Date: 20090331
Docket: IMM-3701-08
Citation: 2009 FC 334
OTTAWA, ONTARIO,
MARCH 31, 2009
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
CONCEPCION I CRUZ GALDAMEZ,
DOUGLAS MAURICI GARCIA CRUZ
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The principal
applicant and her son, both of whom are citizens of El Salvador, sought
refugee protection in Canada under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In a
decision dated July 30, 2008, the Refugee Protection Division (RPD) of
the Immigration and Refugee Board determined that she and her son were not
Convention refugees and were not persons in need of protection within the
meaning of the aforementioned sections of the IRPA. The principal applicant has
applied for the judicial review of that decision.
FACTS
[2]
The
principal applicant claims to have had problems in Santa Ana with a group of young members of the “Maras”,
a gang with several thousand members that is involved in criminal activities in
the United States and Central America. Her husband
and her brother‑in‑law are apparently on bad terms with this group
because they refused to join it. They claim to have been subsequently
threatened and assaulted in May 2002.
[3]
Following
these events, the principal applicant allegedly moved to Sacramento, El Salvador with her son, husband and brother‑in‑law
in order to escape violent treatment by that criminal organization. Having
learned that the Maras were still looking for them, they all allegedly headed
to the United States, where they lived illegally from August 2002
until they attempted to enter Canada on
December 28, 2006.
[4]
Upon their
arrival in Canada, the principal applicant’s
husband and brother‑in‑law were returned to the United States; only the principal applicant
and her son were determined eligible to seek refugee status.
IMPUGNED DECISION
[5]
After
analyzing the testimonial and documentary evidence, the RPD determined that the
principal applicant’s protection claim could not succeed because she was not
credible and her narrative was a fabrication. The RPD identified what it
considered two important discrepancies between her Personal Information Form
(PIF) and her statement to the immigration officer at the point of entry. As
for the allegation that her husband and brother‑in‑law were
assaulted and left for dead in the street, the RPD did not believe it either,
since she provided no medical certificate to that effect.
[6]
In
addition, the RPD determined that, in any event, the principal applicant had
not rebutted the presumption that her country was able to protect her.
At the hearing, the principal applicant explained that she did not file a
complaint because she feared reprisals. This explanation was deemed to be
insufficient evidence that she would not have been given state protection if
she had requested it.
[7]
While
acknowledging that the situation in El Salvador is not perfect, the RPD determined that the principal
applicant had not exhausted all remedies through which assistance and
protection could be obtained. In its opinion, the mere fact that a state
does not always succeed in protecting its citizens is insufficient to justify
the position that crime victims, or people threatened with crimes, are unable
to claim its protection.
[8]
The RPD also
faulted the principal applicant for failing to request protection from the United States and preferring to live
illegally there. In its opinion, this contradicted her allegation that she
feared persecution in her country.
ISSUES
[9]
The
instant application for judicial review essentially raises two issues: (1) Did
the RPD err in its assessment of the principal applicant’s credibility? (2) Did
the RPD commit a reviewable error in determining that she had failed to rebut
the presumption that the authorities of her country could have offered her the
requisite protection?
ANALYSIS
[10]
The
question whether a state is able to protect its citizens involves questions of
mixed fact and law and is therefore subject to the “reasonableness” standard of
review. Questions related to the credibility of the applicant, which raise only
questions of fact, are subject to the same standard. This means that this
Court’s role is to consider the existence of justification, transparency and
intelligibility within the decision-making process, and whether the RPD’s
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, at paragraph 47.
[11]
Beginning
with the principal applicant’s credibility, I am of the opinion that, based on
the discrepancies between her statements at the point of entry and her PIF, and
on the absence of a medical record, the RPD was entitled to determine that her
story was not credible. When confronted with the fact that she had not
mentioned important elements during her initial contact with Canadian
authorities, the principal applicant tried to explain that the immigration
officer had not asked her any questions in that regard. However, these were
important elements on which her fear of persecution was based. The fact that
her husband was allegedly suspected of reporting the Maras leader’s armed
robbery of the mayor, and that she herself was assaulted by the Maras and left unconscious, were key elements
of her claim. The onus was on her to explain, if only succinctly, the principal
reasons for her fear. The RPD could reasonably conclude that the explanations
given by the principal applicant in an attempt to justify her omissions were
unsatisfactory; this assessment clearly comes within the RPD’s expertise as a specialized
administrative tribunal: Jumriany v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 683 (QL)
(F.C.T.D.); Neame v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 378 (QL) (F.C.T.D.); Nsombo v. Canada (Minister
of Citizenship and Immigration), 2004 FC 505.
[12]
In
addition, the RPD could also take into account the fact that the principal applicant
provided no evidence based on which her allegations that her husband and
brother‑in‑law were beaten, and subsequently hospitalized, could be
corroborated. The principal applicant did offer the explanation that, upon
returning to El Salvador, her husband went to the
hospital in an attempt to obtain a copy of his medical record, but that the
hospital told him that it did not keep medical records for such a long period. The
Board rejected this explanation, after noting that the principal applicant’s husband
did not refer to any hospital visits in the letter that he sent her a few weeks
prior to the hearing.
[13]
It should
be noted that the onus is on the principal applicant to show that her
allegations are well-founded and to provide documents that establish her claim:
section 7 of the Refugee Protection Division Rules, SOR/2002-229. It is
true that the principal applicant’s husband’s letter pre-dated the hearing, and
that the principal applicant had not asked him to obtain a copy of his medical
record. However, the fact remains that the principal applicant could have
taken the initiative to obtain, through her husband or otherwise, a document
corroborating the care that her husband and her brother-in-law allegedly received
at the hospital: Singh v. Canada (Minister of Citizenship and Immigration), 2007 FC 62; Udeagbala
v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1507.
[14]
Turning now
to another concern, the RPD, in concluding that there was no subjective fear,
was entitled to take into account the fact that the principal applicant lived
in the United
States for more
than four years without seeking refugee protection. Although this element is
not determinative in and of itself, the RPD was entitled to take it into
consideration in assessing the principal applicant’s credibility: Conte v.
Canada (Minister of Citizenship and Immigration), 2005 FC 963; Manokean v. Canada (Minister of Citizenship and
Immigration),
2006 FC 111; Mejia v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1087.
[15]
Lastly,
the principal applicant argued that the RPD erred in failing to consider the
letters of a neighbour and a lawyer corroborating her narrative. I see no merit
to that argument. First of all, the courts have consistently held that the RPD
is presumed to have considered all the evidence tendered in the record before
rendering its decision, and that it is not necessary, in this regard, for it to
refer to each and every item of evidence in its decision. Secondly, the letters
in question constitute hearsay to the extent that their authors did not
personally witness the events that they recount. Consequently, the RPD was
justified in giving them little weight.
[16]
At the
hearing, counsel for the principal applicant argued that this Court should, at
the very least, set aside the RPD’s determination that the principal applicant’s
story was fabricated, not only because there were no reasons for that finding,
but especially because the finding was particularly prejudicial to his client. In
view of the evidence that was adduced, I am of the opinion that the finding was
completely reasonable and finds support in the record. Moreover, it will have
no negative repercussions during any pre-removal risk assessment (PRRA) because
Rule 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227,
provides that an applicant should be called for an interview if his or her
credibility is in issue.
[17]
As for the
issue of state protection, the principal applicant submits that the RPD erred
in applying the wrong test and in failing to objectively assess the situation
in El Salvador. Indeed, the principal
applicant submits that the RPD imposed the onus on her to show that the
Salvadoran government would make no attempt to protect her, rather than
showing that the government would not protect her.
[18]
However, a
careful reading of the decision discloses that the RPD was very much aware of
the burden of proof borne by the principal applicant. In this regard, I
am of the view that the following two paragraphs of the decision respond fully
to the applicant’s submissions:
[TRANSLATION]
Drawing from Villafranca,
we find it reasonable to conclude that when a state like El Salvador has
control over its territory, has well-established military and civilian
authorities and a well-established police force, and makes serious efforts to
protect citizens who have been threatened, the mere fact that the state does
not always succeed in that protection is insufficient to justify the claim that
crime victims, or persons threatened with crimes, cannot claim its protection.
The burden was on the
applicant to rebut the presumption that the Salvadoran authorities were able to
protect them. Although the situation is not perfect in El Salvador, this is insufficient for this Board to
conclude that there is clear and convincing evidence that the Salvadoran
government would not attempt to protect the claimant if she were to return to
her country. More importantly, this particular claimant has not only failed to
exhaust all remedies at her disposal for obtaining assistance and protection,
she has made no requests for such assistance and protection.
[19]
Although
the evidence submitted to the RPD indicates a rising crime rate and corruption,
this is not a basis for concluding that the state would be unable to protect
people like the principal applicant. The fact is that there is no indication of
a complete collapse of the state and a total inability to act. By taking no
steps to obtain the protection of her country’s authorities, the principal
applicant never even gave its law enforcement authorities the opportunity to
come to her aid. As the Federal Court of Appeal reiterated in Canada
(Minister of Citizenship and Immigration) v. Carillo, 2008 FCA 94, at
paragraph 30, “a claimant seeking to rebut the presumption of state protection
must adduce relevant, reliable and convincing evidence which satisfies the
trier of fact on a balance of probabilities that the state protection is
inadequate.”
[20]
Although
the RPD does indeed refer, in the above-quoted excerpt, to the absence of
evidence that the Salvadoran government would not [TRANSLATION] “attempt” to
protect the principal applicant, it is my opinion that this statement must be
understood in its context. Only by splitting hairs could one possibly
question whether the RPD’s decision applied the correct burden of proof and the
relevant precedents. One must not lose sight of the fact that international
protection is available only where there is no alternative for the claimant. The
RPD was correct to rely on Villafranca in determining that a state that
exercises full control over its territory, army, police and civil service, and
makes serious efforts to protect its citizens, must be presumed to be able to offer
that protection, even if it is not perfect and is not necessarily available the
first time it is requested. It is true that it would have been preferable
to analyse the documentary evidence regarding the situation in El Salvador more explicitly; however, in
the absence of any effort on the principal applicant’s part to obtain the
protection of her country, it is clear that she did not rebut the presumption
of state protection.
[21]
For all
these reasons, the application for judicial review is dismissed. The parties submitted
no question for certification, and in my opinion this matter raises no such
question.
ORDER
THE COURT ORDERS that the application for judicial
review is dismissed. No question is certified.
“Yves
de Montigny”
Certified
true translation
Brian
McCordick, Translator
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