Date: 20071204
Docket: IMM-6554-06
Citation: 2007
FC 1271
Ottawa, Ontario, December 4, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
EDWIN
BOSTON
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1]
Mr. Edwin Boston, the Applicant, is a citizen of the Philippines who
arrived in Canada in 2002 and made a claim for refugee protection. In a
decision dated March 4, 2005, a panel of the Immigration and Refugee Board,
Refugee Protection Division (the Board) rejected his claim on the basis that
state protection is available to the Applicant. Upon judicial review, this
decision was quashed and the matter returned to the Board (Edwin Boston
v. Minister of Citizenship and Immigration (22 November 2005), Toronto
IMM-1922-05 (F.C.)).
[2]
A newly-constituted panel of the Board was convened for the rehearing.
The Board concluded that the only question to be determined was that of the
availability of state protection. On consent of counsel for the Applicant, the
Board made its decision on the basis of the record before the earlier panel and
further written submissions made by counsel. In its decision, dated November 16,
2006, the Board determined that the Applicant is neither a Convention refugee,
as contemplated by s. 96 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), nor a person in need of protection, pursuant to s.
97 of IRPA. In its decision, the Board found that (a) the Applicant had an
internal flight alternative (IFA) in Manila; and (b) there is adequate state
protection in the Philippines.
[3]
The Applicant seeks judicial review of this decision
Issues
[4]
As argued before me, the issues to be addressed are the following:
1.
Did the Board fail to properly consider the issue of state
protection? In particular, did the Board:
a.
Misapprehend who the agent of persecution was?
b.
Fail to properly consider the documentary evidence before it?
c.
Err by stating the Applicant did not face a particularized risk in the Philippines?
2.
Did the Board misapprehend the facts as to where the Applicant
was fleeing from and thereby err in its analysis of whether there was a
possibility of an IFA?
[5]
The Respondent acknowledges that the Board erred in its IFA finding. I
agree. However, in light of the state protection conclusion, this error is not
material to the decision (Sarfraz v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1974 (T.D.) (QL)). Accordingly, these
reasons will only deal with the Board’s findings on state protection. For the
reasons that follow, I am satisfied that there is no basis for judicial
intervention and the application for judicial review will be dismissed.
Analysis
[6]
In general, a finding of state protection is reviewable on a standard of
reasonableness (see, for example, Robinson v. Canada (Minister
of Citizenship and Immigration), 2006 FC 402 at para. 8). On this
standard, the decision of the Board must stand up to a somewhat probing
examination.
Did the Board err by
misapprehending who the agent of persecution was?
[7]
Although, overall, the appropriate standard of review is reasonableness,
identification of the agent of persecution is a factual determination subject
to the highest deference. So long as there is evidence to support the finding,
I will not intervene. In its decision, the Board stated that, “The claimant
states that it is the Philippine National Police (PNP) or a group related to
them who were extorting money from [the Applicant]”. In the context of the
decision, it is clear that the “group” referred to is the New People’s Army
(NPA), a guerilla group operating in the Philippines.
[8]
The Applicant submits that the Board erroneously stated that the PNP is
the group extorting money from the Applicant and that the NPA is in some way
sharing the funds it exploits with the PNP. In the Applicant’s view, this is a
fundamental erroneous finding of fact (Carlos Enrique Sangueneti Toro v.
Minister of Employment and Immigration, [1981] 1 F.C. 652 (C.A.); Makoni
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1632
(QL); Hodgkinson v. Simms, [1994] S.C.J. No. 84 (QL); W.W. Lester
(1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644).
[9]
There is no question that, based on the totality of the record, the NPA
is at the root of the Applicant’s fears. The Board correctly refers to the fact
that the NPA – and not the PNP – was extorting money from the Applicant. The
question is whether the Board erred by suggesting that the Applicant believed
that the PNP and the NPA were working together. In my view, there was no error.
[10]
I first note that the Board states (in the first paragraph of its
analysis that “The claimant states that it is the [PNP] or a group related to them who were extorting
money from him” [emphasis added]. Later in the same paragraph the Board
clarifies that the NPA was responsible for the extortion.
[11]
As to whether it was reasonable for the Board to state that the
Applicant feared the PNP, as well as the NPA, and that the two organizations
were connected in some way, I turn to the evidence before the Board.
[12]
In the record that was before the Board, there were a number of
references to the Applicant’s fears of the PNP. The first reference is
contained in the Applicant’s initial refugee claim document. When asked who he
was afraid of, his only response was “Government”. In his Personal Information
Form (PIF), the Applicant did not identify the NPA as the extorting
organization. Indeed, in his PIF, the Applicant appears to name the police or
PNP for the extortion when he states that he “was aware that various forms of
corruption amongst the Police forces, including extortion, were rampant”
[emphasis added].
[13]
Even after he acknowledged the role of the NPA, the Applicant continued
to implicate the PNP, as evidenced by the following transcript reference from
the Applicant’s first hearing, which was before the Board in the case at bar:
PRESIDING MEMBER: So, Mr. Boston,
why did you decide not to go back?
CLAIMANT: Because that time –
that time I believe that the group, behind the group, they are the Philippine
National Police, and they have the connection that I’m still doing the same
thing…
…
CLAIMANT: …and behind them I
believe they Philippine National Police because that time they told me that I
have to continue the pay and I believe they are behind for that. So, I don’t
have the choice to transfer because they’re operating nationwide.
PRESIDING MEMBER: What makes you
think that the Philippine National Police is behind this?
CLAIMANT: Because when I reported
this a second time that there is a death threat on my life and there is
extortion…they strongly recommend that I had to abide for illegal demand and it
was says that I know it’s existing. In the Philippine National Police there is
corruption and the – and they doing extortion.
[14]
Given the record before the Board, it was not unreasonable for the Board
to describe the Applicant’s fears and alleged agent of persecution as it did.
Did the Board
err in its assessment of the documentary evidence?
[15]
There was significant documentary evidence before the Board on the
activities of the NPA. Based on its review of the documentary evidence, the
Board made a number of findings:
1.
The Board found the documentary evidence showed that there were violent
clashes between government forces and the NPA which contradicted the
Applicant’s testimony that they were working together in extortion. Any
incidents of security officials working together in extortion were not
sanctioned by the state.
2.
The NPA is small and generally confined to two areas away from the
cities.
3.
The evidence pertaining to extortion by the NPA is mostly related to
extortion of businesses and politicians.
4.
People are being killed by the NPA but the government is making serious
efforts to deal with them. The evidence “hardly points to a large force
controlling the country”.
[16]
The Applicant submits that certain documentary evidence was ignored and
that the Board made factual errors. Among those alleged errors are the
following:
·
The documentary evidence does not indicate that the NPA is a
small group confined to areas away from the cities.
·
The documentary evidence shows the NPA extorts and kills ordinary
citizens; its actions are not confined to “businesses and politicians”.
·
The Board failed to consider a recent affidavit by the
Applicant’s mother that stated the police did not take any action when she was
threatened by the NPA.
·
The Board’s remark that “..one death is too many [b]ut…it hardly
points to a large force controlling the country” hides the fact that the
Amnesty International Philippines article (“Amnesty International Philippines”,
online: Amnesty International Philippines
http://web.amnesty.org/web/web.nsf/print/8A589C2B4C3A570680256FE3004CD1B1>.)
indicates that the government is not making serious efforts to deal with the
insurgents (Toro, above; Canadian Imperial Bank of Commerce v. Rifou,
[1986] 3 F.C. 486 (C.A.)).
[17]
I am not persuaded that the Applicant has overcome the presumption that
the Board considered all the evidence before it. First, footnotes of the
Board’s decision refer to most, if not all, of the documentary evidence.
Second, the Board specifically cites – in footnote 12 of the decision – one of
the articles (Manny Mogato, “To fund a revolution” Newsbreak (31 March
2003)) that the Applicant alleges was ignored. Finally, the Board makes a
number of explicit references to the documentation package containing the
articles the Applicant alleges were ignored.
[18]
Contrary to the Applicant’s assertions, these articles are capable of
supporting the Board’s findings that the size of the NPA and the extent of its extortion
activities are limited in the Philippines.
[19]
Although I agree with the Applicant that there were articles in the
material before the Board which indicate that the NPA is now targeting “private
citizens” across the Philippines in its extortion activities, the Board placed
greater weight on the articles which suggest a more limited role of the NPA. In
particular, the Board relied on the Country Reports of Human Rights
Practices 2005 and the Europa World Book 2005, both found in
the Toronto Documentation Package for the Philippines, on the basis that they
came from sources which have “no interest in the outcome of the claim”.
Although the Board could have been clearer as to why it preferred the material
it cited, I do not find its decision so unreasonable as to warrant it being set
aside. It is impossible for the Board to reference every article in a
documentation package. Where there are indications that the Board has
considered all the evidence before it and it rationally explains why it prefers
a particular article, its findings should not be disturbed (Sarfraz,
above, at para. 11).
[20]
Contrary to the Applicant’s assertions that the Board did not have
regard to the affidavit of the Applicant’s mother, I note that the Board did in
fact refer to that evidence. As stated by the Board in its decision:
Claimant’s counsel submitted
numerous documents in support of the claim which were carefully considered by
the panel…The first two documents are affidavits from the claimant’s mother and
her neighbour…the affidavits are dated in 2006…It should be noted that
the claimant’s mother stated in an earlier affidavit that when she reported
strangers around her house, police patrolled her vicinity [emphasis added].
[21]
Again, I do not find the Applicant has overcome the presumption that the
Board considered all the evidence before it.
[22]
Moreover, as will be addressed in more detail below, the Board found
that the government of the Philippines was making “serious efforts to deal with
the [NPA]”. In view of this finding, it was not necessary for the Board to
specifically address the Applicant’s mother’s statement in her affidavit that
the “I blottered the incidents…but until now there was no action and the lawless
people are still free” because, as noted in Canada (Minister of
Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.)
(QL):
…where a state is in effective
control of its territory, has military, police and civil authority in
place, and makes serious efforts to protect its citizens from terrorist
activities, the mere fact that it is not always successful at doing so will
not be enough to justify a claim that the victims of terrorism are unable
to avail themselves of such protection [emphasis added].
[23]
In sum, I am not persuaded that the Board ignored the documentary
evidence or that its findings with respect to the nature of the NPA or its
level of activity were made without regard to the evidence.
Did the Board err by failing
to take into account the Applicant’s personalized risk?
[24]
The Applicant’s claims to have been extorted were not disbelieved by the
first panel. Although the Board’s review of the Applicant’s case was de novo,
the Board did not make any finding of negative credibility against the
Applicant. The Board, in this second decision, must be presumed to have
accepted the credibility of the Applicant’s story. In light of this, the
Applicant submits that the Board erred by failing to take his personalized risk
into account in determining whether state protection was available to him. I do
not agree.
[25]
Having accepted the Applicant’s story (or at least not making any
negative credibility findings), the Board’s statement that “Corruption and
political killings are a generalized risk anywhere in the Philippines and
extending protection to persons such as the claimant is outside of the Board’s
mandate” is confusing to say the least. However, the Board’s decision should be
examined as a whole and not subject to a microscopic analysis (Miranda v.
Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437
(T.D.) (QL)). When one looks to the totality of the reasons provided in the
decision, it is evident that the Board’s reasoning was, in effect, the
following: “The Board accepts there is some corruption in the Philippines,
including within the police. The Board accepts the Applicant’s story of
extortion by the NPA. However, the Board finds that police corruption is not
endemic and that the state is actively combating the NPA with some success.
Accordingly, the Board thinks the state can still provide adequate protection
to the Applicant.”
[26]
Thus, when read as a whole, the Board’s decision is consistent with the
Court of Appeal’s view of state protection in Villafranca, above.
[27]
The argument of the Applicant is based on his interpretation of the
Supreme Court of Canada in Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689 at 726 and his view that the decision of the Court of
Appeal in Villafranca is inconsistent with Ward. I do not agree
on either count. The Board, this Court and the Court of Appeal have applied
these two cases and others (see, for example, Kadenko v. Canada
(Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.)) in countless
situations such as this. Even though the Applicant has suffered persecution at
the hands of a non-state agent, an examination of state protection may be
viewed through the lens of protection available to all citizens of a state. The
question is: does the evidence establish that there is a reasonable chance that
the Applicant will be persecuted on return?
[28]
The Board, in this case, assumed the Applicant’s story was credible and
analyzed all of the documentary evidence related to the agent of persecution –
the NPA. Absent evidence to the contrary, a state that can provide adequate
protection to all of its citizens who may be subject to persecution by the NPA,
can also reasonably be found to be able to protect an individual who has
suffered at the hands of the same organization. Thus, the Board did not err by
focusing its examination on the level of protection vis-à-vis the NPA available
for all citizens in the Philippines.
Conclusion
[29]
In conclusion, I am not persuaded that the Board’s decision with respect
to the adequacy of state protection was unreasonable. As this finding is
determinative of the Applicant’s claim, any error with respect to the existence
of an IFA is immaterial. The application for judicial review will be dismissed.
[30]
Neither party requested that I certify a question. No question
will be certified.
ORDER
THIS COURT ORDERS that
- The application for judicial review is dismissed; and
- No question of general importance is certified.
“Judith A. Snider”
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