Date:
20130524
Docket:
IMM-5333-12
Citation:
2013 FC 551
Ottawa, Ontario, May 24, 2013
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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JOSE ANDRES CORTEZ
LUIS MARIO CORTEZ
HERNANDEZ
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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]
This
is an application for judicial review pursuant to section 72.1 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] of a
decision made by the Refugee Protection Division of the Immigration and Refugee
Board (the panel), dated May 8, 2012, whereby it was decided that Jose Andres
Cortez and his brother Luis Mario Cortez Hernandez (the Applicants), both
citizens of El Salvador, were neither Convention refugees nor persons in need
of protection pursuant to sections 96 and 97(1) of the Act. The determinative
issue before the panel was the availability of state protection in El Salvador. For the following reasons, I believe the intervention of this Court is
warranted.
Facts
[2]
The
Applicants are brothers and citizens of El Salvador. Jose, the older brother,
was born in 1976. Luis was born in 1982. Both Applicants have had problems with
the Maras, a criminal and violent organized gang.
[3]
In
2009, members of the Maras attempted to recruit Luis. Luis was told that he had
to pay a “renta” if he did not join the gang. Luis refused to join the gang and
began paying the renta. He could not always come up with the money. In February
2010, Luis was violently attacked by members of the Maras armed with a machete.
His hands and face were severely injured.
[4]
Members
of the Maras also approached Jose and demanded he pay a renta. Jose paid some
money but he too had trouble coming up with the full amount. In November 2009, three
members of the Maras assaulted Jose, who was robbed and shot in the chest. He
managed to escape and spent ten days in the hospital.
[5]
In
November 2010, both Applicants were involved in an incident in front of a
variety store with two members of the Maras who demanded the renta and
threatened to kill them. During the altercation that ensued, one of the Maras was injured and Jose was blamed for the incident. Fearing that the Maras would kill
him in retaliation, Jose went into hiding at his uncle’s home.
[6]
Jose
left El Salvador with his other brother Nixon on January 25, 2011, but Nixon
was returned to El Salvador by American authorities. Luis then left El Salvador and caught up with Jose in the United States. They arrived together in Canada on July 25, 2011, and made a refugee claim that day.
The impugned
decision
[7]
The
panel took no issue with the Applicants’ credibility and considered that the
risk they faced from the Maras was not generalized. The panel found, however,
that the Applicants had not rebutted the presumption of state protection.
[8]
The
panel noted that the Applicants admitted to having made no attempt whatsoever
to obtain police protection despite the seriousness of the attacks. The panel
explained that El Salvador is a democratic country presumed capable of
protecting its citizens, and that claimants who do not seek police protection
must demonstrate with clear and convincing evidence why they did not do so (Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689, [1993] SCJ No 74
[Ward]).
The panel noted that the Applicants believed the police were in cahoots with
the Maras, and that they had learned that the Maras had killed a neighbour who
had refused to pay the renta after he had gone to the police. The panel also
recognized that there is a problem of police corruption in El Salvador, and that there are enforcement issues with regards to gang-related crimes. The
panel noted, however, but without referring to specific documentary evidence,
that El Salvador has been fighting gangs and gang violence since 2000 through a
variety of measures, including legislation that makes it illegal to be part of
a gang. Considering the seriousness of the attacks, the panel found that it was
reasonable to expect the Applicants to seek some form of protection in El Salvador and that fear of retaliation was not a reasonable explanation for failing to
seek police protection.
Issues
[9]
This
application raises only one issue, that is, whether the panel’s state
protection finding is reasonable.
Analysis
[10]
The
parties made no submissions with regard to the standard of review. It is
settled law, however, that findings on state protection are to be reviewed on a
standard of reasonableness: Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171 at para 38, 282 DLR (4th) 413 [Hinzman].
In applying the reasonableness standard, a reviewing court must consider “the
existence of justification, transparency and intelligibility within the
decision-making process” as well as “whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR
190.
[11]
In
their memorandum, the Applicants (who were not represented by counsel at the
time) argued that the panel failed to analyze the issue of generalized risk and
failed to conduct an individualized inquiry. Yet, it is clear from the panel’s
reasons that it accepted that the Applicants did not fall into the category of
persons who were not in need of protection because the risks they feared would
be faced generally by other individuals in or from that country. At the
hearing, counsel for the Applicants conceded that generalized risk was not an
issue.
[12]
The
Applicants argue that the panel failed to consider their explanation for not
going to the police, that is, that they believed that police were in cahoots
with the Maras, that their father had told them going to the police would
further jeopardize their security, and that they knew of a neighbour who was
killed by the Maras after he had made a denunciation to the police.
[13]
The
Applicants further argue that the panel failed to consider documentary evidence
that shows that police protection in El Salvador is inadequate. The Applicants
cite only one document, the U.S. Department of State Report on El Salvador for
2011, which speaks of “widespread corruption, particularly in the judicial
system; weaknesses in the judiciary and the security forces that led to a high
level of impunity; and violence and discrimination against women”. While this
Report was published on May 24, 2012, and therefore some weeks after the RPD
decision, the 2010 U.S. Department of State Report on El Salvador is substantially to the same effect.
[14]
It
is trite law that the onus was on the Applicants to rebut the presumption of
state protection. Absent a complete breakdown of the state, a state is presumed
to be capable of protecting its nationals. To rebut this presumption, an
applicant must produce clear and convincing confirmation of a state’s inability
to protect. State protection need not necessarily be perfect, but rather
adequate. The more democratic the state, the more an applicant must have done
to exhaust all avenues of protection available. Only in exceptional
circumstances will an applicant be exempt from seeking state protection: see, inter
alia, Ward at
709, 724-725; Hinzman at paras 41, 43-44; Mendoza v Canada (Minister
of Citizenship and Immigration), 2010 CF 119 at para 33, 88 Imm LR (3d) 81; Carillo v Canada
(Minister of Citizenship and Immigration), 2008 FCA 94 at paras 18, 30, 69 Imm LR (3d) 309.
[15]
That
being said, there will be situations where an applicant’s failure to approach
the state will not be fatal, essentially in those situations where state
protection might not reasonably have been forthcoming. As the Supreme Court
stated in Ward at 724, “…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”.
[16]
In
other words, a contextual approach is required when assessing the availability
of state protection and whether an applicant has rebutted the presumption of
state protection. As the Supreme Court recognized in Ward, at 724-725,
clear and convincing confirmation of a state’s inability to protect may
sometimes be established through the testimony of similarly situated
individuals let down by the state protection arrangement or through the
applicant’s testimony of past personal incidents in which state protection did
not materialize.
[17]
In
the case at bar, the panel did consider the Applicants’ explanations for
failing to seek police protection. At paragraph 15 of its reasons, the panel
notes that the Applicants believe that police officers are in cahoots with the
gangs and that they feared a denunciation would further jeopardize their
security. This explanation, in and of itself, would clearly not be sufficient,
as subjective fear alone is not enough to rebut the presumption of state
protection: see, for example, Paguada v Canada (Minister of Citizenship and
Immigration), 2009 FC 351, [2009] FCJ No 401.
[18]
At
paragraph 16, the panel also noted that Luis knew of someone in a similar
situation who was killed by the Maras after having gone to the police. While
the Applicants did not provide details or independent evidence about the
incident involving this other individual, the panel did find the Applicants’ entire
testimony credible. In such circumstances, it was no answer simply to comment
that this is the view not only of the Applicants but also probably of many
people from El Salvador with respect to the police.
[19]
Finally,
the panel referred to the documentary evidence (without identifying any
particular document) and noted that El Salvador has been fighting gangs and
gang violence for years, that there have been, at times, unintended
consequences such as violations of human rights and prison over-crowding, that
enforcement of the new anti-gang law is far from acceptable, and that huge
resources are dedicated to this purpose. The panel, however, somehow
trivialized the challenges faced by the Salvadorian law enforcement authorities
when it stated, at paragraph 21:
There may be criminal connections, indeed there
probably are criminal connections, in every police force in the world. Fear of
retaliation by perpetrators is, similarly, a fear on the part of every victim
who must report and complain and sometimes testify against their perpetrators.
This is a huge problem in every judicial system, including in Canada. This is not a reason which justifies granting international refugee protection.
[20]
Such
a blanket statement, in my view, belittles and seriously misrepresents some of
the very credible evidence found in the National Documentation Package on El Salvador. A careful reading of the document entitled No Place to Hide: Gang, State
and Clandestine Violence in El Salvador from the International Human Rights
Clinic of the Harvard Law School (2010) shows, in particular, that people who
refuse to join the Maras and to pay the renta are targeted and particularly at
risk. Far from being an improvement, it appears that the witness protection
program offers no effective protection to witnesses after the trial is over,
and may even put witnesses more at risk because the authorities, in relying
almost exclusively on witnesses in court to obtain convictions, are effectively
sending the message to gang members that they should get rid of these witnesses
if they want to avoid being sent to jail. In light of that evidence, the
panel’s statement that “enforcement of that law is not at high levels yet”
appears to be, at best, an understatement.
[21]
The
role of this Court, of course, is neither to reweigh the evidence nor to
replace the decision with that which the Court would have made in the first
place. It is also trite law that the panel does not have to refer to each
document on the record, and that it is presumed to have considered all the
evidence. The panel had an obligation, however, to specifically mention and
analyze the evidence that seems to contradict its findings. As the Federal
Court of Appeal stated in Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration) (1998), 157 FTR 35, 83 ACWS (3d) 264 at para 17:
…the
more important the evidence that is not mentioned specifically and analyzed in
the agency’s reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and Immigration) (1993),
63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation
increases with the relevance of the evidence in question to the disputed facts.
In the absence of any explicit reference
to or analysis of the extensive documentation contained in the National
Documentation Package, it is impossible to determine whether the assessment of
the evidence on state protection by the panel is reasonable.
[22]
For
all of these reasons, I am therefore unable to find that the Board’s
conclusion, according to which the Applicant had failed to rebut the
presumption of state protection, is reasonable. Accordingly, the decision must
be quashed and the matter remitted to the Immigration and Refugee Board for
re-determination by a differently constituted panel. No question is certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is granted. No question is certified.
"Yves
de Montigny"
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