Date: 20040908
Docket: IMM-8386-03
Citation: 2004 FC 1226
BETWEEN:
ALDO RENATO ROSSI YOKOTA
LILIANA MARIA CONTRERAS DE LA M.
ANTONELLA ENA ROSSI CONTRERAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] The applicants, citizens of Peru, are a married couple and their minor child. They seek refugee status on the basis of a well-founded fear of persecution from agents of the state in Peru.
[2] More specifically, Mr. Rossi fears persecution from a criminal group composed of active and retired personnel of the Peruvian Navy. According to his personal information form, the organization is comprised of both active and retired naval personnel whose members used their influence and resources to conduct illegal activities. Again, according to Mr. Rossi, all the members trained at the Technical Naval Instructions Centre (TNIC) were in the special operation forces. He identified one of the individuals involved in the incident with respect to which he was the victim as the nephew of a formal admiral in the navy. He also claimed that their members were active throughout Peru.
[3] The Refugee Protection Division did not challenge the veracity of Mr. Rossi's allegations. Rather, in its decision, the tribunal rejected the applicants' claim due to their failure to rebut the presumption of state protection and because of the availability of an internal flight alternative. In view of the conclusion I have reached on state protection, I need not consider the internal flight alternative issue.
[4] Nowhere in its decision does the tribunal analyse the applicants' allegations of state complicity. Instead, the tribunal proceeded with an analysis of the state protection issue by assuming, but without so finding, that the state was not complicit in the persecutory behaviour of the criminals who targeted Mr. Rossi.
[5] In my view, the failure to make any finding with respect to the central aspect of the claim is a reviewable error. This substantial oversight was compounded by another error of law. If the agents of persecution were indeed the state, the Refugee Protection Division should have considered whether the applicants' unwillingness to seek the protection of the state was based on a well-founded fear of persecution rather than whether the state was willing or able to protect the applicants. In Silva v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1161 (QL) (T.D.), Justice Denault made the following statement which I endorse:
The question is not whether the state would be willing to protect, but whether the applicant is willing to seek the protection of the state. It is the well-foundedness of the applicants' perspective regarding the state's actions which is determinative. Because the basis of the applicant's [sic] fear was the actions of individuals which, if not directly connected to the state, were identified with the ruling government, the Board erred in failing to analyze their claim from the perspective of their unwillingness to seek the protection of the state.
[6] In summary, the Refugee Protection Division could not accept the credibility of the applicants' allegations and deal with the state protection issue without making any finding as to whether the agents of persecution were in fact the state. The tribunal could not find that the applicants failed to establish the state's inability to protect them without first determining whether the agents of persecution were part of the governance of Peru.
[7] Accordingly, this application for judicial review will be granted and the matter referred to a different panel of the Refugee Protection Division for rehearing and
redetermination. Neither party suggested the certification of a serious question and none will be certified.
"Allan Lutfy"
Chief Justice
Ottawa, Ontario
September 8, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8386-03
STYLE OF CAUSE:
ALDO RENATO ROSSI YOKOTA
LILIANA MARIA CONTRERAS DE LA M.
ANTONELLA ENA ROSSI CONTRERAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: August 31, 2004
REASONS FOR ORDER : Chief Justice Lutfy
DATED: September 8, 2004
APPEARANCES:
Me Jeffrey Nadler FOR PLAINTIFF / APPLICANT
Me Sherry Rafai Far FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Me Jeffrey Nadler FOR PLAINTIFF/APPLICANT
1350 Sherbrooke St. West
Suite 900
Montreal, Quebec
H3G 1J1
Morris Rosenberg FOR DEFENDANT/
Deputy Attorney General of Canada RESPONDENT
Department of Justice
Montreal, Quebec
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