Balderas v. Canada (Minister of Citizenship and Immigration)

Balderas v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2005-02-07
Neutral citation
2005 FC 157
File numbers
IMM-1805-04
Decision Content
Date: 20050207
Docket: IMM-1805-04
Citation: 2005 FC 157
Ottawa, Ontario, the 7th day of February, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
RICARDO CASTILLO BALDERAS
MARIA GUADALUPE LARIOS VARGAS
KEVIN RICARDO CASTILLO LARIOS
JOHNATAN RICHIE CASTILLO LARIOS
SCARLET ALHELI CASTILLO LARIOS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the panel) dated February 5, 2004, determining that the applicants are neither Convention refugees nor persons in need of protection within the meaning of sections 96 and 97 of the Act.
ISSUE
[2] Did the panel err in finding that the applicants could have availed themselves of their country's protection before they made a claim for refugee protection in Canada?
[3] For the following reasons, I answer this question in the negative.
BACKGROUND
[4] The principal applicant is a Mexican citizen. He is married and the father of three children. He and his family are claiming refugee status because they are afraid their lives would be at risk if they were to return to their country. They also allege a well-founded fear of persecution and cruel and/or unusual treatment and/or punishment.
IMPUGNED DECISION
[5] The panel found that the applicants could have availed themselves of their country's protection. It found that the applicants did not try to seek help or protection from the authorities in their country, despite the fact that, according to the documentary evidence, there are many mechanisms in place to counter police corruption.
ANALYSIS
[6] The standard of review applicable to the issue of state protection is patent unreasonableness character of the decision (Czene v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 912 (T.D.) (QL), 2004 FC 723, and Canada (Minister of Citizenship and Immigration) v. Abad, [2004] F.C.J. No. 1065 (T.D.) (QL), 2004 FC 866). This is a question of fact that depends on the specific circumstances in the country of the person making the refugee claim. To make an informed decision on this question, the panel must consider the documentary evidence adduced and testimony provided.
[7] According to paragraph 18 of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada states that international refugee law has been formulated to serve as a back-up to the protection "one expects from the state of which an individual is a national". It is meant to come into play only in situations when that protection is unavailable, and then only in certain situations.
[8] The courts have consistently held that there is a presumption that the home state is able to protect its citizens, unless there is a complete collapse of the state apparatus. As a result, the onus is on the claimant to provide clear and convincing evidence of his home country's inability to protect him (Ward, supra).
[9] To succeed, the applicant must reasonably establish he has both a subjective and an objective fear of persecution. The issue of state protection comes into play in the analysis of the objective fear.
[10] In this case, based on the documentary evidence submitted at the hearing (Exhibit A-1), the panel found that even though there are problems with corruption in Mexico, considerable effort has been made to counter corruption, and internal police controls have been implemented to make it easier for citizens to lodge complaints. State protection need not be perfect (Canada (Minister of Employment and Immigration v. Villafranca) (1992) 18 Imm. L.R. (2d) 130 (F.C.A.)).
[11] The applicants admitted that the Fox government has implemented many programs to curb police corruption. However, they said they did not know whom they should turn to if they were to return to their country. Since the applicants dealt with the same two individuals and they admitted that these two aggressors were not looking for them, the Member determined that they could have lodged a complaint with the appropriate authorities to obtain protection. A subjective fear is insufficient to make a claim for refugee protection; it must be backed up by a demonstrated objective fear, which has not been proven in this case (Avila v. Canada (Minister of Citizenship and Immigration), (May 31, 2004) IMM-3607-03 (F.C.T.D.)).
[12] After analysing the evidence submitted to the Court and the hearing transcript, I find that the panel did not make any patently unreasonable errors.
[13] The parties declined to submit any serious questions of general importance, and none arise on this record.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1805-04
STYLE OF CAUSE: RICARDO CASTILLO BALDERAS
MARIA GUADALUPE LARIOS VARGAS, KEVIN RICARDO CASTILLO LARIOS, JOHNATAN RICHIE CASTILLO LARIOS
SCARLET ALHELI CASTILLO LARIOS v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 1, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: February 7, 2005
APPEARANCES:
Lenya Kalepdjian FOR THE APPLICANT
Judith Savard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lenya Kalepdjian FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec