Date: 20050516
Docket: IMM-1800-04
Citation: 2005 FC 703
Ottawa, Ontario, the 16th day of May 2005
Present: Mr. Justice Rouleau
BETWEEN:
GIOVANA GRISEL FLEITAS SEGUNDO
LUCAS FEDERICO LOPEZ FLEITAS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision, dated January 29, 2004, by the Refugee Protection Division (panel) that neither Ms. Fleitas Segundo nor her child Federico Lopez Fleitas are Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act).
[2] The applicant and her child are citizens of Uruguay. Her problems began on the night of May 2, 2002, when she witnessed a murder a few streets from her home. She woke up her father to tell him what had happened and he advised her to make a statement to the police the next day.
[3] On May 3, 2002, after making her statement at the police station, she received a threatening letter, which was dropped off at her home by two police officers. The letter stated that if she continued to bother them things could go very badly for her and her son. That was when she became aware that the murderers were police officers.
[4] She claims that she destroyed this letter so that the members of her family would not be endangered. The applicant alleges that the police continued their harassment by telephone and in person.
[5] The applicant submits that on May 7, 2002, she received a call from the two men who had committed the murder, telling her that her four-year-old son had been kidnapped. Later in the day, her son was returned to her in a police car. The two murderers were in the vehicle and they told her they had kidnapped her son to show her what they could do.
[6] On the day following this incident, the applicant left the city where she was living and went to her cousin's, where she remained for one month. On June 10, 2002, she left Uruguay and went to New York. From there, she travelled by bus to Canada and claimed refugee status at the border.
[7] The panel relied mainly on the principle that an asylum seeker should seek the assistance of her country before applying for international protection. The panel held that she had never contacted the police and, if she had done as she claimed, she did not do it seriously since she herself acknowledged that she had not kept the police informed of the developments occurring subsequently, which might have contributed to the police investigation into the crime of May 2, 2002.
[8] The panel also referred to Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, which states that it must be assumed that nations are capable of protecting their citizens. The security of nationals is, after all, the essence of sovereignty. Absent a complete breakdown of the state apparatus, it should be assumed that the State is capable of protecting the claimant.
[9] In view of the independent documentary evidence indicating that there is an effective police system, the panel could not, therefore, find that there was clear and convincing evidence that Uruguay would not seriously attempt to ensure adequate albeit imperfect protection to the applicant and her child if they were to return to Uruguay and inform the authorities of their problems.
[10] The applicant's submission is very short. She argues that she was unable to oppose police officers without endangering the life of her son. Moreover, she argues, she was not obliged to make exceptional efforts to obtain the protection of her country's authorities.
[11] The issue here is whether the panel committed a patently unreasonable error in its determination concerning the protection of the State.
[12] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada held that absent a complete breakdown of the state apparatus it should be assumed that the State is capable of protecting its citizens. Because of this presumption, "clear and convincing confirmation of a state's inability to protect must be provided" (Canada (AG) v. Ward, supra, at paragraph 50).
[13] I am of the opinion that the panel's decision is entirely reasonable, because the applicant has not presented clear and convincing evidence to that effect.
[14] First, there is no evidence that the applicant reported to the police station on the day after the murder. She could have presented a copy of the report, a number for it, or at least tried to take some steps to obtain it. But not only did she say she had nothing, she said she had destroyed the only documentary evidence, a threatening letter from the murderers.
[15] It was reasonable for the panel, on the basis of its specialized knowledge, to find improbable the applicant's explanations that complaints to the police are recorded [translation] "in any which way, even with mistakes ... mistakes in spelling", and that it was not possible to obtain a copy. It should be noted that the applicant contradicted herself, saying it was possible to obtain a copy of the information:
[translation]
Q. Uh-huh, but you are now telling us that in your country informations are consolidated, that is, put together in books, yes?
A. Yes.
Q. But why is it . . . it is . . . it is because you are now pointing out that they note them in a book, they are compiled and that it is easy to get a copy.
A. Yes, it is easy, but they . . . they do not give out photocopies of the informations. The information is recorded in this book and they tell you... well, you are told: "Okay, the information is recorded in this register, if you need it you can always refer to the register," but they do not deliver a copy, they do not hand you a copy.
Q. Quite recently, this panel was getting evidence of informations, evidence of depositions that had been made. Did you make a specific request to obtain evidence of your deposition to the police?
A. No, but I know that they do not hand you a copy and that it is . . . it is very hard to obtain a copy from the police.
(See the transcript of January 27, 2004, at pages 29 and 30)
[16] The panel correctly applied its expertise in this field, since it can assess a claimant's account in terms of what might reasonably be expected in a similar situation (Mutinda v. Minister of Citizenship and Immigration, [2004] F.C.J. No. 429, at paragraph 12).
[17] The applicant further alleges that she reported to the police station only once, the day after the murder of May 2, 2002, for the purpose of filing a witness report. But her problems had begun after she reported to the police station. So she did not inform the police authorities of her problems, since the only time she reported was to file an information and not to lodge a complaint against those who were uttering threats against her during the subsequent weeks.
[18] The applicant contends that she was not obliged to make exceptional efforts to obtain the protection of the authorities in her country. But the panel is not criticizing her for not making exceptional efforts; rather, it is criticizing her for not even making a single complaint:
Furthermore, the facts of the instant case do not prove that the applicant satisfies the Ward tests, since he has not given clear and convincing proof of the inability of his country of origin, Algeria, to protect him, which, we might add, he never asked it to do. . . . Before asserting that he had no chance of success either in seeking protection from the Algerian authorities or in claiming refugee status from the Italian authorities, it was still necessary for the applicant either to try to do so or, as the Supreme Court stated in Ward, to establish the reasonableness of his failure to seek such protection. In the case at bar, the applicant has not proven this. (Madoui v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1372, at para. 5)
[19] The panel also relied on the documentary evidence before it indicating that:
· The Government generally respected the human rights of its citizens, and the law and judiciary generally provided effective means of dealing with individual instances of abuse.
· At least eight police officers were jailed for abusing detainees in Maldonado and Salto. Over 400 police officers reportedly have been indicted in the last 3 years for violations ranging from corruption to abuse.
(See panel record, at pages 103 and 104.)
[20] Since the panel has found that Uruguay is not a country in which there is a complete breakdown of the state apparatus, it was therefore justified in finding that Uruguay was capable of ensuring the protection of the applicant and her child.
ORDER
The application for judicial review is dismissed.
P. Rouleau
Judge
Certified true translation
K. Harvey
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