Docket: IMM-6737-11
Citation: 2012 FC 780
Toronto, Ontario, June 19, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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MIGUEL
ANGEL SANDOVAL SALAMANCA
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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 Refugee Protection Division of the Immigration
and Refugee Board rejected the claim for protection filed by Mr. Sandoval
Salamanca, finding that “there is no objective basis for the claimant’s alleged
fear, whether under section 96 or section 97 of the Act, as state protection is
available to him.” The applicant made no effort to seek state protection
before fleeing Guatemala for Canada.
[2]
The Board made no finding as to credibility and therefore the
Court must accept as true all of the facts alleged by the applicant.
Background
[3]
The applicant was born in Guatemala on November 15, 1988. During his
university studies, he worked as a ramp agent for an airline company loading
and unloading luggage from airplanes. On February 20, 2010, he was approached
by two men who had a job proposition for him. They would give him $50,000 if
he placed a package on a plane. He was given two weeks to think about it and
was warned not to contact airport, airline or police authorities. He was told
that the organization to which these men belonged had people within all of
these authorities that they would know if he reported them, and if he did then
they would kill him and his family.
[4]
Five days later, unable to cope with the stress,
the applicant took a leave of absence from his job. The next morning, two men
dragged him into a van and pointed a gun to his head. He was blindfolded and
taken to an unknown location. He was told that he was going to die. He pled
for his life and told the men that he would do anything. In response, the men
told him that he had one more chance to place a package on a plane. The men
reiterated that if the applicant told anyone then he and his family would be
killed.
[5]
On February 26, 2010, the applicant returned to
work and booked a flight to Mexico. He spent the night at his friend’s house and left the very next
day. From Mexico, he crossed into the United States illegally. He called his sister who told him that the men
threatened to kill him. She was also afraid so she fled to El Salvador. On April 24, 2010, the
applicant arrived in Canada and
claimed refugee protection.
Issue
[6]
The sole issue is whether the Board’s conclusion
that the applicant had failed to rebut the presumption of state protection was
reasonable.
Analysis
[7]
The applicant was asked by the Board why he did
not report the encounters he had to his employer or to the police. He
responded that he did not because the men who spoke to him informed him that
they had people inside both organizations and he and his family would be killed
if he reported their interaction. He also said that all of the police in Guatemala are corrupt.
[8]
The statements below from the decision are
indicative of the Board’s assessment of this evidence and its view of the
objective evidence of state protection in Guatemala. I agree with the applicant that the Board failed to consider or
distinguish aspects of the objective documentary evidence that was directly
contrary to its findings and which supported the applicant’s assertions that he
believed the police would do nothing and that corruption was rampant in the
police force. There is no question that the Board is presumed to have
considered all of the evidence before it. That presumption, however, is
overcome when there is objective evidence that is in stark contrast to the
Board’s findings and which it fails to mention, let alone weigh or distinguish.
[9]
The Board summarized the applicant’s evidence as
follows:
When asked about
police corruption, the claimant testified that he believes all Guatemalan
police officers are corrupt. … When asked if he thought police would have
investigated his allegations if he reported them, the claimant testified that
police would not have investigated; there are many reports that police do not
investigate… The claimant went on to say that from his own experience he knows
that police do not perform their work, people get robbed and murdered all the
time and that is why they would not protect him.
[10]
The conclusions the Board reached were as
follows:
Insufficient credible
evidence was presented to indicate that the authorities would not provide the
claimant with protection. … [I]nsufficient credible evidence was forwarded to
suggest…that police would not investigate their allegations.
Although there
have been instances of corruption and misconduct within the police ranks in
Guatemala, I find that there is no persuasive evidence before me to suggest
that corruption is widespread, generalized, and systemic throughout all the police
ranks…
I find that
there is no persuasive evidence to establish that these problems have rendered
the police force completely incapable or unable to provide an adequate measure
of protection to those who need it in Guatemala
[emphasis added].
[11]
These findings that there was insufficient,
“credible” or “persuasive” evidence is in stark contrast to three reports
before the Board: Human Rights Watch World Reports 2011; Department of State
(DOS) 2010 Country Reports on Human Rights Practices, Guatemala; and United
States Department of State Bureau for International Narcotics and Law
Enforcement Affairs, International Narcotics Control Strategy Report, Vol. 1,
March 2011 [US Narcotics Report].
[12]
The Human Rights Watch Report describes the
virtual inability of the police force in Guatemala to deal with violent crime:
Guatemala's justice system has proved largely incapable of curbing violence
and containing criminal mafias and gangs. According to official
figures, there was 99.75 percent impunity for violent crime as of 2009.
Deficient and corrupt police, prosecutorial, and judicial systems, as well as
the absence of an adequate witness protection program, all contribute to Guatemala's alarmingly low prosecution rate. In
addition, members of the justice system are routinely subject to attacks and
intimidation [emphasis added].
[13]
These figures are confirmed in the US Narcotics
Report:
Guatemala is also beset with an
array of transnational crime including trafficking in persons, arms
trafficking, and an upsurge in regionally powerful youth gangs who engage in
armed robbery, murder-for-hire and extortion schemes.
The GOG [Government of Guatemala]
did not allocate the resources necessary to confront these challenges; it has
one of the lowest tax collection rates in Latin America, and, in 2010, cut the
justice and law-enforcement budgets. This constrained the effectiveness of
U.S. Government (USG)-sponsored assistance. These factors have combined to
create an impunity rate of 96.5 percent for murder, with similarly high numbers
for other crimes including organized crime [emphasis added].
[14]
In addition, although the Board rejected the
applicant’s testimony that all police in Guatemala were corrupt, and perhaps
that was an overstatement, the applicant’s assessment of corruption in the
police force is largely affirmed in the US Narcotics Report: “Weak law
enforcement and criminal justice institutions operate in an environment of pervasive
corruption” and “corruption remains endemic in public institutions
and society as a whole [emphasis added].”
[15]
Lastly, it is noted that the US DOS Report says
that “there were credible reports of killings of witnesses.”
[16]
None of these passages or information from these
objective reports was discussed by the Board. Given that they appear to
strongly support the applicant’s evidence that he would be at risk if he went
to the authorities and would not receive protection from them, the Board had a
duty to make specific reference to this evidence and, if it remained of the
view that the applicant could receive adequate protection from the police in
Guatemala, state specifically why it so concluded in the face of this
evidence.
[17]
In this respect, I must note and briefly comment
on the Board’s finding that “adequate and effective state protection might
reasonably have been forthcoming to him [emphasis added].” That a
person “might” receive state protection is not the proper test. He might also
win the lottery. If only one in a great number receives protection, can it be
said to be adequate? While no state offers perfect protection, and there will
always be instances of persons who were not able to obtain adequate or any
protection, in my view, the level necessary to show “adequate” state protection
is a level where it is far more likely than not that the individual will be
protected.
[18]
The Minister does not have a burden of proving that there is
state protection in a democracy; however, when an applicant whose credibility
has not been impugned at all by the Board testifies that the police fail to
protect and are corrupt and that his life will be at risk if he reports the
criminal activity, and those views are supported by objective evidence, then
the Board must provide reasons why that objective evidence is rejected or does
not support the claimant’s views. That was the failure of the Board in this
case. The decision must be set aside as being unreasonable due to the failure
to address the documentary evidence that was contrary to the view expressed by
the Board and which supported the applicant’s evidence as to the adequacy of
state protection in Guatemala.
[19]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the application for
protection is remitted to a differently constituted Board, and no question is
certified.
"Russel W. Zinn"
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