Date: 20110614
Docket: IMM-6671-10
Citation: 2011 FC 678
Ottawa, Ontario, June 14, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ERMENEGILDO ROCCA GARCIA
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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. Overview
[1]
In
2008, Mr. Ermenegildo Rocca Garcia fled Peru after he was
threatened by the Shining Path guerrilla group. He sought refugee protection in
Canada, but a panel
of the Immigration and Refugee Board dismissed his claim after concluding that
state protection was available to him in Peru.
[2]
Mr.
Garcia argues that the Board erred in its treatment of the evidence of state
protection. In particular, he points out that he went to the police in Peru, but
they told him that they could not help him, and that he ought to flee Peru.
Accordingly, Peru, he says,
was not willing or able to protect him if the Shining Path tried to make good
on their threats. Mr. Garcia asks me to quash the Board’s decision and order a
new hearing. However, I cannot find a basis for overturning the decision and
must, therefore, dismiss this application for judicial review.
[3]
The
sole issue is: Was the Board’s conclusion that state protection was available
to Mr. Garcia unreasonable?
II. The Board’s Decision
[4]
The
Board began by reviewing the various legal principles relating to state
protection, beginning with the proposition that the issue of state protection
relates to the objective branch of the definition of a refugee. The Board then
outlined in considerable detail the various state agencies charged with law
enforcement and counter-terrorism in Peru.
[5]
The
Board then summarized the events involving Mr. Garcia. Members of the Shining
Path threatened him believing, mistakenly, that he was his nephew, who owned a
glass installation business. He was told to pay $20,000 within two days or he
and his daughter would be killed. Mr. Garcia went to the police, who told him
they could not protect him and recommended that he go as far away as possible.
Mr. Garcia asked a more senior officer for help, but got the same answer.
Still, the officer said he would investigate.
[6]
The
Board noted that there are agencies in Peru which
receive complaints from persons dissatisfied with the response of the police.
In addition, Mr. Garcia never followed up with the police to see whether the
investigation bore any fruit. When his sister subsequently received threatening
phone calls, Mr. Garcia did not report them to the police. Based on these
circumstances, the Board concluded that Mr. Garcia had not presented clear and
convincing evidence that state protection was unavailable in Peru.
III. Was the Board’s conclusion
that state protection was available to Mr. Garcia unreasonable?
[7]
The
Board began by framing the issue correctly – the question whether state
protection is available relates to the objective part of the definition of a
refugee. Where state protection is an issue, the claimant’s subjective fear of
persecution will not be considered well-founded unless he or she presents clear
and convincing evidence of a lack of state protection. The ultimate question in
any refugee claim is whether the claimant has shown a well-founded fear of
persecution, that is, more than a reasonable chance of persecution, if returned
to his or her country of origin.
[8]
In
my view, the Board’s conclusion that Mr. Garcia had not met the burden of
proving his claim was reasonable. He had approached a local police detachment,
once, to report threats from a terrorist organization. The documentary evidence
shows that Peru has
established an elaborate state apparatus to respond to crime and terrorism.
While various problems persist, including corruption and a lack of resources,
there are agencies to which citizens can turn if threatened by the Shining Path
or dissatisfied with the response they receive from local police.
[9]
Mr.
Garcia argued that in the face of an immediate threat, it would be unreasonable
to expect him to try to shop around for state protection from other agencies
instead of simply going to the local police (citing Barajas v Canada
(Minister of Citizenship and Immigration), 2010 FC 21). In the
circumstances, given that he had removed himself from the threat and had an
opportunity to pursue other sources of protection, I cannot conclude that the
Board’s approach placed an undue burden on him.
[10]
Based
on the evidence before the Board, I cannot conclude that its conclusion was
unreasonable. It fell within the range of possible, defensible outcomes, based
on the facts and the applicable law.
IV. Conclusion and Disposition
[11]
The
Board’s decision that Mr. Garcia had failed to show an absence of state
protection was not unreasonable based on the evidence before it. 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”
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