Date: 20060109

Docket: IMM-3448-05

Citation: 2006 FC 12

Ottawa, Ontario, January 9, 2006

PRESENT: THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

RENÉ ALBERTO MEJIA

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

BLAIS J.

[1]               This is an application for judicial review concerning a decision rendered on April 25, 2005, by the Refugee Protection Division of the Immigration and Refugee Board (the Board), which refused to recognize René Alberto Maija (the applicant) as a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C., (2001) c. 27 (the Act).

RELEVANT FACTS

[2]    The Applicant is a citizen of El Salvador who arrived in Canada on November 6, 2004 and who applied for protection by Canada on November 22, 2004.

[3]   On July 13, 2002, members of the criminal gang “Mara Salvatrucha” demanded an amount of five dollars per week from the applicant. Under threat, the applicant paid this amount every week for a period of two years.

[4]   On September 2, 2004, members of the criminal gang increased the amount the applicant had to pay to live within their territory to twenty-five dollars. During this incident, the applicant had to pay the twenty-five dollars demanded to avoid threats to his family.

[5]   Knowing he was unable to make the following payment, the applicant asked his wife and daughter to leave home.

[6]   On September 5, 2004, the applicant and a friend, Antonio Landaverde Aguilard, were chased by gang members, who shot at them. The friend was seriously injured and died the next day as a result of his injuries.

[7]   Fearing death at the hands of these criminals, the applicant decided to flee the city and join his wife in the village of Tapecoyo while waiting to be able to leave the country.

[8]   On September 20, 2004, the ship on which the applicant was working arrived in Spain and was supposed to sail for Canada. The ship arrived in Hamilton, Ontario on November 6, 2004 and in Montréal on November 19, 2004. The applicant claimed refugee status on November 22, 2004.

[9]   On April 25, 2005, the applicant explained under oath before the Board the grounds for his claim.

ISSUES

1. Did the Board err in concluding the evidence showed that the applicant was not in danger when he moved within El Salvador?

2. Did the Board err in concluding that the danger to the applicant was general in nature and not personal?

3. Did the Board err in concluding that the applicant should have sought protection from the state?

ANALYSIS

1. Did the Board err in concluding the evidence showed that the applicant was not in danger when he moved within El Salvador?

[10]           The record of the Board hearing shows that the matter of whether or not the applicant had any problems when he joined up with his family was raised. The applicant mentioned that he did not run into any problems. However, he added that he was living in hiding and avoided being seen in the street, and this explains why he did not run into any problems with the members of the criminal gang. The applicant alleges that the Board did not take this explanation into consideration in its decision.

[11]           In Bilquees v. Canada (Minister of Citizenship and Immigration), 2004 FC 157, [2004] F.C.J. No. 205, my colleague Pinard J. repeated that an assessment of credibility is a question of fact, and it is not up to this Court to intervene, unless that assessment is unreasonable:

The PRRA officer found, like the panel that preceded her, that the applicants were not credible. The evaluation of credibility is a question of fact and this Court cannot substitute its decision for that of the PRRA officer unless the applicant can show that the decision was based on an erroneous finding of fact that she made in a perverse or capricious manner or without regard for the material before her (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). The PRRA officer has specialised knowledge and the authority to assess the evidence as long as her inferences are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and her reasons are set out in clear and unmistakable terms (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)).

[12]           It is up to the Board to decide if the applicant is credible and if he told the truth about the facts alleged. Considering the Board mentioned some of the applicant’s statements which were contained in the record of the hearing, I am satisfied that the Board took into consideration the complete record in rendering its decision, including the applicant’s explanation that he did not have

any problem with criminal gangs after he moved. I am of the opinion that the Board made no error and that the decision was rendered after a complete analysis of the evidence before it.

2. Did the Board err in concluding that the danger to the applicant was general in nature and not personal?

[13]           The applicant claimed that the Board was mistaken in concluding that the danger to him was generalized and not personal in nature.

[14]           In Kang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1128, [2005] F.C.J. No. 1400, it was stated that a person may be a refugee even in the absence of any personal danger. However, at paragraph 10, Martineau J. mentioned that victims of criminal acts and corruption are not refugees within the meaning of section 96 of the Act:

Membership in a particular social group is a recognized ground under section 96 of the Act. Moreover, while personal targeting is not required, refugee claimants must nonetheless establish a link between themselves and persecution for a Convention reason. They must be targeted for persecution in some way, either personally or collectively: Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.). On this matter, victims or potential victims of crime, corruption or personal vendettas, generally cannot establish a link between fear of persecution and Convention reasons.

[15]           In this case, the applicant does not claim to be a refugee within the meaning of section 96 of the Act. Instead, he is seeking recognition as a person in need of protection because of a risk to his life or a risk of cruel and unusual treatment or punishment within the meaning of paragraph 97(1)(b) of the Act.

[16]           The burden of proof for a person seeking protection under section 97 is less stringent than the burden specified under section 96 for refugee status. In Li v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 501, Gauthier J. stated at paragraph 45:

First, there are already significant differences between the test to be applied by the RPD when evaluating a claim under section 97 and one under section 96. In Shah v. Canada (Minister of Citizenship and Immigration), 2003 FC 1121; [2003] F.C.J. No. 1418 (F.C.) (QL), at paragraph 16, Blanchard J., held that the test under section 97 of the Act does not require a determination of a subjective fear of persecution. In Nyathi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1119; [2003] F.C.J. No. 1409 (C.F.) (QL), at paragraph 21, the learned Judge added that section 97 requires the RPD to apply a different test namely, whether a claimant's removal would subject that individual personally to the danger and risk stipulated in paragraphs 97(1)(a) and (b) of the Act. I agree with those findings.

[17]           There is a marked difference between the test the Board must apply when dealing with an application by a “person in need of protection” and the one for an application for Convention refugee status. In the first case, contrary to the second, it is not necessary to conclude there was a subjective fear of persecution. What must be determined is whether the removal of the applicant would personally expose him to the dangers and risks contemplated by the Act. Convincing evidence must exist (on a balance of probabilities) establishing the facts which the refugee claimant invokes to prove he is subject to a serious risk of torture when returning to his country (Li v. Canada (Minister of Citizenship and Immigration), supra; Sivanathan v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 662).

[18]           The Board concluded that the applicant was the subject of a generalized problem in his country, that is to say, the payment of an illegal tax demanded by a criminal group.

[19]           It was not unreasonable to draw this conclusion after studying the evidence adduced and after considering the behaviour of the applicant, who had never requested state protection.

3. Did the Board err in concluding that the applicant should have sought protection from the state?

[20]           The applicant alleges that the Board erred in concluding that he should have requested protection from the state.

[21]           As suggested by the respondent, we must presume that the state is able to protect its citizens. It is up to the applicant to show that the state was unable to give this protection.

[22]           Absent a situation of complete breakdown of state apparatus, it must be presumed that the state is able to protect its citizens.

[23]         There is no clear and convincing evidence showing that the state was unable to ensure his protection. See: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, pages 731-732; MIC v. Kadenko, A-388-95, October 15, 1996 (F.C.A.); Canada (M.E.I.) v. Levkovicz and the Secretary of

State for Canada, IMM-599-94, March 13, 1995 ( Nadon J.); Villafranca, (1992) 99 D.L.R. (4th) 334, December 18, 1992 (F.C.A.).

[24]           Although the Board’s decision is not detailed, the applicant has not convinced me it made an error that would warrant the intervention of this Court. It is up to the applicant to show that he is a person in need of protection, but he has not succeeded in doing so.

            THE COURT ORDERS THAT:

            -           The application for judicial review be dismissed.

            -           No question will be certified.

“Pierre Blais”

Certified true translation

Michael Palles

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-3448-05

STYLE OF CAUSE:                          RENÉ ALBERTO MEJIA v. MCI

PLACE OF HEARING:                    Montréal

DATE OF HEARING:                      November 17, 2005

REASONS FOR ORDER AND

ORDER BY:                                      The Honourable Mr. Justice Blais

DATED:                                             January 9, 2006

APPEARANCES:

SOLICITORS OF RECORD: