Date: 20050309
Docket: IMM-1895-04
Citation: 2005 FC 343
Ottawa, Ontario, this 9th day of March, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
LUIS ROBERTO AREVALO ESPINOZA et al.
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are a family from El Salvador. They claim a well-founded fear of persecution at the hands of an influential corrupt businessman and alleged criminal. They claim that the state of El Salvador is unwilling and unable to afford them protection.
[2] The principal applicant before the Immigration and Refugee Board - Refugee Protection Division ("the Board") was Marta Arevalo, who worked at a bank in San Salvador. She alleges that in May 2002 she questioned the deposit of funds by one of the bank's wealthy clients, Mr. Viana. She also reported to the authorities in July 2002 her suspicions that he was laundering money through her bank. Mr. Viana was investigated and arrested in December 2002 (he appears to have been charged with murder and attempted murder as well as with money laundering). His assets have been frozen, though he has apparently been conditionally released pending his trial on the outstanding charges.
[3] Mrs. Arevalo alleges that she was repeatedly threatened by Mr. Viana both before and after his assets were frozen and he was arrested. He and his associates threatened that she would lose her job, that her children would be kidnapped, and that her family would be harmed. On two occasions, her car was followed. She never reported these incidents to the police.
[4] During the period of alleged persecution, in late July to August 2002, the applicants went to visit relatives in the United States, but returned to El Salvador. The applicants finally left El Salvador on February 1, 2003. They stayed in the United States until March 20, 2003, when they entered Canada and claimed refugee status.
THE BOARD'S DECISION
[5] The Board had serious concerns about the credibility of the applicants because of their reavailment to El Salvador from the United States, their failure to make a claim in the US on two occasions, and their delay in coming to Canada. However, the Board's determinative findings were that it was not objectively reasonable for the applicants to have failed to seek state protection in El Salvador before coming to Canada and that they would be granted protection upon their return.
[6] Central to this application are certain findings by the Member, reproduced below:
I refer to the presumption of state protection set out in the Supreme Court of Canada decision in Ward. States are presumed to be capable of protecting their citizens and it is the claimant's burden to rebut the presumption of state protection with "clear and convincing" evidence of the state's inability to protect. I find, on the evidence, that the claimants have not rebutted that presumption. (Decision at page 2)
I considered the documentary evidence before me respecting criminal activities in El Salvador and the state protection available to nationals and residents of El Salvador who are victims of such crime. I find that this documentary evidence does not corroborate the female claimant's allegation that police and government authorities are unable or unwilling to provide her and her immediate family with protection respecting Mr. Viana. [emphasis added] (Decision at page 3)
Based upon the documentary evidence before me, I accept that crime and violence such as kidnapping continue to be a problem in El Salvador. I also accept that police, prosecutorial and judicial authorities are inefficient and sometimes corrupt. However, for the following reasons, I find that the foregoing documentary evidence does not corroborate the claimant's allegation that the police and government authorities in El Salvador are unable or unwilling to provide them with protection from Mr. Viana and his family members or associates. I find that police and government authorities are making serious efforts to improve the PNC and judicial system and provide better protection to citizens. [emphasis added] (Decision at page 4)
Based upon the documentary evidence before me, I find that El Salvador is in effective control of its territory and has military, police and civil authority in place. (Decision at page 5)
I also considered the documentary evidence that the claimants have submitted into evidence respecting Mr. Viana, being three news articles reporting on Mr. Viana's illegal activities in El Salvador and his subsequent arrest. I find that this documentary evidence corroborates my finding that state authorities in El Salvador would afford protection to the claimants respecting Mr. Viana. [emphasis added] (Decision at page 6)
ISSUES
[7] The following issues were argued before me:
1. What is the appropriate standard of review?
2. Did the Board err in applying the test for state protection, or alternatively, did it ignore significant evidence of a failure of state protection?
ARGUMENT & ANALYSIS
1. Standard of Review
[8] The applicants submit that the standard of review in this case should be correctness, because the Board has committed an error of law; alternatively, the standard of review should be reasonableness, as this is a question of mixed fact and law.
[9] The respondent submits that the Board's finding that there is adequate state protection forms a part of its conclusion that there is no serious possibility of persecution. The appropriate standard of review is patent unreasonableness: Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689 at 712; Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280 (T.D.); Chorny v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 289.
[10] If the Board has in fact erred in law, I accept that the appropriate standard of review would be correctness. However, if there is no error of law, in my view, this case ultimately raises the same question as was recently considered in Persue v. Canada 2004 FC 1042:
The issue raised in this judicial review application is whether the Board's finding of the existence of state protection amounts to a reviewable error. To this question, the standard of patent unreasonableness applies (Alli v. Canada (Minister of Citizenship and Immigration) (2002), 20 Imm. L.R. (3d) 252 (F.C.T.D.)).
I agree that the same standard applies here.
2. State protection
[11] The applicants submit that the Board accepted that they had a subjective fear. There was no negative credibility finding. Mrs. Arevalo refused to seek state protection because she believed that to do so would put her and her family in more danger because of police corruption and because of her fear that Mr. Viana would find out that they had sought protection against him. The respondent does not dispute this submission.
[12] According to the applicants, the Board misstated the law as determined by the Supreme Court of Canada in Ward v. Canada (A.G.), [1993] 2 S.C.R. 689. As long as unwillingness to protect is made out, the ability of a state to protect is not determinative of a refugee claim. Not seeking state protection does not end the matter because, according to Ward at 724, a claimant is not "required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness."
[13] The Court in Ward dealt with inability to protect, not unwillingness to protect, the applicants argue. In cases where the claimant has established unwillingness to protect, it can be presumed that a refusal to seek out state protection is reasonable. The appropriate question is whether the state is willing to protect the claimant, not the population generally. The Board member erred by finding only that the claimants did not rebut the presumption of the state's ability to protect. The claimants did not need to show inability to protect if they could demonstrate an unwillingness to protect. The Board consequently analysed the claim on the wrong basis.
[14] The applicants submit that the "clear and convincing" evidence test does not apply to unwillingness to protect, and the Board errs in suggesting that Ward says that it does. The standard of proof ought to be a reasonable possibility that the state is unwilling to protect because the finding is central to the well-foundedness of the fear: Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.); Chen v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 118; Ponniah v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 32.
[15] The applicants contend that there is plenty of evidence in this case showing a serious possibility of state unwillingness to protect. The Board analysed the country condition information, but did not analyse the state willingness to protect these particular claimants. This is an error because it is not responsive to the claim and consequently ignores relevant evidence of a lack of political will to combat corruption.
[16] The applicants submit that the respondent ignores the history of Ward. The whole case was based on the difference between state complicity and state breakdown. There can be one without the other. In Ward, the government was willing to protect Mr. Ward, but admitted that they were not able to do so. In this case, the claim was that the government is neither able nor willing to protect Mrs. Arevalo and her family. In rejecting the first possibility, the Board failed to consider the second, and thus erred.
[17] The applicants submit that even if the legal approach is correct, the conclusion is still perverse, given the facts presented and the country condition information. The Board member was very selective and misleading in his choice of information, and ignored evidence that Mr. Viana might be well enough connected to benefit from impunity.
[18] In response, the Minister submits that the rationale underlying international protection is that it is surrogate protection, activated only upon failure of national protection. The claimant is not a refugee where it is objectively unreasonable for the claimant not to have sought the protection of her home authorities. Clear and convincing evidence of an inability to protect is required: Ward at 709, 726, 724.
[19] The standard for rebutting the presumption of adequate state protection, including both willingness and ability to protect, is clear and convincing evidence to that effect. When Ward is read as a whole, this is evident: see also UNHCR Handbook at para. 65; Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.); Surujpal v. Canada (Minister of Employment and Immigration) (1985), 60 N.R. 73 (F.C.A.).
[20] The Minister argues that the concept of adequate state protection includes both ability and willingness to protect. Thus, the evidentiary standard established in Ward should apply to both questions. The decisions in Ward and in this Court since Ward are contrary to the applicants' position: Pehtereva v. Canada (Minister of Citizenship and Immigration)(1995), 103 F.T.R. 200 (T.D.); Judge v. Canada (Minister of Citizenship and Immigration) 2004 FC 1042; Doka v. Canada (Minister of Citizenship and Immigration) 2004 FC 449; Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.).
[21] The respondent submits that the finding of adequate state protection was reasonably open to the Board, upon an examination of both the documentary evidence and the evidence of the circumstances in this case. In particular, the Board considered the specific documentary evidence related to Mr. Viana, and found that the state was taking necessary measures to prosecute him and was imposing conditions upon his release. The applicant is in effect asking for a reweighing of the evidence.
Analysis
[22] The Supreme Court held in Ward that a claimant should not have to take the risk of seeking ineffective state protection. At page 724 the court stated:
[O]nly in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
In this case, the Board found that effective state protection existed. Its analysis very thoroughly covered the question of El Salvador's ability and willingness to protect its citizens generally. In a less thorough, but still adequate manner, the Board considered whether the state would be able and willing to protect the individual applicants from Mr. Viana. It acknowledged that the protection afforded may not be perfect, but this is not the standard required.
[23] The unavailability of state protection is a factual conclusion that may, but need not necessarily, lead to a finding of an objectively well-founded fear. Conversely, if there is no finding of an objective danger to the applicant, state unwillingness to protect is irrelevant. Factual conclusions such as these should be made on a balance of probabilities based on clear and convincing evidence. In this case, the Board declined to find, on the evidence before it, that state protection was unavailable either because the state was unwilling or unable to provide it.
[24] While there is no absolute requirement that the applicant approach the state for protection (Doka, supra), that is one possible way of establishing with clear and convincing evidence that the state is unwilling or unable to protect. In cases where state protection would reasonably be forthcoming (such as the Board found was the case here), the claimant's failure to approach the state can defeat the claim: Ward, supra. The failure of the applicants to seek that objectively available protection was a factor that could be and was considered.
[25] However, the Board did not refuse the claim on this basis. Rather, it found that, based on all of the evidence, there was no objectively well-founded fear. The Board's findings related both to the state's ability and willingness to provide protection. In fact, given that the Board did not specifically disbelieve the evidence of the applicant, it may well have believed that she was unwilling to seek state protection for the very reasons she alleged. However, those reasons were not objectively reasonable and, in any case, have nothing to do with the willingness of the state to protect her.
[26] The onus was on the applicants to provide clear and convincing evidence that the state was either unable or unwilling to provide effective protection. This was not done. Read as a whole, the reasons of the Board both address the question of adequacy of state protection and are responsive to the claim as framed.
[27] In effect, the applicant is asking me to re-weigh the evidence of state protection. I find that the Board did not err in this respect. All of its conclusions were reasonably open to it on the record and I do not find that it ignored any significant evidence supportive of the claim. Accordingly, this application is dismissed.
[28] A number of questions were proposed by the applicants for certification:
1. Should the statement by the Supreme Court of Canada in Attorney General of Canada v. Ward at 725 that "nations should be presumed capable of protecting their citizens" be read to subsume the principle that "nations should be presumed to be willing to protect their citizens"?
OR
Does the Supreme Court of Canada case of Attorney General of Canada v. Ward, include in the concept of a state's inability to protect those situations in which the state is unwilling to protect?
2. If not, is there a presumption of state willingness to protect which a claimant must rebut on a standard of clear and convincing evidence, or is it sufficient for a claimant to establish a reasonable possibility of unwillingness to protect?
3. Does the Refugee Protection Division of the Immigration and Refugee Board err in law when it considers a state's ability to protect as relevant to a state's willingness to protect?
[29] It should be clear from the above analysis that, on the facts of this case, it would not be appropriate to certify the first and third of these questions, as they are not determinative of the application for judicial review. With regard to the second question, I consider that it is settled law that the standard of clear and convincing evidence applies to rebut the presumption that a state is willing to protect its nationals. Consequently, no questions will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No questions are certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1895-04
STYLE OF CAUSE: LUIS ROBERTO AREVALO ESPINOZA ET AL.
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 16, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: March 9, 2005
APPEARANCES:
David Matas FOR THE APPLICANT
Sharlene Telles-Langon FOR THE RESPONDENT
SOLICITORS OF RECORD:
DAVID MATAS FOR THE APPLICANT
Barrister & Solicitor
Winnipeg, Manitoba
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Winnipeg, Manitoba
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