Date: 20050118
Docket: IMM-1260-04
Citation: 2005 FC 36
Ottawa, Ontario, the 18th day of January 2005
PRESENT: MR. JUSTICE SHORE
BETWEEN:
CESAR GUILLERMO ANGULO GAZCO
LILIANA MARISOL RODRIGUEZ ABT
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The protection of the State is a presumption that cannot be rebutted without a clear and persuasive portrait. This portrait is unveiled from the evidence, which draws the picture from which the image of the protection emerges.
NATURE OF PROCEEDING
[2] This application for judicial review, brought pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[1] (Act), concerns a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board), dated January 16, 2004. In this decision, the Board concluded that the applicants do not meet the definition of "Convention refugee" in section 96 or of "person in need of protection" in subsection 97(1) of the Act.
FACTS
[3] The principal claimant, Mr. Cesar Guillermo Angulo Gazco, a citizen of Peru, alleges that he has a well-founded fear of persecution because of persecution he suffered at the hands of corrupt police officers. Ms. Liliana Marisol Rodriguez Abt bases her asylum claim on that of her husband.
[4] On August 20, 2002, according to the Personal Information Form, and as recounted by the Board, some citizens reported to Mr. Angulo Gazco, who was working for the municipality of Jésus Maria, that a group of municipal police officers were taxing the residents, itinerant salespeople and merchants. Mr. Angulo Gazco filed a report with the town's mayor describing some irregularities in the operations of certain municipal police. As a result of this report, two police officers were dismissed. Mr. Angulo Gazco then received an anonymous threatening letter and two anonymous threatening telephone calls. On September 24, 2002, after a second report was filed, three other police officers were dismissed. They threatened Mr. Angulo Gazco, who started to suspect that the corrupt municipal policemen were being protected by some corrupt police officers of the National Police of Peru (PNP). He extended his investigation and, in a report dated July 16, 2002, he asked that six other police officers, who were in cahoots with four PNP members, be fired. Following his report, these policemen were fired. On October 22, 2002, Mr. Angulo Gazco presented a report to the PNP. On October 25, 2002, he was picked up and held for two days by four men, unknown to him, who claimed they were with the PNP and who questioned and beat him. On October 30, 2002, Mr. Angulo Gazco received some anonymous telephone threats. He went to hide at a friend's place and then left his country with his wife on December 23, 2002.
IMPUGNED DECISION
[5] The Board concluded that Mr. Angulo Gazco had not managed to establish clearly and convincingly the inability of the State of Peru to protect him.
ISSUE
[6] 1. Did the Board err in finding that the applicant had not rebutted the presumption that the State of Peru was able to protect him?
ANALYSIS
1. Did the Board err in finding that the applicant had not rebutted the presumption that the State of Peru was able to protect him?
[7] In Canada (Attorney General) v. Ward,[2] the Supreme Court of Canada held that absent a complete collapse of the state apparatus, it should be presumed that the State is capable of protecting its citizens. Because of this presumption, "clear and convincing confirmation of a state's inability to protect must be provided" (paragraph 50). Mr. Angulo Gazco had the burden, then, of rebutting this presumption by demonstrating through clear and convincing evidence that the Peruvian State was unable to protect him. Mr. Angulo Gazco did not present such evidence to the Board.
[8] First, as the Board notes, Mr. Angulo Gazco acknowledged that following each of the three reports of irregularities in the operations of certain municipal police officers that he filed with the mayor of his town, some actions were taken and some police officers were dismissed. Mr. Angulo Gazco therefore obtained the collaboration of the authorities and he was successful in his denunciation of the corruption of some municipal police officers. Mr. Angulo Gazco replies that the action taken by the Peruvian State was not to protect him but to punish him for denouncing these corrupt police officers. The Court replies that the evidence presented to the Board and analyzed by it reveals, overall, that Mr. Angulo Gazco could obtain the protection of the Peruvian authorities, including an appeal to the mayor, and that the fact that Mr. Angulo Gazco was allegedly the victim of an incident on October 25, 2002 did not demonstrate that the Peruvian authorities are entirely ineffective.
[9] Second, notwithstanding the effectiveness of the reports he presented to the mayor, the Board rightly noted that Mr. Angulo Gazco was content to lodge a complaint directly with the PNP on October 22, 2002, and not with the mayor. Yet his previous reports presented to the mayor had produced some concrete and effective results for the protection of citizens from police corruption.
[10] Third, Mr. Angulo Gazco did not lodge a complaint following the incident of October 25, 2002, his arrest followed by two days of detention during which he was questioned and beaten. As the Board right notes, [translation] "This casts serious doubt on the alleged events of October 25, 2002."
[11] The Board also reviewed the documentary evidence establishing that the Peruvian State was not incapable of protecting its citizens. More particularly, it found that there was a legal framework (police, army, courts) in Peru and that the former prime minister, [translation] "Fujimori himself had to flee and that the current government and the current authorities are using every possible means to attempt to locate the guilty and to establish order." Mr. Angulo Gazco criticizes the Board for not referring in its reasons to the documents on which it relied in finding that the Peruvian State is not unable to protect its citizens. Although such specific reference to the documentary evidence on which it bases this conclusion is not essential, the Court is of the opinion that such specific reference to the documentary evidence is preferable in the interest of clarity and consideration for the asylum claimant who will then know which documents led the Board to rule as it did. In this case, the article of March 2002 in section 2.1 of the regional binder on Peru, entitled "Peru: Selected Issues since the Fall of Fujimori" describes in detail the numerous initiatives taken by the government to protect its population and fight corruption. Finally, the Court notes that the extracts from Country Reports on Human Rights Practices - 2002 to which Mr. Angulo Gazco refers, and according to which the security forces have committed major violations of human rights and continue to practice torture and inflict brutal treatment, do not contradict the documentary evidence that the State of Peru is capable of protecting its citizens.
[12] Confronted with this extensive evidence, the Court is of the opinion that the Board could reasonably conclude that Mr. Angulo Gazco had not rebutted the presumption that the State of Peru was capable of protecting him.
[13] Mr. Angulo Gazco alleges as well that the Board erred in citing in its reasons the fact that he never complained to the police before the events of August 20, 2002. He states that he could not complain before that date since he was unaware of the police corruption until that date. Although it is not clear why the Board made this observation, it clearly had no impact on the overall conclusion since numerous other items, both in Mr. Angulo Gazco's testimony and in the documentary evidence, show that the presumption that the State is able to protect its citizens has not been rebutted.
CONCLUSION
[14] For these reasons, the Court answers the disputed issue in the negative. Consequently, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that this application for judicial review be dismissed. No question is certified.
"Michel M.J. Shore"
Judge
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1260-04
STYLE: CESAR GUILLERMO ANGULO GAZCO
and LILIANA MARISOL RODRIGUEZ ABT
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 31, 2005
REASONS FOR ORDER
AND ORDER: MR. JUSTICE SHORE
DATED: JANUARY 18, 2005
APPEARANCES:
Manuel Centurion FOR THE APPLICANTS
Caroline Doyon FOR THE RESPONDENT
SOLICITORS OF RECORD:
MANUEL CENTURION FOR THE APPLICANTS
Montréal, Quebec
JOHN H. SIMS FOR THE RESPONDENTS
Deputy Attorney General of Canada