Docket: IMM-4654-11
Citation: 2012 FC 546
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
|
|
JOSE HERIBERTO RENDEROS MORAN ELVIA
LICETH AREVALO DE RENDEROS JOSE HERIBERTO RENDEROS AREVALO KATHERINE LISSETH
RENDEROS AREVALO (a.k.a. KATHERINE LISSE RENDEROS AREVALO)
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 6 June 2011 (Decision), which refused the Applicants’ claim for
protection as Convention refugees or persons in need of protection under
sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicants are citizens of El Salvador. They fear of
persecution from the Mara Salvatruchas’ (Maras) gang who
they say extorted money from them and threatened them.
[3]
The
Maras first
contacted the Female Applicant, Elvia Liceth Arevalo de Renderos, in October
2005. They called the family’s grocery store and demanded $100 plus additional
payments of $45 each week thereafter. The Principal Applicant, Jose Heriberto
Renderos Moran, says he went to the police after this incident. The police said
a detective would visit him to continue the investigation, but no one came to help.
[4]
The
Applicants paid the money for three months but were very afraid because the Maras threatened
them each time they visited. After a few months, Osiris Candel, the head of the
Maras, was
arrested and the Maras appeared to forget about the Applicants.
[5]
In
November 2006, the Applicants received another call from the Maras who demanded
a $3000 one-time payment, saying the Applicants would be left alone if they
paid. The Applicants paid the demand, but two weeks later they were again asked
to pay $3000. The Principal Applicant contacted his friend from the army,
Nelson Villalta (Villalta), who put him in touch with Sub-Commissioner Amaya of
the Policia National Civil (Sub-Commissioner), who in turn referred him to the
Anti-Extortion Unit (Unit). The Unit attempted a sting operation, but the Principal
Applicant says it failed because the Maras recognized the police
vehicle. The Principal Applicant says the Maras maintained a
threatening presence outside the family’s business and home.
[6]
The
Principal Applicant says the Maras attempted to extort money from his family again
in September 2009. He went to the police, who attempted another sting operation
which involved the Principal Applicant depositing money into a bank account to
pay the extortion demand. However, the Principal Applicant says he deposited the
money into his own account instead of the Maras’ account. He
says the police failed to inform him that at least some of the money had to go
into the Maras’ account for
them to pursue charges.
[7]
The
Applicants say they continued to receive threats from the Maras and that
armed individuals would sometimes enter their store. In November 2009, the Principal
Applicant sent his two children, Jose Heriberto Renderos Arevalo and Katherine
Lisseth Renderos Arevalo (Minor Applicants), to the United States of America (USA)
to stay with his brother-in-law so they would be safe.
[8]
The
Principal Applicant says his friend from the army, Captain Donis, informed him in
December 2009 that the police officers who had assisted the Applicants were
actually involved with the Maras, which is why their efforts had been
unsuccessful. Realizing there was no protection for his family, the Principal
Applicant fled to the USA on 15 December 2009. He came to Canada on 25 May
2010, and claimed refugee protection at the port of entry. The other Applicants
arrived on 23 August 2010, and also made their claims at the port of entry.
[9]
The
RPD joined the Applicants’ claims under subsection 49(1) of the Refugee
Protection Division Rules SOR/2002-228 (Rules) and heard them together on
18 May 2011. The Applicants all adopted the Principal Applicant’s narrative as
their own, so the RPD determined their claims on the basis of his narrative and
testimony at the hearing. The RPD made its Decision on 6 June 2011 and notified
the Applicants of the outcome on 14 June 2011.
DECISION
UNDER REVIEW
[10]
In
the Decision the RPD found the Principal Applicant was not credible and that he
had not rebutted the presumption of state protection. Accordingly, it refused
the Applicants claims for protection under sections 96 and 97 of the Act.
Credibility
[11]
The
RPD found the November 2006 extortion incident did not occur because Villalta’s
two letters of support, which the Applicants submitted to prove their claim, did
not mention that he put the Principal Applicant in touch with the
Sub-Commissioner. The RPD also noted that one of the letters was not dated, so
it was not credible.
[12]
The
RPD also found the September 2009 extortion incident did not occur. It was implausible
that the police would not inform the Principal Applicant that he had to deposit
some money into the Maras’ account. The RPD also noted that the Principal
Applicant could have fixed the error by withdrawing the money from his account
and depositing it into the Maras’ account.
[13]
The
RPD assigned little weight to any of the letters the Applicants submitted to
support their claims because they had not retained the original envelopes to
prove the letters were sent from El Salvador. The RPD also noted that a letter
from the Catholic Bishop of the Diocese of Sonsonate (Bishop’s Letter) was
dated September 19, 2004, six years before they came to Canada. The RPD
rejected the Applicants’ claim that this was a typographical error and that it
should read 2009.
State
Protection
[14]
The
RPD said the determinative issue in the Applicants’ claim was state protection.
It canvassed the law on state protection, noting the presumption that states
are capable of protecting their citizens which can only be rebutted by clear
and convincing evidence. The RPD also noted that claimants must approach the
state for protection where it might be reasonably forthcoming, and the mere
fact that a state is not always successful at protecting its citizens is
insufficient to support a conclusion that there is no state protection.
[15]
The
RPD noted the Principal Applicant’s allegation that he sought police protection
in 2005 and in November 2006:
The
principal claimant said that he reported the extortion demand made in November
of 2006. I have already made a credibility finding that the agents of
persecution did not extort any money from the principal claimant in November of
2006. However, even if money was extorted on that date, I find that the police
did attempt to provide assistance to the principal claimant by setting up a
sting operation. Even though the operation failed, the police did provide
assistance to the principal claimant, and made an attempt to apprehend the
agents of persecution.
[16]
The
RPD also reviewed the Principal Applicant’s claim that he sought protection after
the September 2009 extortion incident and again noted its finding that this
incident did not occur. It also said at paragraph 28 that “even if they did
extort money, the police once again set up a sting operation, which again
failed. This failure to apprehend the criminals does not demonstrate that
protection was not offered to the principal claimant.”
[17]
The
RPD noted the Principal Applicant’s allegation that the police were involved
with the Maras and said the documentary evidence indicated that gang violence
was a serious problem in El Salvador, but also that the government was making
serious efforts to combat gang violence and criminality. The RPD then adopted
the Immigration and Refugee Board’s Response to Information Request
SLV103445.FE as its reasons for concluding state protection is available to the
Applicants in El
Salvador.
[18]
The
RPD concluded that the Principal Applicant had not proven that if he were to
return to El
Salvador,
protection would not be reasonably forthcoming. The RPD refused the Applicants’
claims on this basis.
STATUTORY PROVISIONS
[19]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries;
[…]
Person in Need of Protection
97. (1) A person in need of protection is a
person in Canada whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care
[…]
|
Définition de «
réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité,
de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
[…]
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
[…]
|
ISSUES
[20]
The
Applicants raise the following issues for review:
a.
Whether
the RPD’s credibility findings are reasonable;
b.
Whether
the RPD’s finding that there was adequate state protection was reasonable.
STANDARD OF
REVIEW
[21]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[22]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Elmi v Canada (Minister
of Citizenship and Immigration), 2008 FC 773, at paragraph 21, Justice Max
Teitelbaum held that findings of credibility are central to the RPD’s finding
of fact and are therefore to be evaluated on a standard of review of
reasonableness. Finally, in Wu v Canada (Minister of
Citizenship and Immigration) 2009 FC 929, Justice Michael Kelen held at
paragraph 17 that the standard of review on a credibility determination is
reasonableness. The standard of review on the first issue is reasonableness.
[23]
Reasonableness
is also the standard of review applicable to the second issue the Applicants
have raised.
In Pacasum v Canada (Minister of Citizenship
and Immigration), 2008 FC 822 at paragraph 18, Justice Yves de Montigny held
that state protection is a question of mixed fact and law to be evaluated
on the standard of reasonableness. Further, the Federal Court of Appeal held in
Hinzman v Canada (Minister of Citizenship and Immigration) 2007 FCA 171
that the standard of review on a state protection finding is reasonableness.
[24]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The Applicants
[25]
The
Applicants argue that the RPD’s credibility findings were unreasonable because
it based those findings on speculation. The RPD also misconstrued the evidence,
made factual errors, and erroneously required them to produce comprehensive
corroborative documentary evidence. The RPD also erred in its assessment of the
availability of state protection in El Salvador.
Unreasonable
Credibility Finding
[26]
The
RPD unreasonably found it implausible that the police would not have informed
the Principal Applicant of the importance of depositing money into the Maras’ account in
the sting operation. This conclusion ignores the Principal Applicant’s evidence
that he later learned that these police officers were working with the Maras, which
explains why they did not provide effective assistance. Relying on Jones v
Great Western Railway Co. (1930), 47 TLR 39 at 45 (HL) the Applicants say
that the RPD misconstrued this aspect of their evidence. The RPD’s conclusion
on this issue was speculative and made without regard to the evidence of police
corruption.
Corroborative Evidence
[27]
The
RPD erroneously rejected the letters from Villalta because the letters did not
contain certain details. The Applicants note, however, that the letters confirm
the main aspects of their story, including that the Principal Applicant was
extorted by the Maras, that he unsuccessfully sought protection, and
that the Applicants were forced to leave the country. The Applicants say the
letters of support are not meant to corroborate every aspect of the narrative,
and following Mahmud v Canada (Minister of Citizenship and Immigration)
[1999] FCJ No 729 at paragraph 11, it is a reviewable error to reject them
because of what they do not say.
[28]
The
RPD also committed a factual error when it found one of the letters from
Villalta was undated – both letters actually have dates on them. The Applicants
acknowledge that the RPD correctly found that the Bishop’s Letter had the wrong
year – 2004 instead of 2009 – but say the RPD unreasonably rejected their
explanation that this was a simple typographical error.
[29]
The
RPD unreasonably questioned the authenticity of these documents simply because
the Applicants did not provide the original envelopes. Rasheed v Canada (Minister of
Citizenship and Immigration), 2004 FC 587 teaches that there must be a
valid reason to doubt the authenticity of documents. Although the Applicants
did not provide the original envelopes, this was not a valid reason to doubt
the authenticity of the letters. The RPD also erred by failing to make a clear
finding regarding the authenticity of the documents (see Jacques v Canada (Minister of
Citizenship and Immigration), 2010 FC 423 at paragraph 16).
Unreasonable
State Protection Finding
[30]
The
Applicants note the RPD accepted that the police set up two unsuccessful sting
operations. It was perverse and illogical for the RPD to conclude that state
protection was available when corrupt police officers set up two failed sting operations
(see Kaur v Canada (Minister of
Citizenship and Immigration) 2006 FC 1120 at paragraph 9). The
Applicants say their numerous failed attempts to seek protection show they have
clearly rebutted the presumption of state protection (see G.D.C.P v Canada (Minister of
Citizenship and Immigration) 2002 FCT 989).
[31]
The
Applicants emphasize that all the evidence must be considered by the RPD and,
pointing to Polgari v Canada (Minister of
Citizenship and Immigration), [2001] FCJ No 957, argue that the RPD cannot
assess parts of the evidence in isolation from each other.
[32]
The
RPD committed too many errors in reaching its Decision for the Court to
conclude that those errors were not central to the case (see Katalayi v Canada (Minister of
Citizenship and Immigration), [1997] FCJ No 1494 (TD).
The Respondent
[33]
The
Respondent argues that the RPD reasonably concluded that the Applicants had not
proven that state protection would not be forthcoming and dismissed their
claims on that basis. The RPD’s credibility findings were also reasonably open
to it and the Court should not intervene.
State Protection Findings Were Reasonable
[34]
The
RPD’s conclusion on state protection was determinative of the Applicants’
claims and was reasonably open to it. The RPD considered the police response to
each of the Applicants complaints of extortion. This was a reasonable basis for
the conclusion the Applicants had not proven state protection would not be
available.
[35]
In
the absence of a complete state breakdown, there is a presumption that the
state is capable of protecting its citizens (see Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 at paragraph 50). The Applicants’ own
evidence, including that showing the arrest and imprisonment of the Maras’
leader, the two sting operations, and the police and army patrols around the
Applicants’ business shows that state protection is available to them in El
Salvador.
[36]
The
fact that the police were unsuccessful in arresting the extortionists does not
render the RPD’s conclusion on state protection unreasonable (see Llana v Canada (Minister of
Citizenship and Immigration) 2011 FC 1450 at paragraph 31). It is not
enough to show a state has not always been effective at protecting claimants. Flores
v Canada (Minister of
Citizenship and Immigration) 2008 FC 723 at paragraph 11 establishes
that the test for protection is adequacy, not perfection.
[37]
The
onus was on the Applicants to produce clear and convincing evidence to rebut
the presumption of state protection and it was open to the RPD to conclude they
had not met this onus. The RPD considered the Principal Applicant’s evidence
that he heard the police were involved with the Maras, but was not
convinced. This is a reasonable outcome, so the Court should not interfere.
[38]
The
RPD also reasonably found, based on the documentary evidence, that El Salvador was making
serious efforts to combat gang violence. It was open to the RPD to prefer the
documentary evidence over the Applicant’s own evidence (Zhou v Canada
(Minister of Employment and Immigration), [1994] FCJ No 1087 (CA)), so the
Court should leave the Decision undisturbed. It is not open to the Court to
re-weigh the evidence before the RPD and substitute its own conclusion.
Reasonable Credibility Findings
[39]
It
was also reasonable for the RPD to find implausible the Principal Applicant’s
assertion that the police would not explain the importance of depositing the
extortion money into the proper account for the success of the sting operation.
The RPD also found it implausible that the Principal Applicant would not have
simply withdrawn the money from his account and deposited it in the proper
account when he learned of the mistake. It is open to the RPD to make adverse
credibility findings on contradictions in the claimant’s testimony or on
implausiblities. See Sheikh v Canada (Minister of
Employment and Immigration), [1990] 3 FC 238 (CA).
[40]
It
was also reasonably open to the RPD to draw a negative inference from the
omission of a significant detail from the Applicants’ documentary evidence.
Neither of Villalta’s letters mentioned that he had put the Principal Applicant
in touch with the Unit; this detail was crucial to the Principal Applicant’s
story. Further, no material error arises from the RPD’s finding that one of the
letters from Villalta was undated.
[41]
The
Respondent emphasizes that the RPD is best placed to evaluate the credibility
of claimants and its findings should not be set aside as long as the inferences
drawn are reasonable: Aguebor, above, at paragraph 4.
[42]
Finally,
the Respondent argues that, due to the noted omissions, and its inconsistency
with other documentary evidence, it was open to the RPD to accord little weight
to the Applicants’ documentary evidence. It is for the RPD to determine how
much weight to give to each piece of evidence: Biswas v Canada (Minister of
Citizenship and Immigration) 2007 FC 1151 at paragraph 7. It was also
open to the RPD to reject the Bishop’s Letter because it was dated before the
Applicants’ problems allegedly began and to reject the other letters because
there were no accompanying original envelopes. It was reasonable to expect the
Applicants to retain the envelopes to prove the letters came from El Salvador.
ANALYSIS
[43]
As
the Decision makes clear, even though the RPD questioned the Principal
Applicant’s credibility, the determinative issue was state protection and the
RPD examined this issue assuming that the Principal Applicant’s narrative was
true.
[44]
In
deciding that the Applicants had not rebutted the presumption of state
protection the RPD relied upon a range of evidence.
[45]
In
this case, the Applicants’ own evidence indicated protection from their home
state was available. The Applicants indicated how the police had responded to
their complaints that they were receiving extortion demands and made active
efforts against the criminal gang. In particular, the RPD noted:
i.
The
leader of the criminal gang that the Applicants said extorted money from them
was arrested, convicted and imprisoned. The Principal Applicant said the
extortion demands stopped for several months after this arrest. The Principal
Applicant also indicated the gang leader was still in jail in 2009;
ii.
The
Principal Applicant said the police set up a sting operation to apprehend the
gang members who were extorting money from the Applicant in 2006 even though
the sting failed because the extortionists recognized one of the unmarked
police cars at the drop-off location for the extortion payment;
iii.
The
Principal Applicant said that for a week after the unsuccessful sting operation
in 2006, the police and army patrolled the area around his business;
iv.
The
Principal Applicant said that the police set up another sting operation to
apprehend the gang members who were attempting to extort money from him in
2009. He said the police were unable to make any arrests because he deposited
the extortion payment into his own bank account rather than the account to
which he claimed he had been instructed to deposit the money by the gang.
[46]
Moreover,
based on its review of the country condition documentation, I agree with the
Respondent that the RPD reasonably found that the evidence showed El Salvador
was making serious efforts to combat gang criminality that are operationally
adequate. El
Salvador
has involved its police force in international security programs, such as
anti-gang efforts led by the US Federal Bureau of Investigation. The government
has also brought in the El Salvador army to support the
police in combating the criminal gang problem, which was referenced in the
Applicants’ evidence. It was open to the RPD to find the documentary evidence
demonstrates the state security apparatus is engaged in combating gangs in El
Salvador and to prefer this evidence to that of the Applicants.
[47]
The
Applicants raise a number of issues with regard to the reasonableness of the
RPD’s state protection finding.
[48]
First
of all, they say that the RPD failed to mention and take into account all of
the efforts the principal Applicant had made to secure protection from the
authorities. They refer the Court to paragraphs 7, 8, 9, 11, and 27 of the
principal Applicant’s PIF narrative, which suggest that he was diligent in
seeking state protection.
[49]
When
I examine these paragraphs in the PIF, it is clear that none of them contradict
the RPD’s finding or require specific mention. For example, in paragraph 3, the
fact that a detective did not come on the occasion referred to does not show
the state was unwilling or unable to protect the Applicants. There was nothing
to stop the Principal Applicant from following up himself on the events he is
referring to back in 2005. Subsequent events show that police were willing to
act. It was after this that the Maras leader was arrested and
jailed.
[50]
Paragraph
7 merely concludes that “I came with the detective back to store to survey it,
but everything looked fine.” I do not see how this shows the police were
unwilling or unable to act.
[51]
The
same applies to paragraph 8. The fact that the GTA “patrolled the zone” shows
the authorities were willing to act and even if this was not “a permanent
solution,” it does not suggest the police would not respond if needed.
[52]
In
paragraph 9, the fact that the Commissioner said “they do not have enough
elements to give protection to all the Salvadorians,” does not mean the
Applicant was not protected. In his case, there obviously was a police response.
[53]
In
paragraph 11, we again see the police acting. The fact that the detectives
needed more “proofs” before they could proceed does not suggest a lack of state
protection. Authorities always need proof before they can proceed.
[54]
In
any event, some of these matters are referred to and dealt with by the RPD in
its Decision. The RPD looked at what the police actually did do for the
Applicants and concluded that this more than demonstrated that the Applicants
had not rebutted the presumption of state protection. There was nothing
unreasonable about this approach.
[55]
The
Principal Applicant also says that the RPD dealt unreasonably with the two
letters from his friend, Nelson Villalta. On this issue the RPD found as
follows, at paragraphs 10 and 11 of the Decision:
However, the principal claimant submitted
two letters from his friend, Nelson Villalta, and in neither of the letters
does the writer mention that he had assisted the principal claimant in putting
him in touch with the extortion unit of the police, and that this unit set up a
sting operation to capture the extortionists. This is not a minor detail of the
claimant’s story. It is a major aspect that demonstrates what efforts the
principal claimant took to seek state protection. I find it unreasonable that the
person responsible for putting the principal claimant in touch with the
extortion unit of the police would not mention this important fact in two
different letters written in support of the principal claimant’s claim.
Furthermore, the letter in Exhibit C-9 is
not dated by the author. I find it unreasonable that an individual, with a
military background and trained in providing details, and who is writing in his
official capacity as director of the Sonsonate Chamber of Commerce, would not
date his correspondence with the principal claimant.
[56]
The
Principal Applicant says that the RPD makes a mistake here because exhibit C-9
is dated. This mistake appears to have occurred because the date of the letter
appears in the text itself, which is in Spanish. The CTR shows that the date
was translated at the hearing, so this is definitely an error.
[57]
This
error is not, however, material enough to render the RPD’s approach and general
findings on state protection unreasonable. The date issue is an additional
reason for discounting the letters. The principal reason is set out in
paragraph 10. There is no reason to think that the RPD would not have dealt
with the other letter, which it mistakenly thought was undated, in a different
way if it had not made the mistake.
[58]
The
Applicants also say in relation to paragraph 10 that it was unreasonable to
expect that the letters would be fully comprehensive in the way the RPD
expected. The Applicants rely upon Mahmud, above, at paragraph 11:
In the present case, in effect, the CRDD found the letters
submitted by the applicant to be contradictory of the applicant's evidence, not
for what they say, but for what they do not say. To follow established
authority, the letters must be considered for what they do say. On their face
they support the applicant's evidence, and do not provide evidence
contradicting that evidence.
[59]
I
do not see what relevance this point has for the state protection analysis. The
RPD relies upon the sting operation (i.e. assumes it to be true) to show that
the police were willing to act. The error made by the RPD only affects the
credibility finding. It does not impact the reasonableness of the state
protection finding which were based upon the sting operation having occurred,
as well as all the other factors listed by the RPD.
[60]
The
Applicant also complains that, at paragraph 16 of the Decision, the RPD rejects
his explanation:
The Panel asked the principal claimant if
the police officers who had accompanied him to the bank had informed him that
he needed to deposit money into the bank account of the agents of persecution,
and he stated that they had not. The Panel asked him if these officers were
part of the extortion unit, and he replied that they were.
I reject this explanation. First of all,
even if the principal claimant had deposited the money into his own account, he
could have made a withdrawal and deposited the money into the account of the
agents of persecution. Secondly, I find it implausible that the police
officers, after receiving the complaint of the principal claimant, setting up the
sting operation to obtain evidence of the extortion, and accompany the
principal claimant to the bank where he was to make a deposit, would not advise
him that he needed to make a deposit into the account of the agents of persecution
before charges could be laid. For all of these reasons, I find that the agents
of persecution did not extort any money from the principal claimant in
September of 2009, and that the police report which he filed on that date was
done in order to embellish his claim.
[61]
The
CTR shows that the Principal Applicant’s testimony on this point was as
follows:
Claimant: When
I went to the bank, when I made the deposit I was together with the detectives
and the only thing we had to hand in physically was a bag with paper, cut
paper, and a copy of two bills, $20.00 bills that were in the Fiscalia office,
that was planned so that we could hand it or give it to them physically being
there. When asked for the deposit in the account they did not tell me if that was
not going to take place then the actual act of the extortion would not have
taken place.
Member: Well
who made the decision to deposit the money in your account?
Claimant: I
did and with the knowledge of the detectives.
Member: And
the detectives never told you that you should deposit at least $20.00 in the
other account?
Claimant: They
never told me. The fiscale told me that it was afterwards, because they had the
name and account number of the person that I was going to deposit in my name,
they had the address and they did not proceed against them.
Member: Well
how could they proceed against them if there was no extortion, you never
deposited the money in the account?
Claimant: I was not told… I was not
informed about it.
[62]
The
Principal Applicant says that the RPD’s finding of implausibility in paragraph
16 of the Decision is entirely speculative and is contradicted by his clear
evidence.
[63]
Once
again, however, this matter goes to the credibility analysis. I do not see how
it impacts the state protection analysis, which assumes the sting operation to
be true, and that it demonstrates the authorities will act.
[64]
In
their written submissions the Applicants complain that “the finding of the
Panel that state protection is available because corrupt officers set up two
sting operations that failed, is perverse and illogical.”
[65]
First
of all, the state protection analysis is based upon a range of factors as set
out above, as well as the documentary package before the RPD. Secondly, I do
not see evidence that the sting operations were set up by corrupt officers. Why
would corrupt officers “set-up” a sting operation and then, according to the
Principal Applicant’s own evidence, knowingly allow the Principal Applicant to
deposit the money into his own account? The possible involvement of corrupt
officers and their attempts to thwart the states attempts to protect the
Applicants does not suggest that the state would not respond in the future with
officers who do have the ability to protect the Applicants.
[66]
All
in all, I cannot find a reviewable error with the state protection analysis
and, as this is the determinative issue, I cannot interfere with the Decision.
[67]
The
parties agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
Application
for judicial review is dismissed.
2.
There
is no question for certification.
“James
Russell”
Email this Content