Date: 20080926
Docket: IMM-724-08
Citation: 2008 FC 1085
Ottawa, Ontario, September 26, 2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
RAUDA
PANIAGUA, Jose Edenilson
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application by Jose Edenilson Rauda Paniagua for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board) rendered on January 23, 2008. The Board denied Mr. Rauda
Paniagua’s claim to refugee protection on the grounds that he had been the
victim of a common and generalized crime not amounting to persecution and that
he had failed to establish that state protection in El Salvador was
unavailable. It is from those findings that this application arises.
I. Background
[2]
Mr.
Rauda Paniagua initially came to Canada under a work permit.
When he was laid off from work in Manitoba in March 2006 he
returned to El Salvador but by June of that year he was back in Canada seeking
refugee protection. His claim to protection was based on an allegation of
threats of death made against him and his family by members of the Mara Salvatrucha
(MS) gang who were attempting to recruit him. For a time Mr. Rauda Paniagua
attempted to avoid detection in El Salvador but he eventually fled
the country. It is undisputed that at no time did he seek protection from state
authorities before leaving for Canada.
The Board Decision
[3]
The
Board concluded that the risk faced Mr. Rauda Paniagua arose from general
criminal activity that was “no greater than that faced by the population at
large”. After reviewing the country condition evidence, the Board found that
there were available options for seeking state protection from gang activity in
El
Salvador.
Because Mr. Rauda Paniagua had failed to approach the state, the Board found
that he had not reasonably exhausted the courses of action open to him to seek
protection in El
Salvador
prior to seeking protection in Canada.
II. Issues
[4]
Did
the Board err in its treatment of the evidence dealing with the issue of state
protection?
III. Analysis
[5]
The
standard of review for the issue raised by this application is reasonableness:
see De Hernandez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 514, [2008] F.C.J. No. 650, at para.
8.
[6]
The
Board’s finding that Mr. Rauda Paniagua faced only a generalized risk of harm
from criminal activity in El Salvador is at best ambiguous.
The decision seems to acknowledge that as a young unemployed male from a poor
neighbourhood in San Salvador he fit the basic profile for gang
recruitment. The Board also recognized the serious risk of reprisal that could
arise from a refusal to join the MS once approached. The Board concluded this
aspect of its analysis by stating that “the risk faced by the claimant was
criminal activity and was no greater than that faced by the population at
large”. On its face this statement is contradicted by the Board’s earlier
observation that Mr. Rauda Paniagua fit the profile of a person who did face a
heightened risk of harm from the MS. When read in the context of the entire
decision, however, the above statement may be nothing more than an awkward
attempt to say that, even with a profile of heightened risk, Mr. Rauda
Paniagua’s situation was not unique and fell within a generalized criminal risk
experienced by many others in El Salvador. In the end, I need
not decide whether this apparent contradiction constitutes a reviewable error
because I cannot find fault with the Board’s state protection finding.
[7]
The
Board decision acknowledged the seriousness of the gang problem in El Salvador and the very
high crime and murder rates associated with that activity. Clearly the Board
was aware of the problems with gang related law enforcement in El Salvador.
[8]
I
do not agree that the failure by the Board to specifically refer to all of the
documentary evidence dealing with the gravity of the problem of gang violence
in El
Salvador
constitutes a reviewable error. The Board understood that state protection in El Salvador was not
perfect but it also recognized correctly that perfection is not the standard by
which the sufficiency of protection is to be measured. The Board identified
several state initiatives directed at combating gang activity; indeed some of
the country condition reports relied upon by Mr. Rauda Paniagua speak directly
to the effectiveness, in part, of the government’s “tough” anti-gang reforms.
Against this evidentiary record it was open to the Board to be very concerned that
Mr. Rauda Paniagua had made no effort to seek state protection before coming to
Canada. Although
the problems of gang violence in El Salvador were unquestionably
profound, there was plausible evidence that the state protection apparatus in
that country continued to function. It is not for the Court to reweigh the
evidence or to substitute its views of that evidence for those of the Board.
While a different conclusion could have been reached on this evidence, I am not
satisfied that the Board’s treatment of the state protection evidence or the
conclusions it reached were unreasonable.
[9]
The
circumstances of this case seem to me to be materially indistinguishable from
those addressed by Justice Michel Shore in Ayala v. Canada (Minister
of Citizenship and Immigration), 2007 FC 690, [2007] F.C.J. No. 939, where
he held as follows:
23 It is well established that the
Board is assumed to have weighed and considered all of the evidence unless the
contrary is shown. Hence, the Court has also ruled on numerous occasions that
it is also within the Board's discretion to exclude evidence that is not
material to the case before it. The Board's decision, not to admit evidence
submitted before it or to refer to each and every piece of evidence, does not
amount to a reviewable error. (Yushchuk v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 1324 (QL), at paragraph 17.)
24 In fact, the Board has great
flexibility in terms of the evidence that it may consider. It is not bound by
any legal or technical rules of evidence and may rely on any evidence it
considers credible or trustworthy in the circumstances. (IRPA, subsection 173(c)
and (d); Thanaratnam v. Canada (Minister of Citizenship and
Immigration),
2004 FC 349, [2004] F.C.J. No. 395 (QL), at paragraph 7.)
25 The Applicants' contentions, that
the Board's conclusions were not based upon the facts of the case and that it
ignored the Applicants' documentary evidence that they were threatened by
members of the gang not to go to the police out of fear of these threats, are
not well founded. Albeit, the Board noted in its decision that the principal
Applicant simply did not bother to approach the Salvadorian authorities after
allegedly receiving a note on his truck, it is clear that the Board
properly understood the facts of the case, despite the fact that there is no
mention of such a note in the principal Applicant's PIF. (Decision of the
Board, at pages 1-2; Transcript of the hearing, at pages 4-7.)
26 Furthermore, contrary to the Applicants'
allegations, the Board based its decision on reliable documentary sources.
(Decision of the Board, at pages 8-9; Transcript of the hearing, at pages
9-10.) The general documentary evidence submitted by the Applicants indicating
that there are problems with the protection regime for victims of gang violence
is of no bearing since the Board recognized that there were gang violence
issues in El
Salvador.
27 Nonetheless, in considering the
Applicants' particular circumstances, the Board concluded that they failed to
demonstrate, with clear and convincing evidence, that they would not be able to
obtain state protection especially since the police did respond in this
particular case; however, the principal Applicant chose not to take advantage
of such state protection.
28 The onus was on the Applicants to
provide clear and convincing evidence to show that state protection would be
unavailable. The existence of documents suggesting that the situation in El Salvador is not perfect, is not, by
itself, clear and convincing confirmation that state protection is unavailable,
especially when there are numerous other documents indicating that state
protection is available…
(Emphasis in original.)
[10]
In
the result this application for judicial review is dismissed. No issue of
general importance arises from these reasons and no question will be certified.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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