Date: 20110621
Docket: IMM-4652-10
Citation: 2011 FC 733
Ottawa, Ontario, June 21, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ELIAS GIOVANI IPINA IPINA
DANIEL DE JESUS IPINA IPINA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The applicants are brothers and citizens of Guatemala.
They base their claim for protection on persecution from the Mara 18
gang. The applicants worked at their father’s farm until their father
received phone calls from the maras demanding money and threatening to
kill the applicants. The father received a total of three phone calls but
refused to pay. On one occasion, the applicants were approached by four
men with guns. The father went to the police once and the police told him
they would investigate the calls. The applicants left Guatemala
further to their father’s instruction on March 26, 2008. They claimed
refugee status in Canada in April 2008. The rest
of the family moved to another part of the country where they are safer and
have not been harmed.
[2]
This is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision made
on July 23, 2010 by the Refugee Protection Division of the Immigration
and Refugee Board wherein the applicants were determined not to be Convention
refugees or persons in need of protection.
[3]
The Board found that the applicants failed to rebut the presumption of state
protection as they did not provide clear and convincing evidence that state
protection in Guatemala is inadequate. In looking at
the country conditions, the Board recognized some of the outstanding
socio-political issues in Guatemala but also
noted the government’s efforts to rectify corruption and increase efforts to
control gang violence. The Board found that the applicants should have
themselves made attempts to seek state protection and not relied exclusively on
their father. It also held that there was no nexus to a Convention ground
pursuant to s.96 of the IRPA and that the applicants’ fear of
persecution was based on general criminality and thus came within subparagraph
97(1)(b)(ii) of the IRPA.
ISSUES:
[4]
The issues on this application are:
1.
Did the Board reasonably conclude that the applicants failed to rebut the
presumption of state protection?
2.
Did the Board err in finding that the risk they faced was generalized?
ANALYSIS:
Standard of Review
[5]
Issues involving state protection are questions of mixed fact and law: Hinzman
v. Canada (Minister of Citizenship and Immigration), 2007 FCA
171, 61 Admin. L.R. (4th) 313 at para. 38. The
reasonableness standard thus applies: Mamoon v. Canada (Minister
of Citizenship and Immigration), 2007 FC 794 at para. 7.
Did
the Board reasonably conclude that the applicants failed to rebut the
presumption of state protection?
[6]
The Board’s finding that there is no nexus to a Convention ground is not
challenged. The claim relates exclusively to the risk from crime in the
applicants’ country.
[7]
The applicants submit that the Board in this case failed to conduct an adequate
state protection analysis in not specifically assessing the nature, power and
sources of influence of the persecuting agent, the Mara 18, and whether state
protection against the gang would be “reasonably forthcoming”. To this
end, the applicants say the Board should have engaged the evidence directly on
point, such as the 2010 Human Rights Watch Report for Guatemala.
[8]
The applicants also argue that because the threats were made to the father and
to the applicants as a result of the father’s unwillingness to pay extortion
monies, it was irrelevant who presented themselves at the police station in
order to make the complaint.
[9]
The respondent’s position is that there is no evidence of a complete breakdown
of the state apparatus in Guatemala. The
applicants had not themselves pursued state protection at any level or with any
authority and had not taken all reasonable steps in the circumstances to seek
protection. They made no effort to approach the police after they were
threatened. They waited until their father received threatening calls and went
to the police. The police told their father they would investigate. The
applicants did not take advantage of the protection available and fled before
the police had an adequate opportunity to investigate.
[10]
Claimants bear the burden of demonstrating, on a balance of probabilities, and
based on relevant, reliable and convincing evidence, that their home country
provides inadequate state protection: Sosa v. Canada (Minister
of Citizenship and Immigration), 2009 FC 275 at para. 23; Minister
of Citizenship and Immigration v. Carrillo, 2008 FCA 94, 69 Imm. L.R. (3d)
309 at para. 20.
[11]
Here, the Board noted the documentary evidence respecting Guatemala’s
efforts to deal with gang violence. The Board acknowledged the issues of
criminality, corruption and inadequacies in the police and judicial
sectors. But, the Board also noted that there were advances in the
implementation of measures in Guatemala to deal
with such issues, such as the dismissal of corrupt police and corrections
officials. The Board pointed to the National Civilian Police (PNC) and
their work with the military to combat crime. Investigations regarding
misconduct by police are ongoing, the PNC has trained over 3000 cadets on human
rights and in high crime areas, the government operates three, 24-hour court
pilot projects which focus on increasing the prosecution rate in these
vicinities.
[12]
I don’t agree with the applicants’ submission that these efforts are
immaterial. The Board was entitled to take them into account in considering
whether Guatemala is in effective control of its
territory and has a functioning security force in place to uphold the laws and
constitution of the country. As Guatemala
is not a state where there was a complete breakdown, the applicants had an
obligation to test the effectiveness of the protection before doubting its
existence: Ramirez v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1214
at para. 28.
[13]
In this case, the Board held that the applicants did not take all reasonable
steps in the circumstances in order to seek state protection as it was their
father who made the one and only police report. The applicant brothers are
adults. It was reasonable for the Board to find that they had not
exercised all of their options for state protection by relying exclusively on
their father to seek protection on their behalf.
[14]
The applicants rely on Torres v. Canada (Minister of Citizenship and
Immigration), 2010 FC 234 at paragraph 29, citing Mendoza
v. Canada (Minister of Citizenship and
Immigration), 2010 FC 119, 88 Imm. L.R. (3d) 81 at paragraph
33, for the proposition that an adequate state protection analysis is one that
examines the specific characteristics of the persecuting agent in order to
determine if state protection is reasonably forthcoming:
Where a tribunal determines
the applicant has failed to take steps to seek protection this finding is only
fatal to the claim if the tribunal also finds that protection would have been reasonably
forthcoming. A determination of reasonably forthcoming requires that
the tribunal examine the unique characteristics of power and influence of the
alleged persecutor on the capability and willingness of the state to protect.
[Emphasis in original]
[15]
In the case at bar, the Board noted that:
In this case, the
principal claimant indicates that the Mara 18 has tried to extort money from
the principal claimant’s father, threatening death to the principal applicant
and the second claimant. The Mara 18 is one of several powerful gangs that have
become a national threat to Central American Countries. Guatemala currently
registers 100 homicides per 100, 000 people and many are believed to be
associated to street gangs.
[16]
The Board considered current responses by Guatemala
to control street gangs, citing government responses like the National Policy
on Prevention of Youth Violence and civil responses in the form of
non-governmental organizations like CEIBA (Services for at-risk youth). This
demonstrates that the Board had an understanding and an appreciation of the
nature of the Mara 18. It also points to the state’s willingness to
protect, as discussed in Mendoza
above. While the Board may have mistakenly examined the persecuting
agent under the section of its analysis on Generalized Risk rather than
its discussion under State Protection, it is clear, upon reading
the decision as a whole, that the Board was aware of these issues, had properly
reviewed the documentary evidence and had come to the conclusion that state
protection was available in light of the totality of the evidence. See: Montemayor
Romero v. Canada (Minister
of Citizenship and Immigration), 2008 FC 977 at para. 22.
Did
the Board err in finding that the risk was generalized?
[17]
The applicants argue that they faced a greater personal risk than the
population at large, as demonstrated by the repeated death threats due to the
father’s unwillingness to pay extortion monies. As such, they submit, the
Board erred in finding that the applicants did not qualify for protection by
virtue of subparagraph 97(1)(b)(ii).
[18]
To constitute a risk to their lives or to a risk of cruel and unusual treatment
or punishment that would support a claim for protection under subsection 97(1)
of the IRPA, the applicants must be personally subjected to risk which is not
generally faced by others: Menendez v. Canada (Minister of Citizenship and
Immigration), 2010 FC 221, 14 Admin L.R. (5th 151) at para. 20. The
Board found that the Mara 18 poses danger to all individuals living in Guatemala
and that the applicant’s situation was not unique to them. The documentary
evidence, as alluded to above, indicates that gang violence is a very real
problem felt by the population of Guatemala
at large. There is nothing in the record to suggest that the applicants
were targeted for any particular reason. Thus, their risk was reasonably
classified by the Board as being generalized.
[19]
The applicants’ reliance on Pineda v. Canada
(Minister of Citizenship and Immigration), 2007 FC
365, 65 Imm. L.R. (3d) 275 is misplaced. In Pineda, the applicant was
repeatedly targeted for recruitment to a street gang in El
Salvador. This is not the case here. There is nothing in the present
matter to suggest that the applicants were treated differently by the Maras
18 than were any other Guatemalans who find themselves exposed to this gang’s
violence in the country.
[20]
No questions were proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review
is dismissed. No questions are certified.
“Richard G.
Mosley”
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