Date: 20041001
Docket: IMM-6897-03
Citation: 2004 FC 1320
BETWEEN:
CARLOS WILFREDO FLORES VILLANUEVA
Applicant
- and -
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) dated August 6, 2003, that the applicant is not a "Convention refugee" or a "person in need of protection" as defined under sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Carlos Wilfredo Flores Villanueva (the applicant) is a citizen of Peru alleging that he fears persecution in his country by the Communist Party of Peru (PCP), also known as the Shining Path, based on his perceived political opinion. The applicant also alleges that he is a person in need of protection.
[3] The IRB determined that the applicant is not a "Convention refugee" or a "person in need of protection" because he did not establish that the Peruvian State was unable to protect him.
[4] According to the applicant, the IRB did not properly examine the issue of State protection because it did not assess the relevant evidence, such as the evidence establishing that his wife and daughters have been threatened and intimidated since he left Peru, and the evidence regarding the PCP's activities between 2002 and 2003. However, there is a presumption that all of the evidence had been considered by the IRB and the IRB is not bound to refer to all of it in its reasons (Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (F.C.A.)(QL)). A review of the transcript of hearing also shows that the IRB assessed the evidence submitted regarding the threats received by the applicant's wife and daughters. In this case, the applicant has therefore not persuaded me that the IRB indeed disregarded the evidence.
[5] It is also my opinion that the applicant did not establish that the IRB erred in its analysis regarding the protection that had been offered to him by the Peruvian State. According to Zhuravlvev v. Canada (M.C.I.), [2000] 4 F.C. 3, when the agent of persecution is not the State, the lack of state protection has to be assessed as a matter of state capacity to provide protection rather than from the perspective of whether the local apparatus provided protection in a given circumstance. The record indicates that the applicant filed complaints regarding the threats that he received and that the authorities took reasonable and necessary steps to protect him (see the applicant's report at pages 157, 162, 172, 188 and 192 of the Tribunal Record). Further, according to the newspaper article about the applicant's case, the authorities took several measures in order to open investigations to identify the persecutor (page 184 of the Tribunal Record). However, there is nothing to support the applicant's allegations to the effect that the threats came from members of the PCP; further, the authorities only had vague and imprecise information regarding the identity of the applicant's aggressor. The applicant did not provide any evidence that the police are unable to protect citizens against the PCP. As Gibson J. stated in Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780, at page 786 :
. . . This Court should not impose on other states a standard of "effective"protection that police forces in our own country, regrettably, sometimes only aspire to.
.
[6] Since I cannot find, based on my review of the evidence, that the IRB's decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the evidence before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7), I cannot substitute my own assessment of the facts for the one that was made by this specialized tribunal.
[7] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
October 1, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6897-03
STYLE OF CAUSE: CARLOS WILFREDO FLORES VILLANUEVA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 18, 2004
REASONS FOR ORDER Pinard J.
DATE OF REASONS: October 1, 2004
APPEARANCES:
Francine V. Marion FOR THE APPLICANT
Lyne Lazaroff
Caroline Cloutier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Beauchemin, Paquin, Jobin,
Brisson & Philpot FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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