Docket: IMM-2054-14
Citation:
2015 FC 902
Ottawa, Ontario, July 23, 2015
PRESENT: The
Honourable Mr. Justice Gascon
BETWEEN:
|
HUGO ALBERTO
MORAN GUDIEL
|
Applicant
|
And
|
MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The applicant Hugo Alberto Moran Gudiel is a
citizen of El Salvador, where he worked as a contractor in the construction
industry. After receiving threats by a person apparently linked to a criminal
organization known as MS 13, he left El Salvador in July 2001. Mr. Gudiel arrived
in Canada almost ten years later, in February 2011, and made a refugee claim on
the basis that he feared persecution at the hands of the MS 13 gang and persons
related to it.
[2]
On March 4, 2014, the Refugee Protection Division
[RPD] of the Immigration and Refugee Board rejected Mr. Gudiel’s refugee claim
on the grounds that adequate state protection was available for him in El
Salvador. The RPD also did not find Mr. Gudiel to be credible and determined that
he was neither a Convention refugee nor a person in need of protection.
[3]
This is an application for judicial review of
the RPD’s decision. In his application, Mr. Gudiel contends that the RPD erred
in three respects: the RPD did not conduct the appropriate risk analysis under
section 97 of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA], the RPD did not carry out the required state protection analysis
as it failed to determine whether adequate state protection was actually
provided to Mr. Gudiel, and the RPD ignored or failed to consider clear and
convincing evidence rebutting the presumption of state protection in El
Salvador.
[4]
For the reasons that follow, Mr. Gudiel’s
application for judicial review is dismissed. I am not convinced that the RPD’s
decision was unreasonable, whether in respect of the analyses it conducted or
regarding its assessment of the evidence on state protection. I also find that
the reasons for the decision adequately explain how the RPD concluded that El
Salvador effectively offered adequate state protection to Mr. Gudiel.
[5]
There are three issues to be determined:
- Did the RPD conduct the appropriate risk analysis under section
97 of the IRPA?
- Did the RPD err in applying the test for state protection
analysis?
- Did the RPD err in its consideration of the evidence on state
protection?
II.
Background
[6]
In 2000, Mr. Gudiel was hired to do some
construction work on a property in El Salvador. Unbeknownst to him, the
property belonged to a man known as Cinco de Lena, a leader of an organized
crime group working closely with the MS 13 gang. Further to issues relating to
the payment for Mr. Gudiel’s work, Mr. Cinco de Lena threatened him with death.
Mr. Gudiel did not seek assistance from the local police at the time but,
fearing he would be killed by Mr. Cinco de Lena or the MS 13, he left El
Salvador in July 2001.
[7]
Over the following years, he travelled through
Mexico, was deported to Guatemala three times and lived in the United States.
On various occasions, he learned that the MS 13 gang was apparently looking for
him and that Mr. Cinco de Lena continued to harass members of his family. Mr.
Gudiel arrived in Canada on February 9, 2011, and made his refugee claim.
A.
The RPD’s decision
[8]
In its decision, the RPD assessed Mr. Gudiel’s
claim under section 97 of the IRPA as he did not have a nexus to a
ground under the Convention definition.
[9]
The RPD did not find Mr. Gudiel to be credible
as it identified discrepancies in his evidence and Mr. Gudiel was not able to
provide a satisfactory explanation for them. The RPD determined that there were
contradictions in his recollection of events involving Mr. Cinco de Lena and his
family, and concluded that Mr. Gudiel had attempted to add details to his story
in order to bolster his refugee claim.
[10]
The RPD found it speculative that the MS 13 gang
wanted Mr. Gudiel’s son to work for them due to his problems with Mr. Cinco de
Lena, and disbelieved this claim. Noting that, over a period of twelve years,
his family members had been leaving El Salvador for the United States, and given
the credibility issues, the RPD did not believe that the troubles apparently
suffered by Mr. Gudiel’s siblings and children were related to Mr. Gudiel’s
alleged issues with Mr. Cinco de Lena. However, due to Mr. Gudiel’s lack of
formal education and his emotional and mental challenges outlined in the
psychological assessment in evidence, the RPD did not draw a negative inference
regarding any of the alleged facts that were marred with discrepancies with
respect to dates and specific spatial contexts in Mr. Gudiel’s story.
[11]
The RPD found that despite the credibility concerns,
the determinative issue was state protection. The RPD outlined the principles
regarding state protection and reviewed the documentary evidence on El Salvador
at length, acknowledging that there were inconsistencies in the totality of the
documentary evidence. The RPD was not persuaded that the state authorities in
El Salvador were not taking action against the MS 13 and other criminal gangs.
The RPD found that the authorities were making serious efforts to contain the
criminality, particularly those perpetrated by the MS 13 gang, and were
achieving results. The RPD further found that Mr. Gudiel’s evidence about the deficient
protection from the police was anecdotal, that his own evidence and his own
experiences rather suggested a positive response from the El Salvador police to
his complaints, and that the police were willing to investigate. The RPD
therefore concluded that Mr. Gudiel’s evidence did not show that the police
would not provide him adequate state protection in his particular situation and
circumstances.
[12]
The RPD noted that the refugee definition was
forward-looking and suggested that Mr. Gudiel might be unaware of the El
Salvador government’s recent efforts in combating and containing gang-related
criminality, given that Mr. Gudiel had left El Salvador twelve years ago. The
RPD therefore determined that Mr. Gudiel’s claim under section 97 of the IRPA
had failed and rejected it.
B.
The standard of review
[13]
Counsel for Mr. Gudiel argued at the oral
hearing that, in this application, the standard of correctness should apply to
the interpretation and application of the IRPA by the RPD and to the RPD’s
state protection analysis as the issues raised are questions of legal
interpretation.
[14]
I do not agree. Questions of law are
presumptively reviewable on a standard of reasonableness where a tribunal
interprets “its own statute or statutes closely
connected to its function, with which it will have particular familiarity”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 54 [Dunsmuir]). The
existence of the presumption has been confirmed many times since Dunsmuir
(Canadian Artists’ Representation v National Gallery of Canada, 2014 SCC
42; McLean v British Columbia (Securities Commission), 2013 SCC 67; Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61).
[15]
Furthermore, the questions raised in the present
case are the interpretation and application of section 97 of the IRPA to
the facts as well as the RPD’s assessment of state protection. These are
questions of mixed fact and law. The standard of review for determining whether
the RPD erred in applying section 97 or in its state protection analysis has
been determined by this Court to be reasonableness (Meza Varela v Canada
(Minister of Citizenship and Immigration), 2011 FC 1364 at para 12 [Meza
Varela]; Moran v Canada (Minister of Citizenship and Immigration),
2012 FC 546 at para 23 [Moran]; Ruszo v Canada (Minister of Citizenship
and Immigration), 2013 FC 1004 at para 22 [Ruszo]; Rusznyak v
Canada (Minister of Citizenship and Immigration), 2014 FC 255 at para 23; Carranza
Benitez v Canada (Minister of Citizenship and Immigration), 2014 FC 457 at
para 21 [Carranza Benitez]; Bari v Canada (Minister of Citizenship and
Immigration), 2014 FC 862 at para 19; Varon v Canada (Minister of Citizenship
and Immigration), 2015 FC 356 at para 29).
[16]
I acknowledge that some cases have concluded that
the standard of review is correctness when the issue is strictly whether the
RPD has identified the correct test for state protection (Varga Bustos v
Canada (Minister of Citizenship and Immigration), 2014 FC 114 at para 27; Mora
Gonzalez v Canada (Minister of Citizenship and Immigration), 2014 FC 750 at
para 25; Ruszo at paras 20-22). However, the standard is reasonableness
when the issue relates, as it does here, to the RPD’s application of the legal
test to the facts of the case.
[17]
When reviewing a decision on the standard of
reasonableness, the analysis is concerned with the existence of justification,
transparency and intelligibility within the decision-making process. Findings involving questions of facts or mixed fact and law should
not be disturbed provided that the decision “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir at para 47; Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59). In
conducting a reasonableness review of factual findings, it is not the role of
the Court to reweigh the evidence or the relative importance given by the decision-maker
to any relevant factor (Dunsmuir at para 47; Kanthasamy v Canada
(Minister of Citizenship and Immigration), 2014 FCA 113 at para 99 [Kanthasamy]).
Under the reasonableness standard, as long as the process and the outcome fit
comfortably with the principles of justification, transparency, and
intelligibility, a reviewing court should not substitute its own view of a
preferable outcome.
III.
Analysis
A.
Did the RPD conduct the appropriate risk analysis
under section 97 of the IRPA?
[18]
Mr. Gudiel contends that the RPD did not conduct
the appropriate analysis under section 97 of the IRPA, which requires an
individualized inquiry on the basis of the evidence submitted in the context of
present or prospective risk. Mr. Gudiel affirms that the personalized risk he alleged
was evidenced by his personal interaction with the agents of persecution and
the reprisal faced by his family members. Mr. Gudiel further argues that no
subjective fear of persecution is required under section 97 and that the RPD had
to determine whether his removal would subject him personally to the dangers
and risks stipulated in that provision of the IRPA (Sanchez v Canada
(Minister of Citizenship and Immigration), 2007 FCA 99 at para 15; Guerrero
v Canada (Minister of Citizenship and Immigration), 2011 FC 1210 at paras
28-30 [Guerrero]). Mr. Gudiel claims that the RPD failed to determine
his particular risk.
[19]
I disagree. I rather conclude that the RPD
correctly applied the test, effectively considered the particular situation of
Mr. Gudiel and looked at whether the protection offered by El Salvador actually
worked for him and yielded results. The findings of the RPD in that respect were
reasonable and fall within the range of possible, acceptable outcomes flowing
from the evidence.
[20]
Under section 97 of the IRPA, Mr. Gudiel
had to demonstrate that a removal to El Salvador would subject him personally
to, among other things, a risk to his life or of cruel and unusual treatment or
punishment if he is unable to avail himself of the protection of the country.
In assessing this risk, the RPD is required to make an express determination of
what the risk is and clearly express the basis of that risk (Guerrero at
para 28). However, the RPD does not have to specifically mention that a given
individual is at no greater risk than other individuals in that country if the
issue does not arise under subparagraph 97(1) (b)(ii) of the IRPA.
[21]
In the present case, I am satisfied that the RPD
stated and looked at the individualized risk faced by Mr. Gudiel on the basis
of the evidence relating to him. This is not a situation where the
decision-maker failed to state the risk, used vague language to describe it or
conflated individual reasons for heightened risk with a generalized risk faced
by a larger group. I do not see anything to indicate that the RPD did not reasonably
set out and apply the test under section 97. The RPD clearly identified Mr.
Gudiel’s risk in the second paragraph of the decision, noting that he feared
returning to El Salvador due to the perceived threats from Mr. Cinco de Lena,
the MS 13 gang and other individuals relating to it. Throughout the decision,
the RPD referred to the particular situation and circumstances of Mr. Gudiel in
the context of his individualized fears. In addition, the RPD mentioned the
incidents of contact between Mr. Gudiel and his family and the police in El
Salvador. The conclusions of the RPD in this respect were reasonable.
B.
Did the RPD err in applying the test for the state
protection analysis?
[22]
Mr. Gudiel further contends that the RPD erred
in its state protection analysis, as it based its conclusion of adequate state
protection on its finding that the government of El Salvador had made
initiatives to deal with gang violence. At paragraph 26 of its decision, the
RPD stated that “[w]hile the effectiveness of the
protection is a relevant consideration, the preponderance of recent Federal
Court decisions has held that the test for a finding of state protection is
whether the protection is adequate, rather than effective per se.” Mr.
Gudiel affirms that, by doing so, the RPD used and applied the wrong test as it
failed to determine whether adequate state protection was actually
provided in El Salvador.
[23]
I disagree. Instead, I conclude that, when the
decision is read as a whole, the RPD correctly applied the state protection test,
considered the particular situation of Mr. Gudiel and looked at whether the
protection offered by El Salvador actually worked and yielded concrete results.
I find that the approach of the RPD was reasonable and that it committed no
reviewable error in conducting its state protection analysis.
[24]
It is settled law that courts in Canada must
presume that state protection is available in the country of origin. The onus
always lies on the applicant to rebut the presumption with “clear and convincing proof of a state’s
inability to protect” (Canada (Attorney General) v Ward, [1993]
2 SCR 689 at paras 724-726 [Ward]). As pointed
out by Mr. Gudiel, the state protection test focuses not only on the efforts of
the state but also on actual results. This has been expressed in terms of the
adequacy of state protection: “[i]t
is what state protection is actually provided at the present time that is
relevant” (Hercegi v Canada (Citizenship and
Immigration), 2012 FC 250 at paras 5-6). Several
cases have indeed affirmed that the proper test for state protection goes
beyond the existence of mere serious efforts and requires adequate measures in
terms of what is actually accomplished by the state (Cervenakova v Canada (Citizenship and Immigration), 2012 FC 525 at para 74; Ruszo at paras 27-28; Lakatos v
Canada (Minister of Citizenship and Immigration), 2014 FC 785 at para 30; Lopez v Canada
(Minister of Citizenship and Immigration), 2010 FC
1176 at para 11; Ferko v Canada (Minister of
Citizenship and Immigration), 2012 FC 1284 at para
55 [Ferko]; Meza Varela at para 16).
[25]
I pause to note that counsel for Mr. Gudiel
appears to try to distinguish between what is “adequate” protection and what is protection
“effective at an operational
level”. There is indeed a
line of jurisprudence from this Court suggesting that “adequate”
may be different from “effective”; however, these
cases do not dispute that the protection needs to yield actual results (Kaleja
v Canada (Minister of Citizenship & Immigration), 2011 FC 668 at para
25; Lakatos v Canada (Minister of Citizenship and Immigration), 2012 FC
1070 at para 14). A protection that is adequate is a protection that works at
the operational level. Adequacy of state protection has
been held to mean that the RPD has to consider the
state’s capacity to implement measures at the operational or practical level
for the persons concerned (Meza Varela at para
16; Juhasz v Canada (Citizenship and Immigration), 2015 FC 300 at para
44).
[26]
In the present case, there is no merit to the
argument that the RPD erred or failed to do that. On the contrary, the RPD in
fact concluded that state protection in El Salvador was adequate and effectively
worked. In his submissions, Mr. Gudiel tries to use case law and selected
passages from the RPD’s reasons to support the argument that an incorrect test
was applied. But the Court must consider the reasons as a whole. Based on its
detailed review of two information requests, the RPD mentioned the intents and
efforts made by the authorities in El Salvador but also considered how the
country currently provided adequate state protection to its citizens and how the
police were both willing and able to effectively protect them.
[27]
The RPD’s decision did not only refer to the new
anti-gang legislation considered by El Salvador, to its enactment and to its implementation
in the country. It also discussed the actual results of this legislation,
described concrete examples as to how the government deployed military forces
to assist police in combating gang violence, and summarized actions taken on
that front. As was the case in Carranza Benitez at para 19, the RPD looked at evidence showing how protection was
adequate at the operational level in El Salvador.
[28]
The RPD further referred to the particular situation
of Mr. Gudiel. The RPD reviewed instances where Mr. Gudiel and his son
complained to the local police and how the police provided a positive response
and assistance to investigate the incidents. The evidence on the record with
respect to the police reports indicated that they reacted to the complaints and
told Mr. Gudiel how to get police protection and file denunciations. It was
reasonably open to the RPD to conclude that these were not reflective of a lack
of state protection.
[29]
Just like in Moran at para 46, the RPD
reasonably found that the evidence was showing “efforts to combat gang criminality that are operationally adequate”. In other words, the RPD considered the evidence on actual
implementation and concluded that state protection was available, adequate and
effective at an operational level in El Salvador.
[30]
The theory behind the concept of the
availability of state protection is that international refugee protection
should only come into play when the claimant’s own country is unavailable to
provide protection (Ward at para 709). It is the claimant’s
responsibility to rebut the presumption of state protection by providing clear
and convincing confirmation that a state is unable to protect its citizens.
This analysis must be forward-looking and requires to consider whether the
state will provide protection if the claimant returned to his home country (Srichandradas
v Canada (Minister of Citizenship and Immigration), 2003 FC 829 at para 4).
[31]
The test does not require perfect state
protection, but adequate protection. Adequacy of state protection means that it
must be effective to a certain degree (Ferko at para 44).
[32]
In this case, the RPD clearly applied this
operational adequacy test. Mr. Gudiel’s disagreement with the conclusion reached
by the RPD does not mean that the RPD erred in this respect. There was documentary
evidence to support the RPD’s conclusions, the analysis was detailed and
covered several pages, and there was sufficient basis for its conclusion on the
adequacy and actual availability of state protection. I therefore find that the
RPD’s state protection analysis was thorough, well-reasoned and reasonable.
C.
Did the RPD err in its consideration of the
evidence on state protection?
[33]
Mr. Gudiel finally submits that the RPD ignored
or failed to consider clear and convincing evidence rebutting the presumption
of state protection, including documentation he filed showing that despite the
introduction of anti-gang legislation, the government has not been able to
protect its citizens and police protection was limited due to corruption. Mr.
Gudiel contends that the RPD did not articulate the basis as to why it
preferred some documentary evidence of attempts at legislative reform against
gang violence and police corruption and ignored evidence showing a failure of
protection.
[34]
I disagree with this reading of the decision. I find
instead that the RPD adequately referred to several documents in its analysis
and that its conclusions fall within the range of possible, reasonable outcomes
in light of the evidence on the record. I acknowledge that Mr. Gudiel referred
to other documents that appear to contrast with the RPD’s findings and arrive
at different conclusions on the status of state protection in El Salvador. He
mentions in particular a United States Department of State Report and a
document entitled “No Place to Hide”.
[35]
However, I note that the reports specifically relied
on by the RPD in its decision were more recent than most reports and articles singled
out by Mr. Gudiel, many of which discussed the state of affairs predating the
enactment of the anti-gang legislation in El Salvador. Furthermore, the RPD recognized
the existence of sources indicating that El Salvador was one of the most
dangerous countries in the world and specifically acknowledged that the
documentary evidence was mixed. But after reviewing some of the evidence in
detail, and based on the totality of the evidence before it, the RPD made the
following findings regarding the state protection issue:
-
There were inconsistencies in the totality of
the documentary evidence submitted;
-
The RPD was not persuaded that the state
authorities in El Salvador were not taking action against the MS 13, M 18 and
other gangs;
-
The authorities were making serious efforts to
contain the criminality and were obtaining results;
-
Mr. Gudiel’s evidence that he would not be
protected by the police in El Salvador was anecdotal;
-
The evidence available regarding the specific instances
where Mr. Gudiel or his family had made complaints to the police indicated that
the authorities offered a positive response. The police did not ignore or
dismiss the complaints. Instead, the police did react and investigate;
-
Mr. Gudiel may be unaware of the government’s measures
to combat and contain gang-related criminality in El Salvador over the years,
since he left the country some twelve years ago.
[36]
Mr. Gudiel is in fact inviting this Court to
reweigh the evidence in his favour. In conducting a reasonableness review of
factual findings, it is not the role of the Court to do so or to reassess the
relative importance given by the decision-maker to any relevant piece of
evidence (Kanthasamy at para 99). If the finding is reasonable, a
reviewing court should not substitute its own view of a preferable outcome.
[37]
State protection analyses are typically difficult
to conduct, given the significant volume of documentary evidence, often
conflicting, that the RPD has before it. This is why it is important to
recognize that, in a reasonableness review, deference should be given to the
RPD in making this difficult finding.
[38]
Mr. Gudiel complains that the RPD did not adequately
explain why it preferred the documentary evidence that supported its conclusion
over the evidence that differed from it. He refers to decisions where the Court
found that a blanket statement that the decision-maker has considered all the
evidence will not suffice when the evidence omitted appears to squarely
contradict the agency’s finding of fact (Cepeda-Gutierrez v. Canada
(Minister of Citizenship & Immigration) (1998), 157 FTR 35 (Fed. TD) at
para 17 [Cepeda-Gutierrez]). This Court has also found it to be an error
where the RPD acknowledges contrary evidence without truly addressing the
reasons why it considers it to be irrelevant, or how this evidence was weighed
against an applicant’s evidence that the actual requests for help from the
state were not fruitful (Bautista v Canada (Minister of Citizenship and
Immigration), 2010 FC 126 at para 11).
[39]
However, a decision-maker is presumed to have considered
all the evidence. The fact that some of the documentary evidence is not
mentioned in the reasons of a decision is not fatal (Hassan v Canada
(Minister of Citizenship and Immigration), [1992] FCJ No 946 (FCA) at para
3). In addition, the Cepeda-Guttierez case refers to situations where
there was material evidence squarely contradicting the conclusions of the
decision-maker; this is not the case here. Furthermore, a failure to mention
certain pieces of evidence, even contradictory ones, does not necessarily mean
that it was ignored by the RPD, that it was unreasonable for the RPD to be
silent on these documents or that this amounted to a reviewable error. In the Carranza
Benitez decision discussing state protection in El Salvador, the Court
concluded, at para 24, that the RPD was not unreasonable in failing to mention
certain pieces of documentary evidence which did not support its conclusions on
state protection and that the decision-maker need not discuss all pieces of
documentary evidence.
[40]
In the present case, I am not persuaded that the
RPD made an unreasonable and selective use of the evidence and simply ignored
evidence favourable to Mr. Gudiel (Sanchez Aguilar v Canada (Minister of
Citizenship and Immigration), 2012 FC 1054 at para 17). The RPD candidly
mentioned the existence of violence in El Salvador but noted the reports on actual
measures taken by the government and the specific instances of police
protection being available to Mr. Gudiel. The RPD looked at the actions taken
by the police for Mr. Gudiel and his family following the complaints they made
and concluded that Mr. Gudiel had not rebutted the presumption of adequate
state protection with clear and convincing evidence (Moran at para 54).
There was nothing unreasonable about this finding.
[41]
I am therefore satisfied that the RPD’s treatment
of the evidence was reasonable and that its factual findings are not based on
arbitrariness or irrationality.
IV.
Conclusion
[42]
For the reasons set forth above, this application
for judicial review is dismissed. The RPD’s findings and analysis of Mr.
Gudiel’s risk and on state protection were reasonable. In addition, the RPD provided
adequate reasons.
[43]
Counsel for Mr. Gudiel had proposed questions
for certification in relation to the adequacy of a state’s efforts to provide
state protection. As I conclude that, in this case, the RPD has in fact conducted
an analysis of the actual effectiveness and adequacy of the state’s efforts at
an operational level, the questions proposed by counsel for Mr. Gudiel would
not be dispositive of this case and determinative of the appeal. I therefore decline
to certify any questions.