Date: 20090202
Docket: IMM-2299-08
Citation: 2009
FC 109
OTTAWA, ONTARIO, FEBRUARY 02, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
VENTURA SARAI BATRES VELASQUEZ
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1]
This is an
application brought by the applicant pursuant to s. 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”) dated April 28, 2008. The applicant, a citizen of El Salvador, claims a well-founded fear
of persecution as a victim of a criminal street gang.
[2]
The Board
found that the applicant had not rebutted the presumption that adequate state
protection exists in El
Salvador, and
that the applicant had a reasonable internal flight alternative in San Salvador. It is from these findings
that this application for judicial review arises.
BACKGROUND
[3]
The
applicant, a twenty-year old female citizen of El Salvador, claims a risk to
her life at the hands of criminal street gangs in El Salvador. The alleged that in 2001, unknown
criminals believed to be part of a street gang called the Mara Salvatrucha
targeted her family and asked them for money, but were refused by her parents.
The applicant also alleges that the gang members later attempted to enter her
parents’ home, but were unsuccessful. Shots were fired in the attempt, and the
criminals threatened to return. Subsequently, the applicant’s family moved to San Salvador.
[4]
The
applicant also testified that while in San Salvador, her parents were robbed at knife point
on one occasion by a group of gang members, and that a man attacked her with a
knife once while in a supermarket and stole her necklace.
[5]
The
applicant added that her family never reported any of the incidents to the
police for fear of reprisals. She mentioned that in any event, the police
would not be able to protect her in El Salvador
because they lack the personnel and resources. The applicant also testified
that gang violence is increasing every day in El Salvador.
[6]
The
applicant and her family remained in San Salvador until 2004, when the applicant’s parents sent her to the United States. She remained there
illegally until March 2006, when she travelled to Canada and made a refugee claim at the border
crossing.
THE IMPUGNED DECISION
[7]
The Board
determined that the applicant was neither a Convention refugee nor a person in
need of protection pursuant to sections 96 and 97 of the IRPA.
[8]
First, the
Board found that the applicant had not rebutted the presumption of state
protection with evidence of a clear and convincing nature. Reviewing the
documentary evidence, the Board stated that El Salvador is a democracy with the civilian
National Police Force maintaining public security, and the Ministry of Defence
providing national security. Moreover, there are various offices to deal with
allegations and complaints of corruption within the police force. Referring to
the 2007 U.S. Department of State Report, the Board indicated that the
government is making serious efforts in combating gang violence by establishing
an Anti-Gang Taskforce, headed by the Ministry of Public Security, which
successfully arrested almost 6 000 current and former gang members and are making
serious efforts in combating gang violence.
[9]
The Board
recognized that gangs remained a problem in El Salvador and that membership in
gangs and gang violence had increased; nevertheless, it concluded that the
applicant had not rebutted the presumption of state protection with clear and
convincing evidence establishing that the state would be unable or unwilling to
protect the applicant should she require protection upon her return to El
Salvador.
[10]
The Board
also found that the applicant had a reasonable internal flight alternative
(“IFA”) in Sal Salvador and that while her parents had experienced several
incidents of violence while living there, there was insufficient evidence to
connect these incidents to the previous ones, or to establish that those incidents
were anything more than random criminal acts. The Board also noted that the
applicant’s parents continue to live in San Salvador, and that there is no evidence that they
continue to be targeted by the Mara Salvatrucha.
ISSUES
[11]
Counsel
for the applicant raised three issues in her written and oral arguments.
First, he argued that the Board failed to take account of the totality of the
evidence in determining that there is state protection for the applicant, and
disregarded the applicant’s explanation as to why her parents did not seek
state protection. Second, he submitted that the Board failed to take into
account the applicant’s evidence as to the risk she faces as a young woman from
street gangs in finding that she has an IFA in San Salvador. Finally, he contended that the Board
failed to undertake a separate s. 97 analysis as to the objective risk the
applicant as a young woman faces from the Mara Salvatrucha or other gangs in El Salvador.
ANALYSIS
[12]
Findings
of fact by a specialized administrative tribunal are entitled to great
deference by a reviewing court. Prior to the decision of the Supreme Court in Dunsmuir
v. New Brunswick, 2008 SCC 9, the weight of the jurisprudence had
established that overall, the standard of review of a state protection finding
should be reasonableness: see, for ex., Chaves v. Canada (Minister of Citizenship and
Immigration),
2005 FC 193; Franklyn v. Canada (Minister of Citizenship and Immigration), 2005 FC 1249; Hinzman
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171. The
same was true of an IFA finding: see Ali v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 193; Chorny v. Canada (Minister of Citizenship and
Immigration),
2003 FC 999.
[13]
Several
decisions of this Court have confirmed that Dunsmuir has not changed the
law in this respect. The question as to whether there is clear and convincing
confirmation of a state’s inability to protect is clearly a question of mixed
fact and law, and as such it attracts the application of the reasonableness
standard: Pacasum v. Canada (Minister of Citizenship and Immigration),
2008 FC 822; Rodriguez Estrella v. Canada (Citizenship and
Immigration), 2008 FC 633; Eler v. Canada (Minister of
Citizenship and Immigration), 2008 FC 334.
[14]
The same
is true with respect to issues pertaining to an IFA. The two-pronged test for
determining whether an IFA exists clearly calls for the reasonableness
standard, since findings of fact have to be assessed against a legal test. It
is therefore not surprising to find that the cases decided post Dunsmuir
have continued to be based on the standard of reasonableness: Samuel v. Canada
(Minister of Citizenship and Immigration), 2008 FC 762; Khokhar v. Canada (Minister of
Citizenship and Immigration),
2008 FC 449; Aguilar v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1180.
[15]
Reasonableness
is generally concerned with the existence of justification, transparency and
intelligibility in the decision-making process. It is also concerned with
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law. The move towards a
single reasonableness standard does not pave the way for a more intrusive
review by courts. Indeed, paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7 makes it clear that findings of fact should be disturbed
only if they are made in a perverse or capricious manner or without regard for
the material before the tribunal.
[16]
The
applicant has submitted that in deciding the issue of state protection, the
Board must consider whether protection was effective, and whether the efforts
underway to counter gang violence were applied at the operational level. This
argument is flawed, unsupported by the case law, and rests on a false premise.
[17]
In the
seminal case of Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689, Mr. Justice LaForest determined that courts must presume that a
state is capable of protecting its citizens. He made it clear that the
underlying rationale for that presumption is that international protection
comes into play as a surrogate, when no alternative remains to the claimant.
For this presumption to be displaced, the claimant must provide clear and
convincing evidence of the state’s inability to protect him or her. The test
is not met merely because the applicants are able to demonstrate that the state
cannot provide perfect protection. No government can guarantee the protection
of all of its citizens at all times: Canada (Minister of Employment and Immigration) v. Villafranca (1992),
99 D.L.R.(4th) 334, at p. 337 (F.C.A.).
[18]
The
Federal Court of Appeal has recently addressed the burden of proof and the
standard of proof required to rebut the presumption of state protection, first
in Hinzman v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, and subsequently in Canada (Minister of
Citizenship and Immigration) v. Carillo, 2008 FCA 94. In that last
case, the Court insisted that the applicant bears both an evidentiary and legal
burden; he or she must introduce evidence of inadequate state protection, and
must convince the trier of fact on a balance of probabilities that the evidence
adduced establishes that the state protection is inadequate. Moreover, the
evidence does not only have to be reliable, but it must also have sufficient
probative value to meet the applicable standard of proof.
[19]
My colleague Justice
Mosley aptly summarized the state of the law with respect to state protection
in Flores v. Canada (Minister of Citizenship and
Immigration), 2008 FC
723:
[9] The applicants contend,
nonetheless, that it remains an error for an RPD panel to fail to consider
whether the measures it deems adequate are at least minimally effective.
[10] While this is an
attractive argument, it does not convey the current state of the law in Canada in my view. As noted by the
Federal Court of Appeal in Carillo, the decision of the Supreme Court of
Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689
stressed that refugee protection is a surrogate for the protection of a
claimant’s own state. When that state is a democratic society, such as Mexico, albeit one facing
significant challenges with corruption and other criminality, the quality of
the evidence necessary to rebut the presumption will be higher. It is not
enough for a claimant merely to show that his government has not always been
effective at protecting persons in his particular situation: Canada (Minister of Employment and
Immigration)
v. Villafranca (1992), 18 Imm. L.R.(2d) 130 (F.C.A.).
[11] The serious efforts to
provide protection noted by the panel member support the presumption set out in
Ward. Requiring effectiveness of other countries’ authorities would be to ask
of them what our own country is not always able to provide.
[20]
Pointing
to some items of the documentary evidence indicating that the efforts of the
State have not always been crowned with success, the applicant argued that the
Board had selective regard for the evidence before it and failed to appreciate
the extent of the Mara phenomenon. But a careful reading of the Board’s
reasons reveals that the Board was cognizant of the evidence detailing the
persistent problem of gang violence in El Salvador, and acknowledged it explicitly in its
reasons. In fact, I find the context of this case to be materially
indistinguishable from those canvassed by my colleague Justice Robert Barnes in
Paniagua v. Canada (Minister of Citizenship and
Immigration),
2008 FC 1350, and I make mine his comments:
7. The Board decision acknowledged
the seriousness of the gang problem in El Salvador and the very high crime and murder rates
associated with that activity. Clearly the Board was aware of the problems
with gang related law enforcement in El Salvador.
8. I do not agree that the failure
by the Board to specifically refer to all documentary evidence dealing with the
gravity of the problem of gang violence in El Salvador constitutes a reviewable error. The
Board understood that state protection in El Salvador was not perfect but it also recognized
correctly that perfection is not the standard by which the sufficiency of
protection is to be measured. The Board identified several state initiatives
directed at combating gang activity; indeed some of the country condition
reports relied upon by Mr. Rauda Paniagua speak directly to the effectiveness,
in part, of the government’s “tough” anti-gang reforms. Against this
evidentiary record it was open to the Board to be very concerned that Mr. Rauda
Paniagua had made no effort to seek state protection before coming to Canada. Although the problems of
gang violence in El
Salvador were
unquestionably profound, there was plausible evidence that the state protection
apparatus in that country continued to function. It is not for the Court to
reweigh the evidence or to substitute its views of that evidence for those of
the Board. While a different conclusion could have been reached on this
evidence, I am not satisfied that the Board’s treatment of the state protection
evidence or the conclusions it reached were unreasonable.
See also: Ayala v. Canada (Minister of Citizenship and
Immigration),
2007 FC 690
[21]
The fact
that the Board did not deal with all the evidence submitted by the applicant
does not establish that it was ignored. In fact, some of it was irrelevant,
and some was outdated. Again, the Court was not blind to the rise of street
gangs in El
Salvador and to
the challenges this phenomenon poses for the police forces. But having weighed
the evidence in its totality, it came to the conclusion that state protection
was available and adequate. I have not been persuaded that this assessment is
unreasonable.
[22]
It is
always problematic for an applicant to rebut the presumption of state
protection when no attempt has been made to seek that protection. While the
Board noted that the applicant herself, who was a minor at the time, did not
have a duty to seek protection before fleeing, the record shows there was no
reasonable explanation for the family’s failure to report the gang threats and
incidents to the police. The applicant argued that they did not seek
protection because of their fear of reprisal by the Mara Salvatrucha. But that
cannot be sufficient, in and of itself. Once again, the Board looked at the
evidence and determined that protection for similarly situated persons would be
adequate. In particular, the Board looked at the various measures taken by the
government and found that the authorities were making serious efforts, with
some measure of success, to contain the increased crime rates due to increased
membership in the Mara Salvatrucha and other gangs. It also noted that
accusations can be filed anonymously by the victim or another person. In light
of the evidence before it, the Board could reasonably concluded that there was
no reasonable explanation for not even reporting once the threats and thefts
ton which they were subjected.
[23]
This
finding of state protection was sufficient to dispose of the applicant’s
claim. The Board, however, went further and found that the applicant had an
internal flight alternative in San
Salvador. The
Board determined that there was insufficient evidence to establish the
existence of any risk to the applicant in San Salvador, owing to the fact that
the criminal incidents experienced by her family there were not established to
have been connected to the Mara Salvatrucha gand, and due to the fact that her
family has lived peacefully there ever since. These were also reasonable
findings.
[24]
Finally,
the applicant’s argument that the Board erred when it failed to conduct a
separate section 97 analysis is unfounded. There was insufficient evidence on
the record to establish that the applicant faced a personalized risk to her
life at the hands of Salvadoran
street gangs. The
applicant argued that she was at risk not simply as a potential victim of
crime, but as a young woman. At the hearing, counsel for the applicant
contended that all Salvadoran aged 16 to 40 would have a valid refugee claim
because of the risk created by the Maras.
This can not be.
[25]
At best,
the documentary evidence establishes that all Salvadorans face a generalized
risk of violence from gangs. Pursuant to s. 97, the applicant had to establish
that she faces a personalized risk to her life. If there is one category of
persons which is at a higher risk of being targeted, it is the young men, who
are the prime target of recruitment in El Salvador. But the evidence on the record is
insufficient to demonstrate that young women are similarly at a significantly
higher risk than the general population of being targeted by the street gangs.
As a result, the Board made no error in failing to consider this issue
specifically in its reasons.
[26]
For all
the foregoing reasons, this application for judicial review is dismissed. No
questions for certification were proposed, and none is certified.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed.
"Yves
de Montigny"
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