Date:
20100520
Docket:
IMM-5572-09
Citation:
2010 FC 557
Montréal, Quebec, May
20, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
WILLY
ELIEU DOMINGUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
1984, the applicant, a citizen of Guatemala, claimed refugee
protection in Canada, alleging a
fear of the army, but returned to his country because, he claims, of the poor
state of his father’s health. The refugee claim was rejected.
[2]
Back
in Guatemala, he was
ordained as a priest in 1990. In 2003, he was assigned as priest to the St. Peter
and St.
Paul
parish, where there were conflicts. He received death threats and someone fired
shots at the church. On February 20, 2008, he was kidnapped by four individuals.
He was hospitalized for two days. He fled and went into hiding in Quetzaltenango.
He learned that the Maras (gangs) were looking for him. He once again decided
to leave the country.
[3]
In
April 2008, the applicant returned to Canada and claimed refugee protection a
second time, after having spent two days in the United States without
seeking asylum there.
[4]
The
panel found that there was a lack of subjective fear, and that the applicant
had failed to rebut the presumption of state protection. This is a judicial
review of that decision.
ISSUES
[5]
The
following issues must be examined:
a. The finding
of a lack of subjective fear.
b. The finding
that the applicant had not rebutted the presumption of state protection.
FEAR
[6]
The
case law clearly establishes that a refugee claimant’s fear of persecution must
contain two elements. The claimant must have a subjective fear and, furthermore,
there must be an objective basis for that fear. Given that Mr. Dominguez had
family in Canada and was
simply passing through the United States, I do not think the RPD was justified
in finding that the fact that he did not seek asylum in the United
States
demonstrated a lack of subjective fear on his part. However, it is not necessary
to examine that aspect of the decision given that I am satisfied that the
finding that Mr. Dominguez had not rebutted the presumption of state protection
was reasonable.
STATE PROTECTION
[7]
As
a preliminary issue, counsel for the Minister objected to the allegation in the
applicant’s memorandum that [translation]‘‘ [t]he
current president of Guatemala was directly accused of
killing a lawyer…’’, on the ground that this alleged fact was not before the
panel.
[8]
Except
under circumstances that do not apply here, a judicial review is based on the
record of the tribunal whose decision is under review. Mr. Dominguez’s counsel
admitted that this allegation had not been submitted to the panel; therefore, I
will not take it into consideration.
[9]
The
panel found that Mr. Dominguez had made no reasonable effort to seek state
protection in Guatemala. This
finding is completely reasonable. However, the next issue is to determine what
would have probably happened had he sought protection from Guatemala.
[10]
Mr.
Dominguez submits that this decision is overly optimistic in that, while the
panel did acknowledge that there were many problems with corruption, it failed
to analyze the nature of the corruption.
[11]
In
my view, it was open to the panel to reach the finding that it did with regard
to state protection. For example, as the Minister stated:
[translation]
22. The documentary evidence in the
record shows that, in spite of numerous problems linked to crime and to the
conduct of police in Guatemala, the authorities are making
efforts to fight street gangs and to improve the judicial system, including:
·
Convictions
against police officers for extrajudicial killings of gang members;
·
A high
incarceration rate for gang members;
·
Raids and
operations against gangs in high-crime neighbourhoods, despite some problems of
police conduct with regard to suspects;
·
Hundreds
of arrests of gang members, forcing these gangs to change locations;
·
An
increase in the number of murder charges laid;
·
More
resources for the public prosecutor to investigate crimes;
·
The
deployment of troops from the Guatemalan army to help police forces who have
trouble reining in street gangs;
·
Logistical
support provided to police by secret military services to find members of
criminal gangs;
·
Cooperation
with a number of Canadian state entities, including the Canadian government,
the Law Courts Education Society, the government of British Columbia and
the Royal Canadian Mounted Police, in order to improve Guatemala’s criminal
justice system.
[12]
While
the state protection available might not have been perfect, the finding that it
was adequate was not unreasonable within the meaning of Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190. The applicant is asking this Court to re-weigh
the evidence. This would be inappropriate.
JUDGMENT
FOR THESE
REASONS,
THE COURT ORDERS
AND ADJUDGES that:
1.
The
application for judicial review is dismissed.
2.
The
matter raises no serious question of general importance for certification.
‘‘Sean Harrington’’
Certified true
translation
Sebastian Desbarats,
Translator
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