Date: 20110408
Docket: IMM-6303-10
Citation: 2011 FC 437
Ottawa, Ontario, April 8, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
|
|
DOUGLAS ALEXANDER ALVAREZ ARIAS
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. Background
[1]
The
Applicant, a citizen of Guatemala, came to Canada on March 4, 2010 and made a claim for
refugee protection. In a decision dated September 8, 2010, the Applicant was
found to be inadmissible to Canada due to his involvement with the Mara
Salvatrucha (MS-13) gang and, thus, ineligible to be referred to the Refugee
Protection Division pursuant to s. 101(1)(f) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (IRPA). As permitted by s. 112 (1) of
IRPA, the Applicant filed an application for protection (a pre-removal
risk assessment or PRRA). In a decision dated October 22, 2010, a PRRA Officer
denied the PRRA application. The Applicant seeks judicial review of this
decision.
II. Issues
[2]
This
application raises the following issues:
1.
Did the
PRRA Officer err in his assessment of state protection:
a)
by
ignoring evidence; and
b)
by failing
to appreciate the nature of the Applicant’s risk?
[3]
The
parties acknowledge that the Officer’s decision is reviewable on a standard of
reasonableness. As taught by the Supreme Court in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] at paragraph 47:
[R]easonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But 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 law.
III. Analysis
A. General Comments
[4]
The
presumption is that a state is capable of protecting its citizens (Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689, 20 Imm LR (2d) 85 [Ward];
Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171,
63 Imm LR (3d) 13 [Hinzman]), and an individual has a duty to seek
protection from his own country of origin before seeking refugee protection in
Canada. The presumption can only be rebutted where the Applicant can provide
“clear and convincing” evidence that his or her country of origin is unwilling
or unable to protect its citizens or that his or her attempt to seek protection
was useless.
[5]
The
Applicant submits that, given the “overwhelming” evidence before the PRRA
Officer of Guatemala’s inability to protect
persons who are targeted by gang members, the PRRA Officer’s conclusions were
unreasonable. During oral submissions, the Applicant’s arguments focused on
three key concerns:
(a)
the
Officer ignored or misapprehended evidence that pointed to an inability of the
state to protect him from gang members and from the police;
(b)
the
Officer erroneously relied on alternative institutions to provide protection to
him; and
(c)
the
Officer ignored the dangers posed to the Applicant by his gang-related tattoos.
[6]
I will
consider each of these concerns.
(a)
Ignored
or misapprehended evidence
[7]
The
Applicant submits that the PRRA Officer erroneously cited from the three
reports referred to in the Officer’s decision and that the Officer failed to
have regard to newer documentary evidence that was submitted by the Applicant
in his PRRA application. The Applicant submits that the evidence demonstrates
clearly that the state is unable to protect the Applicant. The Applicant argues
that the evidence demonstrates that the police have inadequate training and
resources to offer protection, and that the police are corrupt and are
themselves responsible for serious abuses in Guatemala, corroborating the Applicant’s
experience and beliefs that state protection is not available to him. In the
Applicant’s submission, the fact that he bears a tattoo identifying him as a
member of the MS-13 places him at a heightened risk from the police.
[8]
The first
point that I would make is to reiterate that it is the Applicant’s burden to
rebut the presumption of state protection. In doing so, the Applicant must show
that he first attempted to access any state protection that was available to
him in Guatemala, before claiming refugee
protection. The Applicant has not done so. After being shot, the Applicant,
with information pertaining to other unreported incidences with the same gang,
merely informed the police about the one incident but failed to provide them
with any specifics so they could investigate the complaint.
[9]
As noted
by the PRRA Officer, on the subject of why he did not initially tell his family
or the police about the first or second incident with the gang, the Applicant’s
explanation was the following:
I did not feel like my family or I could
go to the police to complain because the police are considered corrupt in Guatemala. They did not really do
anything to protect people from gangs and seemed more interested in bribing
people for money. We were also very worried that it would get back to the gang
and we would be targeted even more.
[10]
This
“explanation” by the Applicant is not sufficient; the requirement is that the
Applicant must first approach his home country for protection before seeking
international refugee protection (Hinzman, above).
[11]
Further,
even if the PRRA Officer, or the Court, were to accept that state protection
was unavailable to him, the Applicant has not submitted evidence to support a
conclusion that he is personally at risk. Specifically, the PRRA Officer
referred to the following:
·
the
Applicant submitted general articles and reports of widespread risks for all
citizens of Guatemala and the Applicant is not
named in any of the articles;
·
the
Applicant did not provide corroborating evidence to confirm that he attended a
health care centre;
·
the
Applicant did not provide an affidavit from his father to support the incidents
as cited by the Applicant;
·
the
Applicant did not provide any documentation from family members in Guatemala to support his claim that
they have been approached by gang members; and
·
the last
incident occurred 5.5 years ago and the evidence does not support the
conclusion that gang members are actively seeking or are interested in the
Applicant today.
[12]
The PRRA
Officer recognized that there are continuing problems in Guatemala and that the police were not
always successful in protecting its citizens. However, the PRRA Officer noted
the following:
·
Guatemala is a democratic, multiparty
republic;
·
joint
police and military operations under the National Civilian Police continued in Guatemala City high-crime areas as well as
other areas;
·
the Office
of Professional Responsibility conducted internal investigations of misconduct
by police officers;
·
at the end
of 2009, 5,260 military officers and soldiers had received human rights
training provided by the Ministry of Defence;
·
domestic
and international human rights groups operate without government restriction in
Guatemala and are able to investigate
and publish their findings on human rights cases;
·
the
Government has a Human Rights Ombudsman who reports to the Congress and
monitors the human rights set forth in the constitution;
·
a law
legalizing both wiretapping and the use of double agents was adopted in order
to fight organized crime more effectively;
·
a hotline
for reporting extortion was set up. After a report is made, patrols are
increased in the threatened areas;
·
33 gang
members were arrested by the National Civilian Police anti-gang squad in
January 2006. Five thousand gang members were arrested in December 2005; and
·
in April
2006, 11,000 soldiers were deployed in the streets to re-establish security.
[13]
I agree
with the Respondent that the evidence is not so “clear and convincing”, as the
Applicant would like us to believe (Canada (Minister of Employment and
Immigration) v Villafranca (1992), 18 Imm LR (2d) 130, 99 DLR (4th) 334
(FCA)).
[14]
In
addition, the PRRA Officer did not ignore recent reports contained in the
Applicant’s evidence which demonstrates that Guatemala is overwhelmed by gang violence and
corruption. Citing a number of documents that were not explicitly referred to
in the decision, the Applicant asserts that the PRRA Officer ignored evidence.
The Applicant asserts that in the face of this significant evidence, the PRRA
Officer should have explained why this evidence was rejected.
[15]
As reflected
in the decision, the PRRA Officer recognized the essence of all of the articles
and documents before him. He acknowledged that there are problems in Guatemala. The PRRA Officer weighed
this evidence, against the totality of the documentary record, but found that
there was adequate state protection available to the Applicant in Guatemala. The PRRA Officer does not
have to refer to every piece of evidence and is assumed to have weighed all of
the evidence before him or her. The PRRA Officer must “simply provide an
adequate explanation on the basis upon which the decision was reached” (Clifford
v Ontario, 2009 ONCA 670, [2009] WDFL 4624, leave
dismissed, [2009], SCCA No 461 (QL)). In my opinion, this was done by the PRRA
Officer.
(b) Alternative
Institutions
[16]
The
Applicant submits that the PRRA Officer erroneously relied on alternative
institutions, such as human rights organizations and complaint mechanisms
against corruption as a viable method of protection. The Applicant
submits that this is precisely the type of protection the Federal Court warned
against in Zepeda v. Canada (Minister of Citizenship and
Immigration),
2008 FC 491, [2009] 1 FCR 237 [Zepeda] where Justice Tremblay-Lamer
stated at paragraph 25:
I am of the view that these alternate
institutions do not constitute avenues of protection per se; unless there is
evidence to the contrary, the police force is the only institution mandated
with the protection of a nation's citizens and in possession of enforcement
powers commensurate with this mandate. For example, the documentary evidence
explicitly states that the National Human Rights Commission has no legal power
of enforcement ("Mexico: Situation of Witness to Crime and Corruption,
Women Victims of Violence and Victims of Discrimination Based on Sexual
Orientation").
[17]
The
Applicant asserts that, “the police force is the only institution mandated with
the protection of a nation’s citizens and in possession of enforcement powers
commensurate with this mandate” (Zepeda, above, at para 25).
[18]
In my view,
the PRRA Officer was not implying that these organizations would preclude, or
be an alternative to, approaching the police. My interpretation of the decision
is that these references were merely suggesting an additional avenue of
protection available to the Applicant. The Applicant did not approach any of
these institutions. However, it was not unreasonable for the PRRA Officer to
make reference to them.
(c) The tattoos
[19]
Finally,
in both oral and written submissions, the Applicant made much of his MS-13
tattoos. Although he did not submit photos to corroborate this aspect of his
claim, the Applicant claimed (in his PRRA affidavit) that he has a number of body
tattoos. With respect to his gang membership, he has sworn that he has the
letter “M” on his right arm, the letter “S” on his left arm and the gang’s full
name on his back.
[20]
I agree
that, if the tattoos exist and identify the Applicant as a member of the MS-13
gang, the Applicant may come to the attention of the police force –
particularly a force that is making serious efforts to curb MS-13 gang
activity. I can accept that a person with a MS-13 tattoo, if caught by the
police, would likely be suspected of being a member of the gang. However, two
things are lacking in this case: (a) submissions of this particular risk to the
PRRA Officer; and (b) evidence that, coming to the attention of the police
would result in a risk to the Applicant’s life or a risk of cruel and unusual
treatment or punishment at the hands of the police.
[21]
In
submissions to the PRRA Officer, counsel stated that “although seeking to
disassociate themselves from gangs, they may continue nevertheless to be
perceived as members, for instance, because of remaining gang tattoos”. The
allegation made appears to be that the MS-13 gang would search the Applicant
for signs of a tattoo to infer that he is or was a gang member, thereafter
punishing him for desertion.
[22]
This is a
bold theory. The support for this statement is contained in a new set of
guidelines published by the United Nations High Commissioner for Refugees
entitled, “Guidance Note on Refugee Claims Relating to Victims of Organized
Gangs” (UNHCR Report). In a footnote to the submissions for the PRRA
Application, the Applicant’s counsel cites one paragraph in the lengthy UNHCR
Report. I first observe that the UNHCR Report is a general report. While there
are some references to Central American gangs, the report is not intended to be
an indictment of the MS-13 gang in Guatemala.
I have carefully read the referenced page and can find no statement to support the
fear claimed. The cited passage contains reference to a typical gang membership
being displayed by “common attire, adherence to a certain dress code,
hairstyle, jewellery and/or body tattoos and other identifying marks on
the body”. The text continues on to state that gangs have moved away from
“these traditional identifiers in order to remain more clandestine in their
activities”. In particular, the citation does not state that gangs search for
tattoos and punish escaped gang members accordingly. The Officer did not err by
failing to refer to the UNHCR Report on this point since it did not support the
statement made by the Applicant’s counsel.
[23]
The second
argument with respect to the tattoos is that the police would use the tattoos
to perceive the Applicant as a gang member. In both written and oral
submissions to this Court, the Applicant submitted that the Officer ignored
evidence that police officers target former gang members. The Applicant
describes the documentary evidence as stating that police frequently force
youth to take off their shirts to see if they have any tattoos. In the view of
the Applicant, this evidence that would put the Applicant at a higher risk than
the general population and was ignored by the PRRA Officer.
[24]
The main
problem with this submission is that it was not made in the Applicant’s
submissions to the PRRA Officer. Nowhere – either in his own PRRA affidavit or
in the counsel’s submissions – does the Applicant assert that he would be at
risk of death or cruel and unusual treatment from the police because of
his tattoos. In his PRRA affidavit, the Applicant states that “no one wanted to
give me a job because of my tattoos” and “people there will not give me work
opportunities because of my tattoos”. The Applicant also mentions that American
immigration officers and American police officers identified the
Applicant as a gang member because of his tattoos. However, there is no
allegation that the Applicant would be at risk from Guatemalan police
because of his tattoos. I acknowledge that, buried at p. 220 of the Applicant’s
voluminous PRRA submissions, there is one brief reference as follows:
The police frequently force youth to take
off their shirts to see if they have any tattoos. They order youth to strip
down to their boxers and lie on the ground, often in public places where crowds
can witness the shaming. Sometimes police rob the youth, leaving them half‑naked
and penniless.
[25]
The
Officer did not have an obligation to ferret out this short passage when the
risk, now being argued, did not form part of the PRRA submissions. Moreover, at
the age of 30 (as he now is), the Applicant cannot be considered to be a
“youth”. Based on this minimal evidence, any risk to the Applicant that meets
the criteria for a s. 97 claim is, at best, speculative.
[26]
Briefly
stated, the Applicant, in his PRRA submissions describes his tattoos but
alleges only that they might prevent him from getting work in Guatemala. The Officer cannot be
faulted for not addressing a risk that was not clearly identified in the PRRA
Application.
IV. Conclusion
[27]
In sum,
the PRRA Officer’s state protection analysis was thorough and complete. The
Applicant is merely asserting a different interpretation of the evidence before
the PRRA Officer. I cannot conclude that the PRRA Officer’s decision was
outside of the range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir, para 47).
[28]
Neither
party proposes a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
Email this Content