Date: 20100707
Unrevised certified
translation Docket:
IMM-128-10
Citation: 2010 FC 727
Montréal, Quebec, July 7,
2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
JOSE
WALTER TROYA JIMENEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an application by Jose Walter Troya Jimenez (the applicant) under sections 72
et seq. of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act) for judicial review of a decision of a panel of the Refugee
Protection Division of the Immigration and Refugee Board (the panel), dated
December 8, 2009, and bearing the number MA8-12101. This judgment is rendered
by the undersigned judge as ex officio judge of the Federal Court as
provided by subsection 5.1(4) of the Federal Courts Act, R.S.C. (1985),
c. F-7.
[2]
The
panel determined that the applicant is not a refugee or a person in need of
protection on the ground that state protection was available to him in Ecuador. The applicant
is challenging that decision.
[3]
The
application for judicial review will be allowed, primarily on the ground that
the analysis of the availability of state protection should normally be
preceded by an analysis of the refugee claimant’s subjective fear of
persecution, which includes an assessment of the applicant’s credibility and
the plausibility of his or her account.
[4]
In
a recent decision of mine, Flores v. Canada (Minister of
Citizenship and Immigration), 2010 FC 503, [2010] F.C.J. No. 607 (QL) (Flores),
I concluded that the availability of state protection should not be decided in
a factual vacuum with regard to a refugee claimant’s personal circumstances. A
decision with regard to the subjective fear of persecution, which includes an
analysis of the refugee claimant’s credibility and the plausibility of his or
her account, must be made by the Immigration and Refugee Board to establish an
appropriate framework for an analysis, where necessary, of the availability of
state protection that takes into account the individual situation of the
refugee claimant in question. The principles established in Flores apply
equally to this case.
Background
[5]
The
applicant is a citizen of Ecuador who is currently 33 years of age and who
formerly taught philosophy at Borja Military Academy #3, in Quito,
Ecuador.
The academy is a private school for the children of military personnel, police
officers and other members of Ecuador’s elite.
[6]
The
applicant alleges that he became romantically involved with a leftist militant
who introduced him to certain members of FARC who were conducting operations in
Ecuador. The FARC
allegedly demanded information from the applicant about students at his school
in order to organize kidnappings for the purposes of extortion. The FARC allegedly
threatened the applicant to ensure his cooperation so that they would be able
to carry out their criminal and terrorist operations. The applicant claims that
he refused to be complicit in these criminal conspiracies.
[7]
He
therefore fled to the United States in July 2005. After his
visitor’s visa to the United States expired in November
2005, he decided to remain there without status until he was arrested by U.S. authorities
in May 2008. He was released by the U.S. authorities in July 2008, and
subsequently fled to Canada.
[8]
The
applicant entered Canada illegally. Nonetheless, he appeared before
Canadian authorities in September 2008 to claim refugee protection.
Decision of the panel
[9]
The
panel did not analyze the applicant’s credibility or question the plausibility
of his account. There is therefore no analysis or decision regarding the
subjective fear of persecution in the panel’s decision.
[10]
The
panel made no comment on the applicant’s long stay in the United
States,
on his refusal to seek asylum there, or on his illegal entry into Canada. No analysis
of the impact these facts could have on the claim for refugee protection in Canada was
undertaken by the panel. Moreover, the panel does not refute the applicant’s
allegations regarding the FARC kidnapping plot or the death threats against him.
[11]
The
panel based its decision strictly on the question of the availability of state
protection in Ecuador. The panel
noted that the applicant failed to seek state protection before fleeing the
country. The panel was of the view that protection would surely have been
provided, given that the FARC’s intended victims were the children of military
personnel and police officers. The panel therefore concluded that the applicant
had failed to rebut the presumption of state protection.
Applicable standard of
review
[12]
In Hinzman v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413, [2007]
F.C.J. No. 584 (QL), at paragraph 38, the Federal
Court of Appeal confirmed that questions as to the adequacy of state protection
are ‘‘questions of mixed fact and law ordinarily reviewable against a standard
of reasonableness’’.
Analysis
[13]
In
Flores, I undertook a lengthy analysis of the decisions of the Supreme
Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689 and Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R
177, as well as the decisions of the Federal Court of Appeal in Rajudeen v.
Canada (Minister of Employment and Immigration), (1984), 55 N.R. 129,
[1984] F.C.J. No. 601 (QL), in Zhuravlvev v. Canada (Minister of Citizenship
and Immigration), [2000] 4 F.C. 3, [2000] F.C.J. No. 507 (QL), in Hinzman
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, 282
D.L.R. (4th) 413, [2007] F.C.J. No. 584 (QL), and in Carillo v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R.
636, [2008] F.C.J. No. 399 (QL), and the decisions of the Federal Court in L.A.O.
v. Canada (Minister of Citizenship and Immigration), 2009 FC 1057, [2009]
F.C.J. No. 1295 (QL), in Torres v. Canada (Minister of Citizenship and Immigration),
2010 FC 234, and in Mendoza v. Canada (Minister of Citizenship and Immigration),
2010 FC 119. I also analyzed the administrative framework of the Act, including
the links between refugee claims determined by the Immigration and Refugee
Board and applications for pre-removal risk assessment.
[14]
This
allowed me to conclude in Flores that the analysis of the availability
of state protection should be done only where the refugee claimant’s subjective
fear of persecution has first been established by the panel. It is only once
the subjective fear of persecution has been established that the analysis of
the availability of state protection can be properly carried out.
[15]
In
other words, other than in exceptional cases, the analysis of the availability
of state protection should not be carried out without first establishing the
existence of a subjective fear of persecution. The panel responsible for questions
of fact should therefore analyze the issue of subjective fear of persecution,
or, in other words, should make a finding as to the refugee claimant’s
credibility and the plausibility of his or her account, before addressing the
objective fear component, which includes an analysis of the availability of
state protection.
[16]
The
analysis of the objective fear should therefore normally be done after the
analysis of subjective fear, since the particular context that is unique to
each case is often determinative in the objective analysis. As such, a refugee
claimant who has no subjective fear of persecution cannot normally allege
absence of state protection. As well, the analysis of the availability of state
protection will vary considerably, depending on the subjective fear in issue.
[17]
Furthermore,
a prior analysis of subjective fear means that the panel can avoid having to
engage in truncated analyses of the availability of state protection. In this
case, the panel carried out no analysis and made no determination concerning
the subjective fear of persecution, specifically the applicant’s credibility
and the plausibility of his account. No context unique to the applicant was
established to guide the analysis of the availability of state protection. This
is an error that is reviewable by this Court. The analysis of the availability
of state protection should not become a means of avoiding making a
determination concerning the subjective fear of persecution.
[18]
The
reasonableness of a decision is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
at paragraph 47. In the circumstances of this case, no reasoned analysis of the
applicant’s credibility and the plausibility of his account was carried out by
the panel. The panel’s decision concerning the availability of state protection
is therefore flawed, given that the factual framework in which that analysis
must be carried out was not first established.
[19]
Accordingly,
the matter will be referred back for reconsideration and rehearing in order to
carry out the necessary prior analysis of the applicant’s subjective fear.
[20]
The
parties did not propose a question for the purposes of paragraph 74(d) of the Act, and accordingly no question
will be stated.
JUDGMENT
THE COURT:
1. Allows the application for judicial review;
2. Refers the matter back to the Immigration and Refugee
Board to be heard by a different panel of the Refugee Protection Division,
which shall, in particular, analyze the applicant’s subjective fear, which includes an
assessment of the applicant’s credibility and the plausibility of his account, prior
to analyzing the availability of state protection.
‘‘Robert
Mainville’’
Certified
true translation
Sebastian
Desbarats, Translator
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