Date: 19980123
Docket: IMM-3711-96
BETWEEN:
JOSE NICANOR JUAREZ-YARLEQUE
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL, J.
[1] This is an application for judicial review of a decision by the Immigration and Refugee Board, dated May 10, 1996, wherein the Board decided the applicant was not a Convention refugee as defined in s.2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The Facts:
[2] The applicant, a citizen of Peru, was a member of the Air Force from 1982 until he left his country in September 1995. He was stationed in Lima and was responsible for patrolling a section of the capital against actions of the guerilla group Sendero Luminoso ("Shining Path").
[3] On August 25, 1995, he was in charge of a unit that arrested some suspected members of Shining Path. During the operation, his troop wounded and killed one individual, later identified as a local head of cell of the guerilla group.
[4] On August 28, the applicant learned that someone was enquiring about him at his military base. Three days later, he received an anonymous threatening phone call, which he considered to be a prank.
[5] On September 1, while the applicant was walking between his home and his base, three people got out of a car and started shooting at him. The applicant, who carried a service pistol, fired back and ran to his house. He later went back to the military base and reported the incident to his superior. He was then told that he was not important enough to warrant special protection and that he could defend himself by using his service weapon.
[6] That same night, the applicant decided to leave Peru. He took his family to the home of relatives, and with their help, he obtained enough money to leave the country. He left on September 8, 1998, and flew to Los Angeles. He later arrived in Canada and claimed refugee status.
[7] The applicant did not seek protection from anybody other than his immediate military superior. He did not request a military transfer to another location in Peru, and no evidence was given that any other members of his unit had been targeted by Shining Path.
The Refugee Board Decision:
[8] The Refugee Board concluded that the applicant had an internal flight alternative (an "IFA") available, but never asked to be transferred to a safer area of the country. The Board determined that state protection was available to the applicant, and that he would not suffer more than a "mere possibility" of persecution in today's Peru.
The Issue:
[9] At issue is whether the Refugee Board committed an error of law based on erroneous findings of fact as to the possibility of an IFA and the availability of state protection.
Analysis:
[10] Counsel for the applicant submits that the Board ignored a significant amount of objective evidence. In support of his position, counsel refers to excerpts or portions of the documentary evidence filed before the Board. However, it must be remembered that a Board decision is to be viewed and analyzed in its entirety. One cannot "dissect" the evidence and use only specific portions in isolation to confirm one's point of view. It is my respectful view that the documentary evidence, read as a whole, tends to demonstrate that the political situation in Peru is improving.
Internal Flight Alternative:
[11] In any IFA finding, a Board is required to be satisfied, on a balance of probabilities, that there is no serious possibility for the claimant to be persecuted if returned to his country of origin. The question is not whether or not the applicant wanted to move to another region of the country, but whether it is reasonable to expect him to make do in that location, before travelling halfway around the world to seek refuge.
[12] In the present case, the applicant was a military officer for more than ten years. He is well trained and demonstrated to the Board his ability to defend himself. After reviewing the documentary evidence regarding the situation in Peru and taking into consideration the applicant's special situation, I cannot view the Board's finding as unreasonable. In spite of some reports of human rights abuses by the Peruvian government, police and military officials, it is my respectful view that there was sufficient documentary evidence before the Board to support its conclusion that the situation in Peru was improving and that an IFA was available to the applicant in another part of the country.
State Protection:
[13] In analyzing the availability of state protection, a Board must presume that a state is able to protect its citizens unless there is a complete breakdown of the state apparatus. The protection of another state is necessary only when a claimant's state of origin cannot, or will not, protect him. However, a claimant will not meet the definition of Convention Refugee if it is "objectively unreasonable for him not to have sought the protection of his home authorities".
[14] In its decision, the Board concluded that the applicant could get proper state protection, but did not seek it from all possible sources. The Board based its decision on the applicant's testimony regarding the way he defended himself while under attack. The fact that he was an experienced soldier, that he was not an important figure in the military and that he left without seeking help from anyone other than his superior or even asking for a transfer to another base, all of these are elements which the Board considered before quite reasonably concluding as it did.
Conclusion:
[15] It is obvious that the Board went to some length to review the heavy documentary evidence submitted by the applicant, and I fail to see where any error of fact or of law could be ascribed to its findings.
[16] This application for judicial review must therefore be denied.
L-Marcel Joyal
J U D G E
O T T A W A, Ontario
January 23, 1998.
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