Date: 20080128
Docket: IMM-7530-05
Citation: 2008 FC 108
Toronto, Ontario, January 28, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
PAUL ENRIQUE HERNANDEZ
MARTINEZ
(a.k.a. Paul Enrique Ma Hernandez)
JENNY CLANCIVETTE PINEDA DE HERNANDEZ
(a.k.a. Jenny Clancivet Pineda De
Hernandez)
GABRIELA ESTHEFANIA HERNANDEZ PINEDA
(a.k.a. Gabriela Esthef Hernandez Pineda)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an application brought
by the Applicant pursuant to s. 72 of the Immigration and Refugee Protection
Act, S.C. 2001, c.27 (the “Act”) for judicial review of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the “Board”)
dated November 21, 2005. In its decision the Board determined that the Applicants
were neither Convention refugees nor persons in need of protection pursuant to
sections 96 and 97, respectively, of the Act.
[2]
Mr. Paul
Enrique Hernandez (the “Principal Applicant”), his wife Jenny Clancivette
Pineda de Hernandez and their daughter Gabriela Esthefania Hernandez Pineda
(collectively the “Applicants”) are citizens of El Salvador. The Principal Applicant fears
persecution on the basis of his political opinion, while the wife and daughter
fear persecution as members of a particular social group, that is, family.
[3]
The
Principal Applicant testified that he became a sympathizer of the Farabundo
Marti Front for the National Liberation (the “FMLN”) party in 1992, while he
was a university student. He became an active member of the FMLN in 2001. In April
2004, he received two insulting and intimidating phone calls telling him that
he should stop his party activities or else he would suffer the consequences.
Subsequently, while driving to work, a car tried to force him to stop but the Applicant
was able evade his pursuers. He reported this incident to the police who told
him they would investigate, but also indicated that it would be difficult
because they did not have the license plate number of the vehicle.
[4]
The
Principal Applicant travelled to Italy
after the incident and tried to secure a work permit which proved unsuccessful where
he did not apply for refugee status in Italy. He returned to El Salvador for one
month and then traveled to the United
States. While in
El Salvador, he stayed with his family at
his mother-in-law’s house, never returning home.
[5]
The Applicants
did not make an asylum claim in the U.S.
as the Principle Applicant heard that he would have a better chance of claiming
asylum in Canada. The Applicants came to Canada and sought refugee protection
in August 2004.
[6]
In a
decision dated 21 November 2005, the Board found that there was adequate state
protection for the principal claimant and his family in their circumstances.
[7]
The Board
accepted that the Principal Applicant had received two threatening phone calls
and was also involved in an incident where an attempt was made to run him off
the road. However, the Principal Applicant was unable to conclusively tell the
panel who the persecutors were. The Board found that although the timing of
the road incident seemed to link it to the threatening calls, the Principal
Applicant was unable to say for sure that it was related.
[8]
The Board
stated that although the direct linkage may not be established, the police seem
to have taken the incidents seriously. They looked for the car that pursued
the Applicant, instructed him make a denunciation at the police station, and
indicated that priority would be given to his case in light of the telephone
calls and the driving incident.
[9]
El
Salvador was
recognized as a democratic state and in light of that fact, the Applicants were
found not to have discharged their burden to seek state protection. The Principal
Applicant never followed up with police. In fact, he left his residence with
his family within a few days of the incident and cut off his phone service.
The Applicants had no information indicating that the police were not
investigating the threats and it appeared unlikely that the police would be
able to contact the Applicants.
[10]
In Chaves
v. Canada (Minister of Citizenship and
Immigration),
(2005), 45 Imm.L.R. (3d) 58 (F.C.), at para. 11, the Court decided
that the determination of state protection is subject to review on the standard
of reasonableness simpliciter. Accordingly, the decision will
withstand scrutiny “if it is supported by a tenable explanation even if this
explanation is not one that the reviewing court finds compelling” (Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55).
[11]
The
determinative issue in the present case is the Board’s finding that there is adequate
state protection in El
Salvador.
According to the evidence of the Principal Applicant, the police indicated that
they would investigate the incident where a car tried to run the Applicant off
the road. Since the Applicants did not have a license plate number, this was
difficult. The police however indicated that they would make it a priority. The
Applicants submit that one failed attempt to obtain police protection is
sufficient to prove that the state does not offer state protection.
[12]
The burden
of proving a lack of state protection increases with the level of democracy
exhibited by the state. The more democratic the state in question is, the more
a claimant must have done to exhaust all avenues of protection available; see Kadenko
v. Canada (Minister of Citizenship and Immigration), [1996] 143 D.L.R. (4th)
532 (C.A.) at page 534. Furthermore, the Federal Court of Appeal indicated in Kadenko
that "a 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."
[13]
While it
is true that perfect protection is not required; see Canada (Minister of Employment and
Immigration) v. Villafranca, 150 N.R. 232 (Fed. C.A.). However a state must engage in serious
efforts to protect at the operational level; see Garcia v. Canada (Minister of Citizenship and
Immigration),
[2007] FC 79, [2007] F.C.J. No. 118 (QL), at para. 15.
[14]
The Applicants
challenge the Board’s findings on state protection on the grounds that they
were faulted for acting in a manner consistent with a subjective fear, that is,
for not staying home longer and not being accessible to the police (cutting off
his cell phone, service). The Applicants submit that there is no obligation
for an applicant to stay in place just to show whether or not state protection
was available.
[15]
I agree
with the Applicants that there is no obligation for them to stay in one place
to show the availability of state protection. However, based on the lack of evidence
regarding the police investigation in El Salvador,
it was open to the Board to conclude that there was adequate protection for the
Applicants in these circumstances.
[16]
In the
result I find the Board made no reviewable error in its state protection
analysis and the
application for judicial review of the Board’s decision is dismissed. There is
no question for certification arising.
ORDER
The application for judicial
review of the Board’s decision is dismissed. There is no question for
certification arising.
“E.
Heneghan”
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