Date: 20041210
Docket: IMM-4380-04
Citation: 2004 FC 1708
BETWEEN:
Gilmer Maximo FERNANDEZ MENDIZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) on April 16, 2004, that the applicant is not a Convention "refugee" nor a "person in need of protection" according to the definitions given in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Gilmer Maximo Fernandez Mendiz (the applicant) is a citizen of Peru who alleged he had a valid fear of persecution for his alleged political opinions, as he had refused to collaborate with the Shining Path. It was admitted by the IRB and the respondent that the applicant had worked since November 2002 as a security officer for the VICMER company at the Lima airport. As part of his work as a carrier of important and confidential documents the applicant was approached, threatened and attacked by members of the Shining Path.
[3] The IRB concluded that the applicant had not discharged his burden of showing that he had a valid fear of persecution in Peru and/or that he could be at risk there of a threat to his life or cruel and unusual treatment or punishment. The IRB came to this conclusion for several reasons, the principal one being that it considered the applicant had not established in a clear and convincing way that the Government of Peru was not able to protect him against the Shining Path if he returned to Peru.
[4] A general presumption exists that a government is able to provide protection for its citizens: clear and convincing evidence is necessary when the applicant seeks to establish that this is not the case (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724. The IRB concluded that based on independent documentary evidence, [TRANSLATION] "it is clear that the Peruvian authorities are able to exercise effective control over their entire territory and that institutions exist to assist and offer sufficient protection to individuals in difficulty". The panel could base its findings on the evidence it preferred (Singh v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 989 (F.C.T.D.) (QL)), and it was reasonable for it to infer that once alerted the applicant's superiors would probably have notified DIRCOTE, the anti-terrorist squad, which in turn would probably have taken security measures.
[5] I feel that the applicant has not established that the IRB made an error in its analysis regarding the protection the Peruvian government could offer him. In this connection, it is well settled that the Court cannot substitute its opinion for that of the IRB if the applicant is not able to show that the latter's decision is based on an erroneous finding of fact that it has made in a perverse or capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7). The IRB has specialized knowledge and the power to assess the evidence so long as its conclusions are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.) and its reasons are stated in a clear and comprehensible manner (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)).
[6] For all these reasons, the application for judicial review is dismissed.
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YVON PINARD
JUDGE
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OTTAWA, ONTARIO
December 10, 2004
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4380-04
STYLE OF CAUSE: Gilmer Maximo FERNANDEZ MENDIZ v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 10, 2004
REASONS FOR ORDER BY: Pinard J.
DATED: December 10, 2004
APPEARANCES:
Brigitte Poirier FOR THE APPLICANT
Marie Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Brigitte Poirier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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