Date: 20050324
Docket: IMM-5092-04
Citation: 2005 FC 418
BETWEEN:
CARLOS ARMANDO MELGAR REYES
MIRIAN ISABEL MELGAR DE MELGAR
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
SIMPSON J.
Introduction
[1] This application is for judicial review of a decision of a member of the Immigration and Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated May 5, 2004, in which the Board determined that the applicants are not persons in need of protection (the "Decision").
[2] The principal Applicant (the "Applicant") is a 29-year old male from El Salvador. He applied as a person in need of protection (not as a refugee) along with his wife, who is 31 years of age. They have a six-year old daughter who they left with the Applicant's mother when they decided to flee El Salvador.
[3] The applicants make the following allegations:
· On January 30, 2003, the Applicant's cousin, José Lopez, was taken from his house by an unknown assailant in the middle of the night. Two days later his body was found. He had been shot several times in the chest.
· On February 3, 2003, two unknown men came to the Applicant's residence when only his wife and daughter were home. They knocked hard on the door and called out that they were looking for the Applicant. The wife did not open the door or look to see who was looking for her husband. This incident was repeated on two more occasions when the Applicant was not home.
· On February 7, at 1:00 a.m., there was another loud knock at the door. The visitors were calling the Applicant's name and saying they had a message for him. He peeked through a hole and saw two men whose faces were covered. The Applicant did not respond and did not open the door. The men left but warned that the Applicant would not be safe and that they would find him.
· The Applicant feared for his life. He and his wife fled El Salvador on February 10, 2003. They made their way by hitch-hiking. They arrived in Guatemala on February 10, in Mexico on February 13,and in the United States on March 5. They reached Canada on April 9, 2003, and made their claim for protection the following day.
The Decision
[4] The Board noted that, in the Applicant's original Personal Information Form ("PIF"), he stated that unknown men attended at his house only twice, on February 3 and February 7. However, at the hearing he amended his PIF to add two more incidents. His explanation for wanting to amend his PIF at the hearing was that he had made a mistake. However, the Board noted that, in an interview with an immigration officer in April 2003, the Applicant mentioned that unknown men visited his home "like five times". The Board found that the Applicant provided no reasonable explanation for the inconsistencies regarding the number of threats he received.
[5] The Board also noted that its Screening Form specifically instructed the applicants to obtain "...police and media reports around the death of the claimant's cousin, document family relationship to him...." No such documents were provided and there was no evidence of any effort to obtain them. The Board questioned the death of the cousin and noted that there was no proof that the cousin even existed.
[6] The Board also noted the applicants' failure to make refugee claims in Mexico and the US. The Board recognized the applicants' explanation that they were unaware that they could make claims but found that the fact that they did not even make inquiries indicated they did not have a subjective fear.
[7] The Board then discussed state protection, noting that the Applicant did not seek police protection because he felt that the police would not be able to help him. The Board found that the Applicant did not provide clear and convincing evidence that the state would not have given him protection if he had made a request.
[8] The Applicant submits that the Board erred in reaching its conclusions about both state protection and credibility.
i) State Protection
[9] The documentary evidence shows that El Salvador has been plagued by violence since 1992 when its civil war ended and its police force was established. An April 1998 Issue Paper prepared by Canada's Immigration and Refugee Board ("IRB") noted extremely high rates of violent crime. A 1999 Washington Post article indicated that, in that year, 115 police officers were killed and El Salvador had the highest homicide rate in Latin America.
[10] In the first half of 2001, homicides increased by 7.8 % although thefts and robberies decreased according to the Central America Report of September 2001.
[11] On November 27, 2001, the IRB published a paper on the availability of state protection for citizens who requested it. It indicated that, in 1999, protection for a witness to the shooting of a policeman failed and the witness was murdered. In May of 2000, legislation was proposed by the police to afford protection for witnesses or victims of crime but, by the end of 2001, no legislative changes had occurred.
[12] An IRB report of November 1, 2002, described the around-the-clock police protection services. The service was not secure and was only available to a few highly placed officials. The report concluded that the majority of judges and all workers in the justice system were left without protection in the face of threats and that the government of El Salvador appeared both unwilling and unable to protect them. The Applicant said that, if El Salvador was not willing or able to protect those working in its justice system, it did not have the capacity to protect ordinary citizens.
[13] A more recent IRB report of February 2003 noted that El Salvador experienced five murders daily and that two of those were attributed to gang violence. Protection services for victims of gang violence were described as "scarce".
[14] On the other hand, an IRB report of November 14, 2001, showed that the police force had introduced a program to facilitate the identification of kidnappers and the IRB report of November 27, 2001, showed that the police were taking the lead in an attempt to bring about legislative changes to allow the protection of witnesses and victims of crime. New programs to protect those at risk from intra-family or domestic violence were also described.
[15] The IRB report of February 19, 2003, showed that the police had arrested many gang leaders. As well, the government established a National Youth Services Commission which was charged with developing a comprehensive approach to gang violence.
[16] Against this background, the issue is whether the Board was required to review the documentary evidence to determine whether El Salvador actually had the capacity to protect its citizens. Put another way, the issue is whether the documents contained so much evidence about problems with state protection that the Board was required to consider whether that evidence was sufficient to rebut the presumption of state protection and justify the Applicant's decision to flee El Salvador without first approaching the police. In my view, because the documents disclosed very significant concerns about the state's capacity to protect, the Board was required to analyze the documents and its failure to do so constituted a reviewable error.
ii) Credibility
[17] The Board did not believe the Applicant's story of risk because:
a) He failed, though asked to do so at the pre-screening stage, to produce any documentation about the murder of José Lopez or his status as the Applicant's cousin.
b) His original Personal Information Form mentioned only two threatening incidents. It omitted descriptions of two other incidents when hostile men came his house. The PIF was also inconsistent with his description of "like 5" threatening incidents which he provided on his arrival in Canada.
c) He failed to inquire about seeking protection in the United States although he was in that country for one month.
a) Corroboration
[18] The Applicant says that the Board erred in law when it asked for corroboration of his cousin's murder and the fact that José Lopez was his cousin. He says that the Board cannot require corroboration unless there is evidence which contradicts an applicant's evidence. For this proposition, the Applicant relies on statements in Ahortor v. Canada (MEI), [1993] FCJ No. 705 at para 45 and Lachowski v. Canada (MEI), [1992] FCJ No. 1138 at page 7 of 8.
[19] However, the governing decision appears to be the Court of Appeal's judgment in Attakora v. Canada (MEI), (FCA) [1989] FCJ No. 444. In that case, the applicant said that, although he suffered a fractured knee in detention, he could walk and managed to escape. There was also evidence, which the Board accepted, that the applicant arrived in Canada with an injured knee which subsequently required two operations.
[20] The Board noted the lack of medical evidence about a fracture and doubted that the applicant's knee had been fractured. It also doubted that, if it had been fractured, he could have walked on it. In this regard the Court of Appeal said:
Whether or not the knee was fractured and, if so, the precise nature of the fracture are relatively insignificant points but the absence of medical evidence is not in itself grounds for doubting the applicant's story. Indeed, given such absence of medical evidence, it was not open to the Board to find that a fracture to the applicant's knee would have made it impossible for him to have walked on it. [Footnote: One simply cannot take judicial notice of the extent to which a fractured knee makes it impossible to walk; everything will depend upon the nature and extant of the fracture and upon the circumstances of the injured person. Stories of battlefield heroics by persons with apparently disabling wounds are not uncommon.] Once again, the Board has erred in law by making a finding for which there was no evidence.
[21] In my view, contrary to the Applicant's submission, this case does not stand for the general proposition that the Board errs in law if it asks for corroborating evidence when an Applicant's evidence is uncontradicted. Rather, the Court of Appeal was concerned that the Board had based its credibility finding on an insignificant point (the difference between an injury and a fracture when there was accepted evidence of injury) and on a point for which there was no evidentiary foundation (whether one could walk on a fractured knee).
[22] In my view, it is open to the Board to ask for corroborating evidence if such evidence is material and could reasonably be expected to be available. Further, if an applicant is unwilling or unable to comply with such a request, he or she bears the onus of explaining the non-compliance.
[23] In this case, the evidence was material and no explanation was offered for the Applicant's failure to comply with the Board's request. Accordingly, it was open to the Board to note the absence of the evidence and infer that the Applicant never tried to obtain it.
b) Failure to inquire about protection in the United States
[24] The Applicant and his wife were questioned separately about why they did not seek refugee status in the US. The wife ultimately said that she didn't know that a claim could be made and the husband said he feared being deported as he had no documents. This evidence was repeated during the hearing.
[25] In my view, it is obvious that the Applicant and his wife made no serious inquiries of immigration consultants or lawyers about seeking protection in the US and it was open to the Board to doubt their subjective fear for this reason. The Applicant says that it was perverse to fault the applicants for failing to inquire about protection from risk when such protection (as opposed to Convention refugee protection) was not available in the United States. However, this submission is immaterial because the applicants were unaware of this situation. Had they said that they had made inquiries and learned that they could not claim protection for risk and therefore came to Canada, I would have viewed the matter differently. However, they made no inquiries and the Board was entitled to draw a negative inference from that fact.
c) Omissions from the PIF
[26] The Applicant's story was not complex. The four threatened assaults at his home all took place in a one week period and were the foundation of his claim for protection. In my view, it was not patently unreasonable on the facts of this case for the Board to conclude that, because the Applicant did not know the precise number of threats to his wife and child when he arrived in Canada (he said "like five") and because he omitted two such incidents from his original PIF, his story lacked credibility.
Conclusion
[27] I have concluded that the Board did not err when it decided that the Applicant's claim lacked credibility. For this reason, the error as it relates to state protection is not material. Accordingly, the application will be dismissed.
(Sgd.) "Sandra J. Simpson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5092-04
STYLE OF CAUSE: CARLOS ARMANDO MELGAR REYES et al.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 22, 2005
REASONS FOR ORDER: SIMPSON J.
DATED: March 24, 2005
APPEARANCES:
Ms. Brenda J. Wemp FOR APPLICANTS
Ms. Kim Shane FOR RESPONDENTS
SOLICITORS OF RECORD:
Brenda J. Wemp FOR APPLICANTS
Barrister & Solicitor
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENTS
Deputy Attorney General of Canada