Date: 20050602
Docket: IMM-3055-04
Citation: 2005 FC 796
Ottawa, Ontario, this 2nd day of June, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
LETICIA REYES (a.k.a. Leticia Mariano Reyes)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Both the husband and father of Ms. Leticia Reyes were murdered in the Philippines. Ms. Reyes alleges that the culprits were members of the New People's Army (NPA) and that she herself was at risk of serious harm from the NPA because of her political opinion. She fled to Canada in 2002 and sought refugee protection here.
[2] A panel of the Immigration and Refugee Board dismissed Ms. Reyes's claim because it was not satisfied that her husband's death was politically motivated. Further, the Board found that state protection was available to her in the Philippines. Ms. Reyes argues that the Board made serious errors in arriving at its conclusions and asks me to order a new hearing. I can find no basis for overturning the Board's decision and must, therefore, dismiss this application for judicial review.
I. Issues
1. Did the Board err when it found that Ms. Reyes had not established a well-founded fear of persecution?
2. Did the Board wrongly conclude that state protection was available to Ms. Reyes in the Philippines?
II. Analysis
A. Did the Board err when it found that Ms. Reyes had not established a well-founded fear of persecution?
[3] I can overturn the Board's findings of fact only if they were unsupported by the evidence.
[4] Ms. Reyes disputes two of the Board's findings: (1) that the perpetrators of her husband's murder were "imprisoned", and (2) that the perpetrators were not members of the NPA.
[5] The Board stated that the persons responsible for Ms. Reyes's husband's death "were charged with murder and were imprisoned". In actual fact, the suspects had been arrested and charged with murder, but were being held in pre-trial custody. Ms. Reyes argues that the Board wrongly concluded that the perpetrators had been convicted of murder and, presumably, posed no further threat to her.
[6] The Board's language was not as precise as it might have been. However, I cannot conclude that it made a serious error of fact. The evidence before the Board clearly indicated that the suspects had been charged and were in custody awaiting trial. This fact was relevant both to the well-foundedness of Ms. Reyes's fear and the ability of the state to protect her. The main point, acknowledged by the Board, was whether "those who are apparently responsible for the death of the claimant's husband are being dealt with according to the law". I cannot fault the Board's treatment of the evidence on this issue.
[7] With regard to the political affiliation of the murder suspects, Ms. Reyes and her sister-in-law both testified that the assailants were members of the NPA. The Board concluded that this had not been proved.
[8] Nothing in the documentary evidence before the Board referred to any political motivation for the killing of Ms. Reyes's husband. Indeed, court documents stated that the killers were relatives of the victim with whom he had had a long-standing personal grudge. Other documents refer to ongoing threats against the family's lawyer and witnesses in the case, as well as other family members, including Ms. Reyes. However, there was no indication that the threats came from the NPA. Again, I can find no error in the Board's treatment of the evidence before it.
B. Did the Board wrongly conclude that state protection was available to Ms. Reyes in the Philippines?
[9] I can overturn the Board's conclusion that state protection was available to Ms. Reyes only if I find it to be unreasonable.
[10] Ms. Reyes argues that the Board failed to consider the evidence of ongoing threats against her and wrongly concluded that the Philippines was capable of protecting her. The Board referred expressly to the documentary evidence that contained references to threats against various persons. It also mentioned Ms. Reyes's claim that "she and her family were under threat by the NPA". I cannot conclude that the Board ignored the evidence relating to threats.
[11] Further, the evidence before the Board indicated that the murder suspects had been arrested promptly and were being held for trial. There was no evidence that the Philippines was unable or unwilling to provide any protection that Ms. Reyes or her family might require. Ms. Reyes shouldered the burden of showing an absence of state protection. The Board's conclusion that she had not met that burden was not unreasonable.
[12] I note that Ms. Reyes has received more recent information from the Philippines indicating that her son was shot and wounded in September 2004, and that there are problems with the progress of the trial against her husband's alleged killers. This information cannot be used to impugn the Board's decision because it simply was not before the Board. However, it will surely be relevant and considered seriously in relation to a pre-removal risk assessment.
[13] Based on the foregoing analysis, 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-3055-04
STYLE OF CAUSE: LETICIA REYES v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: April 27, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: June 2, 2005
APPEARANCES BY:
Hamza N.H. Kisaka FOR THE APPLICANT
Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
HAMZA N.H. KISAKA
Barrister & Solicitor
Toronto, On. FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT