Toronto, Ontario, December 6, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
ANIBAL CHRISTYAN MONTE REY NUNEZ
(a.k.a. ANIBAL CHRISTYA MONTE REY NUNEZ)
MARCELA KAREN DIAZ GONZALES
CHRISTYAN ANIBAL MONTE REY DIAZ
(a.k.a. CHRISTYAN MONTE REY NUNEZ)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Anibal Christyan Monte Rey Nunez, the principal applicant, his spouse, Marcela Karen Diaz Gonzales, and their minor son, Christyan Anibal Monte Rey Diaz, seek judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Protection Board that they are neither refugees nor persons in need of protection pursuant to ss.96 and 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27. These are my reasons for concluding that the Board's finding that they have not rebutted the presumption of state protection is unreasonable and the application must be allowed.
[2] The adult claimants are citizens of Bolivia; the minor claimant was born in the United States and is a citizen of that country. Between February 1997 and May 1998, while the principal applicant was a student at the University of San Andres, he became a member and then Secretary of Public Relations in a small campus political party, the Frente Unido (United Front). Also operating on the campus was the much larger and more established Izquierda Unida (United Left) party which espoused socialist ideals. United Left was linked to the national party, Movimiento de Izquierda Revolucionaria (Left Revolutionary Movement) or MIR.
[3] Mr. Rey Nunez claimed to have been involved in efforts to expose corruption on his university campus which the United Left was able to carry out because of their association with the national party, a member of the governing coalition. These efforts led to him and his father being assaulted and threatened on separate occasions. Mr. Rey Nunez believes that their assailants were police or connected with the security forces. He temporarily relocated to Cochabamba, about eight hours away from La Paz. While he was there, his father continued to investigate the incidents by making reports to the police and the Ombudsman's office. In March 2000 the principal applicant's father received a telephone call and was told to stop investigating. The father was told that the caller was aware that the principal applicant was in Cochabamba.
[4] To escape these threats, Mr. Rey Nunez and his wife first sought asylum in the United States, where their son was born. The US claim was withdrawn as they felt their American lawyer was not pressing it vigorously and they came to Canada.
[5] The Board accepted as uncontradicted the principal applicant's allegations of harassment and physical assault by unknown individuals. However, the Board dismissed the claims on the basis of implausibilities in the allegations. In particular, while the principal applicant may genuinely believe that some of his assailants were members of the Bolivian security forces, the Board found this implausible based on the documentary evidence. The Board also rejected the speculation that the United Left, though linked to the MIR, was able to have the Bolivian security forces do their bidding.
[6] On a standard of patent unreasonableness, I would not interfere with any of these findings of the Board. I do have some difficulty with the Board's conclusion that the minor child was not a refugee or a person in need of protection because he is, by birth, a citizen of the United States and would enjoy the protection of that country. In the circumstances of this case, it was unrealistic of the Board to assume that the child's parents would leave him in the US if they were required to return to Bolivia. But I would not overturn the decision on that ground alone.
[7] However, as noted above, I find that the Board's conclusion that the applicants had not rebutted the presumption of state protection available to them in Bolivia was unreasonable in light of the evidence before it and constitutes reversible error.
[8] With regard to the standard of review applicable to a state protection determination, it is clear that findings of fact can only be set aside if made in a perverse or capricious manner, or without regard to the material before the tribunal: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d). As the Supreme Court of Canada stated in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paragraph 38, such findings are entitled to "great deference" by the reviewing Court.
[9] Once the findings of fact are made, they must be assessed against the test set out in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689, i.e., do the facts constitute "clear and convincing confirmation of a state's inability to protect" so as to rebut the presumption. That is a question of mixed fact and law for which less deference should be shown the tribunal's decision.
[10] The appropriate standard of review for a finding of state protection was recently dealt with by Madam Justice Danielle Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193 wherein, following a pragmatic and functional analysis, she concluded that the standard was reasonableness simpliciter. This has been followed by a number of decisions of this Court: Franklyn v. Canada (Minister of Citizenship and Immigration), 2005 FC 1249; Fernandez v. Canada(Minister of Citizenship and Immigration), 2005 FC 1132; Nascimento v. Canada (Minister of Citizenship and Immigration), 2005 FC 1078; Muszynski v. Canada(Minister of Citizenship and Immigration), 2005 FC 1075. I agree with my colleague's analysis and will apply the same standard.
[11] As a result, the decision of the Board will be set aside only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. As stated by Justice Yves de Montigny in Franklyn, above at paragraph 17 "If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere."
[12] In this case, the Board in its reasons referred to the decision of the Federal Court of Appeal in Kadenko v. Canada(Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532 and concluded that the claimants "have an obligation to make more reasonable efforts at national protection." Further, in holding that the Government of Bolivia is making serious efforts to provide its citizens with adequate protection, a finding incidentally that appears to have been based on outdated documentary evidence, the Board states "[t]he claimants have an obligation to first make reasonable efforts to seek that protection."
[13] These statements can only support an inference that the Board found that the claimants' efforts to seek state protection were insufficient. But that inference seems to fly in the face of the uncontradicted evidence on the face of the record. The principal applicant and his family had made at least four attempts at seeking protection from state authorities including three complaints directly to the police, as well as contacts with a solicitor for advice and with the Defensor del Pueblo or Ombudsman and the university rector's office. There is no analysis in the Board's reasons as to why these efforts were not enough to demonstrate a lack of state protection.
[14] In Kadenko, Justice Décary stated as follows:
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: 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. [Emphasis added]
[15] The respondent submits that the application must fail as it is apparent from the reference to Kadenko in its reasons, that the Board found that the applicants had not "exhausted all of the courses of action open to him or her." Justice Tremblay-Lamer rejected that proposition in Chaves, above where she stated at paragraph 15 that Kadenko cannot be interpreted to suggest that an individual will be required to exhaust every conceivable recourse available in the country before the presumption of state protection can be rebutted particularly where, as here, the alleged perpetrators of the persecution are agents of the state.
[16] Similarly, Justice Anne MacTavish held in Sanchez et al. v. Canada (Minister of Citizenship and Immigration), 2004 FC 731 that requiring the applicants to exhaust absolutely all avenues of protection instead of taking all steps reasonable in the circumstances constituted reversible error. See also Peralta v. Canada(Minister of Citizenship and Immigration), 2002 FCT 989.
[17] It is apparent from the documentary evidence that was before the Board that Bolivia, while a democratic state, suffers from serious problems amongst which are corruption and police violence. As Kadenko teaches, the Board must take those conditions into account in determining whether claimants have met their burden to rebut the presumption. I am unable to conclude from the Board's reasons in this case that it conducted an analysis, including consideration of the country conditions, that could reasonably lead from the evidence before it to the conclusion the Board reached respecting state protection.
[18] No questions of general importance were proposed and none are certified.
ORDER
THIS COURT ORDERS that the application is granted and the matter is remitted for reconsideration by a differently constituted Board. No questions are certified.
"Richard G. Mosley"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-925-05
STYLE OF CAUSE: ANIBAL CHRISTYAN MONTE REY NUNEZ ET. AL.
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: DECEMBER 6, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: DECEMBER 6, 2005
APPEARANCES BY:
J. Byron M. Thomas FOR THE APPLICANTS
Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
J. Byron M. Thomas
Toronto, Ontario
FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT