Docket: IMM-509-12
Citation:
2012 FC 1054
Toronto, Ontario, September 5, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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OMAR ALFREDO SANCHEZ AGUILAR,
LILIANA GUEVARA MONZON,
JOSE MARIA SANCHEZ GUEVARA AND
JOSUE ROBERTO SANCHEZ GUEVARA
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
AND THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
For the reasons that follow, this application
for judicial review of a negative Pre-Removal Risk Assessment (PRRA) decision
by an immigration officer, dated November 22, 2011, is dismissed.
Background
[2]
The applicants are a family. Omar Alfredo
Sanchez Aguilar (father) and Josue Roberto Sanchez Guevara (child) are citizens
of El Salvador; Liliana Guevara Monzon (mother) and Jose Maria Sanchez Guevara
(child) are citizens of Guatemala. They fear harm from Maras criminal gangs in
El Salvador and Guatemala.
[3]
The gangs extorted money from Mr. Sanchez
Aguilar, a self-employed fruit and vegetable importer, by threatening harm to
him and his family. The extortion took place in 2004 and 2005 in both El Salvador and Guatemala, as he did business in both countries. Mr. Sanchez Aguilar initially made
payments to the gangs but was unable to meet their increasing demands. During
one of the extortion demands, in September 2004, the principal applicant was
stabbed and grazed by a bullet. He claims to have attempted to make a police
report, but says that the police refused to accept his denunciation on the
basis that they themselves feared the Maras gangs.
[4]
The applicants fled to the United States in 2006 and made a refugee claim, which was rejected in 2007. Although a
deportation order was issued, the applicants remained in the United States as they feared returning to El Salvador or Guatemala. The family arrived in Canada at Fort Erie, Ontario, on February 25, 2009, and made a refugee claim.
[5]
The Board rejected the applicants’ refugee claim
on March 7, 2011. Although it accepted that the events alleged occurred, it
held that there was no nexus to a Convention ground and that the risk they
faced was one faced generally by a sufficiently large cross-section of
individuals in both countries to exempt them from qualifying as ‘persons in
need of protection’ within the meaning of section 97 of the Act. Leave for
judicial review of the decision was denied by this Court.
[6]
The applicants made a PRRA application and
submitted new evidence concerning recent incidents involving a sister, who
lives in El Salvador. This sister, Maria Carlota Sanchez Aguilar, provided a
notarized statement that she had been the victim of a gunpoint ATM robbery; a
severe physical attack; and several threats by the Maras gangs, which included
reference to Mr. Sanchez Aguilar personally and his outstanding ‘debt’ to
them. She attempted to make a police report about the physical attack, but the
police made fun of her and did not accept her report. She provided a physician’s
notarized statement, which stated that she had suffered “multiple injuries and
[was] unconscious” on the date she claims to have been attacked. She says that
on the same night as the physical attack, she received a phone call from an
individual identifying himself as a member of the Mara Salvatrucha who stated
that he knew she went to the police and threatened her life and reminded her of
the outstanding debt of Mr. Sanchez Aguilar.
[7]
The officer found that it was speculative to
conclude that the incidents involving Ms. Sanchez Aguilar, while “not
doubt[ed],” occurred as a result of her connection to Mr. Sanchez Aguilar. As
a result, and for additional reasons, the officer stated that little weight
should be given to Maria Carlota’s evidence as predictive of the harm
anticipated by the applicants at the hands of the maras.
[8]
Regarding the test under s. 97 of the Act, the
officer held that:
“[T]here is insufficient evidence
that demonstrates on the balance of probabilities that the applicant and his
family face a forward-looking personalized risk to his [sic] life or
risk of cruel and unusual treatment or punishment in El Salvador or in Guatemala as opposed to a generalized risk of crime or violence at the hands
of the criminals in general. While not perfect, […] in the unlikely event that
[applicants] would face serious harm on their return, adequate state
protection would be available to them in those countries.” [emphasis
added]
Issues
[9]
The issues raised by the applicants may be
characterized as follows:
1.
Was the officer’s finding of adequate state
protection unreasonable, in that it:
a.
contradicted the finding of generalized risk;
b.
was based on the wrong test and ignored the
evidence; or
c.
ignored the particular situation of the
applicants?
2.
Was the officer’s finding of insufficient
evidence a veiled credibility finding, and did the officer therefore err by
failing to convoke an oral hearing?
Analysis
1. State
Protection Finding
The Alleged Contradiction
[10]
The applicants submit that a finding of both
generalized risk and adequate state protection under subparagraphs 97(1)(b)(i)
and (ii) of the Act is “not logical and [is] contradictory,” and therefore
unreasonable according to the standard articulated in Dunsmuir v New
Brunswick, 2008 SCC 9. In other words, the applicants submit that
“implicitly contained within a generalized risk finding is a finding of lack of
state protection.”
[11]
The submission made this broadly cannot be
correct as it is based on a presumption not of adequate state
protection, which entails that some risk will always be present, but of perfect
state protection which entails that all of the identified risk has been
eradicated.
[12]
When pressed, counsel for the applicants stated
that it is her submission that where there is a finding that there is risk to a
very large portion of the general public, then it cannot also be said that
there is adequate state protection, for otherwise the extent of the risk that
exists would not be so great.
[13]
The respondents submit that the concepts of a
risk “generally faced by other individuals in or from that country” and “the
protection of that country” as those phrases appear in paragraphs 97(1)(b)(i)
and (ii) are two distinct and separate concepts that have nothing to do with
each other.
[14]
I agree with the respondents; however, the
existence of a prevalent, probable, and severe risk may be a reliable indicator
that state protection is inadequate. Even then, the existence of such a risk
is only a factual indicator, and the two inquiries remain distinct. Here the
Board found that the nature of the risk was one that others in these countries
also faced, but it did not make any finding, as is implied in the applicant’s
submission, that it was a risk likely to happen to a great number of persons in
the countries of origin. The officer’s finding of both generalized risk and
adequate state protection was not therefore unreasonable.
Application of the Wrong Test and Ignoring Evidence
[15]
The applicants submit that the officer erred in
law in her state protection analysis by focusing on the measures being taken by
the states in question and not the results or effectiveness of those measures
and erred by ignoring or selectively using certain evidence on country
conditions. I find neither error was made.
[16]
The officer spends much of the decision
outlining measures being taken to combat gang-violence in both countries, and
indeed concludes at one point that “serious efforts” were being made; however,
reference is also often made of the outcomes of those measures in El Salvador.
For example, the officer references five recent and separate mass arrests of Maras
gang members made in the first half of 2011; notes that 70% of extortion
complaints are heard in court and that protection to victims is offered at
trial; notes that in the past ten years, dozens of police officers have been
convicted for criminality and that a 2008 police disciplinary law resulted, in
2009, in roughly 140 members of the police force (including several very senior
officers) being removed from their position; and lastly notes that the homicide
rate has fallen in 2010 by roughly 10%. The officer similarly references
outcomes in Guatemala.
[17]
Neither am I persuaded that the officer made
selective use of the evidence and ignored evidence favourable to the applicants.
Although the officer does not make extensive direct reference to the
applicants’ sources, she candidly acknowledges throughout the PRRA decision
that the incidence of crime, gang-related violence, and corruption within the
state protection apparatus is still a serious problem in El Salvador and Guatemala.
[18]
The information before the officer showed that
while far from perfect, both states had both the ability to, and actually did,
target and prosecute gang-related crime, including extortion, and corruption
within the state protection apparatus. The officer expressly acknowledged that
success has been mixed, but concluded that, at a systemic level, the state
apparatus in both countries was able and actually did provide protection for
its citizens. Based on the record before her, that was not an unreasonable
finding.
Ignored the Particular Situation of the Applicants
[19]
The applicants submit that the officer did not
apply the correct legal test for state protection because she failed to take
into account their particular situation, namely that the Maras have police
connections and were able to find out that Maria Carlota had tried to make a
denunciation, that the police had refused to take a report, and that the Maras
remained interested in Mr. Sanchez Aguilar.
[20]
While specific reference is not made to these
aspects of her affidavit, I am unable to conclude that it could have had any
impact on the finding of adequate state protection and the specific finding
that the limited efforts of these applicants to seek state protection had
failed to rebut the presumption that it exists.
2. Veiled
Credibility Finding and Failure to Convoke an Oral Hearing
[21]
The applicant submits that the officer made
“veiled” findings of credibility in respect of Maria Carlota and should have
convoked an oral hearing to assess credibility.
[22]
The applicants submit that the officer “fail[s]
to engage with the … evidence that dealt directly with the specific and
personalized risk faced by the applicants.” There is merit to the assertion
that the officer failed to characterize the risk facing the applicants with
sufficient precision. The evidence, if believed, shows that, to some extent,
Mr. Sanchez Aguilar was being targeted personally; yet the officer merely
characterizes the risk facing the applicants as that of “crime or violence.”
However, it is not determinative of the necessity of an oral hearing or, more
importantly, the application as a whole. Even if believed, Maria Carlota’s
evidence concerning her singular attempt at making a police report would not
have been sufficient to prove that the applicants were unable to seek the
protection of the state. The test set out in s. 167(c) of the Immigration
and Refugee Protection Regulations, SOR/2002-227, is whether the evidence
would, if believed, “justify allowing the application for protection.”
The sufficiency of her evidence, not her credibility, is what matters. Her
evidence, even if believed, is not sufficient to rebut the presumption of state
protection. There was therefore no need for an oral hearing.
[23]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no question is certified.
“Russel W. Zinn”
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