Date: 20100913
Docket: IMM-1027-10
Citation: 2010
FC 916
Vancouver, British
Columbia,
September 13, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
LUIS DANIEL AGUIRRE
SONIA MARINA MORALES DE AGUIRRE
LUIS FERNANDO AGUIRRE MORALES
ALEJANDRA DANIELA AGUIRRE
MORALES
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division (the “RPD”) dated February 4, 2010, denying the Applicants’ claim for
refugee status. The RPD found that the Applicants had failed to rebut the
presumption of state protection. Having carefully considered the record and
the parties’ oral and written submissions, I have come to the conclusion that
the RPD erred in assessing the Applicants’ circumstances and in finding that
they did not provide a reasonable explanation for not having attempted to seek
protection.
FACTS
[2]
Mr.
Aguirre was the owner of a transport business in El Salvador with a fleet of about 40 vehicles.
Starting in 2004, he claimed that a group of extortionists subjected him to a
series of attempts to make him pay “rent”. According to the Applicant, his
trucks were frequently hijacked and the extortionists would leave a message
that they would be returned when the “rent” was paid. Mr. Aguirre stated that
he made 50 to 100 reports of such incidents to the local police.
[3]
In late
2006, Mr. Aguirre began to experience more robberies. In 2007, the extortionists
started threatening to hurt his family members. In 2008, Mr. Aguirre’s
secretary began to receive phone calls from people refusing to identify
themselves, who said they wanted to do business with him.
[4]
Two
further incidents prompted the Applicants to claim refugee protection.
[5]
In March
2008, several strangers entered the Applicants’ house and told Mrs. De Aguirre
that if her husband refused to negotiate with them, they would be dealing with
her and her children. They robbed the house of its most valuable items. The
family did not report this incident to the police.
[6]
In August
2008, when the Applicants were preparing to come to Canada to visit relatives, another incident
occurred. One of Mr. Aguirre’s drivers was kidnapped after his vehicle was
hijacked by the extortionists. Mr. Aguirre reported the kidnapping to the
police. He believes the extortionists meant to kidnap him instead, but he did
not report this belief to the police.
[7]
After the
Applicants came to Canada, they learnt from Mr.
Aguirre’s mother that strangers had been looking for him. Mr. Aguirre believes
that these were the extortionists. He did not contact the police regarding his
fears that the extortionists were looking for him.
[8]
In
addition, there are some significant facts arising from Mr. Aguirre’s Personal
Information Form that the Panel did not mention. The family moved house twice
in an effort to evade the extortionists: first to a safer neighbourhood in
2006, and again several days after the home invasion incident in 2008. Furthermore,
they closed their transportation business and opened a restaurant in the hopes
that closing the business targeted by the extortionists would allow them to
escape the harassment.
THE IMPUGNED DECISION
[9]
The
Panel determined that the Applicants are not in need of refugee protection. It
found that the Applicants had failed to rebut the presumption of state
protection because they did not contact the police about the incidents that
prompted them to flee their country.
[10]
The Panel assumed
without deciding the facts alleged by the Applicants. Regarding the situation
in El Salvador, the Panel also acknowledged
high levels of gang violence and reports that local police are unwilling or
unable to offer protection. However, the Panel found that El Salvador is a
functioning democracy with a police system that is putting significant
resources towards gang-related problems and seemed to conclude that state
protection was likely available.
[11]
The Panel
appeared to base its refusal on the Applicants’ failure to have gone to the
police for protection. When asked why they did not, Mr. Aguirre said that the
extortionists have police connections, that he was afraid of reprisals if he
went to them, and that he knew of a distant relative who had been killed after
making a complaint to the police about an extortion demand. The Panel did not
accept these explanations as reasons that justified a grant of international,
and surrogate, refugee protection.
[12]
The Panel
further commented that not going to the police in the home country creates a
self-fulfilling prophecy: if claimants do not approach local authorities, those
authorities will not be able to succeed in their duties because they have no
one willing to assist them in their investigations.
ISSUE
[13]
The only
issue raised by this application is whether the Panel erred in concluding that
the Applicants had not rebutted the presumption that the state was able and
willing to protect them.
ANALYSIS
[14]
Counsel
for the Applicants submits that the Panel erred in law by failing to apply the
appropriate test for state protection. By deciding that the claimants’ failure
to report the incidents necessarily meant that they did not rebut the
presumption of state protection, the Panel in effect decided that any claimants
who fail to seek internal protection for reason of fear of reprisals or for
fear that their assailants are connected to the police cannot rebut the
presumption. This being an error of law, according to the Applicant, it should
be reviewed on the correctness standard.
[15]
Contrary
to the Applicant’s argument, I do not believe that the Panel applied the wrong
test. At paragraph 12 of its reasons, it stated the test accurately as follows:
The state is presumed to be
able and willing to protect its citizens. The claimant who considers that that
presumption should not be applied in their case must demonstrate why not,
through clear and convincing evidence. The claimant who does not even approach
the authorities in their own country must demonstrate why it would be unreasonable
to expect them to have done so.
[16]
The
Supreme Court of Canada has directed that where the standard of review can be
ascertained by reference to existing jurisprudence, there is no need to engage
in a standard of review analysis. The issue of state protection, which
involves mixed questions of fact and law, has been determined to be reviewable
on a standard of reasonableness in a host of decisions by this Court and the
Federal Court of Appeal: see, for ex., Hinzman v. Canada (M.C.I.),
2007 FCA 171, at para. 38; Zamorano v. Canada (M.C.I.), 2009 FC
82, at para. 13; Gomez v. Canada (M.C.I.), 2010 FC 375, at paras.
24; Perez Nava v. Canada (M.C.I.), 2008 FC 706, at para. 12.
[17]
The Panel
was clearly aware of the applicable general principles, and was not attempting
to detract from these principles or to set new ground rules for the future. To
that extent, its decision appears to be grounded on the particular facts of
this case, and as such, it merely sought to apply the general principle to the
situation of the Applicants. However, if the Panel was attempting to rule out
in the abstract the possibility of rebutting the presumption of state
protection on the basis of fear of reprisals or of police connections with the
agents of persecution, that part of its reasons could well attract a review on
the correctness standard. Be that as it may, I need not pursue this matter any
further as I have found that the Panel has not satisfied the less stringent
standard and has made an unreasonable finding on the basis of the evidence that
was filed.
[18]
As a
general principle, an Applicant is expected to take all reasonable steps to
seek state protection from his prosecutors. However, as Justice La Forest aptly stated in Canada (Attorney General) v. Ward, [1993] 2
S.C.R.689 (at p. 724), this will hold true only in situations where state
protection might reasonably be forthcoming:
Most states would be willing to attempt
to protect when an objective assessment established that they are not able to
do this effectively. Moreover, it would seem to defeat the purpose of
international protection if a claimant would be required to risk his or her
life seeking ineffective protection of a state, merely to demonstrate that
ineffectiveness.
Like Hathaway, I
prefer to formulate this aspect of the test for fear of persecution as
follows: only in situations in which state protection "might
reasonably have been forthcoming", will the claimant's failure to approach
the state for protection defeat his claim. Put another way, the claimant
will not meet the definition of "Convention refugee" where it is
objectively unreasonable for the claimant not to have sought the protection of
his home authorities; otherwise, the claimant need not literally approach the
state.
[19]
In the
case at bar, I find two flaws in the Panel’s reasoning. First, the Panel
assumes that the state can provide protection because “huge resources” have
been dedicated to address gang violence, without ever assessing whether these
efforts have had any real impact on the ground. Second, the Panel did not take
into account and discuss the reasons given by the Applicant for not approaching
the police. I will deal with each of these issues in turn.
[20]
The case
law is replete with statements confirming that it is not sufficient for a state
to make efforts to provide protection; an objective assessment must also
establish that the state is able to do so in practice: see, inter alia, Avila
v. Canada (M.C.I.), 2006 FC 359; Sanchez v. Canada (M.C.I.),
2009 FC 101; Capitaine v. Canada (M.C.I.), 2008 FC 98. However,
the Panel does not seem to be alert to this distinction, and does not refer to
any documentary evidence showing that the resources devoted to combating crime
have produced any tangible results. There is only one vague reference to the “National
Documentation Package”, which is most unhelpful considering the voluminous number
of documents that it contains. Even this one reference only supports the
assertion that huge resources are dedicated to dealing with gang violence. There
is not a shred of analysis of the numerous documents indicating that gang
members are increasingly powerful and roam freely throughout the country, that El Salvador is one of the most violent
countries in the world, and that extortion rings plague businesses and more
particularly transportation and trucking companies. The Panel clearly had an
obligation to review, weigh and explain why it rejected this documentary
evidence which was not only relevant but which also contradicted its own
findings: Cepeda Gutierrez v. Canada (M.C.I.) (1998), 157 F.T.R.
35, at para. 17. It should not have simply glossed over this dire information and
contented itself with saying that El Salvador
is a functioning democracy that has put enormous resources towards its problems.
[21]
Moreover,
the Panel did not pay adequate attention to the Applicants’ own experience with
the police and their previous attempts to seek state protection. The
Applicants fled El
Salvador after
having been harassed by a ring of extortionists for four years. During this
time, they took various significant measures to seek help and evade the
extortionists, including moving to a safer neighbourhood, closing their
transportation business and opening a restaurant, and making between 50 and 100
reports to the police over hijacking incidents. There is no evidence that the
police offered any protection, investigations, or arrests in response to these
reports. These complaints demonstrate a willingness on the part of the
Applicants to seek protection from the state, and show that the police were
well-aware of the harassment that the Applicants suffered at the hand of the
extortionists.
[22]
Furthermore,
the Applicants did contact the police about the violent hijacking and
kidnapping of the driver, which was one of the incidents that prompted the
family to flee. The driver subsequently decided to quit his job, and refused
to make an official police complaint.
[23]
The Panel
seems to stake particular significance on the fact that the family did not
report either their belief that the kidnappers had intended to take Mr. Aguirre
or their fears that the extortionists were looking for him even after they had
fled El Salvador. Given the police’s ineffective
response to concrete crimes committed by the extortionists, such as the
hijackings and the kidnapping, I do not think it was unreasonable of the
Applicants to neglect to report their fears of events that had not yet come to
pass. The Applicants have demonstrated much more than a subjective reluctance
to engage the state, and it cannot be said that the family was too quick to
assume that state protection would not be forthcoming.
[24]
Finally,
the Board failed to address Mr. Aguirre’s statement to the effect that he never
dealt with the extortionists and never reported that he had been personally
targeted by the extortion ring on the advice of a friend who held a position in
the police. He had apparently been advised that the extortion rings had
infiltrated the police and that opening a police complaint could only put him in
greater danger. This is entirely consistent with reports of police corruption
and association with criminal gangs found in the documentary evidence. Indeed,
the president of the Salvadoran Chamber of the Transport Industry is reported
as saying that sometimes “the criminals are informed that they have been
denounced before the victims have finished lodging their report of an incident”
(Applicant Record, p. 254). Yet again, the Panel fails to even mention that
evidence, let alone analyze it.
[25]
For all of
the foregoing reasons, I am therefore of the view that the Board came to an
unreasonable decision and that this application for judicial review ought to be
granted. Counsel suggested no question of general importance for
certification, and none arises.
ORDER
THIS COURT ORDERS that the application for judicial
review is granted, the decision of the Refugee Protection Board of February 4,
2010 is set aside and the applicant’s claim is referred back to the Board for
redetermination by another member. No question is certified.
“Yves de Montigny”
Email this Content