Date: 20050512
Docket: IMM-2727-04
Citation: 2005 FC 683
Ottawa, Ontario, this 12th day of May, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ADRIAN (CABANSAG) VALDEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Adrian Valdez claims that he was pursued by political opponents in the Philippines and fled to Canada to escape their threats on his life. A panel of the Immigration and Refugee Board denied Mr. Valdez's request for refugee status primarily on the ground that the Philippines was capable of protecting him. Mr. Valdez argues that the Board failed both to analyze correctly the issue of state protection and to consider the relevant evidence. He asks me to order a new hearing.
[2] I cannot find any basis on which to intervene in the Board's decision and must, therefore, dismiss this application for judicial review.
I. Issues
1. Did the Board apply the correct test for state protection?
2. Did the Board properly analyze the evidence relating to state protection?
II. Analysis
1. Did the Board apply the correct test for state protection?
[3] The applicant and the respondent agree that the test for state protection derives from the following cases: Canada (Attorney General) v.Ward, [2003] 1 S.C.R. 226; Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.) (QL); Mendivil v. Canada (Secretary of State), [1994] F.C.J. No. 2021 (C.A.) (QL); Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 507 (T.D.) (QL); and Badran v.Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 437 (T.D.) (QL). They also agree that refugee claimants must generally show clear and convincing evidence that their home state was unable or unwilling to protect them from persecution. However, Mr. Valdez asserts that an exception to this general rule exists in situations where a person is a member of a particular group that is targeted for abuse by a rival group. Mr. Valdez refers to the following passage in Mendivil, above, in support of his contention:
[P]ersons specifically targeted, who may qualify as members of a particular social group, might still have good grounds for fearing persecution when a state is capable of protecting ordinary citizens but incapable of protecting members of that particular social group. (At para. 11.)
[4] Mr. Valdez also relies on the following statements in Badran, above:
In most cases the inability to protect against random terrorist attacks will not constitute an inability of the state to protect. But Ward, supra, and Mendivil, supra, have set out a limited exception where past personal incidents may qualify an individual as a member of a particular social group which the state is unable to protect. (At para. 16.)
[5] Again, the respondent takes no issue with the authorities to which Mr. Valdez points. However, the respondent submits that the exception on which Mr. Valdez purports to rely does not apply to his case and, accordingly, contends that the Board did not err by failing to consider it.
[6] Mr. Valdez stated that he was targeted by members of a political group who were rivals of the party his family supported. He said that goons from the opposing party came to his home and threatened his family in December 2001. When his grandfather, who was seeking election as a councillor, addressed a crowd during the course of the 2002 election, shooting broke out and some members of the crowd were wounded. Further, Mr. Valdez claimed that someone shot at him on his way home from mass in March 2002. He reported the latter two incidents to police, who undertook to investigate.
[7] Based on this evidence, and its review of documentary evidence of conditions in the Philippines, the Board concluded that Mr. Valdez had failed to prove an absence of state protection. The Board noted that the Philippines is a democratic state that is making serious efforts to protect its citizens. It has cracked down on the use of firearms. The police responded to Mr. Valdez's complaints when they were brought to their attention.
[8] However, Mr. Valdez argues that the Board failed to recognize the approach to state protection outlined in Mendivil and Badran, above. He submits that he was specifically targeted by opposing political parties and that the state authorities in the Philippines could not protect him.
[9] In Mendivil, the applicant had been a public official who was responsible for investigating illegal activities of the Sendero Luminoso or "Shining Path", a violent anti-government movement. He learned that he was on the Shining Path's hit-list. In Badran, the claimant was the son of an Egyptian police officer. Family members of police officers were frequently targeted by the Muslim Brotherhood in Egypt because they were regarded as anti-terrorists. In addition, in Ward, above, the applicant was a member of an Irish republican paramilitary group who was targeted both by the IRA and members of his own organization after allowing hostages to escape. His wife and daughter had been held hostage. The government of Ireland conceded that it could not protect Ward from retribution by terrorist groups.
[10] It is in these circumstances where courts have recognized that persons may successfully argue that they have a well-founded fear of persecution notwithstanding that their home state is generally willing and able to protect its citizens from harm. Is Mr. Valdez in a similar position? In my view, no.
[11] The Board noted that there was widespread political violence during the 2002 elections in the Philippines. However, there was no evidence that rival political parties continued to fight after the election. Nor was there any evidence that Mr. Valdez had been, or would be, personally targeted. Accordingly, I cannot conclude that the Board failed to apply the correct test for state protection in the circumstances.
2. Did the Board properly analyze the evidence relating to state protection?
[12] Mr. Valdez argues that the Board failed to take adequate account of the fact that he had gone to police to report violent events and had achieved nothing in doing so. Further, he suggests that the Board failed to consider the documentary evidence showing that many persons had been victims of election violence in 2002 and had not received state protection. He characterizes the Board's analysis of the issue of state protection as "cursory" or "perfunctory", as in Zhuravlvev, above.
[13] In my view, the Board's analysis of the evidence was adequate. It took note of the violent events leading up to the 2002 elections and the involvement of various political parties in those crimes. It considered the fact that Mr. Valdez had not reported to police the incident in December 2001, but had reported the events in 2002. The Board observed that there was little the police could do given that the suspects were unknown. Still, the police had agreed to investigate.
[14] I cannot conclude that the Board failed to consider the relevant evidence. Nor would I describe the Board's treatment of the issue of state protection as cursory or perfunctory.
[15] Accordingly, I must dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2727-04
STYLE OF CAUSE: ADRIAN (CABANSAG) VALDEZ v. MCI
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: April 27, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: May 12, 2005
APPEARANCES BY:
Ms. Inna Kogan FOR THE APPLICANT
Ms. Bridget O'Leary FOR THE RESPONDENT
SOLICITORS OF RECORD:
INNA KOGAN FOR THE APPLICANT
Toronto, ON
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, ON