he received from Magana and Magana’s alleged connections to the military. The RPD should have considered whether the Applicants’ case fell within the Klinko exception. In failing to do so, it fettered its discretion.
The RPD’s Plausibility Findings Were Unreasonable
[30] The Applicants challenge the RPD’s implausibility findings regarding the Male Applicant’s evidence that Magana was involved in a large drug trafficking organization that had paid off the police. It was unreasonable to expect the Male Applicant to have seen more of Magana’s associates before concluding that he was involved with a large criminal organization. The Male Applicant discovered drugs in Magana’s produce shipments. Drug traffickers, by necessity, are connected to large organizations. It was equally unreasonable to expect that the Male Applicant would have been approached by the police, who had been paid not to interfere in Magana’s activities. When the Male Applicant refused to cooperate, Magana’s men delivered a violent “message.” As the documentary evidence demonstrates, drug trafficking is widespread in Mexico. The fact that Magana’s men never bothered the Male Applicant’s children or family is irrelevant. The Male Applicant’s evidence is internally coherent. The RPD expresses no reservations regarding the Male Applicant’s credibility but disregards his evidence without stating its reasons for doing so.
The RPD Erred In Its State Protection Analysis
[31] The RPD’s assessment of the evidence, particularly its finding that police were not complicit in Magana’s activities, resulted in an erroneous conclusion that state protection was available to the Applicants. But for this error, the Applicants’ circumstances would have been recognized as not requiring the Applicants to seek state protection because such protection would not be reasonably forthcoming. See Canada (Attorney General) v Ward, [1993] 2 SCR 689, 103 DLR (4th) 1 [Ward].
[32] The Applicants submit that the RPD should have engaged in a full assessment of the evidence relevant to the issue of state protection. Given Mexico’s governance and corruption problems, which are acknowledged in the country conditions documentation, it is not enough to rely on a blanket statement that Mexico is a democracy. See Villicana v Canada (Minister of Citizenship and Immigration, 2009 FC 1205 at paragraph 67. Mexico is not a “full democracy” and the availability of state protection cannot be presumed. According to a report of the Washington Office on Latin America, corruption of state authorities and impunity for drug traffickers undermine the country’s efforts to maintain the rule of law and combat the drug trade. Amnesty International reports that only the most serious criminal cases can be expected to be investigated. Coupled with the Applicants’ past attempts to seek police assistance for less serious matters—which complaints were accepted but not followed up on by police—this documentary evidence indicates that the RPD acted unreasonably in expecting the Applicants to approach the state for protection.
The Respondent
The RPD’s Findings Were Reasonable
[33] The Respondent submits that the RPD’s conclusions regarding state protection were reasonably open to it based on the documentary evidence. The Applicants argue that there are governance and corruption problems in Mexico, but the RPD acknowledged this. Its assessment of the documentary evidence and the manner in which it is weighed against the evidence of the Applicants is an exercise in which the RPD has expertise.
[34] The Applicants further argue that the RPD failed to make clear findings with respect to their subjective fear. That is not the case. The RPD analyzed the plausibility of the Applicants’ reasons for not seeking state protection and rejected their explanation that they believed the police to be complicit in Magana’s activities. Moreover, even where subjective fear is established, a finding of state protection is sufficient to defeat the claim. See Flores, above.
[35] The Respondent contends that there was “hardly any evidence” to connect the Applicants’ subjective fear to the Convention ground of political opinion. As Justice Denis Pelletier of this Court observed in Palomares v Canada (Minister of Citizenship and Immigration) (2000), 191 FTR 286, [2000] FCJ No 805 [Palomares] (QL) at paragraph 15: “While denouncing corruption can be a political act, not every brush with corruption amounts to a political act or is perceived by the corrupt as a political act.”
[36] Finally, the Respondent points out that the Applicants failed to show that the conduct of their former counsel deprived them of natural justice or procedural fairness.
The Respondent’s Further Memorandum
[37] The Respondent challenges the Applicants’ reliance on Flores, above, as support for their argument that the RPD erred by failing to make a clear finding regarding their subjective fear. First, as the Respondent asserted above, the RPD did make such a finding. However, in Prasad v Canada (Minister of Citizenship and Immigration), 2011 FC 559 at paragraph 13, Justice James O’Reilly distinguished Flores, stating:
Given that the Federal Court of Appeal has clearly found that s. 97 contains only an objective component (Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1 at para 33), I cannot conclude that the Board erred by not making a definitive [sic] about the credibility of the applicants' subjective fear. At the same time, I agree with Justice Mainville that state protection should not be analyzed in a vacuum. The nature of the applicant's fear should be at least identified and the capacity and the will of the state to respond to the applicant's circumstances should be then analyzed.
[38] Further, the Respondent challenges the Applicants’ reliance on Klinko, above, stating that the instant case is distinguishable on its facts. The applicant in Klinko denounced institutional corruption through his actions. In the instant case, the Male Applicant did not denounce drug trafficking; he simply refused to participate in it because doing so was against the law.
ANALYSIS
[39] The Applicants have raised a range of issues. However, not all of them need to be considered because of the way the Decision is structured. The determinative issue in the section 96 analysis is nexus to a Convention ground. The only ground considered under the section 97 analysis is state protection.
Subjective Fear
[40] The Applicants say that the RPD’s failure to make a credibility finding and a clear finding of lack of subjective fear leads to an unreasonable error. This argument is made in relation to the section 96 finding based upon the absence of a nexus to a Convention ground. The Applicants concede that it does not apply to the section 97 analysis.
[41] The Applicants’ position relies upon a line of cases in this court. First of all, in Flores, above, at paragraph 31, following a detailed review of the jurisprudence, Justice Mainville determined that,
…save in exceptional cases, the analysis of the availability of state protection should not be carried out without first establishing the existence of a subjective fear of persecution. The panel responsible for questions of fact should therefore analyze the issue of the subjective fear of persecution, or, in other words, should make a finding as to the refugee claimant's credibility and the plausibility of his or her account, before addressing the objective fear component which includes an analysis of the availability of state protection.
[42] This principle was followed by Chief Justice Allan Lutfy in Velasco Moreno v Canada (Minister of Citizenship and Immigration), 2010 FC 993, at paragraphs 1, 3 and 4:
In my view, a negative determination of the Refugee Protection Division which turns on the issue of state protection must be scrutinized with particular care where the member chooses to make no credibility finding concerning the applicant's allegations of a subjective fear.
…
However, the judge sitting in judicial review must be satisfied that the applicant's allegations, usually in the personal information form and the transcript of the refugee hearing, were treated as true by the decision-maker.
Only then can a proper review be made of the member's state protection analysis. The state protection issue should not be a means of avoiding a clear determination concerning the subjective fear of persecution.
[43] My reading of the quotation from Flores, above, is that Justice Mainville’s comments were directed at a state protection analysis. However, in Velasquez v Canada (Minister of Citizenship and Immigration), 2010 FC 1201, at paragraphs 15-22, Justice James O’Reilly recently provided a detailed discussion of the issues that arise in relation to an IFA finding:
The concept of an IFA is an inherent part of the Convention refugee definition because a claimant must be a refugee from a country, not from a particular region of a country (Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at para 6). Once an IFA has been proposed by the Board, it must consider the viability of the IFA according to the disjunctive two part test set out in Rasaratnam. The claimant bears the onus and must demonstrate that the IFA does not exist or is unreasonable in the circumstances. That is, the claimant must persuade the Board on a balance of probabilities either that there is a serious possibility that he or she will be persecuted in the location proposed by the Board as an IFA, or that it would be unreasonable to seek refugee in the proposed IFA given his or her particular circumstances.
There may, however, be an overlap between the Board’s consideration of an IFA and its analysis of state protection. The first branch of the IFA test is met where there is no serious possibility of persecution in the particular location. That finding may flow either from a low risk of persecution there or the presence of state resources to protect the claimant, or a combination of both. But, in either case, the analysis can only be carried out properly after the particular risk facing the claimant has been identified.
Indeed, the Board’s failure to consider the specific risks feared by a claimant in an IFA analysis will constitute an error of law (Gutierrez v Canada (Minister of Citizenship and Immigration), 2010 FC 1010). It is an error, therefore, for the Board to make a blanket finding that an IFA is available to a refugee claimant, without reference to the type of persecution feared by the claimant or that person’s particular circumstances. Again, the first question the Board must answer when a proposed IFA is in issue is whether, on a balance of probabilities, there is a serious possibility that the claimant will be persecuted in the location proposed by the Board. Generally speaking, that question cannot be answered if the nature of the person's fear has not been specifically identified.
Similarly, in the context of a state protection analysis, it is an error of law for the Board to conclude that state protection is available if it fails to make any findings about the applicant’s personal circumstances (Moreno v Canada (Minister of Citizenship and Immigration), 2010 FC 993). In Moreno, the Board found that the applicant, a native of Bogota, would not be targeted by FARC in that city, contrary to his testimony. That conclusion necessarily implied that the Board did not accept the applicant’s account of events, yet it made no explicit adverse credibility findings. Therein lays one of the dangers in assessing state protection or IFA without analyzing the applicant's particular allegations -- adverse credibility findings may creep into the analysis without explanation.
Here, having raised IFA as the determinative issue, the Board was required to determine whether, on a balance of probabilities, there was a serious possibility that Ms. Orozco would be persecuted in Bogota. The Board was further required to consider whether relocation to Bogota was unreasonable given Ms. Orozco’s particular circumstances.
I find that the Board’s failure to identify the particular risk Ms. Orozco claimed to fear resulted in a faulty IFA analysis. The Board found, for example, that Ms. Orozco did not fall within the groups most targeted by FARC. However, she claimed to be an active member of the Conservative Party and a humanitarian worker who spoke out against FARC. It is not clear why the Board felt she was unlikely to be targeted, even if she was not a farmer, or an elected official, a journalist, or a member of some other group specifically mentioned in the documentary evidence. In addition, Ms. Orozco stated that she had gone to police, but the threats against her continued and family members were subsequently killed. That evidence was obviously relevant to the issue of whether the state could protect her, and ultimately, whether there was a serious possibility that she would be persecuted in Bogota. Yet, the Board did not mention it.
It may have been the case, as in Moreno, above, that the Board did not believe all of Ms. Orozco's allegations. If so, it had an obligation to make explicit credibility findings. The analysis of a proposed IFA is not a substitute for those findings.
In my view, this is not one of those rare cases where the IFA analysis could stand on its own, without reference to the particular risk from which the claimant sought protection. The Board was obliged to consider both whether Ms. Orozco faced a serious risk of persecution in Bogota and whether relocating to Bogota was, in any event, reasonable for someone in Ms. Orozco’s particular circumstances. Without this inquiry, the IFA analysis is merely an abstract exercise. Here, the Board’s discussion did not address the risk faced by someone in Ms. Orozco’s unique circumstances. That omission amounts to an error of law and I must, therefore, allow this application for judicial review on that basis.
[44] Justice O’Reilly has also provided further thoughts on this issue in Prasad, above, at paragraphs 10 to 14:
The applicants argue that the Board was obliged to make a definitive finding about the nature of the risk they faced before addressing the issue of state protection. They rely on two decisions of Justice Robert Mainville: Flores v. Canada (Minster of Citizenship and Immigration), 2010 FC 503, and Jimenez v. Canada (Minister of Citizenship and Immigration), 2010 FC 727. In Jimenez, Justice Mainville stated:
A decision with regard to the subjective fear of persecution, which includes an analysis of the refugee claimant’s credibility and the plausibility of his or her account, must be made by the Immigration and Refugee Board to establish an appropriate framework for an analysis, where necessary, of the availability of state protection that takes into account the individual situation of the refugee claimant in question. (Para 4.)
In Flores, Justice Mainville noted that s. 97 of IRPA, like s. 96, imports both subjective and objective components (para 26), but the issue of state protection is only relevant to the objective component (para 27). Based on these conclusions, the applicants argue that the Board erred by addressing state protection without analyzing their credibility on the issue of their subjective fear of harm even though their claim was based solely on s. 97.
In my view, Justice Mainville’s observation about s. 97 was not essential to his conclusion. In Flores, both s. 96 and s. 97 were in issue. Justice Mainville’s principal assertion that objective factors should be addressed after a claimant’s subjective fear has been identified was clearly relevant to s. 96 and led him to conclude that the Board had erred in that case by dealing with state protection without identifying the risk to which the state was called upon to respond. The proper approach in a case where, as here, only s. 97 is in play, was not before him.
Given that the Federal Court of Appeal has clearly found that s. 97 contains only an objective component (Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1 at para 33), I cannot conclude that the Board erred by not making a definitive about (sic) the credibility of the applicants' subjective fear. At the same time, I agree with Justice Mainville that state protection should not be analyzed in a vacuum. The nature of the applicant’s fear should be at least identified and the capacity and the will of the state to respond to the applicant’s circumstances should be then analyzed.
Here, I am satisfied that the Board had identified the nature of the risk the applicants feared and went on to consider the question whether state protection was available to them. I see no error in its approach.
[45] I do not think that the problems identified in these cases arise on the present facts before me. First of all, the state protection analysis is directed exclusively at the section 97 claim. The section 96 claim is disposed of exclusively on the basis of nexus. A reading of the Decision as a whole reveals that, in deciding the nexus issue, the RPD accepted the Applicants’ account of what had happened to them and there were no adverse credibility issues. It is also clear that the RPD accepted the Applicants’ subjective fear of persecution and the source of that fear. However, even if everything the Applicants say about the basis of their subjective fear is true, what they say does not establish the necessary connection to a Convention ground.
[46] Subjective fear was not really at issue in this case. The Decision reveals that the Applicants’ narrative and their fear of being harmed by Magana were accepted by the RPD. The claim was weak on objective evidence to connect their fears to a Convention ground or to rebut the presumption of adequate state protection.
[47] The RPD certainly questions the Applicants’ interpretation of what has happened to them and their fears of what is likely to happen to them if returned to Mexico, but the RPD does not disbelieve the events which caused the Applicants to leave Mexico or their fear of returning there.
[48] In any event, the nature and the sources of the Applicants’ fears were clearly identified before the RPD embarked upon its nexus and state protection analysis. I see no reviewable error here. See Prasad, above, at paragraph 13.
The RPD Fettered its Discretion and/or Provided Inadequate Reasons – Section 96
[49] The Applicants say that the RPD misapplied the law regarding nexus to a Convention ground and provided inadequate reasons for rejecting their section 96 claim on this basis.
[50] The Supreme Court of Canada in Ward, above, defined political opinion as any opinion on any matter in which the machinery of state, government and policy may be engaged. The Federal Court of Appeal in Klinko, above, at paragraphs 27 and 30-31, characterized opposition to corruption as an expression of political opinion. Justice Francis Muldoon of this Court, in Reynoso v Canada (Minister of Citizenship and Immigration) (1996), 107 FTR 220, [1996] FCJ No 117 (QL) held that political opinion is not confined to partisan opinion or membership in partisan movements. In Reynoso, for example, the applicant knew too much about the activities of a corrupt mayor and lived in fear of death because of it.
[51] In the instant case, the Male Applicant refused to engage in criminal behaviour. There was no evidence adduced to demonstrate, on a balance of probabilities, that the state, and particularly the police, were complicit in Magana’s drug trafficking operation or that the Male Applicant was denouncing state actors. Certainly, Magana told the Male Applicant that the police were being paid to allow the drug operation to function, and the Male Applicant believed it. However, it appears that the Male Applicant simply took Magana at his word. The RPD acknowledged this very problem—the Male Applicant never saw or produced any evidence of state involvement in Magana’s drug operation. The Applicants want the RPD and the Court to accept this bare allegation of police involvement as true, and to believe that the state is so wholly corrupt that speaking out against drug trafficking is the same as speaking out against state action. However, as there is no evidence of state involvement in Magana’s drug operation, speaking out against it does not constitute speaking out against state action.
[52] I do not mean to imply that the Male Applicant’s belief that the police were complicit is completely implausible. In fact, the documentary evidence indicates that corruption among public officials is a problem in Mexico. So, the Applicant’s version of events regarding Magana is possible. However, possible is not enough. The Applicants need to make out their case on a balance of probabilities and I am not satisfied that they have done so.
[53] There was no evidence before the RPD, other than the Applicants’ assertions, that the authorities were involved, who was involved or how and to what extent they were involved.
[54] Someone who refuses to participate in crime as a matter of conscience is not, for that reason, a member of a political group. Given the evidence for a political connection adduced by the Applicants, the reasons were adequate and the authorities relied upon by the RPD were apt.
[55] Justice Pelletier’s words in Palomares, above, at paragraph 15, are helpful in the present case:
It is my view that these elements of proof do not suffice to