Date: 20110526
Docket: IMM-5848-10
Citation: 2011 FC 595
Ottawa, Ontario, this 26th
day of May 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
SERGIO SANTIAGO RAYMOND SALVAGNO
HAYDEE CAROLINA GIMENEZ BENTANCOUR
MICHELLE RAYMOND GIMENEZ
AGUSTIN DAMIAN RAYMOND GIMENEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a member of the
Immigration and Refugee Board (the “Board”) pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) by
Sergio Santiago Raymond Salvagno, Haydee Carolina Gimenez Bentancour, Michelle
Raymond Gimenez, and Agustin Damian Raymond Gimenez (the “applicants”). The
Board determined that the applicants were neither Convention refugees nor
persons in need of protection under sections 96 and 97 of the Act.
[2]
The
applicants are citizens of Uruguay. Sergio Santiago Raymond Salvagno and Haydee Carolina
Gimenez Bentancour (the “principal applicant”) are married to one another, and
were aged 51 and 46 respectively at the time of the hearing. The other two
applicants are their children, who were aged 14 and 21 at the time of the
hearing.
[3]
The
principal applicant is a member of a well-known and influential Uruguayan
family that owns and operates a winery and a large amount of land. She, her
mother, and her four siblings own the two companies controlling the winery and
the land. Her father historically supported two political parties in Uruguay,
the Blancos and the Colorados. In 1962, members of
the Movimento de Liberacion Tupamaro (“MLT”) applied pressure on influential
Uruguayan families to support their cause. Her father refused. In 1972, MLT
guerillas dug a tunnel on the winery property and hid themselves with arms and
ammunition. Several were arrested after her father reported the tunnel.
[4]
In
1973 the military took power and in 1983-1984 democracy was restored. The
principal applicant’s father and brother continued to support the Blancos and
the Colorados. The principal
applicant became the general manager of the winery following her father’s
death, and has received telephone threats. Robberies and fires have occurred on
the property. In 1999 the company tried to manufacture non-alcoholic beverages,
but the principal applicant alleges that the MLT was controlling the municipal
council of Montevideo and caused so many
problems that the operation was never established.
[5]
In
2005-2006, the winery and the applicants’ homes were robbed several times but
the crimes were never solved. A shipment of labels never came, though the
shipping company showed them a waybill with what must have been a forged
signature of receipt. In January 2006 the applicant’s car was stolen. Four dogs
kept in a kennel at their house were poisoned.
[6]
On
February 23, 2006, the principal applicant’s sister’s garage and house were
destroyed by fire. The firefighters allegedly stated that gasoline was found
around the house, but the official report stated that the cause of the fire was
unknown. A voicemail threat was left at the business. In August 2006, the
principal applicant’s mother’s garage caught fire in the night, though the fire
department contained the fire. The applicant son was meant to be staying there
that night but was out. A telephone threat implied that the intention was to
harm the son.
[7]
In
December 2006, the principal applicant’s niece was killed while riding the
applicant son’s motorcycle. The official police report stated that a collision
occurred with a horse-drawn carriage. The principal applicant alleges that a
witness said a vehicle left the scene of the accident, but the police did not
question the witness. The incident was suspicious, the ambulance and police
were very slow to respond, and on the date of the funeral a telephone threat
was received stating that “we killed the wrong person”. The applicants retained
a lawyer to investigate the matter.
[8]
The
claimants left for Canada and arrived on December
17, 2007.
* * * * * * * *
[9]
The
Board found that section 96 did not apply to the applicants because of a lack
of nexus to a Convention ground. The Board found that section 97 did not apply
because state protection would be available to the applicants in Uruguay.
[10]
There
are two issues in this application:
a.
Did the Board err in
finding that there was no nexus to a Convention ground?
b.
Did the Board err in
finding that state protection would be available to the applicants?
[11]
In Chekhovskiy
v. The Minister of Citizenship and Immigration, 2009 FC 970 at para 18,
Justice Yves de Montigny found that the standard of review applicable to
the Board’s interpretation of the nexus issue is that of reasonableness, as the
Board is interpreting the statute that is most closely connected with its
functions (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
47).
[12]
The
standard of review applicable to a finding of state protection is likewise
reasonableness (Buitrago v. The Minister of Citizenship and Immigration,
2009 FC 1046 at para 14).
* * * * * * * *
A. Nexus
[13]
The
applicants argue that the Board erred in determining that they did not
demonstrate that they were being persecuted in relation to a Convention ground,
arguing that it is trite law that the ground of political opinion, actual or
perceived, is assessed based on the perception of the perpetrators, who need
not be related to the government. The applicants note that they provided an
extensive narrative showing that the actions against them were rooted in the
family’s political history against the MLT; the Board considered the applicants
credible and yet found that there was no persuasive evidence that the MLT was
responsible.
[14]
The
applicants also contend that they had a nexus to the ground of “membership in a
particular social group”. They submit that their history of reporting and
defying the perpetrators is an immutable part of their past, involving their
right to freedom to associate or not associate and freedom to respect the rule
of law.
[15]
In
my view, the Board’s conclusion on a nexus with section 96 is within the range
of “possible, acceptable outcomes” mandated by Dunsmuir, above. I note
that while not disbelieving all of the applicants’ allegations, the Board was
not convinced that every element of the story was correct or true. As the
respondent points out, the Board is entitled to accept an applicant’s narrative
without accepting their interpretations or deductions; the Board was therefore
entitled to come to its own view on whether the MLT was most likely responsible
for the incidents. Given the lack of persuasive evidence showing a link between
the incidents and the MLT (other than the allegations of the applicants), I
find that the Board was entitled to conclude that the applicants were the
victims of criminality rather than political persecution. I also note that
while the Board did not find credibility to be determinative, the allegations
of the applicants were not necessarily considered to be true facts, given that
the Board found that if the applicants’ extended family were afraid of the MLT
they would have left Uruguay. There was therefore no
error on the issue of nexus.
B. State protection
[16]
The
applicants submit basically that in light of the proof of the numerous
denunciations made by them to both the Montevideo police and the technical
police, the proof of the lack of response by the police, the existence of the
flawed police report and the proof of judicial corruption, it was unreasonable
of the Board to simply conclude that the applicants had not taken all
reasonable steps to obtain state protection, without setting out what they
should have done.
[17]
The
applicants also submit that the Board erred in finding that serious efforts on
the part of the state to deal with crime and corruption are equivalent to
actually providing adequate state protection to the applicants.
[18]
I
disagree with the applicants’ interpretation of the Board’s decision, given
that the Board did explicitly note that state protection must be found to be
adequate, if not completely effective (paragraph 26 of the decision). First,
the documentary evidence relied upon by the Board indicates that Uruguay has
effective control over the national police and the government has effective
mechanisms to investigate and punish abuse and corruption; it was open to the
Board to prefer this evidence to that of the applicants’ essentially alleging
judicial and police corruption without persuasive evidence to support their
theories. Here, the police investigated all of the applicants’ allegations. I
do not find it unreasonable for the Board to have concluded that while the
applicants were not satisfied with the outcome of the investigations, this did
not mean that state protection was not forthcoming. In my view the fact that
the police were not able to solve the crimes does not necessarily mean that
they did not try to do so. While state protection may not have been completely
effective in the circumstances of the applicants’ case, as the police were not
able to solve the crimes, this does not mean it was not adequate, as the police
did investigate and respond to all of the allegations. The Board’s decision was
reasonably open to it.
[19]
I do
question the Board’s very general statement that the applicants did not do all
that was reasonably open to them to avail themselves of state protection, given
that the Board does not actually discuss what other avenues the applicants
could have taken. While the respondent noted certain failures on the part of
the applicants (not following up with the police regarding the other witness of
the motorcycle accident, not mentioning the MLT in the complaints) the Board
did not mention any of these. However, in my view this does not alter the
outcome, namely that adequate state protection was available to the applicants,
though they may not have been satisfied with it.
* * * * * * * *
[20]
For
the above-mentioned reasons, the application for judicial review is dismissed. I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of a decision of the Refugee Protection Division of the Immigration and
Refugee Board, pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, (the “Act”) determining that the
applicants were neither Convention refugees nor persons in need of protection
under sections 96 and 97 of the Act is dismissed.
“Yvon
Pinard”
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