Date: 20101022
Docket: IMM-1412-10
Citation: 2010 FC 1041
[UNREVISED CERTIFIED ENGLISH
TRANSLATION]
Ottawa, Ontario, October 22, 2010
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
NELSON RUBEN RALDA GOMEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review under subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA),
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated February 23, 2010, which rejected the
applicant’s claim for refugee protection and determined that he was not a
refugee within the meaning of section 96 of the IRPA or a “person in need
of protection” within the meaning of section 97 of the IRPA.
Background
[2]
The applicant is a citizen of Guatemala. He fears being
threatened by a criminal gang, the Mara Salvatrucha (Maras), if he
returns to his country.
[3]
The applicant was a fisherman. In December 2004, when he was fishing
with a friend, he was allegedly approached by the Maras, who tried
to extort them by demanding that they hand over their catches three days per
week. They complied with this demand until December 2005.
[4]
On December 20, 2005, the Maras demanded that they
hand over their catches every day. The applicant’s friend refused, and the Maras beat him
and threatened to kill him. On December 25, 2005, the applicant and
his friend went back to fish but decided to throw most of their catch back into
the water rather than give it to the Maras. The Maras beat the
applicant and his friend when they noticed the small catch they had brought. The
applicant managed to flee. He went home during the night, and his parents told
him that they had been visited by the Maras, who were looking for
him. The applicant went into hiding at his uncle’s home in Retalhuleu. On
December 25, 2005, the applicant’s mother advised him that his friend
had disappeared and that the Maras were looking for him everywhere, even in Retalhuleu.
[5]
The applicant left Guatemala on January 15, 2006, and went to the United
States. He remained there until he came to Canada in
January 2007 and claimed refugee protection.
Impugned decision
[6]
The Board rejected the claim for refugee protection for two reasons. First,
it found that the applicant had not rebutted the presumption of State
protection. It is important to note that the Board stated that it did not
consider it useful to assess the applicant’s credibility because, even if he was
credible, he had not rebutted the presumption. In that regard, the Board stated
that it must be presumed that Guatemala was able to protect its citizens and that the applicant
had made no effort to seek protection from the authorities in Guatemala. The Board
was not satisfied with the applicant’s explanations, which were to the effect
that he was afraid of making a complaint because he had been warned by the
Maras to keep quiet or he would die, that even if he had the Maras with whom he
had had problems arrested, other gang members would seek revenge, and that the
Guatemalan police had been infiltrated by this gang.
[7]
Secondly, the Board found that the applicant did not prove that he had a
subjective fear of persecution. The Board ruled that by illegally remaining in
the United States for almost two years without claiming refugee protection,
the applicant had not acted as a person who feared for his life would have. The
Board was not satisfied with the applicant’s explanations in that regard.
Issues
[8]
This application for judicial review raises two issues:
1) Did the Board err in finding that the
applicant had not rebutted the presumption that Guatemala was able
to protect him?
2) Did the Board err in finding that the
applicant had not demonstrated a subjective fear of persecution, and was this finding
determinative?
[9]
For the following reasons, I find that the Board made errors warranting intervention
by this Court.
Analysis
Standard of review
[10]
It is trite law that issues regarding the adequacy of State protection are
questions of mixed law and fact, which are subject to the standard of
reasonableness (Hinzman v. Canada (Minister of Citizenship and Immigration),
2007 FCA 171, [2007] F.C.J. No. 584; Rocque
v. Canada (Citizenship and Immigration), 2010 FC 802, [2010] F.C.J. No. 983). The first issue will therefore be
analyzed according to the standard of reasonableness.
[11]
It is also well established that the Board’s findings of fact,
especially its assessment of the evidence, are also subject to the standard of
reasonableness. It is not up to the Court to substitute its own assessment of
the evidence for that of the Board, and it will intervene only if the Board’s
conclusions are based on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190; Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 SCR 339;
Martinez v. Canada (Citizenship and Immigration),
2009 FC 798, [2009] F.C.J. No. 933; Alinagogo
v. Canada (Citizenship and
Immigration), 2010 FC 545, [2010]
F.C.J. No. 649).
[12]
The second issue also involves a sub-question of law: was
the Board’s conclusion regarding the applicant’s subjective fear fatal to his
application for refugee protection? This question will be reviewed on the basis
of the standard of correctness (Dunsmuir).
[13]
The role of the Court when it reviews a decision according
to the standard or reasonableness was
established in Dunsmuir, at paragraph 47:
. . . A court conducting a review for reasonableness inquires into the qualities
that make a decision reasonable, referring both to the process of articulating
the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
Analysis
a.
Did the Board err in finding that the applicant had not
rebutted the presumption that Guatemala was able
to protect him?
[14]
The applicant submits that the Board conducted a superficial and selective
analysis of the evidence regarding the ability of Guatemala to protect its
citizens and that it failed to consider the documentary evidence he submitted,
which was clear and convincing evidence of the inability of Guatemala to protect
its citizens.
[15]
The respondent in turns submits that the Board is presumed to have
considered all of the evidence and is not required to mention all of the
evidence adduced, that the Board’s finding was based on the evidence, and that
a reading of the decision shows that the Board was aware of the problems with
corruption in Guatemala. The respondent also submits that, in any event, the
documentary evidence adduced by the applicant was not clear and convincing
evidence of Guatemala’s inability to protect its citizens and that in the
absence of any attempt by the applicant to seek assistance from the Guatemalan
authorities, the Board’s finding was reasonable.
[16]
In my view, at first sight, the Board stated the proper principles but conducted
an insufficient and superficial analysis of the evidence submitted by the
applicant.
[17]
In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the
Supreme Court clearly established that, absent the complete breakdown of the
state apparatus, there is a presumption that a country is able to protect its
citizens and that a person must seek protection in his or her own country
before claiming refugee protection in a foreign country.
[18]
Justice La Forest explained as
follows the principle underlying the protection of refugees and the crucial
importance of the presumption according to which the home State offers
protection to its citizens:
At the outset, it is useful to explore the rationale underlying
the international refugee protection regime, for this permeates the
interpretation of the various terms requiring examination. International
refugee law was formulated to serve as a back-up to the protection one expects
from the state of which an individual is a national. It was meant to come
into play only in situations when that protection is unavailable, and
then only in certain situations. The international community intended
that persecuted individuals be required to approach their home state for
protection before the responsibility of other states becomes engaged.
For this reason, James Hathaway refers to the refugee scheme as “surrogate or
substitute protection”, activated only upon failure of national protection; see
The Law of Refugee Status (1991), at p. 135. With this in
mind, I shall now turn to the particular elements of the definition of “Convention
refugee” that we are called upon to interpret.
[Emphasis
added]
[19]
The presumption of the availability of State
protection can only be rebutted if the applicant submits “clear and convincing
evidence” of his or her home country’s inability to offer effective protection (Ward).
In Carillo v. Canada (Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636, the Federal Court of Appeal dealt with the nature of the
evidence which was required and specified the following at paragraph 30: “In
other words, a claimant seeking to rebut the presumption of state protection
must adduce relevant, reliable and convincing evidence which satisfies the
trier of fact on a balance of probabilities that the state protection is
inadequate”.
[20]
In Kadenko v. Canada (Minister
of Citizenship and Immigration), [1996] F.C.J. No. 1376, 143 D.L.R. (4th) 532 (FCA), Justice Décary
wrote that the burden of proof was on the claimant and was directly
proportional to the level of democracy in the state in question.
[21]
The Board properly stated the above principles
in its decision. It then found that the applicant had not rebutted the
presumption of State protection because he had not sought the help of the
Guatemalan authorities before claiming refugee protection. The Board did not
accept the applicant’s explanations for his failure to do so.
[22]
In general, an applicant must have sought
assistance from the authorities before concluding that the State is unable to
give him or her adequate protection, but this is not necessary in all cases, as
the Supreme Court noted in Ward:
A
refugee may establish a well-founded fear of persecution when the official
authorities are not persecuting him if they refuse or are unable to offer him
adequate protection from his persecutors . . . however, he must show
that he sought their protection when he is convinced, as he is in the case at
bar, that the official authorities ‑‑ when accessible ‑‑
had no involvement ‑‑ direct or indirect, official or unofficial ‑‑
in the persecution against him. (José Maria da Silva Moreira,
Immigration Appeal Board Decision T86-10370, April 8, 1987, at 4, per
V. Fatsis.)
This
is not true in all cases. Most states would be willing to attempt to
protect when an objective assessment established that they are not able to do
this effectively. Moreover, it would seem to defeat the purpose of
international protection if a claimant would be required to risk his or her
life seeking ineffective protection of a state, merely to demonstrate that
ineffectiveness.
[23]
In Ramirez Chagoya v. Canada (Citizenship
and Immigration), 2008 FC 721, Justice Martineau
wrote the following on the failure to seek help from the authorities:
. . . This
Court pointed out recently in Shimokawa v. Canada (Minister of Citizenship and Immigration), 2006
FC 445, [2006] F.C.J. No. 555 (QL), at paragraph 21: “. . . in seeking state protection,
refugee claimants are not expected to be courageous or foolhardy. It is only
incumbent upon them to seek protection if it is seen as being reasonably
forthcoming. If the refugee claimants provide clear and convincing evidence
that contacting the authorities would be useless or would make things worse,
they are not required to take further steps.” In short, it is unreasonable to
force refugee claimants to ask for protection that has little chance of materializing
or that will be a long time coming, simply to demonstrate that state protection
is ineffective.
[24]
It is however up to the applicant to show that
it was unreasonable to require that he seek the protection of Guatemala to justify his
omission. In this case, the applicant explained that he had not contacted the
authorities for three reasons: the Maras had warned him to keep quiet, failing which he would be
dead; he feared other Maras would take revenge, even if those who had confronted him were
arrested; and the Maras had infiltrated the police. The applicant also submitted
documentary evidence in support of his allegations.
[25]
The Board acknowledged that there was a
tremendous amount of corruption in Guatemala but found that the country was making efforts to solve its
problems and protect its citizens. The Board based its finding on two
documents. It cited an excerpt from the 2008 US Country Report which
showed that free elections had been held in Guatemala in November 2007 and that
the party in power had been elected for a four-year term. The Board also cited
the response to a request for information dated May 5, 2009, which described
the complaint mechanism available to crime victims.
[26]
The applicant submits that the documents cited by the Board did not in any
way show that Guatemala was able to protect its citizens, while the Board ignored
the documentary evidence which he had submitted at the hearing. He referred to
three documents included in the National Documentation Package on Guatemala: Tab 2.3,
which deals with the impunity of criminals and the low conviction rate; Tab 7.2,
which deals with the inability of police forces to control the gangs and
corruption within the police forces; and Tab 7.5, which deals with the
corruption of police forces, violence, extortion by gangs and the epidemic of
violence.
[27]
It is right to affirm as did the applicant,
that the Board is presumed to have considered all of the evidence and there is
no need to state all of the documentary evidence that was before it (Florea
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598
(F.C.A.); Ramirez Chagoya v. Canada (Minister of Citizenship and Immigration),
2008 FC 721). However, when the applicant submits evidence on an important
point which directly contradicts the Board’s findings, it has the obligation to
deal with this evidence and to explain why it chose to dismiss it. In Cedepa-
Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, 157
F.T.R. 35, Justice Evans aptly explained the applicable parameters in
this regard:
15 The Court may infer that the administrative agency
under review made the erroneous finding of fact “without regard to the evidence”
from the agency’s failure to mention in its reasons some evidence before it
that was relevant to the finding, and pointed to a different conclusion from
that reached by the agency. Just as a court will only defer to an agency’s
interpretation of its constituent statute if it provides reasons for its
conclusion, so a court will be reluctant to defer to an agency’s factual
determinations in the absence of express findings, and an analysis of the
evidence that shows how the agency reached its result.
16 On the other hand, the reasons given by
administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are
agencies required to refer to every piece of evidence that they received that
is contrary to their finding, and to explain how they dealt with it (see, for
example, Hassan v. Canada (Minister of Employment and Immigration) (1992),
147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon
administrative decision-makers who may be struggling with a heavy case-load and
inadequate resources. A statement by the agency in its reasons for decision
that, in making its findings, it considered all the evidence before it, will
often suffice to assure the parties, and a reviewing court, that the agency directed
itself to the totality of the evidence when making its findings of fact.
17 However, the more important the evidence that is
not mentioned specifically and analyzed in the agency’s reasons, the more
willing a court may be to infer from the silence that the agency made an
erroneous finding of fact “without regard to the evidence”: Bains v.
Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency’s burden of explanation increases
with the relevance of the evidence in question to the disputed facts. Thus,
a blanket statement that the agency has considered all the evidence will not
suffice when the evidence omitted from any discussion in the reasons appears
squarely to contradict the agency’s finding of fact. Moreover, when the agency
refers in some detail to evidence supporting its finding, but is silent on
evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact. [Emphasis added]
[28]
I find that in this case, the documents on which the Board based its
decision do not give any indication of the effectiveness of the protection
mechanisms and were not sufficient to conclude that the applicant had not
rebutted the presumption of State protection, considering the evidence to the
contrary. In its decision, the Board did not mention, much less deal with, the
evidence submitted by the applicant which tended to support his argument about
the inability of the authorities to protect him from the Maras. The Board
did not have to accept this evidence, but it was relevant and tended to
contradict the finding that the State was able to protect its citizens from the
violence of the Maras. A general statement by the Board about corruption in Guatemala was not,
in this case, sufficient. The Board should have mentioned this evidence and
explained why it could not give it any weight (see to the same effect: Khakim
v. Canada (Minister of Citizenship and Immigration), 2010 FC 909; Sanchez
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1336, [2008] F.C.J. No. 1673; Aguirre v. Canada
(Minister of Citizenship and Immigration), 2010 FC 916, [2010] F.C.J. No. 1116).
[29]
I therefore find that the Board’s decision regarding the existence of
State protection was unreasonable.
2) Did the
Board err in finding that the applicant had not demonstrated a subjective fear
of persecution, and was this finding determinative?
[30]
The applicant submits that the failure to claim refugee protection in the United
States should not be determinative because the Board did not question his
credibility.
[31]
The respondent submits that the applicant’s failure to claim refugee
protection in the United States undermines his credibility and shows the
lack of a subjective fear, which is fatal to his claim for refugee protection.
[32]
It is important to reframe the Board’s decision. First, the Board did not conduct
distinct analyses of the claim for refugee protection under sections 96
and 97 of the IRPA respectively. However, upon reading the decision, I
presume that it dealt with applicant’s lack of subjective fear in the context
of a “fear of persecution”, which is a feature of an analysis under
section 96 of the IRPA. The Board wrote the following:
[14] Furthermore, the claimant has
not behaved like a person who fears for his life. The claimant went to the United States and lived there for almost
two years illegally without claiming asylum there. The panel confronted him
with this failure to claim asylum in the United States. He explained that he did not want to
claim asylum in the United
States because
he was afraid of being returned to his country, as has happened to other
refugees.
[15] The panel is of the opinion
that these explanations are insufficient to justify a two‑day stay in the
United States without claiming asylum when
the claimant alleged that he was afraid of being returned to his country. The
panel would like to note here the meaning of the words of the Honourable
Justice MacKay in Ilie: [translation] “A claimant’s failure to claim
refugee status in a country that is a signatory to the Convention or to the
1967 Protocol contradicts the claim that he/she fears persecution.”
[16] On this
point, the case law has already established the principle according to which a
person who claims to fear for his or her life must take the first opportunity
in a country that is a signatory to the Convention and/or the Protocol
relating to the Status of Refugees to claim that country’s protection. The
claimant did not take this opportunity, which casts doubt on his subjective
fear. Regarding this absence of subjective fear, the words of the Federal Court
in Kamana should be noted: “The lack of evidence going to the subjective
element of the claim is a fatal flaw which in and of itself warrants dismissal
of the claim, since both elements of the refugee definition—subjective and
objective—must be met.”
[33] Analyzed
from the perspective of section 96 of the IRPA, the Board’s finding was determinative.
This is not however the case under section 97 of the IRPA, which requires
the application of an objective test. In Cruz Herrera v. Canada (Citizenship
and Immigration), 2007 FC 979, [2007] F.C.J.
No. 1297, Justice Beaudry wrote that “[w]hile
the applicant’s lack of subjective fear properly disposes of his claim under
section 96, the subjective element is not required in order to conclude
that a claimant is a person in need of protection under subsection 97(1)”. (See
also Sanchez v. Canada (Minister of Citizenship and Immigration, 2007 FCA 99,
[2007] F.C.J. No. 336; Singh v. Canada (Minister
of Citizenship and Immigration), 2009 FC 1070,
[2009] F.C.J. No. 1312; Balakumar v. Canada (Minister of Citizenship
and Immigration), 2008 FC 20, [2008] F.C.J. No. 30).
[34] However, I find that subjective
fear may sometimes be relevant when assessing the truth of the allegations of a
person who claims to be a person in need of protection within the meaning of
subsection 97(1) of the IRPA.
[35] In any event, I find that in
this case, it was unreasonable for the Board to conclude that the applicant did
not behave as a person who fears for his or her life would have. As the Supreme
Court stated in Ward, “[t]he subjective component relates to the
existence of the fear of persecution in the mind of the refugee”. The Board
inferred from the fact that the applicant had not claimed refugee protection in
the United States that he had not behaved as a person who fears for his or
her life would have. In so concluding, the Board was in fact questioning the
credibility of the applicant, who claimed to fear for his life. However, the
Board specifically stated at the beginning of its decision that it had not
assessed the applicant’s credibility. It could not therefore draw any negative
inferences about the applicant’s credibility without making any analysis. I am therefore
of the opinion that the Board’s finding was unreasonable.
[36] The parties did not propose any
question of importance for certification, and no question will be certified.
JUDGMENT
THIS COURT ORDERS that the
application for judicial review be allowed and that the applicant’s claim for
refugee protection be referred back to the Immigration and Refugee Board for
redetermination by a differently constituted panel.
“Marie-Josée Bédard”
Certified true translation
Michael Palles
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