Date: 20110401
Docket: IMM-4600-10
Citation: 2011 FC 403
Ottawa, Ontario, April 1, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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SAMUEL ARTURO BARRIOS PINEDA
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Applicant
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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
I. Background
[1]
The
Applicant is a citizen of El Salvador where he practised
medicine for many years. After treating a member of the notorious “La Mara 18”
gang (MS-18) in 2005, he was threatened by other members of the gang allegedly for
tipping off the police. He left El Salvador for the United
States
in 2005 and tried to obtain permanent resident status. After being arrested in
2006 for overstaying his visa, he came to Canada, in June
2007, and made a claim for protection.
[2]
In
a decision dated June 18, 2010, a panel of the Refugee Protection Division of
the Immigration and Refugee Board (the Board) determined that the Applicant was
neither a Convention refugee, pursuant to s. 96 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA), nor a person in
need of protection, pursuant to s. 97 of IRPA. It appears that the Board
believed the Applicant’s story except in one regard; specifically, the Board
did not believe the Applicant’s claim that he had gone to the police after
threats were made against him. The Board went on to make three key findings:
·
The
s. 96 claim was denied on the basis that the Applicant’s claim did not have a
link or nexus to any of the five Convention grounds.
·
The
s. 97 claim was denied because the risk faced by the Applicant from MS-18 is a
risk faced in every part of the country and faced generally by all individuals
in El
Salvador.
·
The
Applicant failed to rebut the presumption of state protection in El Salvador.
[3]
The
Applicant seeks to overturn the Board’s decision. For the reasons that follow,
I have determined that this application should be allowed.
II. Issues
[4]
This
application raises the following issues:
1.
Did
the Board err in assessing the credibility of the Applicant?
2.
Did
the Board err in concluding that the risk faced by the Applicant was
generalized and that, therefore, he was not eligible for protection under s. 97
of IRPA?
3.
Did
the Board err in concluding that there was adequate state protection in El Salvador?
[5]
The
parties accept that the Board’s decision is reviewable on a standard of
reasonableness. On this standard, the Court should not intervene where the 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,
[2008] 1 S.C.R. 190 at para. 47).
III. Analysis
A. Credibility
finding
[6]
The
only credibility finding made by the Board was that it did not believe that the
Applicant reported his threats to the police. In its reasons, the Board states
the following:
He [the Applicant] also
specifically stated that he did not call the police because “they would kill me
more faster.” In his original Personal Information Form (PIF) narrative he did
not mention that he had gone to the police as a result of the telephone
threats. In his amendment to the PIF, he stated that he went to the police
after the second telephone call and they could not trace the call. He was asked
why there was a difference between the statements in his application form, his
original PIF narrative and his amended PIF. He could not offer an explanation
but stated that his application form had been read back to him before he signed
it but not after he signed it.
[7]
The
Applicant submits that this credibility finding is not supported by the
evidence. I agree. While it is true that the Court cannot expect perfection in
the written reasons of the Board, the reasons should accurately reflect what
occurred at the hearing and should have a reasonable level of coherence. In
this case, the above paragraph does not meet that standard. The cited paragraph
misquotes the Applicant and incorrectly states that the Applicant was asked
about the differences in the documentation. Contrary to the statement of the
Board, the Applicant was never asked why he failed to mention his police
contacts in his original PIF. However, this error does not impact on the
determinative findings of the Board. This is because the Board, for purposes of
its analysis of the availability of state protection, accepts the Applicant’s
story that he contacted the police on two occasions.
B. Generalized
Risk
[8]
Pursuant
to s. 97 of IRPA, a person in need of protection is one whose removal
would subject them personally to a risk to their life. However, s. 97
protection does not extend to cases where the risk is faced generally by other
individuals from that country.
[9]
The
Board found that the risk faced by the Applicant from the MS-18 would be faced
in every part of the country and is faced generally by all individuals in El Salvador. The Board
stated that the fact that the Applicant may have been personally identified as
a target because of suspicion that he gave information leading to the gang
member’s arrest does not necessarily remove him from the generalized risk
category, since the nature of the risk is one that is faced generally by others
in the country.
[10]
The
Applicant submits that the Board erred in concluding that the risk he faced is
generalized. The Applicant asserts that because of his imputed actions, he is
now personally targeted by the MS-18, since they believe he turned in one of
their members.
[11]
The
Respondent submits that the Board thoroughly analyzed the Applicant’s specific
circumstances, but reasonably found that a risk due to the MS-18 is a risk
faced generally by all the people in El Salvador (Raza v Canada (Minister of
Citizenship and Immigration), 2006 FC 1385). The Respondent notes that even
the Applicant stated in testimony that everyone in El Salvador was
frightened of these members. The Respondent further submits that, as noted by
the Board, the Court has upheld this finding for various victims of gangs (Ventura
de Parada v Canada (Minister of Citizenship and Immigration), 2009 FC
845; Velasquez v Canada (Minister of
Citizenship and Immigration), 2009 FC 109). The Respondent asserts
that, considering the fact that it is clear from the Board’s reasons that it
considered the specific circumstances of the Applicant and the fact that the
Applicant did not advance any evidence to support his claim that he had a
specific risk and not a generalized risk, it was open to the Board to find that
the risk faced by the Applicant is one faced generally by other individuals in
El Salvador.
[12]
I
acknowledge that, on a basic level, the Applicant is a victim of crime.
However, the facts of this case are unusual in that the Applicant claims to
have been personally and directly targeted by MS-18. The Board did not question
the credibility of this aspect of his claim. In other words, this is not a
generalized fear of being targeted by MS-18 just because the Applicant is a
citizen or because of his profile as a doctor. The nature of the risk he now
faces is not the same as the risk he faced prior to treating the gang member –
before he treated the gang member, he was susceptible to extortion or violence,
whereas now he is specifically and individually targeted for his perceived
actions, unlike the general population.
[13]
In
virtually all of the cases cited by the Respondent, the applicants were not
targeted personally per se. While the gangs may have known their names,
their personal information, and may have even threatened them or assaulted them
on a number of occasions, the nature of the threat was still generalized. The gang
could have gone after anyone with perceived wealth, or any young person who may
be recruited into their gang. These people were essentially means to an end for
the gang members. I doubt that it really mattered whether person A or person B
gave the gang the money for which they were searching, even if both parties
were personally threatened. Similarly, I doubt that it really mattered whether
person C or person D joined their cause, provided that they continued to
increase their membership. The situation before me is fundamentally different.
The Applicant presented a story to the Board of being at risk because he was
perceived to be a person who “ratted out” an individual gang member.
[14]
I
conclude that, on these facts, the Board erred in failing to carry out an
adequate s. 97 analysis. This error would likely not have been material to the
decision if the Board’s conclusion on state protection had been
reasonable.
C. State
Protection
[15]
As
an alternative to its findings that the Applicant’s s. 96 and s. 97 claims were
rejected, the Board concluded that the Applicant had failed to rebut the
presumption of state protection.
[16]
The
Applicant acknowledges that this finding would be determinative of his claim
but asserts that this finding is not reasonable. Specifically, the Applicant
submits that the Board failed to have regard to two key pieces of documentary
evidence. In final submissions to the Board, the Applicant’s counsel spent
considerable time highlighting the importance of these documents. Yet, a review
of the reasons shows that there is no specific reference to or analysis of the
documents.
[17]
The
first of the documents is a new set of guidelines published by the United
Nations High Commissioner for Refugees entitled “Guidance Note on Refugee
Claims Relating to Victims of Organized Gangs” (UNHCR Report). In the document,
there are significant references to the actions of the El Salvador gangs known
as the “maras” (MS-18 being one of these gangs). For example, the document
speaks of the following:
·
the
maras have considerable power and capacity to evade law enforcement;
·
the
maras may directly control society and de facto exercise power in the
areas where they operate;
·
the
activities of gangs and certain state agents may be so closely intertwined that
gangs exercise direct or indirect influence over a segment of the state or
individual government officials; and
·
the
maras have country- or region-wide reach and organization, and there may
generally be no realistic internal flight alternative.
[18]
The
Applicant also cites a recent publication from the International Human Rights
Clinic at Harvard Law School, which was
not referred to in the Board’s decision.
[19]
The
Respondent submits that it is clear from the Board’s reasons that it properly
reviewed and analyzed the evidence as a whole and provided detailed reasons as
to why it concluded as it did. The Respondent notes that the Board found that
the Applicant could access state protection based on the evidence contained in
the recent U.S. Department of State (DOS) report on country conditions in El
Salvador in 2009, which indicated that civilian authorities maintained
effective control over security forces and there was no evidence that El
Salvador was in a state of complete breakdown. The Respondent further notes that
the Board explicitly acknowledged that El Salvador has
significant difficulties in addressing criminality and corruption, but found
that the state was making a concerted effort to deal with violence and that
police are willing and able to protect its citizens. The Respondent submits
that it was open to the Board to prefer the evidence upon which it relied to
that submitted by the Applicant (Aleshkina v Canada (Minister of Citizenship
and Immigration), 2002 FCT 589; Tekin v Canada (Minister of
Citizenship and Immigration), 2003 FCT 357). The Respondent relies on
the presumption that the Board considered all relevant evidence, and asserts
that the Applicant has not rebutted this presumption (Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ No 598 (CA); Hassan
v Canada (Minister of Employment and Immigration) (1992), 147 NR 317 (FCA);
Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 1425 (TD); Zsuzsanna v Canada (Minister of Citizenship and
Immigration), [2002] FCJ No 1642 (TD)).
[20]
It
is a well-established principle of law that the Board is not required to refer
to every piece of evidence that contradicts its findings (Hassan, above).
However, it is also true that the more important the evidence not specifically
mentioned the more willing the court may be to infer that such evidence was
ignored (Bains v Canada (Minister of Employment and Immigration) (1993),
63 FTR 312 (TD); Cepeda-Gutierrez, above). The two documents –
particularly the UNHCR Report – are recent, they are from reliable sources,
they are relevant to the claim of the Applicant and they contain material
elements that contradict the conclusion of the Board about state protection.
Neither of these documents was explicitly mentioned by the Board. Further, the
reasons do not reflect the substance of the two pieces of evidence. In my view,
given that counsel for the Applicant made substantive and detailed submissions
on the two documents in her final submissions to the Board, the failure of the
Board to refer to the documents raises the inference that they were ignored. It
would have been open to the Board to weigh the contents of the two documents
and, with adequate reasons, prefer the U.S. DOS Report; what the Board cannot
do is ignore the documents.
[21]
I
conclude that the Board’s finding of state protection was unreasonable.
IV. Conclusion
[22]
For
these reasons, the application for judicial review will be allowed. Neither
party proposed a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is allowed, the decision of the Board is
quashed and the matter is sent back to the Board for re-determination by a
newly-constituted panel of the Board; and
2.
No
question of general importance is certified
“Judith
A. Snider”
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