Date: 20040630
Docket: IMM-2757-03
Citation: 2004 FC 925
BETWEEN:
ALBERTO MEJIA
MARITZA BUSTES
CARLA MEJIA
ALBERTO Jr MEJIA
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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 March 31, 2003, that the applicants are not Convention refugees or "persons in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Alberto Mejia (applicant) and his dependants, i.e. his wife and their two children, are citizens of Peru. The applicant alleges that he has a well-founded fear of persecution based on his political opinion. He also alleges that he is a "person in need of protection". Specifically, the applicant fears the members of the Shining Path (SP) because he refused to give in to their extortion attempts.
[3] The IRB determined that the applicant and his family are not Convention refugees or "persons in need of protection" because the applicant is not credible, because his behaviour was inconsistent with the alleged fear and because he did not establish that the Peruvian State was unable to protect him.
[4] The IRB stated the following regarding the possibility of internal asylum and the ability of the Peruvian State to protect the applicant and his family:
The panel asked the claimant whether he could live in Lima without difficulty given the capital's distance from the place where he operated his business. He replied that he could not because the Shining Path knew where he lived.
The documentary evidence (Exhibit A-3, document 5.1) on Peru indicated that the Shining Path is active in certain regions but is not very active in the capital, other than to hand out pamphlets, and that their activities are limited to propaganda. The claimant contradicted this version in the documentary evidence and stated that the Shining Path still has a presence in the capital, indicating, for example, that a bomb had gone off close to the U.S. embassy. With respect to state protection, the claimant sought it and obtained it to a certain degree. When he was told to leave a certain amount of money, the police accompanied him to the location that the panel will describe as undetermined. The panel therefore finds that the Peruvian authorities granted him a degree of protection. Whether or not it was effective is another question that cannot be answered clearly. There appears to be, as the claimant claimed, a degree of state protection in Peru. This is not individual protection through a particular state but general protection. In this case the panel refers to the decision in Villafranca [(1992) 18 Imm.L.R. (2nd) 130 (F.C.A.), No. A-69-90/A-70-90)], in which the Court addressed the notion of protection.
[5] In my view, this assessment of the facts by the IRB, a specialized tribunal, is supported by the evidence, which leads me to essentially the same finding as that of my colleague Martineau J. in Bustamante v. Canada (M.C.I.), 2002 FCT 499, [2002] F.C.J. No. 643 (QL), at paragraph 12:
I find that the applicant has failed to show that the Board has made any error in preferring the more contemporary documented evidence about the current situation in Peru at the time of the claim which made no mention of Shining Path activity in Lima and which specifically stated that such activity is limited to remote jungle areas. The documentary evidence on file clearly shows that the Shining Path organization has been all but decimated by the Peruvian authorities. Furthermore, the Board found that the applicant did not present clear and convincing evidence that the state cannot protect him, even if the Shining Path were indeed making threatening phone calls. Based on the evidence on record, these findings were reasonably open to the Board.
[6] Further, as Pelletier J. decided in Zhuravlvev v. Canada (M.C.I.), [2000] 4 F.C. 3 (F.C.T.D.), when the agent of persecution is not the state, the lack of state protection has to be assessed as a matter of the state's capacity to provide protection rather than from the perspective of whether the local apparatus provided protection in a given circumstance. Local refusal to provide protection would not constitute state refusal in absence of evidence of a broader state policy to not extend state protection to the target group. In this case, the police's refusal to continue to watch the applicant and his family in Cajamarka cannot in itself lead to the conclusion that the Peruvian State is not able to protect them, even more so given that not only did the applicant not provide evidence tending to establish that the police are unable to ensure that citizens have adequate protection from the SP, but that even the newspaper articles that he submitted report arrests of SP members by the national police. As stated by Gibson J. at page 786 of Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780 (F.C.T.D.):
. . . 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.
[7] All that is enough to dismiss the application for judicial review without it being necessary to consider the applicants' other arguments relating to credibility and documentary evidence.
[8] Accordingly, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
June 30, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2757-03
STYLE OF CAUSE: ALBERTO MEJIA, MARITZA BUSTES, CARLA MEJIA, ALBERTO Jr MEJIA v. MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 10, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: June 30, 2004
APPEARANCES:
Kathleen Gaudreau FOR THE APPLICANTS
Caroline Cloutier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kathleen Gaudreau FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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