Date: 20140205
Docket: IMM-1269-13
Citation: 2014 FC 128
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
February 5, 2014
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
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NESTOR MARTIN OTERO ANAZCO
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Applicant
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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
I. Introduction
[1]
This is an application for judicial review under
section
72 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA)
of a decision by the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB) dated March 11, 2013, to reject the applicant’s refugee
claim. The applicant is seeking to have the decision set aside and referred
back to a differently constituted panel.
II. Facts
[2]
The
applicant is a citizen of Peru. His entire family lives in Lima except for his
sister, who lives in Canada.
[3]
The
applicant testified that he worked in an inn in the northern part of the
country and witnessed an exchange of weapons by clients of that inn on the
beach in front of the establishment. He apparently called his friend, who is a
police officer, and told him about the situation and the police purportedly
came and arrested some people. The applicant maintains that those people were
linked to the Shining Path group. After that event, the police allegedly told
him that he would be safer if he returned to live in Lima. He alleges that,
during that time, his former boss told him that strangers came looking for him
to give him a prize he had apparently won and his parents received threatening
phone calls from people who said they were looking for him.
[4]
The
applicant alleges that he listened to the police and returned to Lima, where he
lived with a friend. On April 5, following the threatening phone calls received
by his parents, he decided to leave his country. He left Lima on April 25,
2009, and travelled through Nicaragua, Honduras, Guatemala and Mexico, before
arriving in Montréal on May 16, 2009.
III. Issue
1. Did the RPD err
in assessing state protection and the availability of an internal flight
alternative (IFA)?
IV. Standard
of review
[5]
Case
law has held that the standard of review that applies to findings of fact
concerning the availability of state protection or an IFA is reasonableness (see
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR
339 (Khosa) at paragraph 58 and Ramirez v Canada (Minister
of Citizenship and Immigration), 2013 FC 261 at paragraph 32).
V. Impugned
decision
[6]
The
RPD found the applicant not credible. While he maintains that his problems
started at an inn he supposedly worked at, his did not submit pay stubs or
other banking documents that could prove that he worked there. Only an
affidavit was produced in support of that claim.
[7]
The
applicant testified that he does not trust the police and is in danger
throughout Peru. However, the RPD noted that in his testimony of the triggering
event he explained that he spoke to a friend in the police force and that, after
that telephone call, the police apparently came and make arrests. Therefore,
the police took the complaints seriously. The RPD also noted that the applicant
did not avail himself of protection from the Peruvian authorities following his
problems. Furthermore, regarding his allegation that he is not safe anywhere in
Peru, the RPD pointed out that he testified that he lived with a friend in Lima
without any problems.
[8]
Finally,
the RPD noted that the evidence shows that Shining Path members are especially
present in the jungle and that it has been more than three years since the
supposed events. There was thus no evidence of subjective, credible and
probative fear of persecution.
VI. Position
of the parties
Applicant
[9]
The
applicant alleges that the RPD failed to take into account a large part of his
testimony on his identification of the persecutors as being members of the
Shining Path. The documentary evidence was clear that the persons arrested were
identified as being members of that group. Thus, contrary to the RPD’s finding,
there was no contradiction or confusion on that point. The applicant contends
that this ground is important because it influenced the RPD’s finding with
respect to his credibility.
[10]
The
applicant argues that the RPD erred in assessing his credibility in that it
should not have required additional proof of his employment unless there was
evidence of contradictions in the document submitted (employer’s affidavit) or
in his testimony on the subject. The applicant notes that the RPD did not
explain why it rejected his testimony and the evidence submitted. Thus, it was
unreasonable for the RPD to determine that it had serious doubts about his employment.
The applicant argues that the RPD cannot require documentary evidence to corroborate
his testimony unless it has valid grounds to doubt his credibility; he relies
namely on Ovakimoglu v Canada (Minister of Employment and Immigration), [1983] FCJ No 937 (FCTD).
[11]
Furthermore,
the applicant alleges that the RPD erred in assessing state protection and the
availability of an IFA. The applicant argues that the police clearly admitted
that they were unable to protect him when they suggested that he leave the
region and return to Lima, where he is from. The fact that he has a Peruvian
friend can have no affect upon his fear of the authorities because his friend
does not represent the Peruvian police.
[12]
Regarding
the RPD’s claim that he could return to live in Lima, the applicant submits
that his family received threatening telephone calls in Lima, so his persecutors
had the means to find him. Furthermore, when he was at his friend’s place, he
was not established in Lima and did not work there so that could not be used to
show that he would be safe in Peru if living in Lima.
[13]
The
applicant concludes by arguing that the RPD’s decision is incomplete and did
not take into account his testimony or the documentary evidence submitted in
support of his claim.
Respondent
[14]
The
respondent maintains that the applicant is attacking the probative value that the
panel attached to the evidence before it. The applicant is challenging the
RPD’s assessment of his credibility and its finding regarding an internal
flight alternative. In these matters, the Court must verify whether the
decision falls within the range of reasonable, acceptable outcomes which are
defensible in fact and law (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at
paragraph 47 and Khosa, above, at paragraph 58).
[15]
The
respondent also states that it was reasonable for the RPD to find that the
applicant had an IFA and that, when an IFA is available to a claimant, the
Court cannot allow an application for judicial review (see Singh v Canada
(Minister of Citizenship and Immigration), 2006 FC 709 at paragraph 18).
[16]
The
respondent concludes by pointing out that it is not up to the Court to
substitute its assessment of the credibility and the facts for that of the RPD.
Relying on Khosa, above, the respondent states that the applicant did
not demonstrate that the panel rendered a decision based on an erroneous
finding of fact made in a perverse or capricious manner or without regard for the
material before it.
VII. Analysis
[17]
There are two key issues in this case: the
availability of state protection and the existence of an IFA.
[18]
The
applicant is trying to rebut the RPD’s finding regarding the availability of
state protection by arguing that the police admitted that they were unable to
protect him when they suggested that he leave the region and return to Lima,
where he is from. However, there is a presumption of state protection and a
claimant seeking to rebut it must adduce “ . . . relevant, reliable and
convincing evidence which satisfies the trier of fact on a balance of
probabilities that the state protection is inadequate” (see Canada (Minister of Citizenship and Immigration) v Carrillo, 2008 FCA 94 at paragraph
30). The applicant did not discharge that burden.
[19]
When the applicant allegedly witnessed the
exchange of weapons, he called a friend in the police force to tell him about
the situation. Police arrived on the scene in an appropriate amount of time.
[20]
When the police suggested that the applicant go
live in Lima, he listened to them and went to live in Lima, which shows that
the applicant has a degree of trust in the police.
[21]
Furthermore,
the applicant did not take all necessary measures to seek protection from the
police. When he started to have fears in Lima, he did not file a complaint with
the police. It was only his father who filed a complaint, so the applicant
cannot then allege that the police were unable to protect him.
[22]
The
RPD’s finding that Lima would be a valid IFA is not unreasonable. There was insufficient
evidence in the record to show that Lima was not an IFA, especially given that
the applicant’s employer at the inn was obligated to move to Lima after the exchange
of weapons and did not have any problems once he was there. Furthermore, the
fact that the police suggested that the applicant go live in Lima supports the
finding that Lima is a valid IFA.
[23]
The
RPD’s decision is reasonable and the applicant’s application should be
dismissed.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the
application is dismissed.
“Peter
Annis”
Certified true
translation
Janine
Anderson, Translator
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