Ottawa, Ontario, December 16, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Quijano claims he contributed to law enforcement efforts to fight drug trafficking in his country, Nicaragua, by providing information to the authorities. As a result, he says, his country is no longer able to provide him with protection from the traffickers and from corrupt police officers. A panel of the Immigration and Refugee Board, Refugee Protection Division, (the Board) disagreed. This is his application for judicial review of and an order setting aside that decision.
[2] For eight years, Mr. Quijano and his wife lived in the southern part of Nicaragua in Cardenas, near the border with Costa Rica. By the beginning of 2002, he avers, drug smuggling cartels were starting to traffic illegal drugs across the border. Eventually these cartels were able to establish an extensive network and operate freely by bribing corrupt local police, border immigration officials and army officers. Eventually the cartels became involved in smuggling arms.
[3] These developments led to an increased level of violence and related social problems in Cardenas. The applicant, a businessman, was actively involved in his community and claims he led efforts to demand that the police act decisively against the increased insecurity. He provided information to the police respecting the activities of drug dealers in the area but says he became disillusioned about their efforts as traffickers that were arrested bribed their way out of jail.
[4] The applicant says that his role as an informant resulted in acts of vandalism at his restaurant which scared away his customers. He also described incidents of harassment and threats. He reported these incidents to the police but their protection was not forthcoming. The applicant came to the conclusion that unless he left Nicaragua, the traffickers would definitely kill him. He came to Canada in July, 2004 and made his claim for protection.
[5] The Board determined that the applicant was neither a Convention refugee nor a person in need of protection based on a finding of adequate state protection. In particular, the Board noted
that governmental authorities in Nicaragua were making serious efforts to combat the drug trafficking cartels by carrying out arrests of major drug dealers, conducting joint anti-drug trafficking campaigns with the U.S. Drug Enforcement Agency, adopting measures aimed at reducing corruption within the Nicaraguan police, modernizing anti-drug trafficking legislation and using the Army and Navy in counter-narcotics operations. This finding was based on the Board member's review of the documentary evidence before him.
[6] The sole issue in these proceedings is whether the board erred by ignoring relevant evidence in reaching its conclusion that state protection was available to the applicant.
[7] A finding that state protection is available is a question of fact, to be determined on a standard of patent unreasonableness. In this case, the Board's findings of fact can only be interfered with if they are patently unreasonable, and not capable of being supported by any of the evidence before it.
[8] Once the findings of fact as to state protection are made, they must be assessed against the test set out in Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, i.e., do the facts constitute "clear and convincing confirmation of a state's inability to protect" so as to rebut the presumption. That is a question of mixed fact and law for which less deference should be shown the Board's decision.
[9] As a result, a number of recent decisions of this court have held that the overall standard of review for a finding of state protection should be one of reasonableness. Justice Danielle Tremblay-Lamer reached that conclusion after conducting a pragmatic and functional analysis in Chaves v. Canada(Minister of Citizenship and Immigration), (2005) 45 Imm. L.R. (3d) 58,2005 FC 193. I agree with her analysis and will apply the same standard.
Did the Board err in assessing state protection?
[10] The applicant submits that the Board ignored material evidence in reaching its determination that state protection was available. The applicant provided written, oral and documentary evidence in support of his claim that Nicaragua was unwilling, or, unable, to offer him meaningful protection. The Board did not take issue with his credibility. Thus, Mr Quijano contends, the Board could not simply dismiss his evidence and prefer the documentary evidence it relied upon.
[11] Save for one of the documents filed by the applicant, a Department of State Report on Human Rights, the documentary evidence preferred by the Board consists mainly of the International Narcotics Control Strategy Report on Nicaragua for 2002. Indeed the Board's reasons incorporate large portions of that report. This was acknowledged by the panel member in endnotes to his reasons. The applicant contends that the member included only those sections
of the report that supported his conclusions and omitted elements that seem to cast doubt on the ability of the government of Nicaragua to offer protection from drug trafficking and violence.
[12] The selective consideration of evidence by the Board has been found by this court to constitute a reviewable error: Polgari v. Canada(Minister of Citizenship and Immigration), (2001) 15 Imm. L.R. (3d) 263, 2001 FCT 626; Mohacsi v. Canada(Minister of Citizenship and Immigration), [2003] 4 F.C. 771, 2003 FCT. The Board need not refer to every piece of evidence, but evidence that directly contradicts its findings must be acknowledged: Ragunathan v. Canada(Minister of Employment and Immigration) (1993), 154 N.R. 229 (C.A.).
[13] The respondent submits that the Board is not required to refer to every piece of evidence before it, in order to discharge its duty to give reasons for its decision: Florea v. Canada(Minister of Employment and Immigration) [1993] F.C.J. No. 598 (F.C.A.) (QL). The tribunal is presumed to have considered and weighed all of the evidence before it unless there is clear and persuasive evidence to the contrary.
[14] That the Board member relied almost entirely on the International Narcotics Control Strategy Report in his reasons is not, in my view, fatal to the result. The report comprehensively reviews the situation which Nicaragua faces with respect to drug trafficking and the corruption of some of its police officers and the measures which are being taken to address those problems.
[15] Nor do I find that the Board member quoted selectively from the report. I have carefully read the passages which the applicant says were deliberately omitted and I cannot agree that they add any material information to those portions relied upon by the member. They do not change the picture which he described but, at best, add details to the more general statements that he cited.
[16] Having reviewed all of the documentary evidence on the record, I find that it was reasonably open to the Board to conclude that there was adequate state protection available to the applicant in Nicaragua.
[17] Individuals claiming refugee status must provide clear and convincing confirmation of their state's inability to protect: Ward, above. The protection afforded by the state need not be perfect: Canada(Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th) 334, 18 Imm. L. R. (2d) 130 (F.C.A.).
[18] The applicant submits that because the traffickers were in league with corrupt police officers, it is unreasonable to expect him to seek protection from the police agencies. But it is clear from the evidence, including the Human Rights Report, that the state is actively investigating and prosecuting police corruption and other criminal malfeasance. The problem appears to be local in nature rather than systemic.
[19] As Justice Judith Snider stated in Carillo v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No.1152 (QL), 2004 FC 944 at para.8 where purely local or rogue elements are at work and the state in question is democratic and offers protection to victims similarly situated to the claimant, it may be objectively reasonable to expect a claimant to seek protection there before claiming it abroad.
[20] In this case, the Board's reasons demonstrate a balanced and fair assessment of the evidence before it, and acknowledge that despite the efforts of the authorities, drug trafficking remains a serious problem in Nicaragua. It was reasonably open to the Board to conclude that despite the obstacles facing Nicaragua, the measures implemented by the government were providing the citizens of the country with adequate, if not perfect, protection from the drug trade.
[21] Accordingly, this application is dismissed. No questions of general importance were proposed and none will be certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No questions are certified.
" Richard G. Mosley "
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3104-05
STYLE OF CAUSE: OSCAR ALEJANDRO QUIJANO
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 8, 2005
APPEARANCES:
| Waikwa Wanyoike
|
|
| Robert Bafaro
|
SOLICITORS OF RECORD:
| WAIKWA WANYOIKE Barrister & Solicitor Toronto, Ontario
|
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|