Docket: IMM-5584-10
Citation: 2011 FC 843
Ottawa, Ontario, July 7,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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JAIME ANTONIO CHICAS SANCHEZ
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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
[1]
The
applicant seeks an order setting aside a September 7, 2010 decision of the
Refugee Protection Division of the Immigration Refugee Board of Canada (the
Board), which found the applicant to be neither a Convention refugee nor a
person in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, 2001, c. 27 (IRPA).
The Board did not make any negative credibility findings. For the reasons that
follow, the application for judicial review is dismissed.
[2]
The applicant is a citizen
of El
Salvador.
He is a civil lawyer and a Justice of the Peace in San Miguel, El Salvador - a city with a
population of about 100,000. As a Justice of the Peace he would deal with - in
the words of the applicant - the “preliminary parts” of criminal matters and in
his civil practice he dealt with minor disputes. He fears the MS-13 also known
as Mara Salvatrucha (the Maras). The Maras are a
criminal organization involved in many enterprises, including extortion.
[3]
The
applicant claims that the Maras
extorted him for protection money. In 2008, sitting as a Justice of the Peace,
he presided over preliminary bail hearings involving Maras who were charged with
assault and armed robbery. Then, in 2009, over a year later, he claims he
received an extortion note which demanded payment and promised death if the
money was not received. The applicant filed a denunciation with the Attorney
General. The applicant believed the police and authorities were powerless to
protect him, and less than two weeks following the filing of this denunciation,
wound up his law practice and fled to Canada via the United States (U.S.). Claiming that
only he had a valid entry visa into the U.S., he fled El Salvador leaving his wife and
two daughters behind. In his absence, the applicant claims that the Maras monitored the home
where his wife and children continue to live in El Salvador. The applicant made his claim for
protection on March 31, 2009 which was denied on September 7, 2010.
[4]
The
determinative issue for the Board in the section 96 claim was lack of nexus to
a Convention ground, and for the section 97 claim, lack of particularized risk.
Additionally, as an alternative finding, the Board found that adequate state
protection exists in El
Salvador
to protect the applicant.
[5]
The Board
wrote:
[4] I find that the claimant is neither a
Convention refugee nor a person in need of protection. I find that the claimant
is not a Convention refugee because there is no nexus between the claimant’s
fear of persecution and any of the five enumerated Convention grounds under
section 96 of IRPA. Moreover, I find that the claimant is not a person in need
of protection because he faces a personal risk of harm that is faced generally
by all people in El
Salvador.
[5] In the alternative, if I have erred
with respect to my analysis of generalized risk versus personalized risk, on a
balance of probabilities, I find that the claimant does not face a risk to his
life, or cruel and unusual treatment or punishment, or torture, at the hands of
the MS-13 (Maras), if he were to return to El Salvador, because adequate state
protection might reasonably be forthcoming to him.
[6]
Counsel for the
applicant argues the following issues before the Court:
1)
Did the Board err in
ignoring or failing to properly assess the documentary evidence related to El
Salvador, in particular by assessing both generalized risk and state protection
in light of outdated documentary evidence related to the situation in 2004 to
2006, and in ignoring or failing to consider more recent documentary evidence;
2)
Did the Board err in
its analysis of generalized risk and state protection in El Salvador; and
3)
Did the Board err in
its assessment of particular social group, and nexus to section 96.
Issue 1: Did the Board err in its
assessment of particular social group, and nexus to section 96
[7]
The Board
wrote:
[6] The determinative issue in this
section 96 analysis is whether there is a nexus between the claimant’s fear of
persecution at the hands of the Maras gang in El Salvador and one of the Convention grounds under
section 96 of the Act, namely, race, religion, nationality, political opinion,
or membership in a particular social group. I find that there is no such nexus.
[…]
[8] The claimant was questioned about the
detention orders that he made against Mara gang members who appeared before him
on criminal charges while he was presiding as Deputy Justice of the Peace over
the bail court. At first, the claimant said that he did not know if the
problems he had with the MS-13 on March 2, 2009, were in any way related to his
having made detention orders against members of the Mara gangs in 2008. When
the claimant was being questioned by his counsel, he speculated that the events
of March 2, 2009, when he received a threatening note from the MS-13, might be
related to his having made detention orders against the Maras in 2008, because
his having referred their cases to a higher court could have resulted in the
gang members having been tried and convicted with respect to the criminal
charges brought against them.
[9] I find, on a balance of
probabilities, based on my review of all of the evidence, that the claimant was
a victim of crime or a personal vendetta at the hands of the MS-13. There is no
persuasive evidence before me to suggest that the actions of the MS-13, in
leaving the threatening note at the claimant’s law office on March 2, 2009,
were motivated by any of the Convention grounds, namely race, religion,
nationality, political opinion, or membership in a particular social group. I
find that the threats directed at the claimant by the MS-13, by way of leaving
a note at his law office, were solely carried out for criminal motives, namely,
wanting to raise funds to finance their criminal, enterprise and organization,
and for no other reason that might somehow be related to one of the Convention
grounds.
[8]
The
conclusion that there is no nexus to the Convention ground is reasonable. It
is supported by an ample evidentiary foundation. As counsel for the respondent
notes, there was no evidence that the applicant was a lawyer whose practice was
dedicated to opposing gangs, nor that he was an anti-gang activist in his
personal life, and therefore more likely to be targeted by gangs as a result.
[9]
The
applicant’s own Personal Information Form (PIF) indicates that he had a
general, civil and criminal practice. The applicant also indicated that his
civil practice involved conciliation of civil disputes. There was no
indication that the applicant’s civil practice involved opposing the activities
of the Maras.
[10]
The applicant
has not indicated that in the ordinary course of his duties as a Justice of the
Peace, he was active in opposing the activities of Salvadoran Maras. As a
Justice of the Peace the applicant would hear preliminary aspects of criminal
matters. He presided over bail hearings involving members of MS-13 on only two
occasions.
[11]
The
threatening letter the applicant received was silent as to his position as a
Justice of the Peace and did not take note of his profession. Nor is there any
evidence that the threats the applicant received would necessarily have
frustrated the continuation of his civil and criminal private practice. As the
Federal Court of Appeal ruled in Sanchez v Canada (Citizenship
and Immigration, 2007 FCA 99, at para 20:
…persons
claiming to be in need of protection solely because of the nature of the
occupation or business in which they are engaged in their own country generally
will not be found to be in need of protection unless they can establish that
there is no alternative occupation or business reasonably open to them in their
own country that would eliminate the risk of harm.
[12]
In
this case, there is no evidence that the applicant was threatened because of
his involvement in either of his professional activities. In sum, the Board approached
the issue of nexus from the correct legal perspective and its determination
that the applicant had not established a nexus to a Convention social group was
reasonable.
Issue 2: Did the Board err in its
analysis of “generalized risk” and “state protection” in El Salvador
[13]
The Board
wrote:
[14] The claimant testified that other
lawyers who were colleagues of his were also affected by the Maras gang. He said that he spoke to several
of his professional colleagues about the problems they had experienced at the
hands of the Maras. He said that some of his
colleagues had to remove the signs above their offices in order to avoid
attracting the Maras. The claimant said that by
removing their signs it would give the Maras the impression that they had closed down
their offices or had left. He said that some of his lawyer friends had decided
to pay the Maras extortion money, and for that
reason, no harm came to them. He said that one of his lawyer colleagues had
been threatened by the Maras, and as a result, had to flee
the country. The claimant testified that he could not avoid the Maras by relocating to another part of the
country because they had a presence all over the country and had established a
network through which they could communicate with each other. The claimant
testified that his partner in his law practice was also affected by the Maras and had to move the practice to another
part of the city of San
Miguel.
[15] The claimant was questioned by his
counsel and asked to explain what he meant in his PIF when he said that “there
was an atmosphere of fear regarding the Maras in San Miguel”. The claimant explained
that there were extortions, deaths for failure to comply with their extortion
demands, which was the immediate consequence, and that the Maras where everywhere. He said that
businesses, offices, transportation services, and all productive sectors of the
economy were affected by the Maras gang. He said that because of
the amount of money that the Maras extort, all people are assigned a
certain amount that they must pay and if they fail to cooperate they end up
dead and get coverage on the news. I find that the claimant, by his own
admission, in essence, is saying that the problems associated with the Maras
are not limited to one particular group or profile of persons in El Salvador
society but rather that it affects everyone in all parts of El Salvador,
including all productive sectors of the El Salvadorian economy. [Emphasis
added]
[14]
The
Board found as a fact that there was no evidence that the applicant was
targeted specifically because he was a lawyer or a Justice of the Peace. At
best, the applicant’s own evidence was that he might have been subject to
extortion because of his referral of two cases involving members of the Maras gangs. As the Board
noted, the connection is thin and speculative. The extortion note came a year
after he dealt with these cases and made no reference or link to his position
and no extrinsic evidence liking the extortion to the two cases. In the
result, it would be speculative to make the connections urged, something the
Board declined to do.
[15]
To
conclude, the question of personalized risk was assessed in the correct legal
framework and the related factual determinations find support in the evidence
and are reasonable.
Issue 3: Did the Board err in failing
to properly assess the documentary evidence related to El Salvador, in particular by assessing state
protection in light of outdated documentary evidence?
[16]
The
applicant challenges the Board’s finding that adequate state protection exists
in El
Salvador. Although
the Board performed a lengthy analysis of existing state protection the
following sufficiently summarizes the findings:
[21] I find that there is adequate state
protection in El Salvador, and that the claimant did not make diligent efforts
nor did he take all reasonable steps in the circumstances of this case to
pursue the different avenues of state protection that were available to him.
Moreover, I find that the claimant failed to rebut the presumption of state
protection with clear and convincing evidence.
[…]
[36] In this case, the claimant testified
that after receiving a threatening note from the MS-13 gang at his law office
on March 2, 2009, he sat down with the partner of his law firm and they both
drafted a denunciation. The claimant said that he and his partner went to the
Office of the Attorney General where they were able to file the denunciation.
The claimant testified that when he approached officials responsible for taking
denunciations within the Office of the Attorney General he asked if the
Attorney General’s Office might be able to offer him protection from the Maras. The claimant said that he was told that
the problem of the Maras was national in scope and
that they could not offer him protection. The claimant said, however, that they
did agree to investigate this matter. There is no persuasive evidence before me
to suggest that the Attorney General’s Office did not take any steps to
investigate the extortion demands and death threats made against the claimant
by members of the MS-13. On the contrary, the evidence in this case would
seem to suggest that the authorities did follow up with the claimant’s
complaint and started to investigate the matter. The claimant testified
that after he filed his denunciation with the Attorney General’s Office he
spoke with his partner who told him that the Attorney General’s Office had sent
a notice to the claimant indicating that they required the claimant to bring
the person, who witnessed the threatening note left at the law office, before
the Attorney General’s Office to give testimony concerning the note that the
claimant had received at his office. There is no persuasive evidence the
claimant ever complied with this request for a material witness to the note.
Furthermore, there is no persuasive evidence to indicate that the claimant ever
returned to the Attorney General’s Office to follow up with his complaint to
see if there had been any new developments with respect to the denunciation
that he had filed in regards to the threats from the MS-13 gang. Rather
than following up with his complaint or complying with the request of the Attorney
General’s office for a material witness, the claimant instead wound up his law
practice, transferred all of his files to his law partner at the firm, and
immediately began making arrangements to leave El Salvador. I find that the
claimant not only failed to act diligently by following up with his
denunciation and complying with the requirements of the Attorney General’s
Office, but also failed to give the Attorney General’s Office sufficient time
in which to properly investigate his complaint against the MS-13 gang. The
claimant received the threatening note on March 2, 2009. The claimant’s PIF
indicates that he returned to his law office to wind down his practice on March
9, 10, and 14,2009. The PIF also indicates that the claimant obtained his
airline ticket on March 10, 2009 and that he left El Salvador on March 16, 2009, only around 2 weeks
after having received the threatening note from the MS-13. I find that it would
be unreasonable to expect in any society that all threats reported the
authorities would result in immediate prosecutions or convictions. [Emphasis
added]
[17]
There
is undoubtedly a real live issue as to the viability of state protection in El Salvador. In support of its
finding that the presumption of state protection existed, the Board relied on
evidence from 2004-2006. There was however, in the record, evidence from
2009-2010, which would support an alternative conclusion as to the ability of El Salvador to provide adequate
state protection.
[18]
The
jurisprudence is clear that while the Board need not refer to all of the
evidence before it, it does have an obligation to refer to relevant, material
evidence which supports an alternative conclusion: Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC).
[19]
The
applicant, however, faces a further hurdle in that the Board found that he did
not take steps to seek state protection. The Board notes that his decision to
flee was precipitous; he left El Salvador only 14 days after receipt of the single threatening note.
While a claimant is not required to risk their life seeking state protection
that would not be forthcoming: Canada (Attorney General) v Ward [1993] 2 S.C.R. 689, para
48, there was nothing on the record to support the conclusion that to seek state
protection was either futile or would put him at further risk. While he filed
a denunciation with the Attorney General’s office he did not follow-up with the
request of that office to have the individual who received the note to attend
to make a statement. A claimant’s decision to flee before the authorities have
had an opportunity to respond cannot circumvent the presumption of state
protection.
[20]
In
sum, the finding of the Board is, in respect of state protection, a question of
mixed fact and law, to be assessed on a standard of reasonableness. The more
recent evidence, while painting a somewhat bleaker picture of the capacity of
the El Salvadorian government to provide state protection, did not negate or
otherwise render the conclusion unreasonable. In my view, the decision falls
within the range of acceptable outcomes having regard to the entire record
before the Board.
[21]
The
application for judicial review is dismissed.
[22]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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