Ottawa, Ontario, the 6th day of April 2006
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
FABIO YOVANNY GONZALEZ MEMBRENO
Applicant
and
THE MINISTER OF CITIZENSHHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] In cases of criminal behaviour, the applicant must seek protection from the police whenever possible.
The Board had to objectively determine whether State protection might “ . . . reasonably have been forthcoming,” as Mr. Justice Gérard Vincent La Forest noted in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (QL).
The Board’s expertise results from its specialized knowledge, institutional memory and in‑depth information as to conditions in various countries. Without any reference to specific or relevant documents or to relevant parts thereof, how can the Board reveal the basis of its inferences?
NATURE OF JUDICIAL PROCEEDING
[2] This is an application for judicial review filed pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a July 25, 2005 decision by the Immigration and Refugee Board, Refugee Protection Division (the Board) dated August 1st, 2005. The Board found that the Applicant was not a convention refugee nor a person in need of protection and his refugee claim was denied.
FACTS
[3] The applicant, Mister Fabio Yovanny Gonzalez Membreno, is a citizen of Honduras. He is married and has two children; his wife and children remain in Honduras.
[4] Mister Gonzalez was a professional soccer player in Honduras. During the 2000 presidential election campaign, he was recruited to participate in public meetings for the National Party’s candidate. The campaign theme was a “zero tolerance” policy for street gangs. The National Party won the elections.
[5] He received threats during the campaign, as well as afterwards. In 2002, the Congress adopted very strict street‑gang legislation leading to the arrest and incarceration of several gang leaders and members. The gangs countered by declaring war on all those who were against them.
[6] On July 19, 2003, Mister Gonzalez was attacked by members of a street gang. They beat him with baseball bats, broke his heel and left him unconscious in the street.
[7] He received medical treatment but did not complain to the police for fear of reprisals. He moved away and recovered until November 2003, at which point he went back to Tegucigalpa to return to work..
[8] The threats continued. In May 2004, during a trip to the United States to compete in a tournament with his soccer team, he decided not to return to Honduras. He stayed in the United States for almost a year; and then, on April 6, 2005, he came to Canada and filed a refugee claim.
IMPUGNED DECISION
[9] The Board did not challenge the credibility of Mister Gonzalez’s allegations. It did however find that Mister Gonzalez had not established in a clear and convincing way that the State, Honduras, was unable to protect him as he had not sought out protection of the State.
ISSUE
[10] Did the Board make a patently unreasonable decision in determining the applicant had failed to establish that Honduras was unable to provide State protection?
ANALYSIS
Standard of Review
[11] As a specialized panel of first instance and trier of fact, the Board is entitled to a high degree of deference except in cases when a decision is patently unreasonable. The Board’s expertise results from its specialized knowledge, institutional memory and in‑depth information as to conditions in various countries. Without any reference to specific or relevant documents or to relevant parts thereof, how can the Board reveal the basis of its inferences? Without any reference whatsoever to conditions existing in countries related to the claimant, how can this Court comprehend what would be considered patently unreasonable in order to make a determination?
Did the Board clearly err in determining the applicant had failed to establish that the State of Honduras was unable to provide its protection?
[12] The respondent submitted that the burden was on the applicant to show that he had exhausted all avenues in Honduras before filing a claim for refugee status in Canada.
[13] The law is well settled in Canada: in cases of criminal behaviour, an applicant is not required to have sought assistance from human rights organizations (Balogh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 809, [2002] F.C.J. No 1080 (QL) at paragraph 44, Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339, 2002 FCT 1081, [2002] F.C.J. No 1425 (QL), at paragraph 27.)
[14] In cases of criminal behaviour, the applicant must seek protection from the police whenever it is possible in the circumstances.
[15] The Board had to objectively determine whether State protection might “ . . . reasonably have been forthcoming,” as Mr. Justice Gérard Vincent La Forest indicated in section 49 of the above‑mentioned Ward decision:
Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
[16] In the specific context of Honduras, the maras [translation] "control the inner‑city neighborhoods in the larger cities where police officers won’t go. They even charge buses fees for traveling in the area." (Applicant’s Record, at page 31). This is rather more akin to the situation which existed in Lebanon, where armed gangs controlled some areas of the country than to that which was considered by the Court in Kadenko v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No 1376 (QL).
[17] The above‑cited passage indicates that the inner cities have been completely abandoned by the police. If the police forces won’t even go into the inner cities, they cannot provide protection there.
[18] The Board had documentary evidence (Exhibits A‑2 and A‑1 5.5 of the Applicant’s Record) contradicting the supposed availability and effectiveness of State protection for citizens having to deal with gang‑related problems.
[19] The applicant argued that this partial breakdown of the state apparatus is sufficient to warrant his fear of reprisals and reluctance to seek police assistance.
CONCLUSION
[20] The application is allowed.
JUDGMENT
THIS COURT ORDERS THAT:
1. The application for judicial review be allowed;
2. The matter be referred back to the Board by a differently constituted panel for redetermination.
“Michel M.J. Shore”
Judge
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5473-05
STYLE OF CAUSE: FABIO YOVANNY GONZALEZ MEMBRENO
v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 27, 2006
REASONS FOR ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
|
William Sloan
|
FOR THE APPLICANT |
|
Diane Lemery
|
FOR THE RESPONDENT |
SOLLICITORS OF RECORD:
|
William Sloan Montreal, Quebec
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT |