PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
BAULIO DE JESUS PORTILLO SANCHEZ
DALILA AMADAIL ORTIZ MEMBRENO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[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) with respect to a decision of L. Fournier of the Refugee Protection Division of the Immigration and Refugee Board (RPD) denying Braulio de Jesus Portillo Sanchez's (principal applicant) and Dalila Amadail Ortiz Membreno's (female applicant) (hereinafter designated as "the applicants") claim for refugee protection. In its decision dated July 15, 2005, the RPD determined that the applicants are neither Convention refugees nor persons in need of protection as per section 96 and 97 of the IRPA. The RPD's decision is based on two main conclusions :
- The applicants did not have an objective fear of persecution because they can avail themselves of state protection in El Salvador;
- The applicants did not have a subjective fear of persecution because their behaviour is incompatible with such a fear.
At the hearing, the Applicants were self represented. They could not speak English or French but only Spanish. For their presentation, they were assisted by an interpreter (Mr. Moreno), who was sworn in accordance with the Federal Court Rules, SOR-98/106.
I. Issues
[2] The issues are the following:
- Did the RPD err in finding that the applicants did not have an objective fear of persecution because they can avail themselves of state protection in El Salvador?
- Did the RPD err in finding that the applicants did not have a subjective fear of persecution because their behaviour is incompatible with such a fear?
II. Facts
[3] The applicants are common law partners. They applied for refugee protection because they allegedly fear persecution in El Salvador.
[4] The principal applicant was allegedly kidnapped in May 2002, and was forced by unknown people to write threatening letters to a number of people. He was mistreated and threatened. In July 2002, the principal applicant's captors and the principal applicant were arrested. The principal applicant was found not to be responsible for writing the threatening letters and was released after an investigation.
[5] In early 2003, the principal applicant met the female applicant. They moved into the principal applicant's father's house, in Ereguayquin (Tribunal's Record, p. 184). In December 2003, masked men raided the house and extorted money from the principal applicant. In January 2004, the same men came back to the house to get extra money from him, but he had no more money to give them. They mistreated the applicants and the principal applicant's father.
[6] The applicants left immediately for the province of San Miguel. They testified that they left El Salvador for Mexico on March 27, 2004 (Tribunal's Record, p. 191 and 197), and then entered the United States of America (US). They arrived in Canada in September 2004.
III. Analysis
A. State Protection
[7] The RPD noted that the applicants did not establish an objective fear of persecution. In addition, the RPD mentioned that the presumption of state protection was not rebutted considering that:
- the applicants failed to seek police protection;
- "El Salvador is a constitutional, multiparty democracy [respectful] of human rights";
- The State is active in fighting the criminal problems in the country;
- The applicants' excuse for not seeking protection is speculative, i.e. that there would be retaliation if he sought police assistance.
[8] The RPD's finding on state protection is subject to a reasonableness simpliciter standard (Chaves v. Canada, 2005 FC 193, [2005] F.C.J. No. 232, at para. 11). In the matter at hand, I find that the RPD's decision on state protection is correct. The applicants' failure to avail themselves of the protection of the authorities in their country of origin is sufficient to reject a claim considering that the protection "might reasonably have been forthcoming" (See Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at para. 49). The RPD's decision refers to the relevant documentary evidence, which demonstrates that El Salvador would likely have protected the applicants if they had approached the police (RPD's decision, p. 6 to 9).
[9] Therefore, I answer the first question in the negative.
2. Subjective Fear of Persecution and other Issues
[10] Although it is not necessary in my view to examine the RPD's conclusions on the subjective element of the applicant's fear considering my answer to the first question, I will nevertheless comment on the evidence for this aspect of the claim.
[11] The RPD found that the applicants' behaviour showed their lack of subjective fear of persecution. There is no doubt that a Board may draw a negative inference from the conduct of an applicant that is inconsistent with the presence of a subjective fear of persecution (Natynczyk v. Canada(Minister of Citizenship and Immigration), 2004 FC 914, at para. 69). The following elements were noted by the RPD in its assessment of the applicants' subjective fear:
- The applicants remained in the USA for a considerable period of time and did not seek refugee protection there;
- The applicants remained in El Salvador for two months after the events of January 2004.
The RPD's findings on subjective fear of persecution are correct and there are no reasons to intervene on any standard of review.
[12] Although I note that there are typographical errors in the RPD's decision, these are not important enough to justify this court's intervention (see Sukhu v. Canada(Minister of Citizenship and Immigration), 2005 FC 1662, and Gonulcan v. Canada(Minister of Citizenship and Immigration), 2004 FC 392, at para. 3). The RPD considered all the evidence, had a proper understanding of the issues at stake and made correct determinations.
[13] For these reasons, the application for judicial review is dismissed.
[14] The parties were invited to submit a question for certification but they declined.
JUDGMENT
THE COURT HEREBY ORDERS THAT:
- The application for judicial review is dismissed and no questions are certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4911-05
STYLE OF CAUSE: BRAULIO DE JESUS PORTILLO SANCHEZ, DELILA AMADAIL ORTIZ MEMBRENO v. MINISTER OF CITIZENSHIP AND IMMIGRATION
APPEARANCES:
Braulio De Jesus Portillo Sanchez
Delila Amadail Ortiz Membreno
Maria Burgos
SOLICITORS OF RECORD:
Braulio De Jesus Portillo Sanchez
Delila Amadail Ortiz Membreno
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent