Date: 20120612
Docket: IMM-6048-11
Citation: 2012 FC 703
Ottawa, Ontario, this 12th
day of June 2012
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
JOSE LUIS AYALA ALVAREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
On
September 2, 2011, Jose Luis Ayala Alvarez (the “applicant”) filed the present
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the “Board”), pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”). The Board had denied the applicant’s claim for
refugee status.
[2]
The
applicant is a citizen of El Salvador. He is blind in one eye and has very poor vision in the
other. The applicant was raised by his grandparents, his parents having left El
Salvador, obtaining permanent resident status in the United States in 2000. In 2000, the
applicant filed a U.S. sponsorship application.
The applicant’s half brother had already fled to the U.S., having formerly been
the leader of the AC/DC, a criminal gang in El Salvador, tied to the Mara 18, one of the most
prominent gangs in the country. The applicant’s problems in El Salvador are alleged to have
begun in 2004.
[3]
In
its decision dated July 14, 2011, the Board rejected the applicant’s claim for
refugee status, having considered all of the evidence. The Board found that
state protection was available in El Salvador and that the applicant was not credible
with regards to his allegations of forcible recruitment.
[4]
The
issues raised by the present application for judicial review can be summarized
as follow:
Did the Board err, basing its decision on
erroneous findings of fact made in a perverse or capricious manner or without
regard to the evidence before it, notably in concluding that:
i)
The applicant was not
credible;
ii)
State protection was
available in El Salvador?
[5]
These
determinations, the first being a question of fact and the second a mixed
question of fact and law (Rovirosa et al. v. Minister of Citizenship and
Immigration, 2011 FC 48 at para 5 [Rovirosa]; Velasquez v. Minister of Citizenship and Immigration, 2009 FC 109 at para 13 [Velasquez]), are to
be reviewed on a standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 [Dunsmuir]; Aguebor v. Minister of Employment and
Immigration (1993), 160 N.R. 315 (F.C.A.) at para 4; Paniagua v.
Minister of Citizenship and Immigration, 2008 FC 1085 at para 5 [Paniagua]).
Thus, this Court must determine whether the Board’s decision is justified,
transparent and intelligible, falling within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above at para 47).
* * * * * * * *
i. Did the
Board err in its assessment of the applicant’s credibility, basing its decision
on erroneous findings of fact made in a perverse or capricious manner or
without regard to the evidence before it?
[6]
The
applicant claims the Board erred in its assessment of his credibility by
failing to consider all of the relevant evidence before it. The applicant had
explained to the Board why he had been targeted by the gang in spite of his
disability. Furthermore, the applicant argues that at the hearing, his counsel
had explained that the Maras took an interest in him
because of his brother’s past involvement. This is not acknowledged by the
Board, whereas it had the obligation to mention the evidence in contradiction
of its findings (Cepeda-Gutierrez v. Minister of Citizenship and Immigration
(1998), 157 F.T.R. 35). Thus, the Board failed to consider the Maras’ recruitment tactics
and motivations. Therefore, the Board’s assessment of the applicant’s
credibility is unreasonable, having been made without regard to the material
before it.
[7]
The respondent asserts that the Board’s decision and findings are
reasonable, having been made in consideration of all the evidence before it.
[8]
The Board’s implausibility finding was based on the absence of
documentary evidence indicating that gangs recruit people with disabilities.
Therefore, the Board did not have to specifically mention the applicant’s
brother’s ties with the Mara 18, nor did the Board have the obligation to
mention every piece of evidence before it. When the Board’s decision is read as
a whole, it is clear that it considered why the applicant claimed to be
targeted by gang members in El Salvador. Thus, the Board did not
ignore the evidence before it.
[9]
Upon reviewing the evidence, I find that this Court’s intervention
is unwarranted, the applicant having failed to establish that the Board’s
findings are unreasonable. While this Court may have concluded otherwise, it is
not my role to substitute my discretion for that of the Board, the Board having
considered the evidence before it (Oduro v. Minister of Employment and
Immigration (1993), 66 F.T.R. 106, at paragraphs 13 and 14). The Board had
the benefit of hearing the applicant’s testimony and its findings of fact are
given great deference (Velasquez, above at para 12): “the
determination of an applicant’s credibility is at the heartland of the Board’s
jurisdiction” (R.K.L. v. Minister of Citizenship and Immigration, 2003
FCT 116, 228 F.T.R. 43 at para 7). It was open to the Board to reject the applicant’s
explanation and give greater weight to the documentary evidence. As explained
by Justice Joyal in Miranda v. Minister of Employment and Immigration (1993), 63 F.T.R. 81:
. . . There can always be conflict in the evidence. There is
always the possibility of an opposite decision from a differently constituted
Board. Anyone might have reached a different conclusion. . . .
[10]
The Board was under no obligation to mention every piece of
evidence and is presumed to have weighed and considered all of the evidence
before it (Ayala v. Minister of Citizenship and Immigration, 2007 FC 690
at para 23 [Ayala]). The Board did mention that the applicant’s brother
was a former gang member, but did not consider it relevant in evaluating the
applicant’s forced recruitment attempts. Thereby, this fact was not ignored.
Rather, the Board simply chose to give it little weight. Similarly, the Board
also did consider the applicant’s explanation of why he was being targeted by
gang members, but reasonably chose to give this explanation little weight
because of a lack of objective evidence indicating that gangs in El Salvador actually
recruit disabled individuals.
[11]
As a result, the applicant has failed to prove that the Board
based its decision on erroneous findings of fact made in a perverse or
capricious manner or without regard to the evidence before it and it is not the
role of this Court to reweigh the evidence.
ii. Did the
Board err in its assessment of state protection, basing its decision on
erroneous findings of fact made in a perverse or capricious manner or without
regard to the evidence before it?
[12]
The
applicant argues that the Board erred in its assessment of state protection,
failing to properly consider the applicant’s testimony and the documentary
evidence he submitted. The applicant claims the Board failed to consider his
two attempts at seeking police protection: on two occasions, the police refused
to assist him. In addition, the Board failed to consider the documentary
evidence indicating that the justice system in El Salvador is unable to protect victims of crime and
human rights violations within the country.
[13]
The
respondent asserts that the applicant is merely seeking to have the evidence
reweighed, which is not a function of this Court. The applicant failed to rebut
the presumption of state protection, as explained by the Board in its decision.
The mere fact that the authorities do not always succeed in protecting citizens
does not mean that state protection is unavailable: a local failure of law
enforcement does not establish the unavailability of state protection. A lack
of confidence in the police authorities in El Salvador was insufficient to rebut the presumption
of state protection. Contrary to the applicant’s assertions, the Board did not
err in failing to consider the evidence before it, having acknowledged the
existence of crime and corruption in El Salvador. Rather, the applicant failed to seek out
state protection, while this protection is not perfect. The Board is presumed
to have considered all of the evidence and the Board even explicitly referred
to the evidence identified by the applicant in the present application as being
ignored. While some of the documentary evidence outlines the problems in El Salvador, this does not rebut
the presumption of availability of state protection within the country. Since
it is not a function of this Court to reweigh the evidence that was before the
Board, the present application must be dismissed.
[14]
The
respondent is right and properly outlines the principles of state protection,
while the applicant is in reality asking this Court to reweigh the evidence
that was before the Board. The Board considered the evidence before it,
explicitly addressing the evidence relied on by the applicant and his attempts
at seeking state protection, while it did not have the obligation to refer to
every piece of evidence before it (Velasquez, above at para 21). The
applicant even admits that the Board acknowledged the evidence he relied on to
prove the inadequacy of state protection in El Salvador at paragraph 11 of his
Further Memorandum of Argument when he states that “[t]he Board went on to
described several points made at the hearing by counsel for the Applicant with
respect to the lack of adequate state protection in El Salvador”.
[15]
The
Board acknowledged the existence of criminality and corruption in El Salvador, outlining the gang
activity within the country. However, as in Canada (Minister of Employment
and Immigration) v. Villafranca (1992), 99 D.LR. (4th) 334, 150 N.R.
232 (F.C.A.), cited in Kadenko v. Minister of Citizenship and Immigration
(1996), 143 D.L.R. (4th) 532, 206 N.R. 272 (F.C.A.) at para 4 [Kadenko]:
“it is not enough for a claimant merely to show that his government has not
always been effective at protecting persons in his particular situation. . . .”
(see also Velasquez, above at para 17). Thus, it was reasonable for the
Board to conclude that the applicant failed to seek out police protection,
having only sought assistance twice when various mechanisms were in place in El
Salvador to fight gang activity, as illustrated by the documentary evidence
(see Kadenko, above at para 5; Hussain v. Minister of
Citizenship and Immigration, 2003 FCT 406 at para 7; and Paniagua,
above at para 8). Every case turns to its own facts and it was not unreasonable
for the Board to conclude that the applicant could have done more, considering
the documentary evidence (Rovirosa, above at para 9). As stated by Justice Michel Shore in Ayala, above
at para 28:
.
. . The existence of documents suggesting that the situation in El Salvador is not perfect, is not, by itself, clear
and convincing confirmation that state protection is unavailable, especially
when there are numerous other documents indicating that state protection is
available. . . .
[16]
As
in Ayala, above, the Board reasonably relied on extensive documentary
evidence indicating that the government of El Salvador is taking active steps
in combating gang-related activity (at paragraph 20).
[17]
With
regards to the applicant’s submissions, I would add, as argued by the
respondent, that the murder rate in El Salvador “tells us nothing about what the state can
and/or will do if approached by the [applicant] for protection” (Jimenez,
above at para 34). Once again, I repeat that the Board did not ignore the
existence of corruption, criminality and gangs in El Salvador. Therefore, as stated
by Justice James Russell, even though “[h]omicides may be epidemic in El
Salvador and the authorities may be finding it difficult to improve the figures,
[…] this does not mean they cannot or will not protect potential refugees who
ask for protection” (Jimenez, at para 34). Therefore, even though
the evidence relied on by the applicant indicates that the conditions in El
Salvador are far from ideal, “this is not enough to ground a claim for
protection” (Jimenez, at para 39).
[18]
Moreover,
the Board did not solely rely on the government’s efforts to fight crime, it
considered the effectiveness of these various mechanisms (compare with Beharry
v. Minister of Citizenship and Immigration, 2011 FC 111 at para 9).
[19]
Furthermore,
the Board did not merely rely on the documentary evidence to conclude that
state protection would be forthcoming in El Salvador. Rather, it emphasized the applicant’s
failure to seek state protection, having only made two attempts at reporting
the alleged incidents causing him to fear returning to El Salvador. The applicant relies
on various cases where state protection was found adequate, considering the
applicants could not identify their attackers, whereas he claims to have been
able to identify his attackers, while the police did nothing. However, let it
be reminded once again that “[e]very case turns on its own unique facts” (Rovirosa,
above at para 9).
[20]
The
applicant did not seek further assistance because he did not believe the police
would assist him, having previously refused to take his complaints twice.
However, various alternatives exist in El Salvador, as evinced by the country documentation
and an evaluation of the adequacy of state protection cannot solely be based on
the applicant’s subjective belief (Castaneda v. Minister of Citizenship and
Immigration, 2010 FC 393 at para 26 [Castaneda]). As explained by
Justice Richard Boivin in Castaneda:
[30] If
a refugee protection claimant failed to take all available measures to seek
state protection, the Court finds that it is not enough to rely solely on
documentary evidence of flaws in the justice system of the refugee protection
claimant’s country of origin (Zamorano; Cortes v. Canada (M.C.I.), 2006
FC 1487, 154 A.C.W.S. (3d) 450). The applicant did not want to go to the
authorities out of fear, and he did not approach higher authorities or other
agencies. By not taking measures to seek state protection before making a claim
for refugee protection, the applicant failed to rebut the presumption of state
protection (Cordova v. Canada (M.C.I.), 2009 FC 309, [2009] F.C.J. No.
620 (QL)).
[21]
The
Board’s above-mentioned findings were within its jurisdiction and deference is
owed. The applicant is once again asking this Court to reweigh the evidence
that was before the Board, which is not within my jurisdiction. Considering that
the Board’s decision and findings are reasonable, falling “within the range of
possible acceptable outcomes which are justified in facts and law” (Dunsmuir,
above at para 47), this Court’s intervention is unwarranted.
* * * * * * * *
[22]
For
these reasons, the application for judicial review is dismissed.
[23]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada dated July 14, 2011 is dismissed.
“Yvon
Pinard”
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