IMM-3321-96
BETWEEN:
AUGUSTIN
CORVERA,
Plaintiff;
-
AND -
MINISTER
OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS
FOR ORDER
(Delivered
orally on the Bench
at
Vancouver, B.C. on May 9, 1997, as edited)
McKEOWN J.
The applicant, a citizen of
El Salvador, seeks judicial review of the decision of the Immigration and
Refugee Board, (the Board), dated August 9, 1996 wherein the Board determined
that the applicant was not a Convention refugee.
The issues are whether the
findings of the Board in respect to credibility, changing country conditions,
state protection and internal flight alternative were open to it.
The Board made two findings
against the applicant with respect to credibility. The first finding related
to his brother having been "grabbed" by the military to "fill my
vacancy" after the claimant left. In my view, the Board's finding in this
respect was open to it.
The second finding was with
respect to his children. There was one statement that the applicant had stated
that the children had been persecuted because of him. There is no testimony by
the applicant to that effect. However, this error is not central to the
result, which is dependent on the findings of the Board with respect to change in
country circumstances and state protection.
The change in country
circumstances were considered by the Board, and the Board found that the
circumstances in El Salvador had changed so that the applicant no longer had a
fear of persecution should he return to El Salvador.
Yusuf v. M.E.I. (1995),
179 N.R. 11 at 12 (F.C.A.) supports the proposition that the Board's finding of
changed circumstances is a question of fact and not of law. The Board's
findings with respect to the changed circumstances in El Salvador were open to
it.
The issue of state
protection was also dealt with by the Board. The Board followed the law as set
out in Attorney General of Canada v. Ward, [1993] 2 S.C.R. 689,
although it is not specifically referred to in its decision. Under Ward,
absent a complete breakdown of state apparatus, it is presumed that a state can
protect its citizens. This is a presumption that is rebuttable in the event
that the applicant provides the Board with clear and convincing evidence of the
state's inability to protect him.
In this case the Board
found that the applicant could receive protection from El Salvador. It
acknowledged that there were instances of police misconduct, and also that
there was a breakdown in civil obedience in El Salvador. Notwithstanding these
problems with respect to state protection, the Board was satisfied:
There is no indication that this
citizen of El Salvador, former member of its armed forces could not obtain
protection from the authorities.
In my view, this finding was also open
to the Board.
In light of the finding
that the applicant had not established a well‑founded fear of persecution
today in El Salvador as a result of the changed circumstances and the
availability of state protection, I do not have to deal with the internal
flight alternative, which was dealt with very briefly in the Board's decision.
The application for
judicial review is dismissed.
"William P. McKeown"
Judge
TORONTO, ONTARIO
June 27, 1997
FEDERAL
COURT OF CANADA
Names
of Counsel and Solicitors of Record
COURT NO: IMM-3321-96
STYLE OF CAUSE: AUGUSTIN
CORVERA
-
and -
MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
DATE OF HEARING: MAY
9, 1997
PLACE OF HEARING: VANCOUVER,
B.C.
REASONS FOR ORDER BY: McKEOWN,
J.
DATED: JUNE
27, 1997
APPEARANCES:
Ms.
Antya Schrack
For
the Plaintiff
Ms.
Wendy Petersmeyer
For
the Defendant
SOLICITORS OF RECORD:
101-5125
Victoria Drive
Vancouver,
B.C.
V5P
3V1
For
the Plaintiff
George Thomson
Deputy
Attorney General
of
Canada
For
the Defendant
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