Date: 20050428
Docket: IMM-1008-04
Citation: 2005 FC 580
Ottawa, Ontario, this 28th day of April, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
RAMON JOSE BRACAMONTE
LOUISIANA BRACAMONTE
DULCE MARIA ZAMBRANO DRAYER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated January 16, 2004, wherein it was determined that the applicants are not Convention refugees nor persons in need of protection.
[2] The applicants seek an order that the decision of the Board be set aside and the matter referred back to be reconsidered by a differently constituted panel of the Refugee Protection Division.
Background
[3] The two adult applicants, Ramon Jose Bracamonte (the "principal applicant") and Dulce Maria Zambrano Drayer (his "wife"), are citizens of Venezuela. The minor applicant, Louisiana Bracamonte (the "minor applicant"), is a citizen of the United States. The wife's claim is based on the principal applicant's claim. The principal applicant based his claim upon allegations of persecution as a result of political opinion and membership in a particular social group. The principal applicant was a practicing lawyer in Venezuela at the time of the election of Hugo Chavez as president. He practiced in the areas of civil and commercial law. The principal applicant stated that he thus represented people who belong to the enterprising or business class of Venezuela.
[4] The principal applicant stated that commencing in 1999, he started receiving death threats on his cell phone ". . . for legally representing the people who allegedly are the enemies of the government and of the people, and through guilt by association". He was considered to be an enemy of the government. At first, the callers were anonymous, but later on they identified themselves as being members of a Bolivarian Circle.
[5] In September 1999, the principal applicant was robbed at gunpoint by two men on the street. They also aimed a gun at his head and made reference to him having previously been warned about his life.
[6] The principal applicant did not report the matter to police as he claimed it was ". . . common knowledge, especially for a lawyer, that reporting such incidents would aggravate matters and provoke another attack and the police themselves could be the assailants."
[7] In October 1999, the applicants' apartment was broken into and their computer and some documents were stolen. The next morning, the principal applicant received a call on his cell phone from a man who identified himself as a member of a Bolivarian Circle and he stated that the next time the principal applicant could be killed.
[8] The principal applicant and his wife left Venezuela in January 2000 and took up residence in Orlando, Florida. The minor applicant was born in Orlando July 13, 2000 and is thus an American citizen.
[9] The applicants entered Canada on June 10, 2003, and immediately made their claim for Convention refugee status. Their claim was heard by video conference on January 14, 2004.
Reasons of the Board
[10] The Board held that the minor applicant did not have a well-founded fear of persecution in the United States, nor was she in need of protection in the United States. The Board held that there was no more than a mere possibility that the minor applicant would be persecuted in the United States for any reason enumerated in the Convention refugee definition. Therefore, the minor applicant's claim was rejected.
[11] The Board accepted that the principal applicant was the victim of theft, was also robbed once, and he received threats from criminals. There was no evidence before the Board that the principal applicant was ever refused protection from the authorities in Venezuela. The principal applicant did not present clear and convincing proof of the state's inability to protect him. The Board found that he was neither a Convention refugee nor a person in need of protection because adequate state protection was available to him in Venezuela and it was reasonable to expect him to access it.
[12] The principal applicant acknowledged that he did not seek protection from the authorities in Venezuela because he claimed it is common knowledge, especially for a lawyer, that reporting such incidents would aggravate matters and provoke another attack and the police themselves could be the assailants. The Board held that it was mere speculation that the assailants could have been police officers, and found the principal applicant's lack of effort to take any legal steps to protect himself and his family were unreasonable.
[13] The Board noted that while the principal applicant claimed that the Bolivarian Circles attack and threaten persons who oppose the government of Venzuela, he never supported a political party or participated in demonstrations against the government. The principal applicant testified at his hearing that he openly expressed his opposition to the government in social or informal settings.
[14] The principal applicant testified that he was specifically targeted because he is a lawyer and he represented business persons, and the government of Venezuela targets professional class citizens, especially influential people who oppose the government. The Board found that there was no documentary evidence supporting the principal applicant's allegations that lawyers are targeted simply because of their representation of business people who oppose the government.
[15] The Board noted that the documentary evidence revealed that in Portuguesa State, some lawyers were threatened with death by police officers, that some "might" have already been murdered, and that the police officers are under investigation. However, there was no evidence before the Board that lawyers are under similar threats in other regions of the country. The Board also noted one lawyer was arrested in Carabobo State in January 2000 for his statements to a national newspaper against the military. He was subsequently released and a trial has started.
[16] The Board noted that the principal applicant testified that he was not aware of either his father (a doctor who did not support the current government), or the senior lawyer of the law firm he had worked at, having had any problems with the Bolivarian Circles. He similarly testified that while he was aware of one influential business person who had been targeted by the Bolivarian Circles, he did not know the details of the attack. The Board found the evidence therefore did not support his allegations that all professionals are at risk of harm by the Bolivarian Circles or other groups operating under the protection of the government of Venezuela.
[17] The Board noted the evidence that revealed the government accused the Caracas Metropolitan Police as repressing pro-government protests. This was contrary to the principal applicant's allegations that the police would not protect the principal applicant from such persons. The Board noted the principal applicant lived in Caracas.
[18] The Board held that the information in the December 3, 2003 supporting letter from the applicant's brother-in-law was not independent evidence, but rather reported by the principal applicant to the writer, and therefore not helpful in corroborating that the principal applicant was in fact targeted by the Bolivarian Circles.
[19] The Board noted the documentary evidence that revealed President Chavez claimed the Bolivarian Circles are social organizations that cooperate with the community, they are not armed groups and if some have made mistakes, they will be punished. Further, the evidence indicated that some supporters of Chavez have been imprisoned.
[20] The principal applicant testified that it is common knowledge in his country that victims who file complaints with the police are immediately victimized again, often by security forces. The Board noted the principal applicant had not provided any corroborative evidence to support this allegation.
[21] The principal applicant further testified that he was aware of victims being further victimized through friends, relatives and as a lawyer, however, he did not submit any corroborative evidence in this regard. The Board noted the principal applicant did submit other letters supporting his allegations of theft, robbery and threats. As a result, the Board determined the principal applicant attempted to embellish his claim with this allegation and did not accept it as credible.
[22] The Board found that Venezuela was a democracy and although not perfect, Venezuela is in effective control of its territory and has military, police and civil authority in place. The Board did not find that there is clear and convincing evidence that the Venezuela state would not be reasonably forthcoming with serious efforts to protect the principal applicant if he were to return to Venezuela and contact the authorities with respect to his problems today.
Issues
[23] The issues as framed by the applicants are:
1. Did the Board err in law in its interpretation and application of the definition of a Convention refugee as defined in section 2(1) of IRPA?
2. Did the Board err in law in basing its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it?
3. Did the Board render a decision that is patently unreasonable, having regard to the evidence before it so as to amount to an error of law?
4. Did the Board err by ignoring evidence and misinterpreting the evidence including testimony, documentary evidence, and human rights records?
[24] I would rephrase the issue as:
Did the Board err in finding that adequate state protection was available to the
applicants in Venezuela?
Applicants' Submissions
[25] The applicants submitted that the Board erred in finding that adequate state protection was available to the principal applicant and that there was no serious possibility that he would be harmed in Venezuela. Those finding were made in a perverse and capricious manner without regard to the evidence before the Board, by misconstruing the evidence and by relying on irrelevant considerations.
[26] The applicants submitted that the principal applicant's testimony with respect to the failure of the state to protect its citizens was supported by the country condition documentation before the Board. The only actions taken against the Bolivarian Circles, cited by the Board, occurred during a three day period between April 12 and April 14, 2002 when Chavez was temporarily ousted from power. It is submitted that it is capricious and perverse for the Board to rely on police actions over a three day period and ignore evidence corroborating the applicant's evidence during periods when Chavez was in power, as he is today.
[27] The Board made reference to the fact that the Metropolitan Police were accused of repressing pro-government protests, and concluded that this ran contrary to the applicants' allegations that the police would not protect the principal applicant from such persons. In light of later actions taken by Chavez against that police force, this inference is unfounded and made without regard to the totality of the evidence.
[28] The applicants submitted that the Board also relied on amendments made to the 1999 Organic Criminal Procedures Code, while ignoring evidence confirming that the criminal justice system failed to respond to serious crimes. Other than those references to irrelevant evidence concerning the actions of the Metropolitan police force and the Code amendment, the Board gave no further references to the state's efforts to protect its citizens.
[29] The applicants submitted that the Board ignored the evidence regarding the state's failure to protect it's citizens, Chavez's own admission that he can no longer control the Bolivarian Circles, and the evidence confirming that the Circles are armed and engage in threats, intimidation and violence in their efforts to silence Chavez's perceived opponents. This is clear and convincing evidence of the state's inability to protect persons perceived to be opposed to the Chavez regime.
[30] The applicants submitted that the documentary evidence clearly indicated that Venezuela's institutions are not democratic, and as such, the principal applicant's failure to turn to the police, courts, military or other institutions was not unreasonable. It is submitted that the Board should have been guided by the Supreme Court of Canada decision in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 ("Ward"), that held that "only in situations in which state protection "might reasonably have been forthcoming", will the applicant's failure to approach the state for protection defeat his claim."
[31] The applicants submitted that while the principal applicant never supported a political party and did not lead evidence that he ever participated in demonstrations against the government, the documents speak of dissident and opposition activity attracting persecutory measures. It is submitted that the principal applicant expressed his political opinion, or would reasonably be perceived to be opposed to Chavez, through his professional role of representing wealthy, influential business people.
[32] The applicants submitted that in discussing the issue of available state protection in Venezuela, the major human rights organizations independently concluded that the state and its agencies were incapable of dispensing justice efficiently and impartially, that the state failed to bring those responsible for abuses to justice, and that the criminal justice system failed to respond adequately to crimes. In light of that evidence, it is submitted that the Board's finding was patently unreasonable.
[33] The applicants submitted that though there is a presumption that a tribunal has considered all the evidence before it, there is also an onus on the tribunal to give clear reasons why they selected certain evidence over other evidence to support its decision. This is particularly so when the tribunal has considerable evidence from reputable sources such as the U.S. Department of State, Amnesty International and Human Rights Watch World that clearly confirm the state's inability and failure to provide protection.
[34] It is further submitted that the Board made no reference to evidence from those reliable and independent sources often relied on by the Refugee Division, that corroborated the applicants' explanations in their entirety. The applicants established that institutions necessary for democracy are in a seriously weakened state in Venezuela, resulting in major organizations reporting on human rights conditions to conclude that the state has failed or is unable to offer meaningful and effective protection.
[35] The documentary evidence further established that there was no reasonable expectation that the protection would be forthcoming. That test is not met only when the police have completely ceased to protect people. This is not a situation where the applicants are seeking a guarantee of protection, but rather one where they refused to turn to a state described as incapable of and failing to provide protection.
Respondent's Submissions
[36] This Court has confirmed that the standard of review with respect to findings of state protection is whether the decision of the Refugee Protection Division is "patently unreasonable" (see Horvath et al. v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1206; Jahan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 987; IMM-3434-99 (June 22, 2000) (F.C.T.D.)).
[37] The Board was aware that problems continue to exist in Venezuela. However, the principal applicant was a victim of robbery and threats. There was no evidence that he was a victim of the Bolivarian Circles or a victim of any other group from which the state would not be able to provide adequate protection. The principal applicant never attempted to obtain police protection and has failed to satisfy the heavy onus on him to provide "clear and convincing" evidence that protection is unavailable. The applicants have failed to show that this finding is patently unreasonable.
[38] Absent a situation of complete breakdown of state apparatus, it is generally presumed that a state is able to protect an applicant. This presumption "serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the applicant". The onus is on the applicants to provide clear and convincing confirmation of their state's inability to protect. Protection need only be adequate, not perfect. The fact that there may be a problem within the legal or policing systems in any given country does not mean that state protection is unavailable (see Ward, supra).
[39] The principal applicant's belief that the assailants could have been police officers or members of the Bolivarian Circles is nothing but speculation. The applicants cannot simply opt out of their duty to seek protection in their own country. The applicants have completely failed to provide evidence that shows that the police would refuse to help them. There is no documentary evidence demonstrating that any problems that may exist with the police in Venezuela are institutional in nature (see Kadenko v. Canada (Minister of Citizenship and Immigration), (1997), 206 N.R. 272).
[40] There is no indication that the Board ignored the documentary evidence that is referred to in the applicants' memorandum. That evidence shows that problems exist in Venezuela but it does not show that Venezuela has ceased to be a democracy or that the police have completely ceased to protect people who complain of robberies or threats. The applicants have failed to show that the protection will not be forthcoming if they ask for it.
[41] The respondent requested the application for judicial review be dismissed.
Relevant Statutory Provisions
[42] Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:
|
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
. . .
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
. . .
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Analysis and Decision
[43] Standard of Review
The issue of whether state protection is available is a finding of fact to which the standard of patent unreasonableness applies (see Judge v. Canada (Minister of Citizenship and Immigration) 2004 FC 1089, citing Czene v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 912 (F.C.) (QL) at para. 7); Charway v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 701 (F.C.) (QL) at para. 10; Doka v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 554 (F.C.) (QL) at paras. 9-10; Alli v. Canada (Minister of Citizenship and Immigration) (2002), 20 Imm. L.R. (3d) 252 (F.C.T.D.)).
[44] At the commencement of the hearing before me, the applicants indicated that there were two findings in question, namely, that the applicants did not have a well-founded fear of persecution, and the Board's finding with respect to the availability of state protection for the principal applicant. I will deal first with the issue of the availability of state protection.
[45] Issue 1
Was state protection available to the applicants?
In Ward, supra, the Supreme Court of Canada stated that an applicant must provide "clear and convincing proof" of a state's inability to protect. The Court stated at pages 724 to 726:
Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state [page725] protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. 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.
. . . 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. . . .
[46] In Canada (Minister of Employment and Immigration) v. Villafranca,[1992] F.C.J. No. 1189 (F.C.A.), the Federal Court of Appeal offered this guidance regarding assessing state protection:
The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the applicant showing either that he is physically prevented from seeking his government's aid . . . or that the government itself is in some way prevented from giving it.
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a applicant merely to show that his government has not always been effective at protecting persons in his particular situation. . . .
[47] The applicants submitted that the documentary evidence showed Venezuela's institutions are not democratic, and that institutions necessary for democracy are in a seriously weakened state. The applicants submitted that as a result, the state is unable to provide state protection for them. Some examples cited by the applicants include:
Human Rights Watch World Report 2003
. . . After the attempted coup, Venezuelan society remained deeply polarized, political protests continued, and economic conditions worsened, leaving the country at risk of further violent conflict and jeopardizing democracy and the rule of law. The human rights situation was also marked by problems in the administration of justice, police abuses, and threats to freedom of expression.
. . .
Human rights conditions suffered in this highly polarized environment.
. . .
This failure to make progress in investigating the April violence was symptomatic of endemic problems within the Venezuelan justice system as a whole. The attorney general's office and the judiciary - under-funded and inefficient - proved incapable of dispensing justice efficiently and impartially.
. . .
. . In previous reviews of Venezuela's record of compliance [with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], the committee [UN] expressed grave concern with the high number of cases of torture and abuse in the country, as well as with the state's failure to bring those responsible to justice.
Amnesty International Report, 2003
Political polarization, violence and repeated rumours of coups increased instability and threatened to lead to further serious human rights abuses. . . . There were a number of threats and attacks on journalists and opposition supporters. At least three peasant farmer leaders were killed. The criminal justice system failed to respond adequately to these crimes, undermining the rule of law.
. . .
There were a series of attacks and threats against journalists and media interests during the year. The lack of effective investigations into the violence helped generate a climate of impunity.
. . .
The precedent of impunity for similar crimes in the past and serious questions about the credibility and impartiality of the judiciary, the Attorney General's Office, police forces and the Human Rights Ombudsman, led non-governmental human rights organizations to propose the creation of a Truth Commission to carry out an impartial non-judicial investigation into human rights violations. However, the Legislative Assembly failed to provide adequate support for the proposal to go ahead.
Inter-America Commission on Human Rights (2002):
According to information received by the IACHR, and particularly based on what has been pointed out by the Human Rights Ombudsman, there are death squads ("grupos de exterminio") made up of State security officers operating in the states of Portuguesa, Yaracuy, Anzoátegui, Bolivar, Miranda, and Aragua. In its visit to the state of Portuguesa, the Commission observed with serious concern that the death squads are not only an illegal means of social control, but that, in the particular case of Portuguesa, they are part of a criminal organization that operates for monetary gain within the state police force, and that continues operating and threatening the family members of victims and witnesses, who are absolutely defenseless.
The United States Department of State Report on Human Rights Practices 2002
. . . The civilian judiciary is legally independent; however, it was highly inefficient and sometimes corrupt, and judges at all levels were subject to influence from a number of sources, including the executive branch.
. . .
. . . Impunity was one of the country's most serious human rights problems. Police rarely arrested suspects, and when they did, the suspects often were soon set free. Crimes involving human rights abuses did not proceed to trial due to judicial and administrative delays. Lengthy pretrial detention and corruption and severe inefficiency in the judicial and law enforcement systems also were problems.
. . . Government intimidation was serious problem. The President, officials in the administration, and members of his political party frequently spoke out against the media, the political opposition, labor unions, the courts, the Church, and human rights groups. Many persons interpreted these remarks as tacit approval of violence, and they threatened, intimidated, or even physically harmed several individuals from groups opposed to Chavez during the year.
. . .
A Caracas NGO that works on behalf of victims of violence, COFAVIC, received e-mai l and telephone threats beginning in January from Bolivarian Circles and persons who identified themselves as Chavez supporters. The Attorney General's office and Human Rights Ombudsman's office did not pursue requests by COFAVIC for investigations of this harassment. In May COFAVIC filed a complaint with the IACHR. The IACHR recommended that the Government provide police protection to COFAVIC's offices and director. It also called for the Government to investigate COFAVIC's claims and speak out against the intimidation of human rights organizations. The Government did not respond to this request.. . .
. . .
Many critics claimed that the Ombudsman was not truly impartial.
[48] The test for whether state protection "might reasonably be forthcoming" is an objective one. In this case, the evidence confirms that Venezuela is a functioning constitutional democracy. The evidence referred to by the applicant unquestionably indicates that there are significant difficulties in Venezuela especially in some areas such as Portuguesa. However, the evidence in this case does not support the contention that the Venezuelan state mechanisms on the whole have weakened to a great extent, or that there has been a near collapse of internal order such that it was objectively reasonable for the applicants to have failed to approach the state for protection.
[49] The applicants submitted that the Board erred by failing to refer to documentary evidence which supported their claims and which evidence was contrary to the Board's findings.
[50] As stated in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.) at paragraphs 16 to 17:
. . . A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact.
[51] The evidence cited in the applicants' memorandum and noted above do not contradict the Board's main findings of fact. The passages referred to by the applicants indicate significant problems for some people, in some areas of Venezuela, but do not show that the Venezuelan government would be unwilling or unable to provide the applicants with protection. Accordingly, as neither the passages referred, nor the remainder of the record contradict the Board's main finding on the availability of state protection, the Board did not commit a reviewable error in failing to specifically refer to those passages.
[52] The applicants could also rebut the presumption of state protection by advancing "testimony of similarly situated individuals" let down by the state protection arrangement or the principal applicant's testimony of past personal incidents in which state protection did not materialize. There is no such evidence in this case.
[53] The principal applicant submitted that he was being targeted because he was a lawyer who represented wealthy clients or business persons opposed to the government. No evidence other than the applicant's statement was presented on this aspect of the case. In its decision the Board specifically referred to a case in Portuguesa where lawyers had death threats made against them by an "extermination group". The Board noted that the applicants did not live in Portuguesa. The Board also noted that these threats occurred during investigations into potential police misconduct.
[54] There is only one instance in the record involving lawyers which was not specifically referred to by the Board. That is the International Bar Association's ("IBA") press release of March 7, 2003. That press release stated in part:
Among the areas of particular concern to the international jurists who filed the IBA report are the so-called 'sistema transitorio' of law, which runs outside the framework of the Constitution, and the evidence they heard of attacks on and threats to judges and lawyers.
A perusal of the press release establishes that it is primarily dealing with judges and it does not given any details with respect to lawyers.
[55] Further,as noted by the Board, the principal applicant did not provide any evidence that all professionals are at risk of harm by Bolivarian Circles or other groups operating under the protection of the government of Venezuela. The principal applicant testified that to the best of his knowledge, not even his father who was against the Chavez government, nor a senior lawyer in his firm had experienced any problems with the Bolivarian Circles.
[56] Finally, the principal applicant confirmed that at no time did he go to the police or otherwise request state protection.
[57] Based on the record before me, I cannot find that the Board committed a reviewable error in finding that state protection was available to the applicants. The decision made by the Board was a decision that was open to it to make.
[58] Because of my finding on state protection, I need not deal with the other issue raised by the applicants.
[59] The application for judicial review is therefore dismissed.
[60] Neither party wished to submit a proposed serious question of general importance to me for consideration for certification.
ORDER
[61] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
April 28, 2005
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1008-04
STYLE OF CAUSE: RAMON JOSE BRACAMONTE
LOUISIANA BRACAMONTE
DULCE MARIA ZAMBRANO DRAYER
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 23, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
John Grice
FOR APPLICANTS
Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD:
Davis & Grice
North York, Ontario
FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT