Docket: IMM-7030-03
Citation: 2005 FC 153
Ottawa, Ontario, February 7, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
RENE ALCIBIADES MENDEZ RODRIGUEZ
YUMAR CAROLINA SANSONETTI PADRON
FABIANA CAROLIN MENDEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Act), against a decision of the Refugee Protection Division of the Immigration Refugee Board (Board) dated August 27, 2003, wherein the Board determined that the applicants were not Convention refugees nor persons in need of protection.
ISSUES
[2] The issues are as follows:
1. Did the Board err in law in its understanding and application of the appropriate standard of proof?
2. Did the Board commit a reviewable error by failing to assert if both agents of persecution would cumulate into a reasonable fear of persecution?
3. Did the Board commit a patently unreasonable error in concluding that state protection was available and that the applicants could have prevailed themselves of an internal flight alternative?
4. Did the Board commit a patently unreasonable error in assessing the applicants' credibility and subjective fear of persecution?
[3] For the following reasons, I must answer the first three questions in the negative. I will not analyse the fourth one. The application for judicial review will be dismissed.
BACKGROUND
[4] The female applicant always lived in Venezuela until she left for the United States in April 2001, the male applicant in July 2001. They remained illegally in the United States until September 25, 2002, when they decided to come to Canada. They have a child born in the United States on July 10, 2001.
[5] The female claimant was designated representative for the minor. The child's claim was against the United States. She alleged that the United States refused to grant asylum to her parents and therefore put her at risk of persecution, torture or of cruel or unusual treatment or punishment.
[6] The male applicant has been in charge of his father's business since 1999. His job consisted of supplying various confections to local canteens, cafeterias and corner stores. In order to do so, the applicant followed the same route every week.
[7] Along that route, there was a gang who extorted money and merchandise from him in exchange for protection from other gang members who would try to rob him. At first, the gang members were not asking for too much, however, the applicant indicated that their demands went up with time:
By July 2000, the quotas I was paying the gang for protection had gone up. Instead of asking just for some candy they would ask for the whole box. They would ask for more money because they said that their families were growing and that they needed more income. They always said that they (sic) money I gave them was a loan and that they would pay me back. I realized that eventually I would not be able to continue making the payments (PIF of male applicant - tribunal record page 00080, paragraph 5).
[8] On October 17, 2000, the applicant decided to lodge an anonymous complaint to the police. He mentioned that he did not name any members of the gang because he was scared of reprisals. Moreover, it is not clear if the applicant gave his name to the police officer who took his deposition. In his Personal Information Form (PIF), it is mentioned that he did not give his name because he did not want gang members to learn that he was the one who had made the complaint. During his testimony, he mentioned that he had given his name but had asked not to divulge it.
[9] At the same time, the applicants were encountering problems with a man named Mr. Gonzalez, who was a municipal employee and a supervisor to all canteens' employees. During the election campaign of 2000, the applicant and Mr. Gonzalez supported two different political parties. The applicant alleged that it is because of the divergence of their political opinions that Mr. Gonzalez wanted him out of the business. He mentioned that Mr. Gonzalez had no power over his business since he and his wife were independent suppliers, but the claimants argue that he kept on threatening them and urged them to stop doing their business if they did not want any trouble.
[10] They were threatened by men with knives on February 16, 2001. They believed those men were sent by Mr. Gonzalez since the message given was the same.
[11] The applicants never reported Mr. Gonzalez's actions to the police. However, they consulted a lawyer who advised them to place a protection order against him. It is only after a second protection order and because of numerous complaints from other people that Mr. Gonzalez was removed from his job and assigned to another one.
[12] Shortly after they were threatened by Mr. Gonzalez's men, the applicant decided to flee their country in order to avoid the growing demands of the gang and to escape from Mr. Gonzalez. They alleged that it was not possible for them to relocate in another part of their country. They argued that gangs were present everywhere in Venezuela and that they would encounter the same problem anywhere. They were afraid that Mr. Gonzalez would try to find them and kill them.
CONTESTED DECISION
[13] The Board concluded that the applicants were not Convention refugees. It found that the applicants did not have a well-founded fear of persecution since there were unable to rebut the presumption of state protection. Furthermore, the Board's decision was based on a positive finding of internal flight alternative. It also concluded that the minor child's claim against the United States was unsupported by the evidence.
ANALYSIS
1. Did the Board err in law in its understanding and application of the appropriate standard of proof?
[14] The applicants argue that the Board did not use the proper standard of proof. They submit that the Board should have used the standard of "reasonable possibility" instead of the standard of balance of probabilities when dealing with the issue of future persecution. The applicants underline two comments made by the Board in its decision:
[...] the panel finds that on a balance of probabilities, the gang would not pose any risk to the claimants if they relocated their business to another area [...] (Board decision, page 4)
[...] The panel concluded that while Mr. Gonzalez persecuted the claimants while he was in a position of authority, on a balance of probabilities, he is no longer in a position to do so at the present time, on the claimants return [...] it is unlikely he would persecute them for their very low level of participation in the election. (Board decision, page 5)
[15] In support of their allegations, the applicants cite numerous case law in which it was confirmed that it is not required for the applicant to prove that persecution would be more likely to occur than not but to establish that there is more than a "mere possibility" of persecution. See Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, paragraph 120:
Both the existence of the subjective fear and the fact that the fear is objectively well-founded must be established on a balance of probabilities. In the specific context of refugee determination, it has been established by the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, that the claimant need not prove that persecution would be more likely than not in order to meet the objective portion of the test. The claimant must establish, however, that there is more than a "mere possibility" of persecution. The applicable test has been expressed as a "reasonable possibility" or, more appropriately in my view, as a "serious possibility". See: R. v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.). (My emphasis)
[16] Recently the Court of Appeal in Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] F.C.J. No. 1 (F.C.A.) (QL), provided the answer to that question. On the balance of probabilities, the Board must be satisfied that persecution is more likely than not to occur. I therefore cannot conclude that the tribunal erred in its understanding and the application of the standard of proof.
2. Did the Board commit a reviewable error by failing to assert if both agents of persecution would cumulate into a reasonable fear of persecution?
[17] The Board analysed both agents of persecution separately as the applicants testified that their problems with the gang and with Mr. Gonzalez were not connected. The applicants alleged that the Board erred in failing to determine whether, even if the harassment from the gang did not amount to persecution in isolation, it could amount to persecution cumulatively, when considered in combination with persecution from Mr. Gonzalez.
[18] The Board concluded that only one of the alleged agents of persecution amounted to persecution (Mr. Gonzalez). Therefore, an analysis that would have taken into consideration both agents of persecution cumulatively was unnecessary.
[19] The claimants also argue that the Board did not comment on country conditions that corroborated their allegations. While it is true that no specific references were made by the Board concerning country conditions, I cannot conclude that the Board did not consider this evidence on reading the following excerpts of the decision on page 4:
[...] The claimants alleged that all such gangs in Venezuela have political connections to the government of President Chavez, and as supporters of the Alegria Party, they would be targeted wherever they moved.
The panel did not find this allegation credible, and the evidence did not support it. The claimants made it clear in their testimony that all the gang members ever asked them for was a fairly small amount of money and confections. They did not testify to any demands or threats to them being made by the gang members because of their political opinion. They did not provide any evidence to support their allegation that all gangs in Venezuela have government support, and the panel finds that statement to be unsupported, exaggerated speculation. [...] [emphasis in the original]
Having read the transcript from the tribunal's record and the evidence on country conditions, I am
satisfied that there is no reviewable error here.
3. Did the Board commit a patently unreasonable error in concluding that state protection was available and that the applicants could have prevailed themselves of an internal flight alternative?
STATE PROTECTION
[20] The standard of review applicable when dealing with the issue of state protection is patent unreasonableness (Czene v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 912 (F.C.T.D.) (QL), 2004 FC 723 and Canada (Minister of Citizenship and Immigration) v. Abad, [2004] F.C.J. No. 1065 (F.C.T.D.) (QL), 2004 FC 866).
[21] International refugee law was formulated to serve as a back-up to the protection from the state of which an individual is a national. It can only be used when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals approached their home state for protection before it can ask protection to other states. (Canada (General Attorney ) v. Ward, [1993] 2 S.C.R. 689, paragraph 18).
[22] It is incumbent upon a claimant to prove a well-founded fear of persecution in its country. In order to succeed, it is not enough for a refugee claimant to establish that he has a subjective fear of persecution in his home state. He must also demonstrate that his fear is objectively well-founded. It is at this stage that the state's inability to protect should be considered. If a state is able to protect a claimant, then his fear is not, objectively speaking, well-founded (Ward, supra, paragraph 25).
[23] In Canada (Minister of Citizenship and Immigration) v. Smith, [1999] 1 F.C. 310, the Federal Court reiterated what was held in Ward, supra.
A Convention refugee claimant must advance "clear and convincing" evidence of a state's inability to afford protection. Absent a complete breakdown of state apparatus, it should be presumed that the state is capable of protecting a claimant. When the state in question is a democratic state, the claimant must do more than simply show that he went to see some members of the police force and that his or her efforts were unsuccessful. The more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.
INTERNAL FLIGHT ALTERNATIVE
[24] The standard of review applicable is patent unreasonableness (Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (F.C.T.D.) (QL) and (Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263 (F.C.T.D.) (QL)).
[25] In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), it was stated that if a claimant is able to seek safe refuge within his own country, there is no basis for a finding that he is unable or unwilling to avail himself of the protection of that country. In other words, even if the applicants have a well-founded subjective fear of persecution, the existence of an IFA is sufficient to justify the Board's refusal to grant asylum.
[26] The test in determining the existence of an IFA was expressed by Mahoney J.A. in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at page 711 and reiterated in Thirunavukkarasu, supra, at paragraph 12:
In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in [suggested IFA] and that, in all the circumstances including circumstances particular to [the applicant], conditions in [place of IFA] were such that it would be unreasonable for the appellant to seek refuge there.
[27] Regarding the alleged fear of the gang, the Board noted that the male applicant made an anonymous complaint to the police in October 2001. He did not name any member of the gang and asked for his name not to be mentioned in the police report. He was told by the police officer that security would be increased on the street. He indicated that the police did nothing about his complaint. He drew such a conclusion because he did not notice any police patrolling on the route he serviced and continued to be a victim of extortions. However, even if the applicants were convinced of police inactivity, they never went back to the police station to inquire about the actions that were taken against this gang.
[28] The Board found that the applicant's testimony about this complaint to the police was somewhat unclear and contradictory. As an example, in the amendment to his PIF, the male applicant wrote that he did not give his name to the police. However, in his testimony he stated that he did give his name to the police but did not identify the gang or the gang members. The Board concluded that those contradictions undermined the male applicant's credibility. In addition, it relied on the Supreme Court decision in Ward, supra, to maintain that the anonymous complaint to the police was not sufficient to rebut the presumption that the applicant's country was able to offer him protection.
[29] It appears from the evidence that the applicant did not give enough useful information for the police to offer him more protection. The police did not know from whom the applicant needed protection. Moreover, it is not clear if the applicant identified himself to the police officer. Therefore, it is impossible to know for sure if the police knew who they had to protect.
[30] The Board also concluded that the applicants could have relocated their business anywhere else in Venezuela. As the male applicant mentioned during his testimony, the gang was located along the route he was servicing. He did not establish that he would still have problems with this gang if he was to relocate somewhere else in his country. The applicant alleged that all gangs have political connections and that he would be targeted wherever he moved. The Board did not find this explanation credible because the gang members never asked for anything else but small amounts of money and candies. Moreover, the applicant never mentioned that he had problems with this gang because of his political opinion.
[31] The applicant's wife mentioned that those gang problems existed everywhere in Venezuela and that, therefore, they would encounter the same problems anywhere. The Board found no evidence to support such allegations.
[32] Having considered all of the evidence presented before the Board, I am satisfied that the intervention of the Court is not warranted.
[33] Regarding the second agent of persecution, Mr. Gonzalez, the Board accepted that the applicants may have had to deal with corrupt officials in the municipal structure of Guacara. However, it noted that the applicants did not report Mr. Gonzalez's actions to the police. It also took into consideration the fact that the applicants had two protection orders filed against him through their lawyer. The applicants mentioned that the first order was ineffective and that Mr. Gonzalez continued to harass them. It is finally as a result of the second protection order, along with complaints from other individuals, that Mr. Gonzalez eventually lost his job and was assigned another one.
[34] The Board did not conclude directly that state protection was available against Mr. Gonzalez. I believe that it was not necessary in the present case since the problems the applicants had with Mr. Gonzalez were no longer existent as of the date of the hearing. The applicant feared Mr. Gonzalez because he was using his position, as a supervisor of the canteens' employees, to interfere with the applicants' supplying services. The applicants believed that Mr. Gonzalez wanted someone with different political views to supply the canteens he had the responsibility of. The applicants mentioned that Mr. Gonzalez was trying to have them stop doing their business by harassing them. Since the problems the applicants had with Mr. Gonzalez were strictly related to him being an influent member of the municipality as a supervisor of the canteens, the Board did not err in concluding that Mr. Gonzalez, having lost his job, would no longer be persecuting the applicant.
[35] The Board also found that the applicants had a viable internal flight alternative outside the area of Guacara. It mentioned that the applicants did not submit any evidence that demonstrates that Mr. Gonzalez would have any influence throughout Venezuela. Moreover, they did not adduce any evidence that they would still risk a serious possibility of persecution somewhere else in their country and that it would be unreasonable for them to relocate.
[36] The Federal Court said in many of its decision that the availability of state protection or IFA is fatal to a claimant's claim (Diaz v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 652 (F.C.T.D.) (QL) at paragraph 10 and Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.) at paragraph 12). In the event that one of these two options is available to the claimant, there is no need to proceed with the analysis of the second option.
4. Did the Board commit a patently unreasonable error in assessing the applicants' credibility and subjective fear of persecution?
[37] It is not necessary to analyse this question due to my determination on the first three questions.
[38] The applicants submit the following question for certification:
In order to consider the internal flight alternative, must the Board either accept or assume the validity of the claim of persecution in the region the claimant has fled, or is the Board entitled to consider the internal flight alternative without regard to the possible existence of persecution in the region fled?
The respondent opposes the certification of such a question and I agree. No question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7030-03
STYLE OF CAUSE: RENE ALCIBIADES MENDEZ RODRIGUEZ, YUMAR CAROLINA SANSONETTI PADRON
FABIANA CAROLIN MENDEZ v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: January 12, 2005
REASONS FOR ORDER THE HONOURABLE
AND ORDER BY: MR. JUSTICE BEAUDRY
DATED: February 7, 2005
APPEARANCES:
David Matas FOR THE APPLICANT
Nalini Reddy FOR THE RESPONDENT
SOLICITORS OF RECORD:
David Matas FOR THE APPLICANT
Winnipeg, Manitoba
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Winnipeg, Manitoba