Date: 20031105
Docket: IMM-5826-02
Citation: 2003 FC 1292
Ottawa, Ontario, November 5, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
JESUS VARGAS RIVERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This application for judicial review pursuant to subsection 72(1) of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 ("the Act"), concerns a decision by the Refugee Division of the Immigration and Refugee Board ("the panel") on October 30, 2002. In that decision the panel concluded that the applicant did not meet the definition of a "Convention refugee" in section 96 of the Act or that of a "person in need of protection" in subsection 97(1) of the Act.
POINTS AT ISSUE
[2] The questions submitted by the applicant are the following:
1. Is the applicant's conduct consistent with a subjective fear of persecution?
2. Does the alleged fear of persecution, namely personal vengeance, have any connection with one of the five Convention grounds?
3. Did the panel fail to consider evidence showing that the applicant actually sought protection from the authorities in his country?
4. Did the panel fail to analyze the applicant's fear of death threats under paragraph 97(1)(b) of the Act?
[3] For the following reasons, I answer the first and fourth questions in the negative, I do not need to answer the other two questions and the application for judicial review will be dismissed.
FACTUAL BACKGROUND
[4] The applicant, a national of Mexico, said he left his country because his life was threatened and because the government authorities could not protect him.
[5] In September 1995 the applicant began working at a service station in Monterrey. He supervised personnel and the purchase of oil and additives for vehicles. He handled the cash register, did financial reports on his shift and deposited money in the safe.
[6] From October 1999 onward the applicant saw the manager Locadio Villareal engaging in illegal activities, namely manipulating gasoline pump meters so as to sell less gas than what the meters indicated, and bribing government employees.
[7] In late October 1999 the applicant accidentally put gasoline in diesel tanks. The service station was closed for two days for cleaning and this caused significant financial losses to the business. When he saw this, Villareal threw the applicant to the ground and kicked him. He told him it would be more financially viable to kill him than to ask him to pay for the cost of cleaning. The applicant then threatened to report the manager about the manipulating of the pumps and the fact that he was bribing government employees. The manager threatened to kill him and take reprisals against his family. However, the applicant continued to work at the same service station.
[8] On December 10, 1999, when the applicant was going home in a taxi, a vehicle forced the taxi to leave the road, thus causing an accident in which the applicant suffered fractures to his ribs and fingers. He was hospitalized for three days and had to stay at home convalescing for six months. In June 2000, when he went back to work, the manager asked him if he had understood the message.
[9] The applicant tried to report Villareal's fraudulent activities, but the latter tapped the telephone and threatened to break his two legs and send him to prison.
[10] The applicant fled Mexico for the U.S. via Houston, where he lived from February 20, 2001 to February 3, 2002. After being attacked twice in Houston, the applicant went back to Mexico on February 4, 2002, and took a flight for Canada the same day. On arrival, he filed an application for asylum.
[11] In his point of entry statement the applicant did not tick any of the Convention grounds in reply to the question "Nature of persecution". Under the heading "Explain", the Immigration officer wrote [TRANSLATION] "Threat by former boss Locadio Villareal. Because the subject reported his stealing from the business. The subject did not contact the police".
[12] In his Personal Information Form ("PIF"), the applicant indicated that he feared persecution because of his membership in a particular social group, but he did not say why. Similarly, he indicated his life was in danger and he was subject to a risk of cruel and unusual treatment or punishment, but did not say why.
DECISION AT ISSUE
[13] The panel concluded that the applicant had not established a valid fear of persecution, a risk of a threat to his life or being subject to cruel and unusual treatment. After the incident of December 10, 1999, the applicant went back to work at the same service station and learned his attacker's name. The fact that the applicant continued working for the same employer for the next eight months and did not look for other employment because he could not get such well-paid employment to pay his debts and support his family indicated that the applicant had no serious fear for his life.
[14] In the panel's opinion, Villareal's personal vengeance against the applicant had nothing to do with any of the five Convention grounds.
[15] Finally, the panel found that the applicant had not rebutted the presumption that the Mexican authorities could protect him. It also regarded as unreasonable the applicant's explanation that he had not sought protection from his country on the pretext that he was prevented from doing so by his manager. The panel did not find this explanation reasonable.
APPLICANT'S ARGUMENTS
[16] The applicant's return to work was justified because it was only then that he learned the name of the person persecuting him. He subsequently left because the situation became intolerable.
[17] The personal vengeance of Villareal, who was connected to the government, had a direct link to the Convention because of his alleged political opinions. The panel therefore erred.
[18] The panel made an error when it concluded that the applicant did not seek protection from the authorities in his country. The arrest warrant issued against the driver who forced the taxi off the road on December 10, 1999, is proof that when the applicant filed a report the authorities undertook to [TRANSLATION] "do something" (applicant's affidavit, paragraph 14). However, the corruption by the manager and the traditional inefficiency of the Mexican police meant the latter's efforts came to nothing.
[19] The panel did not analyze the applicant's fear of death threats under paragraph 97(1)(b) of the Act.
RESPONDENT'S ARGUMENTS
[20] In order to meet the definition of a "Convention refugee", the applicant must show that he meets all parts of that definition. Among these parts are the subjective and objective components of the alleged fear of persecution, the existence of a connection between that alleged fear and one of the Convention grounds and the absence of government protection (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 723-726).
[21] The panel was entirely free to assess whether a subjective fear of persecution existed in view of the claimant for asylum's actions after the events on which he based his claim. As the question is one of assessment of facts and credibility, intervention by the Court is not warranted unless the panel has made a patently unreasonable error (Canada (Minister of Employment and Immigration) v. Dan-Ash (1988), 93 N.R. 33 (F.C.A.)). The applicant simply alleged that he had shown the existence of a reasonable fear, without providing explanations. The applicant's disagreement with the inferences drawn by the panel was not enough to show the existence of a patently unreasonable error. Additionally, the applicant in no way established that the panel failed to consider evidence relating to his fear of persecution.
[22] The existence of a connection between the alleged persecution and one of the five Convention grounds is a question of fact, which is therefore within the purview of the panel's expertise (Leon v. Canada (Minister of Citizenship and Immigration, _1995_ F.C.J. No. 1253 (F.C.T.D.) (QL)). The fear of a claimant who has been the victim of threats and reprisals from an unscrupulous individual acting for his personal advantage is not connected with any of the Convention grounds, even if that person is in collusion with certain corrupt representatives of the government (Yuen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1045 (F.C.A.) (QL); Pierre-Louis v. Canada (Minister of Employment and Immigration), _1993_ F.C.J. No. 420 (F.C.A.) (QL); Cutuli v. Canada (Minister of Employment and Immigration), _1994_F.C.J. No. 1156 (F.C.T.D.) (QL)).
[23] In the case at bar the corrupt government employees were acting with financial or criminal motives which had absolutely no connection with the applicant's political opinions, unlike the situation in Klinko v. Canada (Minister of Citizenship and Immigration), _2000_3 F.C. 327 (F.C.A.), in which reprisals by police officers followed the filing of a complaint about government corruption.
[24] The panel was right to conclude that the applicant did not establish a lack of government protection in Mexico. In order to rebut the presumption of government protection, a claimant must provide clear and persuasive evidence that the government is unable to protect him. Unless the governmental system has collapsed completely, a government is presumed able to protect its citizens (Ward, supra; Kadenko v. Canada (Minister of Citizenship and Immigration) (1996), 206 N.R. 272 (F.C.A.), _1996_F.C.J. No. 1376 (F.C.A.) (QL)).
[25] The panel assessed the various pieces of evidence about actions taken by the applicant to obtain protection from the authorities against the persecuting agent Villareal. In its decision the panel mentioned various incidents involving Villareal, the car accident and the alleged attempts to report it to the police. The panel also stated that it found these explanations unsatisfactory.
[26] In its reasons, the panel addressed the asylum application made pursuant to paragraph 97(1)(b) of the Act: it referred to this in the introduction, in the statement of facts and in its analysis.
ANALYSIS
[27] In order to meet the definition of a "Convention refugee", the applicant must show that he meets the various parts of that definition, beginning with subjective and objective fear of persecution. In Kamana v. Canada (Minister of Citizenship and Immigration), _1999] F.C.J. No. 1695 (F.C.T.D.) (QL), at paragraph 10, Tremblay-Lamer J. stated:
The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition _ subjective and objective _ must be met.
[28] In other words, if the applicant failed to establish subjective or objective fear, there was no need to proceed with the analysis.
Fear of persecution
[29] As the respondent indicated, the analysis of a subjective fear of persecution is a question of assessment of facts and credibility and is within the panel's jurisdiction. The Court should not intervene in such a case unless the panel has made a patently unreasonable error. In the instant case, the panel clearly indicated why it could not conclude that the applicant had a subjective fear: the fact that the applicant remained in the employment of the persecuting agent for eight months after learning that he was responsible for the automobile accident and the fact that he did not try to find other employment because he could not get such well-paid employment to provide for his family show that the applicant had no serious fear for his life. This conclusion seems entirely reasonable to the Court and therefore cannot be the subject of any intervention by the Court.
[30] In addition to the points listed by the panel, there are other facts which show that the applicant did not really have a subjective fear of persecution. First, he did not seek international protection at the first opportunity, namely on his arrival in the U.S. This suggests that he did not feel any urgency or necessity. Second, the applicant went back to Mexico, that is to the country where the alleged persecuting agent was located, to get a plane to Canada.
[31] As the applicant has not been able to establish a subjective fear of persecution, an essential component of the refugee definition, there is no need to proceed with the analysis of the other parts of that definition, namely the connection to one of the five Convention grounds and the absence of government protection.
Person in need of protection
[32] The applicant wrongly argued that the panel did not analyze the threat to his life and the risk of cruel or unusual treatment or punishment. The analysis of the applicant's actions by the panel on page 3 of its decision persuades the Court that this question was dealt with and the conclusion was not unreasonable.
[33] In the absence of any patently unreasonable error in this decision, I have no intention of intervening. The parties declined the offer to submit a serious question of general importance. I do not propose to certify a serious question of general importance.
ORDER
THE COURT ORDERS that
1. the application for judicial review is dismissed;
2. no serious question of general importance is certified.
"Michel Beaudry"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5826-02
STYLE OF CAUSE: JESUS VARGAS RIVERA v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 30, 2003
REASONS FOR ORDER BY: MICHEL BEAUDRY J.
DATE OF REASONS: November 5, 2003
APPEARANCES:
Lenya Kalepdjian FOR THE APPLICANT
Caroline Doyon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lenya Kalepdjian FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec