Docket: IMM-6783-11
Citation: 2012 FC 611
Ottawa, Ontario, May 18,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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NUBIA DEL
CARMEN ORELLANA ORTEGA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Nubia Del Carmen Orellana Ortega, contests the decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated September 1, 2011, finding that she was neither a Convention refugee nor
person in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27.
[2]
For
the following reasons, her application for judicial review is dismissed.
I. Background
[3]
A
citizen of El Salvador, the Applicant brought a refugee claim in Canada on November 17, 2010
based on a risk of harm at the hands of the Mara 18 gang. She had been
kidnapped, beaten, raped, and ordered not to contact police. Thereafter, she
responded to threatening telephone calls demanding the payment of money.
[4]
In
its determination regarding her claim, the Board was not convinced of the
well-foundedness of the Applicant’s fear as her actions were “not consistent
with someone fleeing persecution, or a risk of harm, in that she made only the
merest of efforts to seek state protection even though it was readily offered.”
Despite her initial report of the attack, she did not make further efforts to
seek protection in response to the extortion payments.
[5]
Reviewing
documentary evidence, the Board also concluded that “as a whole, the issues of
gang criminality, and corruption and deficiencies within the police, are being
addressed by the state of El Salvador.”
II. Issue
[6]
The
general issue raised by the Applicant is the reasonableness of the Board’s
decision.
III. Standard
of Review
[7]
Mendez
v Canada (Minister of
Citizenship and Immigration), 2008 FC 584, [2008] FCJ No 771 at
paras 11-13 confirmed that the standard of review for determinations regarding
state protection was reasonableness. In applying this standard, the Court will
address the “existence of justification, transparency and intelligibility” as
well as “whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
IV. Analysis
[8]
The
Applicant asserts that the Board’s findings were based in part on a
misperception of her testimony as to what she told police and a selective
review of documentary evidence.
[9]
In
particular, the Applicant contends it was unreasonable for the Board to
conclude that she could have done more to seek police protection and get
information from her friend Josue. She provided an initial report to police as
to when and by whom she was attacked. The only new information provided by
Josue was the reason why she was attacked and this would not have helped
police. In addition, the police knew where her sister lived, but there was no
evidence of any contact with her. The Applicant did not report subsequent
extortion because of the threats to her family.
[10]
The
Respondent maintains that she could have provided more specific information to
the police. Although the police did not get back in touch with her, this is
not indicative of a lack of adequate state protection.
[11]
I
am prepared to accept the Respondent’s position that the Board’s conclusion in
this regard was reasonable. The failure to take steps to seek state protection
beyond an initial denunciation is a relevant consideration (see for example Sanchez
v Canada (Minister of
Citizenship and Immigration), 2011 FC 843, [2011] FCJ no 1044 at para
19; Carillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] FCJ no 399 at paras
32-34).
[12]
Contrary
to the Applicant’s claims, I also fail to see how the Board erred in its
treatment of documentary evidence regarding the adequacy of state protection in
El
Salvador.
The Board clearly acknowledges contradictory information as to the ongoing
challenges facing police in that country to combat gang violence, referencing
“police corruption and deficiencies.” Pointing to various programs in place,
however, the Board found, based on a preponderance of the documentary evidence
canvassed, that serious efforts are being made to address the problem and
adequate state protection exists for victims of crime. This was not the only
conclusion that could be drawn from the evidence, but it was one within the
range of acceptable outcomes.
[13]
The
failure to refer to every piece of documentary evidence that the Applicant
points to in submissions before this Court does not make the determination
unreasonable (Hassan v Canada (Minister of Employment and Immigration) (1992),
147 NR 317, [1992] FCJ no 946 (CA)). The Court’s role is not to reweigh the
evidence before the Board.
[14]
Justice
Robert Barnes adopted a similar approach when he determined that a failure to
refer to all the documentary evidence dealing with the gravity of the problem of
gang violence in El Salvador as analyzed by the Board in the particular
case before him did not constitute a reviewable error in Paniagua v Canada
(Minister of Citizenship and Immigration), 2008 FC 1085, [2008] FCJ no 1350
at para 8. He stressed the “Board understood that state protection in El Salvador was not
perfect but it also recognized correctly that perfection is not the standard by
which the sufficiency of protection is to be measured.” He continued
“[a]lthough the problems of gang violence were unquestionably profound, there
was plausible evidence that the state protection apparatus in that country
continued to function. It is not for the Court to reweigh the evidence or to
substitute its views of that evidence for those of the Board.” This general line
of reasoning was also applied to the assessment of documentary evidence in Velasquez
v Canada (Minister of Citizenship and Immigration), 2009 FC 109,
[2009] FCJ no 112 at paras 20-21 and Rodriguez v Canada (Minister of
Citizenship and Immigration), 2011 FC 236, [2011] FCJ no 301 at paras
15-17.
[15]
As
the Board in this instance also gave due consideration as to the issues
associated with gang violence and state protection in El Salvador stressed by
the Applicant, the Court would not be justified in intervening based on its
treatment of documentary evidence.
V. Conclusion
[16]
Since
the Board’s assessment of state protection was reasonable under the
circumstances, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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