Date: 20070831
Docket: IMM-494-07
Citation: 2007 FC 864
Ottawa, Ontario, August 31, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JORGE VICTOR HUERTAS TORRES
AND
GLIRIA JUANA LEON FLORES DE HUERTAS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
which determined that the applicants were not persons in need of protection because
they failed to establish that state protection was not available to them in
Peru.
ISSUE
[2]
Did
the Board err in fact or in law by concluding that state protection was
available to the applicants?
[3]
For
the reasons that follow, the response to this question is negative.
Consequently, the present application for judicial review shall be dismissed.
BACKGROUND
[4]
Jorge
Victor Huertas Torres (the principal applicant) and his spouse, Gliria Juana
Leon Flores de Huertas (female applicant) are both sixty years of age and citizens
of Peru. They led a
comfortable life in that country with their three children, as owner operators
of two retail businesses in Lima.
[5]
On
January 16, 2005, the principal applicant was intercepted by two members of the
Peruvian National Police (P.N.P.) who demanded that he pay them a monthly bribe
of $600 USD. When he protested, the officers physically abused him and warned
him that officers of the P.N.P. had a right to supplement their income.
[6]
The
day after this first incident, the principal applicant received a telephone
call at home from one of the two police officers reminding him of the sum he
had to pay. If he did not comply with their demand, the caller warned him, he
would live to regret it. The next day, on January 18, 2005, the principal
applicant was abducted by three P.N.P. officers as he left one of his stores.
They physically and verbally abused him and demanded the bribe under threats
that they would kill him if he did not cooperate.
[7]
As
part of his documentary evidence, the principal applicant provided a medical
report dated January 31, 2005, attesting to the treatment he received on
January 18, 2005, for the injuries he suffered at the hands of the three P.N.P.
agents.
[8]
It
was on January 24, 2006 that two men, including one of the police officers who
had intercepted him on January 16, 2005, dressed in civilian clothes claimed
the bribe from the applicant. He complied and gave them the sum of $600 USD.
Upon leaving, the two extortionists threatened to hurt the applicants’ children
if he denounced them.
[9]
According
to the applicant, the police used the same modus operandi
and extorted $600 USD each month up to and including June 2005. Things got
worse, however, when on July 25, 2005, the applicant was stopped by a patroller
who told him that since he had two stores, the monthly payments would double to
$1,200, which they collected on July 26, 2005. After the second payment in
August, the applicants, fearing for their financial and personal security
decided to leave the country.
[10]
That
is why they contacted relatives in Montreal, who formally invited
them to visit Canada. The couple obtained
visitors’ visas on October 18, 2005. In late December, they made their last
payment of $1,200 to the officers of the P.N.P. On December 26, 2005, they
filed a complaint against the police for extortion and physical abuse. Five
days later, on December 31, 2005, the applicants left Peru for Canada with their visitors’
visas, while their three children found refuge with relatives and friends. The
applicants arrived in Canada on New Year’s Day, 2006 and claimed
protection on January
10, 2006.
[11]
The
Board denied the applicants’ claims for protection because the applicants
failed to avail themselves of state protection in Peru, as a result
of which, they have brought the present joint application for judicial review.
DECISION UNDER REVIEW
[12]
The
Board recognized that the principal applicant’s accounts of extortion were
plausible, as it is well documented in the evidence that the Peruvian police
are noted for corruption in its ranks. However, the Board also recognized that
contrary to the principal applicant’s testimony, the government of Peru, following
the departure of President Fujimori and the arrival of President Toledo, has pursued
a rigorous campaign to clean up the police forces and end the P.N.P. history of
extortion, intimidation, and corruption.
[13]
Indeed,
according to the documentary evidence, the Board was satisfied that several
institutions have been put in place to encourage individuals to lodge
complaints against the police without fear of reprisals. The Board was
satisfied that under the present conditions state protection, while not perfect,
was available to the principal applicant and he chose not to avail himself of
this.
[14]
Moreover,
although the alleged incidents of extortion and abuse began in January 2005,
almost twelve months prior to their departure, the principal applicant did not
file a complaint until five days before leaving for Canada with visitors’ visas,
which they had obtained two months earlier. The Board found that this could not
be considered as serious steps to seek protection, and as a result the claims
for protection were denied. In arriving at this conclusion, the Board relied on
the jurisprudence established by the Federal Court of Appeal in Kadenko et
al. v. Canada (Minister of Citizenship and Immigration), [1996]
F.C.J. No. 1376, and Canada (Minister of Employment and Immigration) v.
Villafranca, [1992] F.C.J. No. 1189 (F.C.A.), according to which an
applicant must have sought state protection at home prior to seeking asylum in
another country.
ANALYSIS
Standard of Review
[15]
It
is necessary at the outset to establish the applicable standard of review in
this matter that deals solely with the determination of the availability of
state protection. Relying on this Court’s decision in Chaves v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 232, 2005 FC 193,
the applicants submit that the question of state protection is one of mixed
fact and law, which is reviewable on the standard of reasonableness simpliciter.
[16]
I
agree and rely on the long line of jurisprudence confirming that the standard
of review in decisions pertaining to state protection is reasonableness (see e.g.
Chaves, above; Mendoza v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 772, 2005 FC 634 at paragraph 16; B.R.
v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 337, 2006 FC 269
at paragraph 17).
Was the decision of the
Board reasonable?
[17]
The
applicants argue that the Board’s decision was unreasonable because the police
were the authors of the acts of extortion, threats and physical abuse against
the applicants. Moreover, the documentary evidence clearly indicates that the
police, as well as the judiciary and other security services in Peru are corrupt
and ineffective in spite of efforts to clean up the system. Finally, the Board erred
in placing an unreasonable burden on the applicants by listing several avenues
to which the applicants had recourse to seek redress.
[18]
It
is noteworthy to cite the Board’s words in the original language as follows:
[. . .] D’ailleurs, plusieurs
institutions ont été mises en place pour permettre aux personnes lésées de déposer
des plaintes.
En effet, bien que le tribunal reconnait
que le système n’est pas parfait, le demandeur principal avait la possibilité
de se présenter non pas à son commissariat local d’où les supposés policiers
véreux dépendaient, s’il n’y faisait pas confiance, mais à plusieurs autres
endroits tous avec des bureaux à Lima, le siège du gouvernement.
Entre autre, à n’importe quel
commissariat de police ou au bureau du procureur général, au bureau de
l’inspection générale de la police nationale ou au bureau du Ministère public,
chez le Protecteur du citoyen, au bureau de l’Ombudsman et enfin, au bureau du
procureur chargé d’éliminer la corruption.
[19]
In the present case, it
was entirely open to the Board under the circumstances to conclude that the
applicants had failed to exhaust all avenues to seek alternative avenues of
redress sanctioned by the state. Moreover, it was reasonably open to the Board
to find unsatisfactory the principal applicant’s explanation as to why he
waited until the eleventh hour to lodge a complaint knowing full well that they
would be leaving the country for Canada in a few days. The applicant did not give the
state the opportunity to provide him with any protection.
[20]
While
the circumstances here may be distinguished from the facts in Mendoza v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 772, 2005 FC 634, I believe
that the principles are equally applicable. In Mendoza, the applicants
were tortured by the Peruvian police and their claim for protection in Canada was refused because
they did not avail themselves of state protection at all. In present matter,
while the applicants did file a complaint, it was such a tardy gesture and made
only days prior to their departure that it can reasonably be said that no
genuine efforts were made to avail themselves of state protection.
[21]
That
is why I follow the reasoning of my colleague, Justice Yves de Montigny in Mendoza, above, who
stated as follows at paragraphs 26-29:
26 In the present case, the Applicant
testified that he did not ask the authorities for protection. The Board
explained in its reasons that he was afraid to do so because he was robbed by a
corrupted policeman. This is entirely consistent with the transcript of the
Applicant's testimony in front of the Board, and it shows in my view that the
Board did turn its mind to the possible application of s. 97 of IRPA.
27 Now, was the Board mistaken in
concluding that the Applicant should have done more to obtain the protection of
the state, given the circumstances and the fact that a policeman may well have
been involved in the extortion? Bearing in mind that Peru has a government that
is in effective control of its territory, and based on the documentary evidence
showing that there is a certain degree of corruption in the police forces but
that those responsible for such illegal actions are brought to court and face
stiff penalties, it was definitely not unreasonable for the Board to conclude
that the Applicant had not made a reasonable effort to seek protection from the
authorities of the state.
28 The Applicant could have talked to
a police officer of a higher rank, he could have gone to another police
station, he could have contacted a lawyer or a human rights group (Kadenko
v. Canada (M.C.I.), supra; Obi c. Canada (M.C.I.), [2005]
F.C.J. no. 400; Barkai v. Canada (M.E.I.), [1994] F.C.J. No. 1417). It
is not as if the police forces as a whole where involved in an extortion
scheme, or if he had been warned by high ranking officials to refrain from
going to the police or to talk about the incident.
29 Given the evidence, it was
entirely reasonable for the Board to conclude that the Applicant did not rebut
the presumption of a state's ability to protect him. He had the onus of
establishing either that he was physically prevented from seeking his
government's aid, or that the government was in some way unwilling or unable to
give it. Instead, he chose not to do anything or to say anything.
[22]
The
applicants ask the Court to quash the Board’s decision. I would agree if there
were no rational basis to support it. That is clearly not the case here. The
Court's intervention is not warranted.
[23]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
- The application for
judicial review is dismissed. No question is certified.
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