Date: 19990429
Docket: IMM-2579-98
Ottawa, Ontario, the 29th day of April 1999
Present: The Honourable Mr. Justice Pinard
Between:
Ana Maria VILLA
Applicant
- and -
THE MINISTER
Respondent
ORDER
The application for judicial review of the Convention Refugee Determination Division decision dated April 15, 1998, determining that the applicant is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19990429
Docket: IMM-2579-98
Between:
Ana Maria VILLA
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a Convention Refugee Determination Division (Refugee Division) decision dated April 15, 1998, determining that the applicant is not a Convention refugee.
[2] The issue in the case at bar is whether the Refugee Division erred in finding that the applicant failed to rebut the presumption that Argentina was able to protect her. In this regard, the panel stated:
| [TRANSLATION] . . . Let us bear in mind that Ms. Villa testified that she could not identify her assailants but thought they were members of the security forces. In fact, not once did she seek protection from the authorities after 1989, nor did she testify that she had reported the threats and surveillance she was under to human rights organizations. Such organizations are numerous and active in Argentina, and their investigations are not subject to any government restrictions. [Footnote omitted.] |
| In the panel"s view, this failure to act, which we would describe as fundamental, runs counter to her obligation to seek protection from the authorities of her country first. In fact, the evidence did not cogently establish that she could not receive adequate protection in Argentina. [Footnote omitted.] |
| (Emphasis added.) |
[3] Ever since Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, it has been settled that nations should be presumed capable of protecting their citizens, and that refugee claimants must show, by clear and convincing proof, that the state of which they are a national is unable to protect them. That is what Mr. Justice La Forest stated, first at page 725:
| . . . Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. |
and at page 726:
| In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state"s inability to protect must be advanced. . . . |
[4] In my view, the impugned decision in this case is based on both the applicant"s testimony and the documentary evidence, with which, I might add, she was confronted. As the issue is basically the assessment of the facts, it is not for this Court to take the place of the Refugee Division, which is a specialized tribunal, where, as here, the applicant fails to prove that the decision is based on an erroneous finding of fact that the tribunal made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d ) of the Federal Court Act). I therefore cannot find, based on the evidence as a whole, that the impugned decision is unreasonable (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)).
[5] The application for judicial review is accordingly dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
April 29, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2579-98
STYLE OF CAUSE: ANA MARIA VILLA
v.
THE MINISTER
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 16, 1999
REASONS FOR ORDER OF THE HONOURABLE PINARD J.
DATED APRIL 29, 1999
APPEARANCES:
NOËL SAINT-PIERRE FOR THE APPLICANT
MARTINE VALOIS FOR THE RESPONDENT
SOLICITORS OF RECORD:
SAINT-PIERRE, GRENIER FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA