Date: 20060109
Docket: IMM-3448-05
Citation: 2006 FC 12
Ottawa, Ontario,
January 9, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
RENÉ ALBERTO MEJIA
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1]
This
is an application for judicial review concerning a decision rendered on April
25, 2005, by the Refugee Protection Division of the Immigration and Refugee
Board (the Board), which refused to recognize René Alberto Maija (the
applicant) as a Convention refugee or a person in need of protection within the
meaning of sections 96 and 97 respectively of the Immigration and Refugee
Protection Act, S.C., (2001) c. 27 (the Act).
RELEVANT
FACTS
[2]
The
Applicant is a citizen of El
Salvador who
arrived in Canada on November 6, 2004 and who applied for protection by Canada on November 22, 2004.
[3]
On July
13, 2002, members of the criminal gang “Mara Salvatrucha” demanded an amount of
five dollars per week from the applicant. Under threat, the applicant paid this
amount every week for a period of two years.
[4]
On
September 2, 2004, members of the criminal gang increased the amount the
applicant had to pay to live within their territory to twenty-five dollars.
During this incident, the applicant had to pay the twenty-five dollars demanded
to avoid threats to his family.
[5]
Knowing he
was unable to make the following payment, the applicant asked his wife and
daughter to leave home.
[6]
On
September 5, 2004, the applicant and a friend, Antonio Landaverde Aguilard,
were chased by gang members, who shot at them. The friend was seriously injured
and died the next day as a result of his injuries.
[7]
Fearing
death at the hands of these criminals, the applicant decided to flee the city
and join his wife in the village
of Tapecoyo while waiting to be able to
leave the country.
[8]
On
September 20, 2004, the ship on which the applicant was working arrived in
Spain and was supposed to sail for Canada.
The ship arrived in Hamilton,
Ontario on November 6, 2004 and
in Montréal on November 19, 2004. The applicant claimed refugee status on
November 22, 2004.
[9]
On April
25, 2005, the applicant explained under oath before the Board the grounds for
his claim.
ISSUES
- Did
the Board err in concluding the evidence showed that the applicant was not
in danger when he moved within El Salvador?
- Did
the Board err in concluding that the danger to the applicant was general
in nature and not personal?
- Did
the Board err in concluding that the applicant should have sought
protection from the state?
ANALYSIS
1. Did the Board err in concluding the
evidence showed that the applicant was not in danger when he moved within El Salvador?
[10]
The record
of the Board hearing shows that the matter of whether or not the applicant had
any problems when he joined up with his family was raised. The applicant
mentioned that he did not run into any problems. However, he added that he was
living in hiding and avoided being seen in the street, and this explains why he
did not run into any problems with the members of the criminal gang. The
applicant alleges that the Board did not take this explanation into
consideration in its decision.
[11]
In Bilquees
v. Canada (Minister of Citizenship and Immigration), 2004 FC 157, [2004]
F.C.J. No. 205, my colleague Pinard J. repeated that an assessment of
credibility is a question of fact, and it is not up to this Court to intervene,
unless that assessment is unreasonable:
The PRRA officer found, like
the panel that preceded her, that the applicants were not credible. The
evaluation of credibility is a question of fact and this Court cannot
substitute its decision for that of the PRRA officer unless the applicant can
show that the decision was based on an erroneous finding of fact that she made
in a perverse or capricious manner or without regard for the material before
her (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C.
1985, c. F-7). The PRRA officer has specialised knowledge and the authority to
assess the evidence as long as her inferences are not unreasonable (Aguebor
v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and her reasons are set
out in clear and unmistakable terms (Hilo v. Canada (M.E.I.) (1991), 15
Imm.L.R. (2d) 199 (F.C.A.)).
[12]
It is up
to the Board to decide if the applicant is credible and if he told the truth
about the facts alleged. Considering the Board mentioned some of the
applicant’s statements which were contained in the record of the hearing, I am
satisfied that the Board took into consideration the complete record in
rendering its decision, including the applicant’s explanation that he did not
have
any problem with criminal gangs after he moved. I am of the
opinion that the Board made no error and that the decision was rendered after a
complete analysis of the evidence before it.
2. Did the Board err in concluding that
the danger to the applicant was general in nature and not personal?
[13]
The
applicant claimed that the Board was mistaken in concluding that the danger to
him was generalized and not personal in nature.
[14]
In Kang v. Canada
(Minister of Citizenship and Immigration),
2005 FC 1128, [2005] F.C.J. No. 1400, it was stated that a person may be a
refugee even in the absence of any personal danger. However, at paragraph 10,
Martineau J. mentioned that victims of criminal acts and corruption are not
refugees within the meaning of section 96 of the Act:
Membership in a particular social group
is a recognized ground under section 96 of the Act. Moreover, while personal
targeting is not required, refugee claimants must nonetheless establish a link
between themselves and persecution for a Convention reason. They must be
targeted for persecution in some way, either personally or collectively: Rizkallah
v. Canada (Minister of Employment and
Immigration)
(1992), 156 N.R. 1 (F.C.A.). On this matter, victims or potential victims of
crime, corruption or personal vendettas, generally cannot establish a link
between fear of persecution and Convention reasons.
[15]
In this case, the applicant does not claim to be a refugee
within the meaning of section 96 of the Act. Instead, he is seeking recognition
as a person in need of protection because of a risk to his life or a risk of
cruel and unusual treatment or punishment within the meaning of paragraph
97(1)(b) of the Act.
[16]
The burden of proof for a person seeking protection under
section 97 is less stringent than the burden specified under section 96 for
refugee status. In Li v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 501, Gauthier J.
stated at paragraph 45:
First, there are already significant
differences between the test to be applied by the RPD when evaluating a claim
under section 97 and one under section 96. In Shah v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1121; [2003] F.C.J. No. 1418 (F.C.)
(QL), at paragraph 16, Blanchard J., held that the test under section 97 of the
Act does not require a determination of a subjective fear of persecution. In Nyathi
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1119; [2003]
F.C.J. No. 1409 (C.F.) (QL), at paragraph 21, the learned Judge added that
section 97 requires the RPD to apply a different test namely, whether a
claimant's removal would subject that individual personally to the danger and
risk stipulated in paragraphs 97(1)(a) and (b) of the Act. I
agree with those findings.
[17]
There
is a marked difference between the test the Board must apply when dealing with
an application by a “person in need of protection” and the one for an
application for Convention refugee status. In the first case, contrary to the
second, it is not necessary to conclude there was a subjective fear of
persecution. What must be determined is whether the removal of the applicant
would personally expose him to the dangers and risks contemplated by the Act.
Convincing evidence must exist (on a balance of probabilities) establishing the
facts which the refugee claimant invokes to prove he is subject to a serious
risk of torture when returning to his country (Li v. Canada (Minister of
Citizenship and Immigration), supra; Sivanathan v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 662).
[18]
The Board concluded that the applicant was the subject of a
generalized problem in his country, that is to say, the payment of an illegal
tax demanded by a criminal group.
[19]
It was not unreasonable to draw this conclusion after
studying the evidence adduced and after considering the behaviour of the
applicant, who had never requested state protection.
3. Did the Board err in concluding that
the applicant should have sought protection from the state?
[20]
The applicant alleges that the Board erred in concluding
that he should have requested protection from the state.
[21]
As suggested by the respondent, we must presume that the
state is able to protect its citizens. It is up to the applicant to show that
the state was unable to give this protection.
[22]
Absent a situation of complete breakdown of state
apparatus, it must be presumed that the state is able to protect its citizens.
[23]
There is no clear and convincing evidence showing that the
state was unable to ensure his protection. See: Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689, pages 731-732; MIC v. Kadenko,
A-388-95, October 15, 1996 (F.C.A.); Canada (M.E.I.) v. Levkovicz
and the Secretary of
State for Canada, IMM-599-94, March 13,
1995 ( Nadon J.); Villafranca, (1992) 99 D.L.R. (4th) 334, December 18,
1992 (F.C.A.).
[24]
Although the Board’s decision is not detailed, the
applicant has not convinced me it made an error that would warrant the
intervention of this Court. It is up to the applicant to show that he is a
person in need of protection, but he has not succeeded in doing so.
THE COURT ORDERS THAT:
- The application for
judicial review be dismissed.
- No question
will be certified.
“Pierre Blais”
Certified
true translation
Michael
Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3448-05
STYLE OF CAUSE: RENÉ
ALBERTO MEJIA v. MCI
PLACE OF HEARING: Montréal
DATE OF HEARING: November 17, 2005
REASONS FOR ORDER AND
ORDER BY: The Honourable Mr. Justice
Blais
DATED: January 9, 2006
APPEARANCES:
Jamal Addine Fraygui
|
FOR THE APPLICANT
|
Thi My Dung Tran
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
JAMAL ADDINE FRAYGUI
Montréal, Quebec
|
FOR THE APPLICANT
|
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Montréal, Quebec
|
FOR THE RESPONDENT
|