Docket:
IMM-5297-13
Citation: 2013 FC 1162
Ottawa,
Ontario, November 15, 2013
PRESENT: The Honourable Mr. Justice Phelan
|
BETWEEN:
|
|
KEVIN LANZA MELGARES
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The sole issue in this judicial review is the
analysis of state protection in Honduras.
II. BACKGROUND
[2]
The Applicant has a chequered immigration career
in Canada. He is presently in custody because of breaches of immigration
requirements.
[3]
Having entered Canada illegally in 2006, the
Applicant was arrested, released on bond and then failed to appear at CBSA as
required. He failed to show up for his refugee hearing. He was arrested and deported
after having refused to file a PRRA.
[4]
The Applicant was back in Canada by 2013. He was arrested in June 2013 and filed his PRRA shortly thereafter.
[5]
In the time between his first and second sojourn
in Canada, the Applicant alleges that he and his family in Honduras experienced serious problems with the MS-13 gang. His brother was kidnapped and
murdered; the Applicant had been threatened with murder; and he was injured in
an attempted kidnapping.
[6]
The Applicant’s family had reported earlier
incidents to the police. His father experienced retaliation including being
attacked. The Applicant says that all of this was due to making a police
report.
[7]
After the Applicant came to Canada in February 2013, his family was attacked; the men in the house beaten; his father
shot and others severely injured; and his mother and sister were raped. The
attackers uttered threats about the Applicant if he returned to Honduras.
[8]
The PRRA Officer accepted that the Applicant’s
brother was kidnapped and murdered in 2012. The Officer accepted that the
incidents in February 2013 occurred but did not accept that the attacks were
related to gangs.
[9]
On the issue of state protection, the Officer
did not accept that complaints to police resulted in retaliation. The Officer
held that the Applicant had not met the onus of rebutting the presumption of
state protection because he had not reported certain incidents to police
including the attacks on his family in February 2013 when he had fled to Canada.
[10]
In reviewing the documentary evidence, the
Officer noted that despite continuing problems of violence and corruption, Honduras had taken a number of steps to implement programs to address these problems.
Therefore, despite continued problems of corruption and impunity, state
protection was adequate.
III. ANALYSIS
[11]
It is well settled in this Court that findings
of state protection are subject to the standard of reasonableness (Meza
Varela v Canada (Minister of Citizenship and Immigration), 2011 FC 1364,
209 ACWS (3d) 648 [Meza]).
[12]
The Officer never determined what type of risk
the Applicant faced but did accept that the core events of 2012-2013 occurred.
The Officer seemed to reject the allegation that the risk was gang-related
because the Applicant did not establish that the gang violence in 1997 when his
brother was shot was committed by the same people who committed the violence in
2012-2013.
[13]
That is an unreasonable basis on which to
dismiss the claim of fear of gangs. It is difficult to conceive how one would
ever meet that burden of proof. The Officer never addresses whether the
violence experienced was random or some other type of violence.
[14]
In a country rampant with gang violence and
corruption, as the documentary evidence established, it was important to
establish the nature of the violence. In assessing state protection, one of the
issues must be the nature of the risk and the ability of the state to protect
against that risk.
[15]
In assessing risk, the Officer’s conclusions are
unreasonable and the conclusion colours the assessment of state protection.
[16]
The Officer’s conclusion that state protection
is available to the Applicant is also unreasonable in that it did not assess
the effectiveness of state protection.
[17]
The Officer defined the issue of state
protection as one of “whether the state is in effective control of its
territory, has military, police and civil authorities in place, and makes
serious efforts to protect its citizens”. That statement is accurate as far as
it goes; however, it misses the point in failing to assess whether those
efforts to protect have yielded such results that one can conclude, at an
operational level, that the necessary protection is reasonably available.
[18]
The Officer did not undertake this last
analytical obligation. It is not sufficient to recite the institutions created,
criminal justice reform and other such efforts without determining whether they
work to protect the public and the particular individual involved.
[19]
This Court has expanded upon the principle of
state protection set forth in Canada (Minister of Employment and
Immigration) v Villafranca, (1992) 99 DLR (4th) 334 (FCA), 37
ACWS (3d) 1259. In decisions such as Majoros v Canada (Minister of
Citizenship and Immigration), 2013 FC 421, and Meza, a consideration
of the operational effectiveness of a state’s measures to protect was included
as part of the state protection analysis.
[20]
The depth of consideration, the weight to be
given the evidence, is influenced by the general conditions in the country.
Where there is acknowledged major failings in state organisms, a higher
standard of analysis is required.
[21]
The evidence with respect to Honduras is that it has been plagued with gang and other associated violence in which the
security forces have been identified as corrupt and acting with impunity.
Documents such as the US DOS recite serious institutional and individual
failings.
[22]
The failure to assess the realities of state
protection led the Officer to dismiss the Applicant’s fears of approaching the
police. The evidence was that past efforts had led to retribution. There was
also evidence of police action in respect of the murder of the Applicant’s
brother but nothing seems to have come of that.
[23]
It is axiomatic that the weaker the state
protection, the more justifiable is the reluctance of individuals to engage the
levers of state protection. The Officer’s rejection of the Applicant’s
explanation, in the absence of a proper consideration of state protection,
cannot be sustained.
IV. CONCLUSION
[24]
Therefore, this judicial review will be granted,
the decision quashed and the matter referred back for a new decision by a
different officer.
[25]
There is no question for certification.
Email this Content