Decision TA4-17681 (Persuasive Decision, In Private)

Claimant(s): XXXXX
Date(s) of Hearing: December 14, 2005
Date of Decision: January 17, 2006
Coram: D. Morrish
For the Claimant(s): Loftus Cuddy
Refugee Protection Officer: n/a
Designated Representative: n/a
Minister's Counsel: n/a

These are the reasons for the decision that XXXXX XXXXX XXXXX is not a Convention refugee or a person in need of protection as defined in sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).

Basis of the Claim

The evidence reveals that the claimant, a 26-year-old citizen of Mexico, claims to have a well-founded fear of persecution by common criminals. In addition, he claims to be a person in need of protection in that he claims to be at risk of losing his life or being subjected to cruel and unusual treatment or punishment in Mexico.

Synopsis of the Story and Allegations

The principal claimant was employed as a XXXXX XXXXX in XXXXX, Mexico. He denounced local drug dealers to the police and in the media because they raped his sister. Armed security forces arrested the men involved in the narcotics operation. Friends of the youths threatened the claimant with murder as they blamed him for the arrests. Although the rapist was arrested, police informed the claimant that there was insufficient evidence to warrant an investigation into the threats.  When the rapist was prematurely released from prison, the claimant decided to flee Mexico on XXXXX, 2004, arriving in Canada on the same day. He made a claim for refugee protection on November 3, 2004.

Analysis and Findings

The panel finds that the claimant is not a Convention refugee, as he does not have a well-founded fear of persecution for a Convention reason in Mexico. The panel also finds that the claimant is not a person in need of protection in that his removal to Mexico would not subject him personally to a risk to life or to a risk of cruel and unusual treatment or punishment. My reasons are as follows.

Personal Identity

The claimant's personal identity and identity as a citizen of Mexico has been established by testimony and the supporting documentation filed, namely, his Mexican passport.¹

State Protection

There is a presumption that a state is capable of protecting its citizens, and to rebut this presumption, the claimant must provide "clear and convincing proof" of the state's inability to protect.²  Furthermore, the claimant must approach his or her state for protection, providing state protection might reasonably be forthcoming.³  No government can guarantee the protection of all its citizens at all times.⁴  It is not enough for a claimant merely to show that their government has not always been effective at protecting persons in their particular situation.⁵  Where a state is in effective control of its territory, has military police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that it is not always successful at doing so, will not be enough to justify a claim that the victims are unable to avail themselves of such protection.⁶

As to the standard of proof, Mr. Justice Rothstein (ex officio) in Xue⁷ stated that, "... for purposes of rebutting a presumption of state protection, the burden of a higher degree of probability commensurate with the clear and convincing requirement in Ward,"⁸ and could be more precisely expressed as operating "within the preponderance of probability category".

Even if the panel found the claimant's evidence with respect to the persecutory events to be credible, documentary evidence⁹ acknowledges crime and corruption in Mexico, but also states that the government is taking steps to address the issue. In July 2000, voters elected President Vicente Fox Quesada of the Alliance for Change Coalition in historic elections that observers judged to be generally free and fair.¹⁰ As Mexico is a fledgling democracy, the presumption of state protection applies. Local failures to provide effective policing do not amount to a lack of state protection.¹¹ The burden of proof that rests on the claimant is in a way directly proportional to the level of democracy in the state in question. The more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.¹²

The documentary evidence¹³ makes it clear that there is considerable crime and corruption in Mexico, and it would be misleading to pretend otherwise; however, it also makes it clear that the government is making substantial, meaningful and often successful efforts to combat crime and corruption.¹⁴ To date, there has been more success at the level of the Federal Police and less at the level of state and local police.

The panel has reviewed the National Documentation Package¹⁵ on state protection  and finds that there are documents which acknowledge the existence of corruption, indicate that organized crime in Mexico takes on a variety of forms, and the treatment of citizens who have witnessed organized criminal activities can be quite severe.¹⁶ In addition, the documents state:

The Fox Administration placed high priority on combating police and judicial corruption during 2004. Mexican leaders made significant effort to investigate and punish instances of corruption among federal law enforcement officials and military personnel. President Fox, Attorney General Macedo, and other Cabinet members repeatedly warned that they would punish public servants engaged in corruption. The Organizational Law for the Attorney General's Office, which became effective in August 2003, outlines requirements for employment within the organization, standards of conduct and procedures for dismissal from service of corrupt officials. Provision of better pay and benefits and dismissal and prosecution of corrupt officials have served as deterrents to corrupt behaviour.¹⁷

Recent articles provide evidence of progress in Mexico's war against crime and corruption.¹⁸ They speak of the difficulties that lie ahead, such as protecting witnesses and officials, and having the effectiveness of these initiatives filter down to state and local level.¹⁹

In particular, the Federal Judicial Police were replaced by the Federal Agency of Investigation (AFI)²⁰ when the Justice Attorney General's Office of the Federal District (PGJDF) was restructured in 2002. Documentation shows that this body does not hesitate to arrest their own commanders.²¹ The same document shows that the efforts of the Federal Attorney General (PGR) to purge corrupt police officers from its agencies,²² for example, the nation's attorney general fired 1400 of 3500 Federal Police Officers for corruption and prosecuted 357.²³ There were initiatives taken in the Federal District, which is Mexico City, where the claimant lived, to implement police reforms, such as video surveillance at major street intersections to monitor bribe interactions and new uniforms to discourage impersonating officers,²⁴ and from January to July 2003, 502 policemen were imprisoned for various crimes, compared to 624 in 2002 and 257 in 2001.²⁵ The government continues to push forward federal police reforms by focusing on rigorous new recruiting, training and vetting measures,²⁶ and a number of police departments have introduced internal control mechanisms to address issues of police misconduct and abuse.²⁷ Victims of corruption and organized crimes can report offences directly to the nearest Public Ministry office, when the local police might be involved. When victims are ignored or their claims are not processed, they have recourse to report the offence directly to the Internal Comptroller of the Federal Attorney General Office (PGR) or the PGJDF.²⁸ The Internet Website of the Procuraduria General de la Republica (Federal Attorney General Office, (PGR)) states that a person can file a complaint about the PGR in person at its offices in the Federal District, by email or through a toll-free telephone line. All information about the complaint is kept confidential.²⁹ Further measures are outlined in the International Narcotics Control Strategy Report.³⁰

The burden of proof that rests on the claimant is in a way directly proportional to the level of democracy in the state in question. The more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. Furthermore, local failures to provide protection do not amount to a lack of state protection. The documentary evidence indicates that if the claimant was dissatisfied with police efforts, he could seek redress for his situation through, for example, National or State Human Rights Commissions, the Secretariat of Public Administration, the Program Against Impunity, the General Comptroller's Assistance Directorate or through a complaints procedure at the PGR. The claimant has not rebutted the presumption of state protection with "clear and convincing" evidence within the "preponderance of probability category" as stated in Xue.³¹ The onus is on the claimant to provide clear and convincing proof that state protection would not be available to him, and the fact that a state does not provide perfect protection is not, in itself, a basis for determining that the state is unwilling or unable to offer reasonable protection in the circumstances.³²

The panel makes reference to a higher Court decision³³ in which a claim for refugee protection from Mexico was rejected because state protection did exist. The Court referred to Ward,³⁴ and the presumption that the state of origin is capable of protecting its citizens unless there is clear and convincing evidence to the contrary. The Court noted that protection does not have to be perfect.³⁵ In that case, the documentary evidence indicated that, even if there were problems with corruption in Mexico, substantial efforts were being made to prevent corruption. In addition, internal police controls had been put in place to make it easier to lodge a complaint. It is clear from the claimant's evidence that the police were making efforts to protect the claimant and society by arresting the drug traffickers and the rapist. Furthermore, during three years of receiving threats, the claimant only made one denunciation in XXXXX 2003 following a physical assault accompanied by threats. The fact that they could not launch an investigation into the threats against the claimant may be reasonable given the circumstances or, in the alternative, the claimant had various areas of recourse to complain about police inaction as referred to above.

Delay in Making a Claim

The claimant arrived in Canada on June 16, 2004 but did not make a claim for refugee protection until November 3, 2004. He explained that he arrived with a visitor's visa and was allowed a six-month stay. When asked why he delayed for almost five months before making a refugee claim, the claimant stated that he lived in a basement apartment in Scarborough and did not communicate with anyone. He was unaware of the substantial Hispanic community that resides in the Greater Toronto Area. The panel finds that the reasons for this delay are not adequately explained away, as it is not plausible that the claimant had no contact with other members of the Hispanic community and that this delay detracts from the element of subjective fear and, ultimately, the credibility of his claim. Therefore, while the main issue in the claim is state protection and failure of the claimant to provide clear and convincing proof of the state's inability to protect him, and, secondarily, the panel also finds a lack of subjective fear.

Conclusion

Based on the evidence, the applicable standard of proof and the legal testimony,³⁶ which I must apply to subsections 97(1)(a) and (b) of the IRPA, the panel finds that, on a balance of probabilities, the presumption of adequate state protection has not been rebutted, and the claimant would not be subjected personally to a danger, believed on substantial grounds to exist, of torture, nor will he be subjected personally to a risk to life or to a risk of cruel and unusual treatment or punishment if he was to return to Mexico. Therefore the claimant, XXXXX XXXXX XXXXX XXXXX, is not a Convention refugee or a person in need of protection.

"D. Morrish" [Signature]
D. Morrish

DATED at Toronto, Ontario this 17^th day of January 2006.

Endnotes

1. Exhibit R-2, Information from Citizenship and Immigration Canada, certified true copies of the claimant's passport.
2. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
3. Ibid.
4. Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
5. Ibid.
6. Ibid.
7. Xue, Jian Fei v. M.C.I. (F.C.T.D., no. IMM-4477-99), Rothstein, October 23, 2000.
8. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
9. Exhibit R/A-1, National Documentation Package - Mexico, 27 May 2005.
10. Ibid., item 2.1, US Department of State, Country Reports on Human Rights Practices for 2004, Mexico, 28 February 2005.
11. Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.).
12. Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4^th) 532 (F.C.A.).
13. Exhibit R-1, National Documentation Package - Mexico, 27 May 2005.
14. Ibid., item 7.3, Response to Information Request MEX38312.E, 19 September 2002.
15. Exhibit R-1, National Documentation Package - Mexico, 27 May 2005.
16. Ibid., item 7.4, Response to Information Request> MEX39623.E, 11 September 2002.
17. Ibid., item 7.1, United States Department of State, March 2005, International Narcotics Control Strategy Report 2005, "Mexico," "Corruption".
18. Ibid., item 7.2, Response to Information Request MEX39540.E, 20 September 2002; item 7.3, Response to Information Request MEX38312.E, 19 September 2002; and item 7.7, El Universal, 22 January 2004, "PGR: Kidnap Rates Falling."
19. Ibid., item 7.4, Response to Information Request MEX39623.E, 11 September 2002; and item 7.6, The Economist, 6 March 2004, "War Without End.".
20. Ibid., item 10.1, Canada, Immigration and Refugee Board, Mexico: Police, May 2004, section 2.1.1, "The Federal Agency of Investigation".
21. Ibid., item 7.1, United States Department of State, March 2005, International Narcotics Control Strategy Report 2005, "Mexico," section III, Country Actions Against Drugs in 2003, "Organizational Takedown".
22. Ibid., item 10.1, Canada, Immigration and Refugee Board, Mexico: Police, May 2004, section 4.1, "Federal Efforts".
23. Ibid., item 7.4, Response to Information Request MEX39623.E, 11 September 2002.
24. Ibid., item 10.1, Canada, Immigration and Refugee Board, Mexico: Police, May 2004, section 2.5, "The Federal District (Mexico City)".
25. Ibid., item 2.1, US Department of State, Country Reports on Human Rights Practices for 2004, Mexico, 28 February 2005, section1(d), "Arbitrary Arrest, Detention or Exile".
26. Ibid., item 10.1, Canada, Immigration and Refugee Board, Mexico: Police, May 2004, s. 4.1, "Federal Efforts".
27. Ibid., s. 4, "Redress and Internal Police Control".
28. Ibid., item 7.2, Response to Information Request MEX39540.E, 20 September 2002; and
item 9.6, Response to Information Request MEX36728.E, 30 March 2001.
29. Ibid., item 9.5, Response to Information Request MEX36332.E, 26 March 2001.
30. Ibid., item 7.1, United States Department of State, March 2005, International Narcotics Control Strategy Report 2005, "Mexico," s. III, Country Actions Against Drugs in 2003, "Corruption".
31. Xue, Jian Fei v. M.C.I. (F.C.T.D., no. IMM-4477-99), Rothstein, October 23, 2000.
32. Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996.
33. Balderas, Ricardo Castillo v. M.C.I. (F.C., no. IMM-1805-04), Beaudry, February 7, 2005, 2005 FC 157.
34. Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689.
35. Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (F.C.A.).
36. Li, Yi Mei v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239 (F.C.A.).