Docket: IMM-3229-11
Citation: 2011 FC 1523
Ottawa, Ontario, December 23, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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ALMA ANGELINA CHINCHILLA JIMENEZ, LEVI
JOSUE BARILLAS CHINCHILLA by his Litigation Guardian ALMA ANGELINA CHINCHILLA
JIMENEZ and JOHNATHAN ISAAC BARILLAS CHINCHILLA
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Applicants
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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
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 7 April 2011 (Decision), which refused the Applicants’ claims for
protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicants are all citizens of El Salvador. The Secondary
Applicants, Levi
Josue Barillas Chinchilla and Johnathan Isaac Barillas Chinchilla, are the
Principal Applicant’s two sons. The Applicants claimed protection in Canada on the basis of threats
they received in El
Salvador.
[3]
In
mid-2000, the Principal Applicant’s father (Tito) was threatened by an unknown
person. At that time, Tito was working as a bodyguard for Roberto H. Murray
Mesa (Murray). The person who threatened Tito thought Tito had information
about Murray’s
whereabouts and schedule. At the time, Murray was politically active as the
president of the ARENA political party in El Salvador. In November
2000, the Principal Applicant’s cousin was kidnapped, presumably by the same
people who threatened Tito. The kidnappers demanded a ransom and information
about where Murray was in
exchange for the cousin’s release. Tito’s brother, the cousin’s father, paid a
partial ransom but Tito did not disclose any information on Murray; even so,
the cousin escaped his kidnappers. In April 2001, Tito’s brother fled with his
wife and son to Canada. They successfully claimed refugee status here.
[4]
In
March 2001, unknown persons tried to kill Tito. In May 2001, his immediate
supervisor killed himself; he too had been pressured to inform on Murray. Tito was
promoted to the supervisor’s position and two more attempts on his life were
made in 2001. Tito, his wife, and their son (the Principal Applicant’s brother)
fled to Canada in July
2001. They also made successful refugee claims.
[5]
After
her family fled, the Principal Applicant remained for a while with her sons at
her father’s house for a while. People began to call them at home and demanded
they give Tito up. In May 2002, the Principal Applicant and her sons moved to
her aunt’s house. The calls continued while the Applicants were living with the
aunt. The Principal Applicant believed she was putting her aunt at risk of harm
so, in October 2002, she and her sons packed up and moved to a new home. Though
the Principal Applicant had left, the calls to her aunt’s house continued to
the point where her aunt had to cancel her telephone service.
[6]
After
the Applicants moved out of the aunt’s house, the Principal Applicant asked her
cousin, Enrique Martinez (Martinez) to move in with her.
One day in 2003, Martinez did not come home from work as expected. After
the Principal Applicant searched for him, she discovered that he had been hit by
a car. He fell into a coma and later died. Though the Principal Applicant
initially believed that this was an accident, someone later telephoned her and
said that the same thing would happen to her if she did not tell the caller
where her father was. After this telephone call, the Applicants began moving
around El
Salvador
to avoid detection.
[7]
In
2003, two men followed the Principal Applicant and her friend at a shopping
mall. The Principal Applicant and her friend went to a nearby police patrol for
help. Though the police chased the men, they did not catch them. At this point,
the Principal Applicant felt she could take no more, so she left her job and
fled with her sons to Guatemala.
[8]
The
Principal Applicant and her sons lived in Guatemala until
January 2004 when they left for Mexico, where they lived for
eight months. They made their way North over the next five years, living in
Fresno, California for eight months and Los Angeles, California for four years.
In July 2009, the Applicants made their way to Canada, where they
arrived on 24 July 2009. They claimed protection on that day.
[9]
The
Applicants’ claims were joined under subsection 49(1) of the Refugee
Protection Division Rules SOR/2002-228. Because her son Levi was a minor at
the time, the Principal Applicant was appointed as his designated representative.
The RPD heard the Applicants’ claims on 30 March 2011. The Secondary Applicants
adopted the Principal Applicant’s narrative as their own, so all three claims
were determined on the same basis. At the hearing, the Applicants, their
counsel – an immigration consultant, an interpreter, and the RPD panel were
present. The RPD made the Decision on 7 April 2011 and informed the Applicants
on 20 April 2011.
DECISION
UNDER REVIEW
[10]
The
RPD found that the Applicants are neither Convention refugees nor persons in
need of protection. Accordingly, it denied their claims for protection.
Identity
[11]
The
Applicants established their identities to the RPD’s satisfaction by providing
their El Salvadorian passports.
State Protection
[12]
The
determinative issue in the Applicants’ claims for protection was the
availability of state protection. The RPD found that, because they had failed
to rebut the presumption of state protection in El Salvador, the
Applicants could not be Convention refugees or persons in need of protection.
[13]
The
RPD began its state protection analysis by reviewing the jurisprudence on the
issue. The RPD noted the presumption of state protection, the principle that
refugee protection is a surrogate for the protection offered by the home
country, and the principle that claimants must approach their home country for
protection where it might reasonably be forthcoming. The RPD also said,
following Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689,
that the presumption of state protection can only be rebutted with clear and
convincing evidence of a state’s inability to protect.
[14]
Where
a state is effectively in control of its territory, the mere fact that its
efforts to protect its citizens are not always successful will not rebut the
presumption (see Villafranca v Canada (Minister of
Citizenship and Immigration), [1992] FCJ No 1189 (FCA) at paragraph
133). The RPD found that the El Salvadorian government is in control of its
territory and has in place a functioning security force to enforce its laws.
The RPD also noted Kadenko v Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 1376 (FCA) as
authority for the principle that a claimant’s burden increases with the
democratic nature of the state against which protection is claimed.
[15]
The
RPD noted that, at the hearing, the Principal Applicant had testified that,
when the Salvadoran Civil War ended, the guerrillas involved in the war mixed
with the police. She said that, while not all the police were corrupt, it was impossible
to tell who was corrupt and who was not. She also said there was no security in
El
Salvador.
When she was asked what one would do if one encountered a corrupt police
officer, she said that you need a lot of money to seek redress. She further said
she would have to live in hiding in El Salvador.
[16]
The
RPD conducted an extensive review of the documentary evidence on the country
conditions in El
Salvador
and concluded that the Applicants had not rebutted the presumption of state
protection. The RPD found that El Salvador is a constitutional,
multi-party democracy with an independent and functioning judiciary. It also
found that, although there are corruption issues within the El Salvadorian
security forces, corruption is not systemic and the government is making
serious efforts to address these issues.
[17]
The
RPD noted that El Salvador is taking steps to address gang problems in the
country. These steps include improved training for officials involved in the administration
of justice, creating a Gang Resistance Education and Training (GREAT) program
for children, and passing a law which provides support and protection for
victims, witnesses, and other people in risky situations stemming from criminal
investigations or court proceedings. The Policia National Civil (PNC) – the
National Civil Police – had also investigated and dismissed several of its
officers for serious misconduct, including kidnappings, drug trafficking, and
membership in illegal groups.
[18]
The
RPD also found that El Salvador was taking steps to protect women from
discrimination. The government passed the Law Against Intra-Family Violence,
which condemns violence in all forms. The RPD also recognized that several
groups in El
Salvador,
including the Office of the Attorney General and the PNC, have collaborated to
combat violence against women. The El Salvadorian government has also set up a
program to provide psychological help and social assistance for women who have
experienced domestic violence. The RPD also noted several other programs and concluded
that El
Salvador
is making serious efforts to combat violence against women.
Conclusion
[19]
The
RPD said it had considered the totality of the evidence and found that the
Applicants had not rebutted the presumption of state protection with clear and
convincing evidence. It found that the Applicants had not established that
state protection would not be reasonably forthcoming if they sought it. The RPD
also found that there was no persuasive evidence that the Applicants would face
persecution or a risk to life or of cruel and unusual treatment or punishment
if they were returned to El Salvador. It therefore refused
the Applicants’ claims for protection.
ISSUES
[20]
The
sole issue the Applicants raise in this proceeding is whether the RPD’s state
protection finding 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
Carillo v Canada (Minister of Citizenship and Immigration) 2008 FCA 94,
the Federal Court of Appeal held at paragraph 36 that the standard of review on
state protection finding is reasonableness. This approach was followed by
Justice Leonard Mandamin in Lozada v Canada (Minister of
Citizenship and Immigration) 2008 FC 397, at paragraph 17. Further, in Chaves
v Canada (Minister of
Citizenship and Immigration) 2005 FC 193, Justice Danièle
Tremblay-Lamer held at paragraph 11 that the standard of review on a state
protection finding is reasonableness. The standard of review on the sole issue
in this application is reasonableness.
[23]
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.”
STATUTORY
PROVISIONS
[24]
The
following provisions of the Act apply in this proceeding:
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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
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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.
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ARGUMENTS
The
Applicants
[25]
The
Applicants argue that the RPD’s finding that they had not rebutted the
presumption of state protection was unreasonable because it was contrary to the
evidence. They note that documentary evidence before the RPD showed that the
homicide rate in El Salvador in 2008 was 52 homicides per 100,000 people per
year, while the world average is 9 homicides per 100,000 people per year. They
also note that the RPD’s Response to Information Request SLV103445.FE, which is
part of the National Documentation Package for El Salvador, shows that the
Overseas Security Advisory Council – a branch of the United States Department
of State – said that El Salvador is “one of the most
dangerous countries in the world.” The Applicants say that there is a vast
difference between making good efforts to protect citizens and providing
adequate state protection. They also say that the murder rate in El Salvador shows that
that state is incapable of protecting its citizens.
The Respondent
[26]
The
Respondent says that the Applicants have failed to provide sufficient reliable
and probative evidence to rebut the presumption of state protection, so the
Decision should stand. The Applicants have also ignored Carillo, above,
which bears on their case.
[27]
The
jurisprudence of the Federal Court, the Federal Court of Appeal, and the
Supreme Court of Canada establishes that the courts must presume a state is
capable of protecting its citizens. The presumption can only be rebutted on
clear and convincing proof of the state’s inability to protect. Further, though
claimants may demonstrate that a state’s protection is not perfect, this is
insufficient to rebut the presumption. For these propositions, the Respondent
relies on Ward, above, at page 724, Villafranca, above, and Carillo,
above, at paragraphs 17 through 19, 28, and 30.
[28]
The
Respondent says that Carillo, above, establishes two burdens for
claimants seeking to rebut the presumption: an evidentiary burden and a legal
burden. To meet the evidentiary burden, claimants must provide reliable and
probative evidence that protection is inadequate. The Applicants’ claim fails
on this branch because they only adduced evidence of minimal efforts to seek protection
before they fled El Salvador.
[29]
Contrary
to the evidence the Applicants adduced, the RPD considered a large amount of
documentary evidence showing El Salvador could protect its
citizens. The RPD considered all the evidence and reasonably concluded that
there was no state breakdown and the Applicants had not rebutted the
presumption of state protection.
The Applicants’ Reply
[30]
The
Applicants say that, while Carillo deals with the burden and standard of
proof on claimants with respect to state protection, it does not address the
meaning of “adequate.” In their case, the RPD’s finding that there was adequate
protection was unreasonable. They say that it cannot be that a country with a
murder rate higher than the world average provides adequate protection. There
must be a number or a range of crimes against human rights which a state can
fail to prevent while still providing adequate protection. However, where a
country’s average murder rate climbs above 10 homicides per 100,000 people per
year – as it has in El Salvador – the presumption of state protection should no
longer apply.
ANALYSIS
[31]
The
Applicants raise a narrow point in order to challenge the RPD’s state
protection analysis. They say that the homicide rate in El Salvador, (52 per
100,000 people) is so far above the average murder rate around the world (nine
homicides per 100,000 people) that El Salvador cannot be said to
provide adequate protection for its citizens, notwithstanding its recent
efforts to do so. Good intentions cannot be equated with adequate protection
and the homicide rate, which demonstrates this fact, was overlooked by the RPD.
The Applicants point out that the World Health Organization considers a murder
rate of higher than 10 per 100,000 people to be “epidemic.”
[32]
The
Applicants provide no legal authority for this statistical approach to assessing
the adequacy of state protection and, in my view, it is conceptually and
jurisprudentially flawed.
[33]
Refugee
protection is available to those at risk who can establish a nexus to a
Convention ground. Protection is also available to those who face a personalized
risk of harm in their home country. In either circumstance, the home state must
be either unwilling or unable to protect its own citizens before international
protection is engaged. In the present case, the state is not the agent of
persecution and the Applicants, who have lived in the USA for a considerable
time, did not approach the authorities in El Salvador in a
meaningful way to ask for protection against those who would cause them harm.
[34]
A
high homicide rate in El Salvador tells us nothing about
what the state can and/or will do if approached by the Applicants for
protection. In order to have any relevance, in my view, the statistics would
have to show what happens to those whose lives are threatened and who approach the
state and ask for protection. The general homicide rate, which will include
those people murdered for non-Convention reasons, as well as people who never
seek protection, tells us little about the case at hand. Homicides may be
epidemic in El
Salvador
and the authorities may be finding it difficult to improve the figures, but
this does not mean they cannot or will not protect potential refugees who ask
for protection.
[35]
The
RPD looked at the evidence and concluded that, if the authorities are
approached and asked for protection in El Salvador, they can
and will provide adequate protection. Reliance upon general homicide statistics
does not really go to this issue and the RPD’s failure to specifically address
those statistics does not render the Decision unreasonable. Homicide rates vary
considerably around the world. They are not in themselves a measure of the
extent to which a state is willing or able to protect those who could seek
protection from persecution under section 96, or are at risk under section 97,
of the Act if given the opportunity to do so. Protection requires communication
from, and the cooperation of, the person who feels at risk. In the present
case, the Applicants’ cooperation was not forthcoming.
[36]
Here,
the RPD found that the Applicants had not rebutted the presumption of state
protection. As a finding of adequate state protection is fatal to claims under
both sections 96 and 97, it is only if I conclude that the RPD’s state
protection analysis was unreasonable that the Applicants can succeed in having
the Decision quashed. See Macias v Canada (Minister of
Citizenship and Immigration) 2010 FC 598 at paragraph 14 and Sran v Canada (Minister of
Citizenship and Immigration) 2007 FC 145 at paragraph 11.
[37]
Although
the Applicants have challenged the RPD’s Decision on state protection, they
have not addressed a critical evidentiary weakness in their case: the lack of
evidence showing either that state protection was unavailable to them at all or
that they had sought the protection of the authorities and had been turned
away. As I read the record, the only time any of the Applicants sought
protection was in May 2003, when the Principal Applicant sought police
assistance after she and a friend were followed at a shopping mall. The
Principal Applicant testified that the police were corrupt and one cannot be
certain who is corrupt and who is not in El Salvador, but she
provided no evidence at all that she or her sons had actually sought protection
from the police or any other authority.
[38]
By
drawing my attention to the high murder rate in El Salvador, and the fact that
El Salvador has been identified as “one of the most dangerous countries in the
world,” the Applicants are inviting the Court to re-weigh the evidence which
was before the RPD and to come to a different conclusion. That is not the role
of the Court on judicial review (see Suresh v Canada (Minister of
Citizenship and Immigration) 2002 SCC 1 at paragraph 29, Tai v Canada
(Minister of Citizenship and Immigration) 2011 FC 248 at paragraph 49, and Manbodh
v Canada (Minister of Citizenship and Immigration) 2010 FC 190 at paragraph
11).
[39]
Though
the evidence the Applicants have highlighted may tend to show that the
conditions in El
Salvador
are less than ideal, this is not enough to ground a claim for protection. In Singh
v Canada (Minister of
Citizenship and Immigration) 2009 FC 1070, Justice Yves de Montigny had
this to say at paragraph 25:
The risk referred to in sections 96 and 97 must be personalized
and specific to the applicant himself; consequently, the situation generally
existing in a given country is not sufficient to establish the basis for the
protection sought, in the absence of any tangible connection to the applicant's
personal situation.
[40]
The
Applicants in this case have not provided any evidence linking their situation
with the high murder rate or other conditions in El Salvador. As the
Federal Court of Appeal held in Thirunavukkarasu v Canada (Minister of
Employment and Immigration), [1993] FCJ No 1172 (FCA), the onus rests on
claimants to establish their claims. (See also Thuraisingam v Canada (Minister of
Citizenship and Immigration) 2004 FC 1332 at paragraph 12.) The
Applicants had the opportunity to prove the inadequacy of state protection in El Salvador, but they
did not do so. Unfortunately, they must now live with the consequences.
[41]
In
order to overcome these difficulties in the written submissions, counsel at the
hearing before me took the position that the real issue was that the RPD was
unresponsive to the statistical argument. He agreed that there was no direct
evidence before the RPD to show what happened to those who asked the state for
protection. He argued that the high homicide rate is indirect evidence that the
RPD was asked to consider, and that its failure to do so renders the Decision
unreasonable.
[42]
As
the Respondent points out, the arguments that were made before me concerning
the significance and importance of the general murder rate for the state
protection analysis were not made before the RPD. In effect, the Applicants are
asking the Court to find the Decision unreasonable because the RPD did not deal
with an argument that was not put to it.
[43]
The
Applicants seek to overcome this objection by saying that, although counsel for
the Applicants did not make this argument before the RPD, he did refer to the
document at page 113 of the CTR, which points out that El Salvador is “one of
the most dangerous countries in the world,” and then explains why by pointing
to the homicide statistics.
[44]
In
reviewing this reference, I cannot see how the RPD could reasonably understand
that the Applicants wanted it to assess the homicide statistics and whether
they reflected the adequacy of state protection for anyone who asked for it.
Applicants’ counsel at the hearing simply asked the RPD to consider that El Salvador is one of
the most dangerous countries in the world, which the RPD fully acknowledges and
deals with in its reasons. Consequently, I cannot accept the argument that the
RPD failed to take into account relevant evidence on this point, or failed to
respond adequately to the submissions made on point. That being the case, I can
find no reviewable error with the Decision.
[45]
Counsel
agree there is no question for certification and the court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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