Docket:
IMM-6959-13
Citation:
2014 FC 457
Ottawa, Ontario, May 13,
2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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EVIS NEFTALI CARRANZA BENITEZ
LAZARO ISAI CARRANZA BENITEZ
ABEL JOSUE CRUZ MARTINEZ
EDA ABIGAIL CARRANZA BENITEZ
DIAN ABIGAIL CARRANZA BENITEZ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of
the decision of Douglas Cryer, a member of the Refugee Protection Division of
the Immigration and Refugee Protection Board [the Board], pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act]. The Board dismissed the Applicants’ claim for refugee
protection, concluding that they were not convention refugees or persons in
need of protection under sections 96 and 97 of the Act.
I.
Issues
[2]
Was the Board’s decision reasonable with respect
to considering the evidence before the Board member, in assessing state
protection in El Salvador and Mexico and the internal flight alternative
available [IFA] for the Applicants, as well as the individual bases for the
Applicants’ claim?
II.
Background
[3]
The Applicants consist of Evis Neftali Carranza
Benitez [the Principal Applicant, or PA], his brother, Lazaro Isai Carranza
Benitez [Lazaro], his sister, Eda Abigail Carranza Benitez [Eda], Eda’s
husband, Abel Cruz Martinez [Abel], and her daughter, Diane Agibail Carranza
Benitez [Diane]. All are citizens of El Salvador except for Diane, who is a
citizen of the United States, and Abel, who is a citizen of Mexico.
A.
Personal Information Form Narratives
[4]
All the Applicants except for Abel sign a joint
Personal Information Form [PIF] narrative. Their PIF narrative alleges a fear
of persecution from the rival gangs Mara 13 and Mara 18.
[5]
The El Salvadoran Applicants allege in the PIF
narrative that Mara 13 gang members broke into their house and stole things
from them on several occasions. The dates on which these incidences occur are
not specified, but were after the mother of the El Salvadoran Applicants left El Salvador in 1988. Lazaro also alleges that starting in 1999, Mara 13 members threatened
that the PA and Eda would be harmed unless Lazaro joined their gang.
[6]
In 1998, Lazaro received temporary protected
status in the United States. He failed to receive permanent residence status in
the United States but stayed illegally.
[7]
In 1998, Eda was harassed by members of the Mara
13 in El Salvador, when they grabbed her necklace and asked her for money. In
1999, she was sexually harassed by members of the Mara 13.
[8]
In 2003, Eda went to the United States, where she stayed illegally.
[9]
In 1992, the Mara 13 gang beat the PA because
Lazaro refused to join their gang. Subsequently, the Mara 13 gang began
demanding that the PA join their gang, but he refused. In 2009, the PA was in Moncagua, El Salvador, and was walking home with a friend when members of the Mara 13
stopped them, asked for money and demanded that they join the Mara 13. The PA
and his friend refused. The gang members threatened to kill them, but the PA
and his friend said they would call the police and fled to a police station.
According to the PA, the police did not assist them. However, upon hearing that
the police would be contacted, the Mara 13 members fled.
[10]
In a supplementary PIF narrative, the PA states
that he worked as a pastor in San Salvador from January, 2003, to January,
2009. He states that this work involved preaching to children not to join the
Mara 13 and Mara 18 gangs. As a result of this work, there were seven occasions
where the PA was approached at his congregation by members of these gangs. They
threatened him and attempted to beat him. He did not contact police.
[11]
In 2010, the PA left for the United States. He did not apply for asylum.
[12]
The PA, Eda, Lazaro and Diane left for Canada on June 1, 2012, as they lacked legal status in the United States and feared being returned
to El Salvador.
[13]
Abel’s PIF narrative alleges that his father
left for the United States when Abel was 5 years old. In 2005, when Abel was
15, he joined his father in the United States. His father did not have legal
status. Abel states that he is afraid of returning to Mexico and being targeted by criminals or drug cartels. He claims there is no safe place to
live in Mexico because of the pervasive presence of gang members.
B.
Testimony
[14]
The PA stated that he did not have faith in the
police following the 2009 incident because he believed the police to be aligned
with the gangs, and he did not seek recourse from a higher authority because he
was afraid. He also claimed that if he returned to El Salvador he would not be
safe anywhere in the country because gang leaders have contacts across the
country.
[15] Eda stated that she was sexually
abused by her uncle when she was seven years old, though she stated that she
would not be at risk from him should she return to El Salvador. However, she
stated that she would not be safe anywhere in El Salvador because there are
gang members throughout the country. She also claimed police would not protect
her because they are corrupt.
[15]
Lazaro testified that he has a general fear of
returning to El Salvador, because he believed the Mara 13 or Mara 18 would
pursue him for financial reasons. He also feared that the police would not help
him because he is financially successful.
[16]
Abel testified that his father was attacked in Mexico prior to leaving for the United States. He filed a police report but the perpetrators were
not apprehended. He also testified that when his father returned to Mexico three years ago he was forced by gang members to sell a motorcycle for a low price
and that his grandmother was extorted by gang members.
[17]
The Board held that the Applicants from El Salvador had not rebutted the presumption of state protection, and there was an IFA in San Salvador. Likewise, the Board denied Abel’s claim, on the grounds that he was not
credible and that he had not established that he was a person in need of
protection. The Board noted that Diane was a minor Applicant and had not
advanced a claim against the United States.
[18]
The Board found that the Mara 13 or Mara 18
would not harass the El Salvadoran Applicants should they return to their
native country. He concluded that there was insufficient evidence that any gang
members would be motivated to persecute them should they return to El Salvador. In particular, the Board found Eda and Lazaro’s concerns about returning to El Salvador were hypothetical and speculative. The Board also gave low weight to Eda’s
claims of sexual abuse by her uncle, as it was not included in her PIF
narrative.
[19]
Moreover, the Board found that the PA did not
rebut the presumption of state protection. In particular, it held that the PA’s
explanation as to why he only went to the police once was insufficient. The
Board acknowledged that there is police corruption in El Salvador, but found that various measures taken by the El Salvador government have reduced police
corruption at the operational level. In particular, the Board noted documentary
evidence of the active police complaints and disciplinary process. The Board
also discussed evidence that police operations have resulted in the arrests of
numerous gang members across the country. Based on this, the Board concluded
that state protection is adequate at the operational level and that the
Applicants’ subjective reluctance to engage the police was insufficient to
rebut the presumption of state protection.
[20]
With regard to Abel, the Board held that his
evidence was not credible because there were two many omissions from his PIF narrative
that were subsequently raised in his testimony, and his testimony was vague.
The omissions included the extortion of his grandmother and the additional
incident involving his father following his return to Mexico. The Board was not satisfied with his explanation as to why he did not include the
incident about his grandmother in his PIF narrative, and found that he was
unable to provide details about the assault against his father or provide
corroborating evidence. Additionally, given the length of time Abel has been
absent from Mexico, there is no persuasive evidence that he would be persecuted
if he returned.
III.
Standard of Review
[21]
The standard of review is reasonableness (Sandoval
Mares v Canada (Minister of Citizenship and Immigration), 2013 FC 297 at
para 29; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paras 4, 46, 61; Dunsmuir v New Brunswick, 2008 SCC at
paras 53).
IV.
Analysis
[22]
Most of the Applicants’ arguments amount to a
call for this Court to re-weigh the evidence considered by the Board. These
arguments are assertions that the conclusions drawn by the Board from the
evidence are incorrect. It is not the role of this court to re-weigh the
evidence, and there is nothing in my review of the Board’s decision which would
suggest the Board’s conclusions on the evidence were unreasonable. I dismiss
the Applicants’ arguments regarding the claim of Abel, the viability of San Salvador as an IFA, the lack of a nexus in the claims of Eda and Lazaro, and the
finding that the threats by the gangs against the PA did not turn into violence
against him.
[23]
The remaining issues raised by the Applicants
are that the Board ought to have mentioned certain pieces of documentary
evidence, and that it erred in its finding regarding the presumption of state
protection.
[24]
I find that the Board was not unreasonable in
failing to mention certain pieces documentary evidence which did not support
its conclusions on state protection. The Board noted documentary evidence of
corruption, arbitrary promotions, and insufficient government funding for the
police force in El Salvador, as well as the fact there is no uniform code of
evidence. It then noted some initiatives which demonstrated efforts by the
government to address these problems. The Board need not discuss all pieces of
documentary evidence, and its treatment of the evidence was reasonable.
[25]
The Applicants also argue that the Board erred
in assessing the risk of sexual assault to women in El Salvador, as it did not
examine documentary evidence of gender-based violence, notwithstanding its
finding that Eda did not face a risk of individualized harm. The Applicants
cite Dezameau v Canada (Minister of Citizenship and Immigration), 2010
FC 559 [Dezameau] and Josiile v Canada (Minister of Citizenship and
Immigration), 2011 FC 39 [Josiile] in support of this argument.
However, both these cases were in the context of violence against women in Haiti (Dezameau, above, at para 18). Given the differences between El Salvador and Haiti relating to gender-based violence, I find these precedents do not apply here.
[26]
The Board’s conclusion that the presumption of
state protection was not rebutted was also reasonable. Cumulatively, the
Applicants only report going to the police once, in response to the incident in
Moncagua in 2009. In his testimony, the PA gave vague details regarding this
incident. The circumstance in which this assistance was sought is unclear, as
is how assistance was or was not provided. Beyond this incident, no police
assistance was sought by the Applicants. Other than a general scepticism that
the police would not assist them, there is no evidence from the Applicants that
they sought police assistance or protection from other sources. In the absence
of providing a reasonable justification for not seeking state protection, the
Applicants were obliged to seek it (Castro v Canada (Minister of Citizenship
and Immigration), 2006 FC 332 at paras 19-20). A subjective reluctance to
seek protection is insufficient to rebut the presumption of state protection (Molnar
v Canada (Minister of Citizenship and Immigration), 2012 FC 530 at para 92;
Ayala Alvarez v Canada (Minister of Citizenship and Immigration), 2012
FC 703 at para 20).
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