Date: 20090506
Docket: IMM‑3673‑08
Citation: 2009 FC 464
Ottawa, Ontario, May 6, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
ALMIR VALDIVIA RODRIGUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act), the applicant is
seeking judicial review of a decision dated July 30, 2008, by the
Refugee Protection Division of the Immigration and Refugee Board (Board)
finding that the applicant was neither a Convention refugee nor a person
in need of protection within the meaning of sections 96 and 97 of the
Act and rejecting his claim for refugee protection.
I. Facts
[2]
The applicant,
a citizen of Peru, claims that he cannot return to his country because he
allegedly refused to participate for his employer in acts of corruption
involving government officials, and that consequently his life is now in
danger.
[3]
His
problems allegedly began in May 2003, when his employer asked him to sign
documents containing false information. The applicant refused and had to flee
to the United States to escape persecution. He stayed in the
United States for 31 months before coming to Canada and claiming
refugee protection.
II. Impugned
decision
[4]
The main
reason the Board gave for its decision was “[translation]
that the onus was on the applicant to rebut the presumption that the Peruvian
authorities were able to protect him.” In addition, “[translation] while the situation may not be perfect in Peru,
. . . (it) cannot conclude that there is clear and convincing evidence that the
Peruvian government would not attempt to protect the applicant were he to
return to his country,” especially since, “in his case, not only has the
applicant not exhausted all forms of recourse available to him to obtain help
and protection, but he has made no such request.”
[5]
Alternatively,
the Board stated that it was “[translation]
uncertain about the credibility of the applicant” because it felt “[translation] that the applicant adapted
his answers to the questions asked,” and was not satisfied with his answers
when he was confronted with certain contradictions.
[6]
Is the Board’s
decision unreasonable?
III. Analysis
Standard of
review
[7]
The Board’s
decision is based on the presumed ability of the Peruvian government to provide
the applicant with the necessary protection, and the applicant has failed to
rebut that presumption by providing sufficiently clear and convincing evidence
to satisfy the Board otherwise.
[8]
This
proceeding raises questions of mixed fact and law that make it subject to the
standard of reasonableness defined in Dunsmuir v. New Brunswick, 2008 SCC 9
(Dunsmuir).
The Board has expertise in the area within its jurisdiction;
accordingly, the Court must treat the Board’s decision with deference and avoid
intervening unless there is just cause.
[9]
The
standard does not open the door to the type of intervention sought by the
applicant, namely, to start over and assess the evidence so as to adopt the
theory developed by the applicant in support of his application for judicial
review. On the contrary, it is sufficient for the Court to determine whether
the impugned decision appears reasonable, because it is justified with regard
to the facts in evidence and the law, or unreasonable, because it is
unjustified.
State
protection in Peru
[10]
The
applicant wishes to convince the Board, and now this Court, that his safety is
threatened in Peru and that the Peruvian government is unable to protect him.
The applicant maintains that he was the subject of attempts at bribery,
repeated harassment, threats and attempted assault in Peru, yet he admits that
he did not report his aggressors and their offences because he did not have
faith in the police in his country.
[11]
For the Board
to grant his claim for refugee protection, the applicant had to present clear
and convincing evidence to show that the Peruvian government was unable to
provide him with the necessary protection, something that must be established
to be recognized as a Convention refugee or person in need of protection within
the meaning of sections 96 and 97 of the Act (Canada (Attorney General)
v. Ward, [1993] 2 S.C.R. 689). However, the Board found in its
decision that the applicant failed to discharge his burden and did not make all
reasonable efforts to try to obtain the protection of the Peruvian authorities.
[12]
It was not
sufficient for the applicant to show that state protection in Peru was not
perfect. No government that makes any claim to democratic values or protection
of human rights can guarantee the protection of all of its citizens at all
times. This Court has acknowledged, in several decisions, that although the
situation is not perfect in Peru, Peru remains a democratic country that
provides its citizens with protection (Valera v. Canada (Citizenship and
Immigration), 2008 FC 1384, and Lopez v. Canada (Citizenship
and Immigration), 2007 FC 198, to list only the most recent).
[13]
As the Board
remarked in its reasons, when an applicant lives in a democratic state such as
Peru, there is an increased obligation to seek the protection of that state.
Accordingly, the applicant must show that he or she exhausted all reasonable
courses of action available in his or her country to obtain the necessary
domestic protection, before contemplating seeking protection from another
country (Kadenko v. Canada (Minister of Citizenship and Immigration), [1996]
F.C.J. No. 1376).
[14]
It
appears from the applicant’s testimony that he failed to file a valid report
that would make it possible for the police to identify his assailants. He was
not actually refused help; he merely failed to provide the police with the
information required for the police to intervene, because he did not have faith in the police.
In short, he did not even put the assistance available to him to the test.
[15]
However,
he did commence legal proceedings against his employer to end the harassment,
obscenities and discrimination directed at him. If the applicant had enough
faith in his country’s legal system to bring a civil action against his
employer, it would seem contradictory, if not unjustifiable, for him not to
have sought help from the police or from the authorities in his country to
obtain protection from his persecutors, given that he alleges that his life was
in danger. The fact that the applicant initiated a civil action did not make it
possible for him to rebut the presumption of state protection.
[16]
Moreover,
the applicant did not even await the outcome of the proceedings commenced
against his employer before leaving his country. Instead of waiting and
attempting to avail himself of the protection potentially provided by his
country, the applicant left for the United States, where he stayed for
31 months without claiming refugee protection, before coming to Canada to claim protection here. However, as stated by the
Supreme Court of Canada in Ward, above, refugee protection is not
available where there has been an inadequate attempt to seek out the protections
available in one’s home country (Hinzman v. Canada (Citizenship and
Immigration), 2007 FCA 171, at paragraph 52).
Lack
of subjective fear
[17]
The
Board also noted that “[translation]
not only did the applicant fail to seek protection in his country, but he also
failed to seek protection after he arrived in the United States. The
explanation that he believed that his country’s situation would improve is not
enough to justify staying 31 months in the United States without claiming
refugee status when the applicant maintains that he is afraid to return to his
country.”
[18]
The
Board correctly went on to refer in its decision to this Court’s past decisions
finding that failure to make a refugee claim in a country that is a signatory
to the 1967 Protocol belies the suggestion that the person fears persecution.
IV. Conclusion
[19]
In short,
and to paraphrase Hinzman, above, at
paragraph 62, “the applicant has failed to satisfy the fundamental
requirement in refugee law that claimants seek protection from their home state
before going abroad to obtain protection through the refugee system.” The applicant’s failure to
file an effective complaint with the police and await the outcome of civil
action commenced in Peru, his haste in leaving his country for the
United States and his 31-month stay in that country without seeking
protection make one wonder about his claims, and it does not surprise the Court
that the Board, for additional reasons cited, was “uncertain” about the
applicant’s credibility.
[20]
However,
the Court does not consider it necessary to deal with the Board’s criticisms
regarding the applicant’s credibility, to which the applicant is objecting. It is
sufficient to find that the applicant did not make a serious effort to seek
protection in his country before leaving it, so that it is impossible for the
Court to assess whether the protection that might have been available was
reasonably sufficient or not.
[21]
Therefore,
the applicant’s claim for refugee protection in Canada cannot be allowed, and
his application for judicial review of the Board’s decision to the same effect
will be dismissed. Since no serious question of general importance was
proposed or warrants being proposed, there is no question to be certified.
JUDGMENT
FOR THESE REASONS, THE COURT DISMISSES the application for judicial
review.
“Maurice E. Lagacé”
Certified
true translation
Brian
McCordick, Translator
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