Decision TA4-18833 (Persuasive Decision, In Private)

Claimant(s): XXXXX
Date(s) of Hearing: February 10, 2006
Date of Decision: February 27, 2006
Coram: George A. Griffith
For the Claimant(s): Debra Shelly, Barrister and Solicitor
Refugee Protection Officer: n/a
Designated Representative: n/a
Minister's Counsel: n/a

XXXXXXXX XXXXXXX, the "claimant", is a citizen of Mexico and he claims refugee protection in Canada pursuant to ss. 96 and 97 (1) of the Immigration and Refugee Protection Act ¹.

ALLEGATIONS

The claimant alleges the following.

While he worked as a local XXXXX XXXXX in Mexico, his commanding officer was impressed by his performance and attitude, and, therefore, decided to have him work as an XXXXX XXXXX XXXXX. He began employment as an XXXXX XXXXX in XXXXX, with a XXXXX company, which dealt with the XXXXX XXXXX. The police department suspected that the company engaged in illicit drug trafficking.

During his assignment, the claimant discovered that, indeed, there was illicit drug trafficking in the shipments, and he passed on that information to his XXXXX XXXXX. As a result, the police anti-narcotics unit set up a sting operation and made a drug bust on one of the company's shipments.

The claimant was disappointed, however, that those who had been arrested were released in quick time, and he suspected that there was collusion between the drug traffickers and some members of the police. Moreover, his identity as an XXXXX XXXXX was discovered by the company owner, XXXXX XXXXX. He was called into the boss' office and, while there, he was beaten by several senior personnel. He was driven to an abandoned road and dumped on the roadside.

The claimant alleges that he did not get support from his XXXXX XXXXX, when he told him of his experience and physical abuse. The commanding officer advised him to leave the XXXXX, in his best interest. He did so.

After leaving the XXXXX, the claimant allegedly received death threats from unknown persons, directed at himself and his family. On one occasion, gunshots were fired at his residence, and he believes that incident was connected to the drug bust, and his information to the narcotics police.

He alleges that when he reported the shooting and sought protection of the police, his story was not believed by the police officer to whom he made the report. He was told that XXXXX XXXXX was not responsible for any harassment or any plan to kill him.

The claimant testifies that he fled to XXXXX and began work with another company. One day, while in XXXXX, he was confronted at gunpoint by an individual. He was with his young son, and his life was spared because of his son, according to what the individual told him. Then, he made arrangements and fled to Canada on November 8, 2004.

DETERMINATION

I find that the claimant is neither a Convention refugee nor a person in need of protection, as, in my opinion, his fear has no objective basis.²

ANALYSIS

The claimant's national identity is established on the basis of a certified true copy of his Mexican Passport submitted by Immigration Canada.³

On the issue of credibility, I am not persuaded that the claimant has presented reliable testimony. I find that, on a balance of probabilities,⁴ the claimant did not experience the incidents in Mexico, as he seems to be attempting to use the refugee system in order to gain entry into Canada. I note that, according to the Immigration notes,⁵ the claimant has had multiple deportations from the USA, and before his last deportation in the year 2001, he was incarcerated for two months for possession of marijuana.

Even if I believe that the claimant's overall testimony is reliable, and that his subjective fear is genuine, in my opinion, state protection is available to him in Mexico. He has not rebutted the presumption⁶ that state protection is available to him in Mexico.

The Court⁷ has said that international protection only becomes engaged when state or national protection is unavailable to the claimant; that, except in situations where the state is in a state of complete breakdown, states must be presumed capable of protecting their citizens, and that a claimant has an obligation to present "clear and convincing" proof or confirmation of the state's inability to protect.

On the evidence, the claimant made no reasonable efforts at seeking national protection in Mexico, given his former employment as a XXXXX XXXXX, and his assignment as an XXXXX XXXXX, working in the XXXXX XXXXX field. I note that the documentary evidence⁸ indicates that drug trafficking and criminality are key areas of focus of the Government of Mexico, through its anti-narcotics unit. Therefore, it is reasonable to assume that, as an XXXXX XXXXX XXXXX in XXXXX XXXXX XXXXX work, the claimant was likely to receive some form of adequate protection, if he made reasonable efforts to obtain that protection. It was his information that caused the drug bust to be successful.

Even if the particular officer to whom the claimant made his report was not cooperative or helpful, and may even have been a rogue officer who colluded with the drug traffickers, I find that the claimant has an obligation to make more reasonable efforts to seek help, in the face of threats to his life. I note the following, also.

In the documentary evidence,⁹ it is acknowledged that there is corruption among the police, and that there is a measure of inefficiency in the police and judicial system. However, in the area of drug trafficking, there are specific measures¹⁰ in place, and the
government's efforts are pursued through the Attorney General's Office (PGR) and the Federal Investigative Agency (AFI). For example, in the International Narcotics Control Strategy Report for 2005,¹¹ it is stated that:

"...President Fox and Attorney General Rafael Macedo de la Concha continued to reform law enforcement offices and promote the creation of professional investigative entities to fight drug trafficking, terrorism, and other organized crimes...."

The document¹² also outlines initiatives to disrupt organized crime; programs to make federal law enforcement institutions more professional; initiatives in establishing the ground work for sound, harmonized basic police training, including a self-sustaining system employing the train-the-trainer approach, and placing high priority on combating police and judicial corruption during 2004. It is said¹³ that Mexican leaders made significant efforts to investigate and punish instances of corruption among federal law enforcement officials and military personnel, and that the PGR conducted more than 1,300 investigations into possible malfeasance of 2, 200 PGR officers from the outset of the Fox Administration through May 2004.

The Court¹⁴ has said that, except in the case of a complete breakdown of the state apparatus, states are presumed capable of protecting its citizens. In Kadenko,¹⁵ the Court holds that a claimant must exhaust the available options in seeking his or her state's protection, given the presumption¹⁶ of state protection in a democratic state. In this regard, the above-mentioned measures¹⁷ lead me to conclude that the Government is making serious¹⁸ efforts to provide adequate protection to its citizens in the area of criminality and drugs. Therefore, in this claim, the presumption of state protection applies, and, in my opinion, the claimant has not presented clear and convincing proof or confirmation¹⁹ that state protection is unavailable to him in Mexico.

For these reasons, I conclude that the claimant faces no serious possibility²⁰ of persecution in Mexico, and he is not a Convention refugee.

As I believe that adequate state protection is available to the claimant in Mexico, in my opinion, his removal to that country would not subject him to a risk to his life or a risk of cruel and unusual treatment or punishment, or danger of torture in that country.

"A. Griffith" [Signature]
A. Griffith

DATED at Toronto this 27^th day of February 2006.

Endnotes

1. Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2. Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).
3. Exhibit R/A-2
4. Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.).
5. Exhibit R/A-2.
6. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 D.L.R. (4^th) Imm. L.R. (2d) 85.
7. Ibid.
8. Exhibit R/A-1.
9. Ibid.
10. Ibid.
11. Ibid., item 7.1
12. Ibid.
13. Ibid.
14. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 D.L.R. (4^th) Imm. L.R. (2d) 85.
15. Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4^th) 532 (F.C.A.).
16. Ward, supra.
17. Footnotes 8, 11-13.
18. Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
19. Ward, supra.
20. Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 7 Imm. L.R. (2d) 169 (C.A.).