Villa v. Canada (Minister of Citizenship and Immigration), 2005 FC 128

                                                                                                                                Date: 20050201

                                                                                                                         Docket: IMM-963-04

                                                                                                                     Citation: 2005 FC 128

BETWEEN:

                                                       ANA MARIA SOSA VILLA

                                                                                                                                          Applicant

                                                                        - and -

                                                THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

                                                                                                                                     Respondent

                                                        REASONS FOR ORDER

PINARD J.

[1]         This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated January 12, 2004, wherein it was determined that the applicant is neither a Convention refugee nor 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.

[2]         Ana Maria Sosa Villa (the applicant) has been a citizen of the Dominican Republic since birth, in February 1980. In September 2001 she also became a Spanish citizen. She alleges that she has a well-founded fear of persecution in both of these countries by reason of perceived political opinions and her membership in a particular social group, homosexuals.

[3]         The IRB found that, in general, the applicant was credible and that the psychological reasons she gave were sufficient to justify her having waited over six weeks after arriving in Canada before she applied for refugee protection. Although the evidence indicates that the applicant has a well-founded fear of persecution in the Dominican Republic, the IRB determined that the applicant, who must meet the burden of establishing a well-founded fear of persecution in each of her countries of nationality, had failed to do so in the case of Spain, a country that is able to protect her.

[4]         There is a general presumption that the state is able to provide protection to its citizens and the applicant must provide clear and convincing evidence of the state's inability to do so (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724). In Canada (M.E.I.) v. Villafranca (1992), 150 N.R. 232, [1992] F.C.J. No. 1189 (QL), the Federal Court of Appeal states at paragraph [6]:

The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid [clearly not the case here] or that the government itself is in some way prevented from giving it.

[5]         In my view the applicant has not successfully rebutted this presumption for two reasons. The first is that, according to US Country Reports for 2002, Spain is a democratic country and a signatory to many human rights treaties, and has an independent and effective legal system, and, more importantly, a government that respects the fundamental rights of its citizens. The applicant did not submit any reliable evidence to rebut this presumption.

[6]         The second reason is that the applicant's fear is based on the fact that the police and state authorities do not adequately intervene; however, she never asked the Spanish authorities for protection. Under the circumstances, it is unreasonable to allege that the state is unable to protect someone if that person has not sought its help.

[7]         I therefore find that the applicant did not meet the burden of establishing that the IRB, a specialized tribunal, based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C., 1985, c. F-7). There is nothing patently unreasonable in the decision in this case.

[8]         For these reasons, the application for judicial review is dismissed

       JUDGE

OTTAWA, ONTARIO

February 1, 2005

Certified true translation

Michael Palles

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                       IMM-963-04

STYLE OF CAUSE:                                      ANA MARIA SOSA VILLA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                  Montréal, Quebec

DATE OF HEARING:                                    December 14, 2004

REASONS FOR ORDER BY:                      The Honourable Mr. Justice Pinard

DATED:                                                          February 1, 2005      

APPEARANCES:

Lenya Kalepdjian                                           FOR THE APPLICANT

Mario Blanchard                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:

Lenya Kalepdjian                                           FOR THE APPLICANT

Montréal, Quebec

John H. Sims, Q.C.                                        FOR THE RESPONDENT

Deputy Attorney General of Canada

                                                                                                                                Date: 20050201

                                                                                                                         Docket: IMM-963-04

Ottawa, Ontario, the 1st day of February 2005

PRESENT: THE HONOURABLE MR. JUSTICE PINARD

BETWEEN:

                                                       ANA MARIA SOSA VILLA

                                                                                                                                          Applicant

                                                                        - and -

                                                THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

                                                                                                                                     Respondent

                                                                       ORDER

The application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board dated January 12, 2004, determining that the applicant is neither a Convention refugee nor 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, is dismissed.

                              JUDGE

Certified true translation

Michael Palles