Date: 20110307
Docket: IMM-3744-10
Citation: 2011 FC 236
Ottawa, Ontario, March 7, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
|
|
HECTOR ULISES CANALES
RODRIGUEZ
ROSA ELVIRA BONILLA CRUZ
NELSON ALEJANDRO BONILLA
(A.K.A. NELSON BONILLA)
ALEX ALBERTO CANALES BONILLA
(A.K.A. ALEX CANALES
BONILLA)
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I.
Overview
[1]
Mr.
Hector Ulises Canales Rodriguez, along with his wife and family, left El Salvador in 2006,
spent nearly two years in the United States, and then sought refugee protection
in Canada. A panel of
the Immigration and Refugee Board denied Mr. Canales Rodriguez’s claim, finding
that state resources were available to protect him against the gang violence he
feared in El
Salvador.
[2]
Mr.
Canales Rodriguez argues that the Board erred by failing to consider
documentary evidence showing that the state of El Salvador has little ability
to protect its citizens against gang violence. He also submits that the state
of El
Salvador
was unable to protect other persons in circumstances similar to his and that
this should have caused the Board to conclude that he was equally at risk.
[3]
I
cannot conclude that the Board erred in either of these areas. The Board
considered evidence on both sides of the state protection issue, and took
account of the experiences of persons similarly situated to Mr. Canales
Rodriguez. In the end, it found that his refugee claim, because of the evidence
of state protection, was not objectively well-founded. The Board’s decision was
reasonable in light of the evidence before it. I must, therefore, dismiss this
application for judicial review.
[4]
The
issues are:
1.
Did
the Board overlook relevant evidence?
2.
Did
the Board fail to consider the situation of similarly situated persons?
II. Factual
Background
[5]
In
2002, Mr. Canales Rodriguez was a bus driver in Concepcion de Oriental. Members
of the Mara Salvatrucha 13 (MS-13) gang used to board his bus and demand money.
They threatened and beat him until he began paying them $20 per week. When he
could not afford to pay any more, gang members threatened him again. At one
point, they blocked the road and robbed Mr. Canales Rodriguez and his
passengers.
[6]
After
receiving numerous complaints, the government agreed to set up police check
points along bus routes. Mr. Canales Rodriguez felt this made the situation
worse because it angered the MS-13 gang. In retaliation, the gang killed some
bus drivers. Mr. Canales Rodriguez filed in evidence a death certificate for
one of his co-workers.
[7]
In
2004, Mr. Canales Rodriguez quit his job and bought his own mini-bus, which he
operated independently. Still, he encountered more problems with the MS-13 gang
– robberies, damage to his bus, and threats to him and his family. On the
advice of his father, the mayor, he complained to police. They refused to
accept his complaint. But his father persuaded the police to set up more check
points.
[8]
In
2006, Mr. Canales Rodriguez left El Salvador with his wife and son.
They lived in the United States for almost two years before seeking
refugee protection in Canada.
III. The Board’s
Decision
[9]
The
Board’s decision concentrated on the legal framework governing the issue of
state protection, and the particular evidence before it on that issue. There is
no suggestion that the Board erred in its definition of state protection, so I
need not describe that part of the decision. The following is a summary of its
factual findings.
[10]
The
Board described programs instituted by the government of El Salvador to combat
gang violence. These included creation of specialized anti-gang squads, with
over a thousand members, within police forces, the military, and other
government agencies. The result was an increase in arrests and convictions, and
a decrease in crime rates. The Board described these measures as “serious
efforts” to address the problem.
[11]
The
Board noted that the police did take some action to protect Mr. Canales
Rodriguez – setting up check points and boarding buses occasionally to look for
suspicious passengers. While there was a problem with corruption within the
police, the state was taking action on that front, too.
[12]
With
respect to the death certificate of Mr. Canales Rodriguez, the Board noted that
it did not describe the circumstances surrounding the death or identify the
perpetrators.
[13]
Overall,
the Board found that Mr. Canales Rodriguez had not made diligent or reasonable
steps to secure state protection. He had only approached the police once. Yet, when
asked, the government and the police did take positive steps to deal with the
problem of gang violence against bus drivers.
[14]
The
Board acknowledged that gang violence is a serious problem in El Salvador, but
concluded that the government is giving the issue a high priority and is
devoting substantial resources to it. It also acknowledged that the documentary
evidence about El Salvador contains some inconsistencies in its discussion
of state protection. However, the Board found that the preponderance of the
evidence showed the state’s willingness and ability to protect its citizens.
Therefore, Mr. Canales Rodriguez had failed to present clear and convincing
evidence of an absence of state protection and, on that ground, his fear of
persecution was not well-founded.
(1) Did the
Board overlook relevant evidence?
[15]
Mr.
Canales Rodriguez points to documentary evidence in the record to which the
Board did not refer in its reasons. That evidence contains references to the
fact that state efforts to combat gang violence in El Salvador are viewed
by some as ineffective. Mr. Canales Rodriguez argues that this is important
evidence contradicting the Board’s conclusion on state protection and,
therefore, that the Board had a duty to refer to it.
[16]
Having
reviewed the record, it is clear that there is evidence to which the Board did
not expressly refer. Some of that evidence describes the difficulties the state
of El
Salvador
has encountered in dealing with gang violence given the magnitude of the
problem.
[17]
However,
I do not agree with Mr. Canales Rodriguez’s assertion that the Board overlooked
important evidence or that the evidence not cited by the Board contradicts its
conclusion about state protection. The Board acknowledged the serious problems
with gang violence in El Salvador and conceded that the
record was somewhat contradictory regarding the effectiveness of the measures
the state had introduced to deal with it. In effect, Mr. Canales Rodriguez is
asking me to re-weigh the evidence to arrive at a conclusion contrary to that
reached by the Board. That, however, is not my role and it is not a valid
ground for overturning the Board’s conclusion.
(2) Did the Board
fail to consider the situation of similarly situated persons?
[18]
Mr.
Canales Rodriguez also argues that the Board overlooked the experiences of two
other persons, his father and his murdered co-worker. In respect of the latter,
as mentioned above, the Board clearly dealt with the evidence relating to the
co-worker’s death. It found that it had evidence of the death but not about the
cause or circumstances surrounding it. I can see nothing unreasonable about
that conclusion.
[19]
As
for the father, it is not correct to say that the Board failed to consider his
experiences. The Board describes the father’s problems with gang violence in
2000 and the failure of the police to respond. Elsewhere in the decision, the
Board notes that the father asked for assistance from the police in 2005 and
the police responded positively by setting up more check points. Again, I see
no basis for the assertion that the Board failed to take account of the
evidence.
IV. Conclusion and
Disposition
[20]
In
my view, the Board did not fail to consider relevant evidence relating to state
protection in El
Salvador
or to the experiences of persons similarly situated to Mr. Canales Rodriguez.
Therefore, I must dismiss this application for judicial review. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Email this Content