Docket: IMM-2992-17
Citation:
2018 FC 23
Ottawa, Ontario, January 11, 2018
PRESENT: The
Honourable Madam Justice McDonald
|
BETWEEN:
|
|
MIRNA JOSEFINA PALACIOS DE MARTINEZ
|
|
ERICK DANIEL
PALACIOS MIRANDA
|
|
CARLOS ENRIQUE
MARTINEZ CALDERON
|
|
MARIA FERNANDA
MARTINEZ PALACIOS
|
|
ANDRES ENRIQUE
MARTINEZ PALACIOS
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Applicants are a family from El Salvador who
claim refugee protection in Canada for fear of the MS-13 gang. The Refugee
Protection Division [RPD] denied their claims under ss. 96 and 97 of the Immigration
and Refugee Protection Act [IRPA] on the grounds of credibility and availability
of state protection.
For the reasons that follow, this judicial
review is allowed as the RPD erred in its state protection analysis.
I.
Background
[2]
The Father Applicant [FA] has been a member of
the Salvadoran military since 2000.
[3]
In February 2014, the Applicants received a
phone threat from MS-13 threatening them and telling them to leave their home.
In response, the FA wrote a letter to a Colonel in the army, who advised him to
leave the home immediately.
[4]
The Applicants relocated to the home of a family
member for seven months, and returned to their home in September 2014.
[5]
In August 2016, the FA states that he was
working security at the home of the daughter of the President of El Salvador
when a shooting occurred. The FA states that he reported the attack to the
person in charge of security for the President, but the incident was not recorded.
[6]
In September 2016, the Applicants state that
they started receiving more threatening telephone calls. The FA alleges that he
reported these calls to the police and to his immediate superior.
[7]
In December 2016, the son of the FA alleges that
he was the victim of an attack by three masked men, on the way home from work.
The FA states that he reported this incident and the threatening calls to the
police and to the Office of the Prosecutor General for the Republic of El
Salvador. However, the FA states that no investigation was ever conducted into
these alleged incidents.
[8]
On January 26, 2017, the Applicants left El
Salvador. The FA did not resign his position in the military. He alleges he is
wanted because he is a deserter. The Applicants first went to the United States
and then claimed refugee status in Canada on February 10, 2017.
II.
Decision Under review
[9]
The RPD concluded that the Applicants were not
Convention Refugees because they did not have a nexus to a Convention ground.
The FA argued that his status as a member of the security forces in El Salvador
made him a member of a “social group” for the
purposes of s.96 of the IRPA. However, the RPD concluded, based upon Federal
Court authority, that the grounds in s.96 of the IRPA, including the social
group category, refer to who someone is rather than what they do for employment.
The other Applicants’ claims failed because they were derivative of the FA’s
claim.
[10]
With respect to their claim under s. 97, the RPD
concluded that the Applicants are not subject to any risk of personal targeting
in El Salvador because they were not credible in their allegations about having
been threatened before in El Salvador. The RPD based this conclusion on four
contradictions in the testimony and evidentiary documents of the Applicants.
[11]
The RPD also concluded that the FA and his
family could receive effective state protection in El Salvador because of his
military status.
III.
Issues
[12]
Although the Applicants raise a number of
issues, whether the RPD properly analyzed state protection is dispositive of
this application.
IV.
Standard of Review
[13]
The application of the correct state protection
test is reviewable on the standard of correctness (Mata v Canada
(Immigration, Refugees, and Citizenship), 2017 FC 1007 at para 10).
V.
Analysis
[14]
The Applicants argue that the RPD’s focus on “effective state protection” is an error. The proper
test is “adequate state protection” (Kovacs v
Canada (Citizenship and Immigration), 2015 FC 337 at para 67).
[15]
The test for state protection is focused on
whether the state can provide adequate protection in an operational sense (Vidak
v Canada (Immigration, Refugees and Citizenship), 2017 FC 976 at para 8).
As noted in The Minister of Citizenship and Immigration v Flores Carrillo,
2008 FCA 94, effectiveness per se is not the test for state protection.
However, to be adequate, protection must have a certain degree of effectiveness
(Bledy v Canada (Citizenship and Immigration), 2011 FC 210 at paras
46-49).
[16]
Here the RPD addresses the effectiveness
of Salvadorian state protection throughout the reasons. The RPD concludes that
for most Salvadorians, “the state does not provide
effective protection.” However, the RPD also concluded that the FA “was in a position to get effective assistance” and “personified ‘effective state protection’” because of
his role in the military.
[17]
Aside from the fact that the RPD’s reasoning is
not the correct test for state protection, there is no evidence in the record
to suggest that state protection would be forthcoming to the FA simply because
he was a former member of the state apparatus. In fact, the evidence is to the
contrary. As noted by the RPD, state protection is not generally forthcoming in
El Salvador, as there are reports of widespread corruption of the police by gang
members. Moreover, there is no reason to presume that state protection would be
operationally adequate as regards the FA or his whole family, including his
children.
[18]
The RPD failed to properly apprehend the
evidence on state protection leading it to conclude that it was “implausible” that the FA could not obtain state
protection, due to his military position. While the RPD is entitled to make
credibility findings based on logic and rationality, implausibility findings
must only be made in the clearest of cases (Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 at para 7). Here,
the implausibility finding was clearly contradicted by the objective evidence,
and it cannot be supported.
[19]
In the circumstances, the RPD both failed to
apply the correct test for state protection and failed to objectively assess
the evidence. The judicial review is therefore granted.
Email this Content