Flores Carrillo v. Canada

Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 FCR 636, 2008 FCA 94 (CanLII)


• FC accepted JR of RPD decision which found that the claimants were not refugees or protected persons. Minister then appealed to the FCA (this is that decision)
• Board member found claimant not credible on the state protection issue, and found that she hadn’t rebutted the presumption of state protection with clear and convincing evidence
• Evidence was that her husband in Mexico was abusive; she complained and moved houses, but her husband’s brother, who was a federal judicial police officer, helped him find her
• She then left the country without making a complaint about the brother, even though there was some evidence of oversight bodies which respond with success to these kinds of complaints

• Burden of proof, standard of proof and the quality of the evidence necessary to meet the standard of proof are three different factual realities and legal concepts that should not be confused. A claimant alleging an absence of state protection bears both an evidentiary and a legal burden. The legal burden must be assumed on a balance of probabilities.

• The Federal Court committed an error of law when it substituted a lower threshold for the requirement set out in Canada (Attorney General) v. Ward that clear and convincing evidence of a state’s inability to protect must be provided. It is not sufficient that the evidence adduced be reliable.

• [30] In my respectful view, it is not sufficient that the evidence adduced be reliable. It must have probative value. For example, irrelevant evidence may be reliable, but it would be without probative value. The evidence must not only be reliable and probative, it must also have sufficient probative value to meet the applicable standard of proof. The evidence will have sufficient probative value if it convinces the trier of fact that the state protection is inadequate. In other words, a claimant seeking to rebut the presumption of state protection must adduce relevant, reliable and convincing evidence which satisfies the trier of fact on a balance of probabilities that the state protection is inadequate.

[32] It proceeded to review the law governing the presumption of state protection. It stated that local failures to provide effective policing do not amount to a lack of state protection. Relying upon the findings of this Court in Kadenko v. Canada (Minister of Citizenship and Immigration) (1996), 1996 CanLII 3981 (FCA), 143 D.L.R. (4th) 532 (F.C.A.); leave to appeal to the Supreme Court of Canada refused on May 8, 1997 [[1996] S.C.C.A. No. 612 (QL)], it stated that [at paragraph 11] “[t]he 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.” It found that Mexico is a fledgling democracy governed by the rule of law: appeal book, at pages 43-44.

• Applying these principles to the present case, it was not unreasonable for the Board to conclude that the respondent failed to establish inadequate state protection.

• FCA recently held in Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178 that this law is “well-settled”