Date: 20051130
Docket: IMM-10043-04
Citation: 2005 FC 1618
Ottawa, Ontario, November 30th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
OSCAR OMAR MARTINEZ ROSALES,
SUYAPA ASUNCION GALINDO DE MARTINEZ,
OMAR JOSUE MARTINEZ GALINDO, INDIRA PATRICIA MARTINEZ GALINDO,
GABRIELA CECILA MARTINEZ GALINDO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the "Board") dated November 9, 2004 in which the applicants were found not to be Convention refugees or persons in need of protection because there is adequate state protection for them in Honduras.
FACTS
[2] The applicants, a father, mother and three children, are citizens of Honduras. The principal applicant, Mr. Martinez Rosales, claims a well-founded fear of persecution at the hands of persons associated with Jorge Medrano, who would kill or physically harm his family if they return to Honduras. The claims of the other applicants are based on Mr. Martinez Rosales' claim for refugee protection.
[3] On December 25, 2002 the applicant returned home and prevented Jorge Medrano from sexually assaulting his daughter Gabriela. The applicant "beat-up" Medrano, at that time his daughter's boyfriend. Following that incident, Medrano's father vowed revenge against the applicant and is thought to have engaged the collaboration of criminals. Specifically, the applicant claims:
i. on two occasions, Medrano and his father attended the applicant's workplace and threatened him with physical harm;
ii. both the applicant and his daughter received threatening phone calls at work and at home;
iii. Medrano made it known he would not allow the daughter to have another boyfriend;
iv. on January 6, 2003 four men committed a drive-by shooting against the applicant's home; and
v. on May 10, 2003 assailants in one vehicle fired shots at the applicant's vehicle on a highway.
[4] The applicant feared for his family's safety and obtained Canadian visitor visas. Thereafter, the applicants arrived in Canadaand sought refugee protection.
THE DECISION
[5] The Board rejected the applicant's claim because there is adequate state protection for him in Honduras. The panel found the applicant's testimony to be credible, but found he did not rebut the presumption of state protection because he failed to seek police protection on any occasion. The Board concluded the applicant could only seek international protection after first seeking national protection in Honduras.
ISSUE
[6] The sole issue raised in this application is whether the Board erred in finding that state protection is available for the applicants in Honduras.
STANDARD OF REVIEW
[7] The standard of review for a decision of the Board on a question of state protection is reasonableness simpliciter. (Chaves v. Canada(Minister of Citizenship and Immigration)(2005), 45 Imm. L.R. (3d) 58 at para. 11, Tremblay-Lamer J.) Absent the complete breakdown of the state apparatus, the onus lies on the applicant to adduce clear and convincing evidence to rebut the presumption of state protection on a balance of probabilities. (Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 50, LaForest J.)
[8] As Madam Justice Eleanor Dawson held in Maszynski v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1329 at paragraphs 7 and 8, for the Board to reach a conclusion with respect to state protection, the Board must make certain findings of fact which can be set aside if they are patently unreasonable (i.e. perverse, capricious or without regard to the material before the Board). Then these findings must be assessed against the legal test for state protection, which is a mixed question of fact and law reviewable on a reasonableness simpliciter standard of review. Accordingly, the Court must break down the review into two parts.
ANALYSIS
Part 1: Did the Board draw a patently unreasonable finding of fact with respect to the adequacy of state protection?
[9] The Court will not engage a re-weighing of the Board's fact finding on its merits. The Court will intervene where such findings are patently unreasonable, but will not disrupt reasonable findings which the Court may have concluded differently. (Chen v. Canada(Minister of Citizenship and Immigration), 2002 FCT 1194 at paragraphs 4-5; Aguebor v. (Canada) Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). The applicant submits that the Board made patently unreasonable findings of fact on which it concluded adequate state protection exists. Specifically, the applicant submits the Board erred by:
(a) ignoring documentary evidence which corroborates the applicant's claim that state protection, if sought, would not be forthcoming; and
(b) ignoring the daughter's testimony that she had personal knowledge of instances the Honduras justice system failed to protect women from violence;
(c) misconstruing the applicant's testimony that the Maras criminal gang in Honduras may be hired to kill or execute violent reprisals with impunity.
(a) Documentary evidence
[10] The panel found that documentary evidence indicates the government of Honduras has taken serious, effective measures to curb violence against women and domestic abuse. It cited evidence that the national government has sought to implement its own 1997 Law Against Domestic Violence and reduce crimes against women. The applicant submits that the Board failed to consider the totality of evidence in concluding that state protection exists. He further submits state assistance would not have been forthcoming, for which reason he did not seek police protection in Honduras.
[11] The Board is assumed to have weighed and considered all evidence before it, unless the contrary is shown (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 at para. 1 (F.C.A.)), and the panel need not mention each evidentiary minutiae in its reasons, provided it considers the totality of evidence (Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). However, the Board must refer to and distinguish important, relevant and contradictory evidence, or else the Court will assume such evidence was ignored. See Bains v. Canada(Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 296 (F.C.T.D)) and Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration)(1998), 157 F.T.R. 35 (F.C.T.D.) at paragraph 17.
[12] The Court has reviewed the documents before the Board and concludes the panel did not ignore contradictory evidence or unreasonably conclude that they sustain a finding that state protection exists for the applicant in Honduras on a balance of probabilities. The panel's reasons at pages 3-4 refer to evidence corroborating the applicant's claim, and it cannot be said that the Board ignored such evidence in arriving at its decision:
[...] Counsel cited references in the documentary package that indicate that there is a high level of violence against women in Honduras, and that there is evidence of corruption among the police. One document reports the government has had to dismiss as many as 300 police officers for improper conduct.
(b) Viva voce evidence
[13] The principal applicant and his daughter both explained that they did not report the sexual assault to the police because it would be pointless. The Board obviously considered this evidence when it held at page 3 of its reasons:
The claimants have stated that they made no efforts at seeking help of the police or judicial authorities in Honduras because they believe that it would have been futile. The daughter alleged that neither did she nor the family ever consider that option, as her story would not have been believed. The claimants allege that there is corruption among the police and authorities in Honduras, and that the police themselves are heavily engaged in their fight against the well-known criminal gang known as the "maras".
(c) Misconstrued evidence
[14] The panel concluded that the applicant failed to resort to national state protection which would have been forthcoming if sought. The applicant submits the Board erred in misconstruing his testimony at the hearing, which evidence suggests corruption in the police that allow the Maras gang to operate with impunity. It is the applicant's testimony that since these criminal elements operate free of state intervention, state protection would be either not forthcoming or ineffective. On a reading of the record and the Board's reasons, the Court is not satisfied the panel misconstrued the evidence. For example, the US Department of State Report for 2003 at page 124 of the Record cites an incident on April 5, 2003 where the police killed 61 gang members. Obviously the police are trying to control the gangs. It is not for the Court to reweigh this evidence, and the applicant has not shown the panel's conclusion to be patently unreasonable in this regard.
[15] The applicant submits that the Board cited three footnotes referring to evidence not before the Board. The Court has reviewed the record and is satisfied the panel mistakenly cited this evidence. However, the evidence in the record reasonably supports the Board's conclusion that the Government of Honduras has made serious attempts to implement the 1997 Law Against Domestic Violence and punish crimes against women. The applicant has not shown these findings to be patently unreasonable.
Part 2: Board's conclusion regarding state protection
[16] Having not been shown to rely on any patently unreasonable finding of fact or findings unsupported by evidence in the record, the Board's decision withstands a somewhat probing inquiry with respect to its conclusion that there is adequate state protection in Honduras which the applicants should have sought before claiming refugee status in Canada. Accordingly, this Court will not intervene.
[17] The parties did not propose a question of general importance for certification, and none is certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen"
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