Date: 20031010
Docket: IMM-4645-02
Citation: 2003 FC 1180
Ottawa, Ontario, October 10, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
JUANA UBALDINA GARCIA MEJIA
MARTIN CIRILO
MARIO CIRILO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("the panel") that Mr. Ruiz, the applicant's spouse, the applicant and her children are not Convention refugees.
[2] Mr. Ruiz challenged the panel's conclusions in case IMM-4644-02 of the Federal Court Registry.
[3] Ms. Mejia based her fear of persecution on her membership in a particular social group, the family, because of her ties to her husband, who has been the subject of persecution by the Shining Path (SP), corrupt members of the military and drug traffickers.
[4] Mr. Ruiz, the applicant and their two children, Martin, 5, and Mario, 10, are all Peruvian citizens. Mr. Ruiz joined the Peruvian Navy in 1984 and in the years that followed was assigned to several emergency zones in the country. The applicants alleged that they left Peru on March 15, 2001 after events which followed the capture of about 10 rebels by the applicant's patrol on January 15, 2001.
[5] The panel rejected the application by all members of the family. It attached no credibility to the testimony of the principal applicant, pointing to several omissions, contradictions, inconsistencies and improbabilities in his story, and it was not satisfied by his explanations. However, the panel concluded that in any case the problems experienced had no connection to any of the five grounds in the Convention, but were actually related to collusion between the rebels, drug traffickers and corrupt members of the military.
[6] The courts have held that victims of crime or personal revenge are not a particular social group within the meaning of the Convention (Chan v. Canada (M.E.I.), [1995] 3 S.C.R. 593; Ward v. Canada, [1993] 2 S.C.R. 689; Calero v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1159 (QL); Karpounin v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 371 (QL); Wilcox v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1157 (QL); Marincas v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1254 (QL)).
[7] The applicant submitted that the panel could not dismiss her claim and that of her children on this ground, since such a conclusion was not consistent with the applicable precedents, especially Klinko v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 327. I do not take that view.
[8] It is true that since Klinko, supra, in cases where corruption is so widespread in the government that it is part of the latter's structure, a denunciation of corruption constitutes the expression of a "political opinion". Obviously a person who is only obeying orders, without denouncing corruption, cannot say that he has expressed a "political opinion".
[9] The applicant argued that the principal applicant and his family had suffered reprisals because Mr. Ruiz was seen as a person who was fighting corruption by an alliance of drug traffickers and corrupt members of the military. This argument was not based on any evidence. This Court recently considered a similar situation in Stefanov v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 954 (QL), in which the applicant claimed refugee status because he refused to alter software he had created in order to assist a Bulgarian organized crime group to embezzle money. At paragraph 26, Blanchard J. wrote:
The applicant argues that this is a case where the evidence supports a finding that the sole or primary reason for the persecution was his opposition to corruption and that there is therefore a nexus to the Convention. I do not agree. In my view, the evidence does not establish the applicant's opposition to corruption based on a political position which would engage the machinery of state government. The applicant's action on this isolated incident does not establish a political position rooted in political conviction.
[10] These conclusions are applicable in the case at bar.
[11] The question of government protection only arises if the claim has first established a connection between her fear and one of the grounds in the definition. Richard C.J. said the following in this regard, in Chen v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 189, paragraph 9:
According to Ward, the Board may presume that a fear of persecution is well-founded if the applicant has provided clear and convincing confirmation of the state's inability to protect. However, the operation of this presumption is predicated upon a finding that the applicant has a "legitimate fear" within the meaning of the definition. Given the Refugee Division's conclusion that the applicant's fear is not based on any of the grounds set out in the definition but a personal vendetta based on financial interest, the presumption that the applicant's fear is well-founded does not apply.
[12] In any case, the applicant could not identify either the individuals who made threats to them or her attackers of February 10, who were wearing hoods. The information was therefore too vague and inaccurate to allow the police to investigate the attacks effectively (Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780). As Gibson J. indicated in that case, at paragraph 11:
In all such circumstances, even the most effective, well-resourced and highly motivated police forces will have difficulty providing effective protection. This Court should not impose on other states a standard of "effective" protection that police forces in our own country, regrettably, sometimes only aspire to.
[13] For these reasons, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
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"Danièle Tremblay-Lamer"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
FILE: IMM-4645-02
STYLE OF CAUSE: JUANA UBALDINA GARCIA MEJIA
MARTIN CIRILO
MARIO CIRILO Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 24, 2003
REASONS FOR ORDER AND ORDER: Tremblay-Lamer J.
DATE OF REASONS: October 10, 2003
APPEARANCES:
Alain Joffe Applicant
Michel Pépin Respondent
SOLICITORS OF RECORD:
Alain Joffe Applicant
606-10 St-Jacques
Montréal, Que.
H2Y 1L3
Morris Rosenberg Respondent
Deputy Attorney General of Canada
Montréal, Quebec
IMMIGRATION AND REFUGEE BOARD Panel
Refugee Division
200 boul. René-Lévesque Ouest
Tour Est, Bureau 102
Montréal, Quebec H2Z 1X4
Tel.: 514-283-7733