OTTAWA, Ontario, September 8, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
NOEL DE JESUS GALVEZ VESCARAS, AMANDA MARGARITA OLIVA DE GALVES, GIOVANNI ANDRE GALVEZ OLIVA, ANDREA MARIANI GALVEZ OLIVA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This Application is for judicial review of the January 31, 2006 decision of the Refugee Protection Division that the applicants are neither convention refugees, nor persons in need of protection.
[2] The applicants are a family from El Salvador, they base their claims on those of the father, Noel de Jesus Galvez Vescaras (the Principal Applicant). The other applicants are his wife, Amanda Margarita Oliva de Galvez, their fourteen year-old son Giovanni Andre Galvez Oliva, and their 9 year-old daughter Andrea Mariani Galvez Oliva (collectively, the Applicants).
[3] The Principal Applicant was part owner of a hardware store in San Salvator from July 2001, until his departure in February 2005. He alleges that on February 8, 2005, he witnessed the murder of a client, Mr. Alvarado, by a member of the “Mara Alvatrucha” (MS) known as “Pita”. Following the shooting, the police arrived, and the Principal Applicant lied, telling them that he had not seen what happened. The Principal Applicant claims that he knew the killer was a member of the MS because he knew the man’s brother, Mario Moreno.
[4] A few days after the murder, the Principal Applicant alleges that a detective returned to the hardware store and asked him further questions. Based on the Principal Applicant’s evasiveness, the detective accused him of lying, and he had no alterative but to tell the truth. He was taken to police headquarters where he identified “Pita”.
[5] On February 20, 2005, the Principal Applicant was approached by Pita’s brother and warned that Pita knew that he had provided information to the police, and that he should disappear quickly as both he and his family would be killed. The Principal Applicant immediately left for San Vincente.
[6] The next day, the Principal Applicant alleges that he called the detective seeking an explanation as to how the MS had learned about hisdisclosure. The detective hung up on him; he concluded that the police had sold him out to the MS.
[7] The Principal Applicant left El Salvador for the United States on February 28, 2005, and was joined there by his wife and children on March 19, 2005. While hiding in San Vincente, the Principal Applicant’s wife learned that members of the MS had uttered death threats against the family at their home and at the hardware store. The Applicants remained in the United States until their coming to Canada on April 1, 2005. They requested refugee protection upon arrival in Canada.
[8] The Tribunal assessed the claim under section 97 rather than section 96 on the basis that the Applicants assert a fear of revenge or problems of a criminal nature if they are returned to El Salvador, and these fears do not fall within the definition of persecution for a convention refugee. The Tribunal rejected the Applicants’ claims on the basis of credibility concerns.
[9] The Tribunal found that the Principal Applicant’s behaviour was contradictory: initially he would not provide the police with information in the aftermath of the murder because he did not trust them, yet later he asked the detective for an explanation of how the MS knew that he was the informant, and asked the detective for protection despite believing that he was corrupt. Additionally, the Principal Applicant had only mentioned that he had asked the detective for an explanation, later, when proded as to why he had not sought protection, he indicated that he had also asked the detective for protection, but was told that the police could not provide total protection.
[10] The Tribunal was also concerned as to why the Principal Applicant did not approach someone higher up in the police force than the detective, or a different authority in order to seek and obtain protection. He never denounced to other authorities either Pita or the detective for wrongdoing they had allegedly committed.
[11] Based on the documentary evidence, the Tribunal concluded that the police do arrest gang members, that authorities do charge corrupt police officers, and many steps have been taken by the administration to curb gang violence. Therefore, it concluded that it was not reasonable for the Principal Applicant not to approach higher authorities for help.
[12] The Tribunal was concerned by the lack of documentary evidence. Ten months had elapsed between the murder and the hearing date, yet the Principal Applicant did not know the complete identity of the victim, or of the alleged murderer, even though he had known the murderer’s brother for the last twenty years. There was no documentary evidence of his ownership of the hardware store, nor any document relating to the murder such as a police report, or the victim’s death certificate. The Principal Applicant’s explanation was that his counsel had not asked him for any documents, and he never tried to obtain any documents.
[13] The Tribunal concluded that there was no credible evidence to show that it was more likely than not that the Principal Applicant would be subjected to a danger of torture, or face a risk to life or a risk of cruel and unusual treatment or punishment if he were returned to El Salvador.
[14] The questions in issue are the following:
- Whether the RPD erred in concluding that there were contradictions in the Applicant’s testimony and written statement, and that his story was not plausible
- Whether the RPD erred in concluding that state protection is available
Whether the RPD erred in concluding that there were contradictions in the Applicant’s testimony and written statement, and that his story was implausible
Positions of the Parties
[15] The Applicant submits that there is no contradiction in his refusal to disclose information to the police immediately after the murder, and his later decision to identify Pita to the detective. The change in circumstances, with the detective confronting him about lying explains his change in behaviour. The Applicant’s testimony should be presumed to be true unless there is good reason to doubt its credibility, and there is no such reason in this case. Further, the Applicant’s testimony on this issue was uncontradicted.
[16] The Respondent argues that the Applicant’s behaviour appeared contradictory: first he refused to give the police information about a murder because he distrusted them, then after concluding that the police had betrayed him to MS, he asked them for protection. Further, despite the ten months that have elapsed since the murder, the Applicant was unable to provide details such as the complete identities of the murderer and victim (he only knew the murderer’s nickname, and the victim’s last name). He did not provide any documents to show that the murder actually occurred; his failure to obtain such evidence could undermine his credibility.
Analysis
[17] The Applicant has directed the Court to the decision in Maldonado v. Canada (MEI), [1980] 2 F.C. 302 (C.A.) to support the proposition that testimony should be presumed to be credible unless there is good reason to doubt its credibility. The Respondent has directed the Court to the decision in Shahamati v. M.E.I., [1994] F.C.J. No. 415 (C.A.) to support the proposition that the Board is allowed to rely on rationality and common sense in assessing an applicant’s claims. Both of these cases reflect the current state of the law. I would note that the Board has jurisdiction to determine the plausibility of a claimant’s story (Agueboru v. Canada (MEI), [1993] F.C.J. No. 732 (C.A.). Additionally, in Obi v. Canada (MCI), [2005] F.C.J. No. 400, this Court applied Shahamati to allow the Board to conclude that statements about interactions with the authorities were implausible and inconsistent.
[18] In the present case, the RPD found it implausible that the Principal Applicant would seek protection from the individual who he believed had betrayed him to the MS. It was open to the RPD to conclude that the Principal Applicant’s behaviour in seeking protection from this person was inconsistent with his alleged belief that the detective had betrayed him. It was not unreasonable for the Board to question the credibility of this assertion.
Whether the RPD erred in concluding that state protection is available
Positions of the Parties
[19] The Applicant submits that the RPD did not consider all the evidence in concluding that state protection is available in El Salvador. The Applicant testified that he had asked the detective for protection, but protection was not forthcoming. The Applicant did not pursue additional efforts to seek protection because he did not trust the authorities. The Applicant argues that the RPD cannot conclude that the police are trustworthy simply because the government has introduced new measures to combat corruption, based on a few reports of accusations having been made.
[20] The Respondent replies that the Applicants were required to demonstrate that they had made efforts to obtain protection in El Salvador, or to establish the reasonableness of their failure to seek protection. State protection need not be perfect. The Respondent argues that even if the detective was corrupt, which has not been absolutely established, it was not reasonable for the Applicants to fail to seek help from higher authorities. The Applicants’’ conclusion that the police are involved in their persecution is based on an assumption. Based on the evidence before it, the RPD was entitled to conclude that state protection was available to the Applicants.
Analysis
[21] The Applicant cites A.G. v. Ward, [1993] 2 S.C.R. 689 at pp 724-725 where the Supreme Court held that clear and convincing evidence is needed to rebut the presumption that a state is capable of protecting its citizens. In Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, Justice Tremblay-Lamer held that where agents of the state are the source of the persecution, and where the applicant’s credibility has not been undermined, the applicant need not exhaust every possible recourse in the country in order to show a lack of state protection.
[22] The case at bar can be distinguished from Chaves because the Applicant’s credibility was undermined by the contradiction in his interactions with the detective. Based on these contradictions, the RPD found that his testimony was not plausible, and it was open to the RPD to conclude that the Applicant had not rebutted the presumption of state protection.
CONCLUSION
[23] The RPD had a reasonable basis for questioning the Principal Applicant’s statements about his conversation with the detective following his apparent betrayal to the MS. Given the lack of credibility with respect to this evidence, it was open to the RPD to conclude that the Applicants had not rebutted the presumption of state protection.
[24] The most glaring omission in the Principal applicant’s testimony is the fact that he could produce no contributory evidence that a murder had even occurred. What strikes the Court is the fact that even after ten months he could produce no newspaper accounts or other tangible evidence that a murder had ever occurred.
JUDGMENT
This application for judicial review is dismissed. No question was submitted for certification.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1028-06
STYLE OF CAUSE: Noel De Jesus Galvez Vescaras, Amanda Margarita Oliva de Galvez, Giovanni Andre Galvez Oliva, andrea Mariani Galvez Oliva v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Qc
DATE OF HEARING: August 30, 2006
REASONS FOR JUDGMENT: ROULEAU D.J.
APPEARANCES:
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Me Jeffrey Nadler
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Me Suzanne Trudel
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SOLICITORS OF RECORD:
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Me Jeffrey Nadler Montreal, Qc
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John H. Sims, Q.C. Deputy Attorney General of Canada
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