Date: 20081222
Docket: IMM-1790-08
Citation: 2008 FC 1384
Ottawa, Ontario, December 22, 2008
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
Cesar
Horacio TOVAR VALERA
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001,
c. 27, of a decision by the Refugee Protection Division (the RPD) of the
Immigration and Refugee Board, dated March 27, 2008.
[2]
Cesar Horacio Tovar Valera (the applicant) is a
citizen of Peru and a member
of the folk music group Chopkjas.
[3]
The
RPD refused the refugee claim for two reasons: the applicant (1) did not
discharge his onus concerning the state’s inability to protect him and (2) waited
too long before claiming refugee status.
[4]
On
the issue of state protection, the appropriate standard of review is
reasonableness (see, inter alia, Gorria v. Minister of Citizenship
and Immigration, 2007 FC 284, 310 F.T.R. 150, at
paragraph 14 and Chaves v. Minister of Citizenship and
Immigration, 2005 FC 193, at paragraphs 9 to 12).
[5]
To
demonstrate that the state is unable to protect its nationals and that an
applicant’s refusal to genuinely solicit this protection is reasonable, he or
she must “provide clear and convincing confirmation of a state’s inability to
protect” (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689,
at page 724). Without this evidence, the claim must fail because of the
presumption that nations are capable of protecting their citizens.
[6]
On
the one hand, the applicant submits that he clearly established Peru’s inability
to protect him because the agent of persecution is the state. He says that he
fears the APRA (Allianza Populár Revolucionaria Americana), which is the
party in power. He concludes that he would be unable to obtain the protection of
the state against its own leaders.
[7]
The
respondent submits that the documentary evidence cited by the panel indicates
that Peru is a multi‑party
republic and that even though APRA won the elections, it cannot be argued that mere
members of this party can be considered to be the Peruvian state.
I concur. It is clear, in the particular circumstances of Peru, that APRA members
do not themselves constitute the Peruvian state. The documentary evidence
enabled the panel to reasonably conclude as it did on this point.
[8]
Moreover,
it is clear from the Ward decision, above, that “persecution under the
Convention includes situations where the state is not in strictness an accomplice
to the persecution, but is simply unable to protect its citizens.” It is
therefore not necessary that the applicant prove that APRA members constitute
the Peruvian state; he need only demonstrate that the state—the police, for
example—is unable to protect him from private persecution.
[9]
This
is not a case where the applicant failed to file a report with the police. However,
the panel doubted the adequacy of the applicant’s efforts in seeking the
state’s assistance. In Kadenko et al. v. Canada (Solicitor
General)
(1996), 206 N.R. 272, the Federal Court of Appeal set out the
principle that applies in this case:
[3]. . . Once it is assumed that the
state (Israel in this case) has political
and judicial institutions capable of protecting its citizens, it is clear that
the refusal of certain police officers to take action cannot in itself make the
state incapable of doing so. The answer might have been different if the
question had related, for example, to the refusal by the police as an institution
or to a more or less general refusal by the police force to provide the
protection conferred by the country's political and judicial institutions.
. . .
[5] When the state in question is
a democratic state, as in the case at bar, the claimant must do more than
simply show that he or she went to see some members of the police force and
that his or her efforts were unsuccessful. . . .
[10] It is important
to note that the applicant’s first “complaint” to the police on June 30, 2006,
was, in fact, only a [translation]
“consultation”. Moreover, it was only two days after the second complaint,
filed on July 29, 2006, that the applicant left Peru for Canada. Accordingly,
the state did not have much time to prove its ability to protect him.
[11] Consequently,
I am of the view that it was not unreasonable for the panel to determine that
the applicant did not succeed in providing the “clear and convincing” evidence
required to rebut the presumption that a country such as Peru is capable of
protecting its citizens.
[12] On the issue
of the applicant’s delay in claiming refugee status, the panel wrote the
following:
In addition, the claimant not
only failed to seek protection in his own country, he also failed to seek
protection when he arrived in Canada. He arrived on August 1,
2006, and did not make his claim for refugee protection until November 1, 2006, three months after he
arrived.
The panel asked him to respond
to this failure to claim refugee protection when he arrived in Canada.
The claimant explained that
his Canadian employer had instructed him not to claim refugee protection. He
therefore waited until his engagement was over before doing so.
This explanation is not
satisfactory, given that the engagement was over on September 30, 2006,
and the claim was not made until November 1, 2006.
The Federal Court has already
taken position on this in Huerta v. Canada ((M.E.I.) 1993, 157 N.R. 225 FCA, p.
227):
The delay in making a claim to refugee
status or in leaving a country of persecution is not a decisive factor in
itself. It is, however, a relevant element which the tribunal may take into
account in assessing both the statements and the actions and deeds of a
claimant.
[13] Based on the
evidence, in my view, the panel could reasonably determine that the applicant’s
conduct was inconsistent with any fear and that it tainted his credibility (see
Conte v. Minister of Citizenship and Immigration, 2005 FC 963).
[14] For all these
reasons, the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review of the decision by the Refugee Protection Division
dated March 27, 2008, is dismissed.
“Yvon
Pinard”
Mary
Jo Egan, LLB
Email this Content