Date: 20051027

Docket: IMM-2110-05

Citation: 2005 FC 1441

Ottawa, Ontario, October 27, 2005

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

FRANCISCO ESCOBAR ALAS

ANABELLA ENAMORADO CASTELLANO

Applicants

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                The Court's decision on an application for judicial review is not based on the analysis of one fact or even several facts in isolation; rather, it involves an analysis of a composite giving rise to a background picture in an individual context.

            All the evidence surrounding the Court's examination of the reasoning behind a fact-based decision by the Board is coloured by all the relevant elements reflecting the crux and the very essence itself of the composite formed around the individual concerned.

This process seeks to establish the degree of reasonableness applied by the Board in its interpretation of the facts, in order to determine whether the decision is patently unreasonable. This requires that we examine the inherent logic composed of a reference encyclopaedia, a glossary of terms within a portrait gallery of the person who is the subject of the decision.[1]

NATURE OF THE JUDICIAL PROCESS

[2]                The instant application for judicial review, submitted under section 72(1) of the Immigration and Refugee Protection Act[2] (the Act), relates to a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated March 10, 2005. In its decision, the Board found that the claimants did not meet the definition of "Convention refugee" in section 96 or that of "person in need of protection" in subsection 97(1) of the Act.

FACTS

[3]                The male applicant, Francisco Escobar Alas, is a citizen of El Salvador. The female applicant, Anabella Enamorado Castellano, is a citizen of Guatemala. They gave separate stories concerning incidents that arose in their respective countries.

[4]                According to Mr. Alas, his brother, Jose Osmin Escobar Alas, who joined the Signals Training Centre of the Salvadoran Armed Forces early in 1981, was killed in March 1981 by an army colonel for personal reasons. Four days later, another brother was murdered in Guatemala. Around September 1983, his father was the victim of a murder attempt. In September 1985, a group of men again went after his father and set fire to the bus that he was driving. In 1986, Mr. Alas' father left El Salvador for good and settled in the United States.

[5]                Mr. Alas spent 10 months in the United States in 1985. He returned to El Salvador in December 1985, remaining there until August 1999, when he decided to move to the United States. In October 2000, he returned to El Salvador for three days to get some documents needed in order to obtain a work permit for the United States. Subsequently, he remained in the United States until his arrival in Canada on August 14, 2004.

[6]                In Ms. Castellano's case, one night in August 2001, in Guatemala, two policemen in a patrol car stopped her and her two younger daughters, who were minors. The conduct of the two officers, who were visibly inebriated, was offensive. Neighbours who witnessed the incident alerted police authorities. The chief of police personally intervened and had the two offenders arrested. When they were released two days later, the officers drove back to the neighbourhood and uttered threats against Ms. Castellano. After being summoned to the Public Prosecutor's Office to testify against the two policemen, Ms. Castellano and her daughters left the country on October 16, 2001, for the United States, that is, before the trial date. She learned that no other witnesses attended the trial and that the case was closed. Ms. Castellano returned to Guatemala with her daughters in 2002 and returned to the United States, alone, three months later. However, she stated that she was afraid to return to her country because of the widespread violence and the two abusive policemen who might still hold a grudge against her.

[7]                Mr. Alas and Ms. Castellano confirm that they met in the United States and were married on September 19, 2003. They arrived in Canada on August 14, 2004, and immediately claimed refugee status.

IMPUGNED DECISION

[8]                The Board ruled that Mr. Alas and Ms. Castellano did not demonstrate a subjective fear of persecution. The Board also found that Ms. Castellano had not proven that the Guatemalan government was incapable of protecting her.

ISSUE

[9]                Did the Board commit an error requiring the Court's intervention in its assessment of the facts?

ANALYSIS

[10]            The Court will set out hereinafter the Board's findings, in which the Court has understood the Board's inherent logic in the specific context of the individual concerned. The Board dismissed Mr. Alas's refugee claim because his behaviour was inconsistent with his alleged fear. This behaviour included the following. First, despite the tragic events in his country between 1981 and 1985, that is, the murder of his two brothers and the attempted murder and assault of his father, Mr. Alas voluntarily chose to return to his country in December 1985 after a 10-month stay in the United States. Second, despite his alleged fear, Mr. Alas remained in his country for the next 14 years. Finally, during his four-year stay in the United States, from August 1999 to August 2004, Mr. Alas never took any action to request that country's protection. In the Board's view, Ms. Castellano's behaviour was also inconsistent with her alleged fear. First, although she had been living in the United States since October 2001 because of the problems she allegedly experienced in her country, Ms. Castellano returned to her country on January 14, 2002, remaining there until March 2, 2002. Second, despite her allegation that her daughters were at risk in Guatemala, Ms. Castellano left them there and returned alone to the United States in March 2002. Third, during her two-and-a-half-year stay in the United States, Ms. Castellano never took any action to request the protection of the American authorities. In addition to this conduct incompatible with a subjective fear of persecution, the Board also found that Ms. Castellano had not proven that her country's authorities were unable to protect her.

[11]            That being said, the Court wishes to make a number of observations. It is well established that the Court may consider the fact that persons seeking protection have demonstrated conduct inconsistent with that of persons who have a genuine fear and may base its decision on that evidence (see, for example, Pan v. Canada (Minister of Employment and Immigration)). [3] It is also well established that failure to make a refugee claim in safe third countries, such as the United States in the present case, is a behaviour that inevitably defeats the alleged fear of the claimants (Ccanto v. Canada (Minister of Employment and 'Immigration)[4], Ilie v. Canada (Minister of Citizenship and Immigration)).[5] This is also the case when claimants return to the country where the persecution was alleged to have occurred (Caballero v. Canada (Minister of Employment and Immigration) (F.C.A.)). [6]

[12]            On the issue of state protection, the Supreme Court of Canada held in Canada (Attorney General) v. Ward[7] that, except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting its citizens. In order to rebut this presumption, Mr. Alas and Ms. Castellano had to present clear, convincing evidence to the contrary. In this case, the chief of police himself arrested the two policemen who had harassed Ms. Castellano and her daughters, and proceedings were brought against the two men. The Court is therefore satisfied that the presumption of state protection has not been rebutted in this case.

[13]            Furthermore, contrary to the arguments offered by Mr. Alas and Ms. Castellano, the fact that the Board stated that it did not find their explanations "convincing" does not mean that the burden of proof applied was too onerous. This wording simply means that the Board did not find the explanations satisfactory, which was entirely reasonable under the circumstances.

[14]            Mr. Alas and Ms. Castellano also argue that the Board failed to analyse their respective claims under subsection 97(1) of the Act, that is, in terms of what would happen to them if they were sent back to their respective countries of El Salvador and Guatemala. The Court accepts the respondent's argument to the effect that, since Mr. Alas and Ms. Castellano have not demonstrated that they were genuinely fearful, they have not demonstrated a fear of persecution or a danger to them personally within the meaning of subsection 97(1) of the Act. As a result, the Board could dismiss their refugee claim without further analysis. Ms. Castellano argues that the Board did not take into consideration what would happen to her if she accompanied her husband to El Salvador. To this, the Court's response is that the Board did not have to do so, since it is clear from sections 96 and 97 of the Act that the Board was required to assess Ms. Castellano's refugee claim only with respect to an eventual return to her country of nationality, that is, Guatemala.

[15]            The Court sees no reason to intervene in this case.

CONCLUSION

[16]            For these reasons, the Court answers the question at issue in the negative. Consequently, the application for judicial review is dismissed.

ORDER

THE COURT ORDERS

1.         That the application for judicial review be dismissed

2.         That no question be certified.

"Michel M.J. Shore"

Certified true translation

Michael Palles

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                                       IMM-2110-05

STYLE OF CAUSE:                                       FRANCISCO ESCOBAR ALAS

                                                                        ANABELLA EVAMORADO CASTELLANO

                                                                        v.

MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                     

PLACE OF HEARING:                                 MONTRÉAL, QUEBEC

DATE OF HEARING:                                   SEPTEMBER 28, 2005

REASONS FOR ORDER           

AND ORDER BY:                                         THE HONOURABLE MR. JUSTICE SHORE

DATED:                                                          OCTOBER 27, 2005

APPEARANCES:

Michel Le Brun                                                  FOR THE APPLICANT

Marie-Claude Demers                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

MICHEL LE BRUN                                         FOR THE APPLICANT

Montréal, Quebec

JOHN H. SIMS Q.C.                                       FOR THE RESPONDENT

Deputy Attorney General of Canada