Martinez-Rios v. Canada (Minister of Citizenship and Immigration), docket IMM-1429-98

Date: 19990311

Docket: IMM-1429-98

BETWEEN:

     JORGE ARMANDO MARTINEZ-RIOS

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

     (Delivered orally from the Bench

     on March 2, 1999, as edited)

McKEOWN J.

[1]          The applicant seeks judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated March 4, 1998, in which the Board found that the applicant, a citizen of El Salvador, is not a Convention refugee.

[2]          There are two issues: (1) whether the Board ignored evidence or based its decision on an erroneous finding of fact made in a perverse or capricious manner in deciding on the applicant"s credibility; (2) whether the Board erred in its finding that the applicant could obtain protection from the state.

[3]          On the first issue, the applicant submitted that the Board failed to consider information on death squads other than the Black Shadow. There was considerable evidence on death squads generally, but the applicant referred to being threatened by a death squad known as the Black Shadow and that his friend, Rody Gaitan, received the same type of calls from the death squad and the Black Shadow. It was open to the Board to focus on the documentary evidence to find that the murder of the Gaitan family did not fit the modus operandi of the Black Shadow and to draw from this conclusions regarding the credibility of the applicant"s claim.

[4]          The applicant also submits that the Board erred in its finding, at page 11 and 12 of the Applicant"s Record:

     Although there is mention in the documentary evidence of ex-combatants from the civil war being threatened, the ex-combatants are not identified therein as former guerillas nor was warfare the claimant"s principal activities in the war.

[5]      The applicant submitted approximately 100 pages of evidence after the hearing, none of which is referred to in the Board decision and which the applicant submits directly contradicts the Board"s findings. Although the applicant stated in his PIF that he was an FMLN guerilla as a teenager, in his testimony, he stated his main duty was to treat the wounded. It was open to the Board to find, at p. 11 of the Applicant"s Record:

     The claimant did not have any problems from 1989 until six years later, three years after the Peace Accords were signed. The claimant was primarily a medic in the war, and a full time nurse and administrator at a hospital and a part time student after the war and in particular after the Peace Accords were signed in 1992. His political involvement was minor and at a local level.

[6]      The documentary evidence submitted by the applicant shows the following groups to have been targeted by the death squad: guerillas engaged in warfare, public figures, politicians and criminals. The Board did not find that the applicant fell into one of these categories. The Board"s finding on this point was open to it.

[7]      With respect to the second issue, the applicant submits the Board seriously misconstrued the evidence on which it relied in finding that he could obtain protection from the state, particularly the PNC.

[8]      It is important to remember that an applicant from a democratic state such as El Salvador faces a high burden of proof in attempting to establish lack of state protection. The test, in part, is referred to by Justice LaForest in Canada v. Ward, (1993) 103 D.L.R. (4^th) 1 at p. 23:

... On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of the state"s inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant"s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali , it should be assumed that the state is capable of protecting a claimant.

[9]      Mr. Justice Gibson, in Smirnov v. Canada (Secretary of State) [1995], 1 F.C. 780 at paragraph 11, elaborates on this test:

... The investigations that were undertaken may not have been pursued with the diligence that the applicants here would have preferred. The reporting by police or militia to the claimants, when demanded, may not have been given with the sensitivity, understanding and respect that victims deserve. Unfortunately, that is too often the case, even here in Canada. It is a reality of modern day life that state protection is sometimes ineffective.

[10]      In the case before me, the applicant never sought the protection of the state or the PNC in particular. The Board quoted two paragraphs from a response to information request, and omitted the third paragraph which referred to articles which reveal that the protection is less than perfect. All prosecutions were not successful or quick. However, that is not the test. It was open to the Board to conclude that the applicant would obtain protection from the PNC. Absent a situation of complete breakdown of state apparatus, it is generally presumed that a state is able to protect a claimant and a claimant must provide clear and convincing confirmation of his state"s inability to protect. Such evidence was not before the Board.

[11]      The application for judicial review is dismissed.

     William P. McKeown

     JUDGE

OTTAWA, Ontario

March 11, 1999