Date: 20051017
Docket: IMM-7842-04
Citation: 2005 FC 1417
Ottawa, Ontario, October 17, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
RODRIGO VILLANUEVA GONZALES
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Rodrigo Villanueva Gonzales is a Filipino citizen who seeks refugee protection on the basis of his alleged fear of rogue policemen who robbed and threatened him. The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Gonzales' claim. Although the Board accepted that the robbery took place, it also found that the robbers were not policemen, but rather were common criminals. Moreover, the Board found that Mr. Gonzales' failure to seek refugee protection while he was in the United States and the fact that he voluntarily returned to the Philippines were inconsistent with his having a genuine subjective fear of persecution. Finally, the Board found that adequate state protection was available to Mr. Gonzales in the Philippines, and that he had failed to make reasonable efforts to obtain police assistance.
[2] Mr. Gonzales submits that the Board erred in its assessment of the facts, and that the finding that the robbers were not police officers was patently unreasonable. Moreover, he says, the Board erred in applying the wrong test in relation to the issue of state protection, and did not properly consider his explanations for his reavailment and his failure to seek refugee protection in the United States. Each of these issues will be addressed in turn.
Background
[3] Mr. Gonzales works as a seaman, travelling the world in connection with his employment. The Board accepted that when Mr. Gonzales returned to the Philippines in February of 2000, he was approached by two men dressed in street clothes, who flashed badges at him, and ordered him into their civilian automobile. The men proceeded to rob Mr. Gonzales, and then dumped him on the outskirts of Manila. According to Mr. Gonzales, the men told him that they would kill him if he went to the police.
[4] Mr. Gonzales says that he decided to report the incident to the police, but that as he was walking to the police station, he saw the two men following him. He was afraid, and decided not to report the matter. Mr. Gonzales says that the men came to his house later in the day, and told his son that Mr. Gonzales had better keep his mouth shut, or the entire family would be killed. Mr. Gonzales says that he went into hiding until June of 2000, when he returned to his ship for another tour of duty.
[5] Mr. Gonzales says that while he was away, the men came to his house on several occasions, and threatened his family. Mr. Gonzales returned to the Philippines in January of 2002, and stayed there for three months. In April of 2002, Mr. Gonzales decided to go to Canada as a tourist, and start a new life. He arrived in Canada on April 3, and claimed refugee protection a month later.
Did the Board Err in Finding That the Robbers Were Not Police Officers?
[6] The Board accepted that the events described by Mr. Gonzales actually occurred, but found that the robbers were not police officers but common criminals impersonating police officers.
[7] In coming to this conclusion, the Board noted, amongst other things, that the officers flashed their badges in a way that made it impossible for Mr. Gonzales to see them. The robbers were not wearing police uniforms, nor were they driving a police car.
[8] According to counsel for Mr. Gonzales' these are "very light factors" on which to base the finding that the robbers were common criminals. It is clear from the way that counsel expressed his argument that what he takes issue with is the weight that the Board attached to these considerations in finding that the robbers were not the police. The weight to be ascribed to the evidence is a matter for the Board, and counsel has not persuaded me that the Board's conclusion in this regard was patently unreasonable.
Did the Board Err in Relation to the Issues of Delay and Reavailment?
[9] Mr. Gonzales submits that the Board erred in finding that Mr. Gonzales' failure to seek refugee protection in the United States and his decision to return to the Philippines in January of 2002 were inconsistent with a subjective fear of persecution on his part. According to counsel, the Board erred in failing to properly consider Mr. Gonzales' explanations for his actions.
[10] Once again, a review of the Board's decision does not bear this out. The Board considered, and rejected, Mr. Gonzales' explanation for his failure to apply for refugee protection in the United States. Moreover, the Board considered the somewhat convoluted explanation offered by Mr. Gonzales for his decision to return to the Philippines after the expiry of his employment contract. The Board's conclusion that Mr. Gonzales' decision to return to the Philippines was inconsistent with a subjective fear on his part is one that was reasonably open to the Board in all of the circumstances.
Did the Board Err in Applying the Wrong Test for State Protection ?
[11] Mr. Gonzales' final argument is that, in referring to the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Villafranca, [1992] F.C.J. No. 1189, the Board erred in law in applying an incorrect test in relation to assessing the availability of state protection. According to Mr. Gonzales, the Supreme Court of Canada effectively overruled Villafranca in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689, and that, as a result, the Board should have applied the Ward test.
[12] While it appears that there may be a question as to whether aspects of the decision in Villafranca have to be considered in light of the subsequent pronouncement of the Supreme Court of Canada in Ward (in this regard see Waldman, Immigration Law and Practice, at ¶ 8.440), this issue does not have to be resolved in this case. A review of the Board's decision discloses that the Board's ultimate finding in relation to the issue of state protection was that Mr. Gonzales:
[F]ailed to discharge his onus to rebut and provide clear and convincing evidence that there is a serious possibility that state protection would not be reasonably forthcoming. Moreover, he has failed to show that he had made reasonable efforts to seek protection, which was not forthcoming or adequate.
As counsel for Mr. Gonzales properly conceded, this finding properly reflects the Ward test. As a consequence, Mr. Gonzales has failed to persuade me that the Board erred in this regard.
Conclusion
[13] For these reasons, the application is dismissed.
Certification
[14] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"Anne Mactavish"
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-7842-04
STYLE OF CAUSE: RODRIGO VILLANUEVA GONZALES
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: October 13, 2005
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER BY: Mactavish, J
DATED: OCTOBER 17, 2005
APPEARANCES BY:
Gregory James For the Applicant
John Provart For the Respondent
SOLICITORS OF RECORD:
Gregory James
Barrister and Solicitor
10 Kingsbridge Garden Circle
Suite 704,
Mississauga, Ontario
L5R 3K6 For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
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