PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This matter involves the determination of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) that adequate, if not perfect, state protection exists in Bolivia. Mr. Garcia claims that the RPD erred in its conclusions regarding credibility and state protection. He requests that its decision be set aside. I have concluded that the decision should stand.
I. Background
[2] Mr. Garcia, a citizen of Bolivia, authored a report on the feasibility of nationalizing natural gas in that country. He recommended nationalization and outlined the economic benefits that could accrue to Bolivia as a result of its vast natural gas resources. After submitting his report, he claims that some state officials demanded that he change its content.
[3] Distilled, the facts, as alleged by Mr. Garcia, follow. In May of 2004, he received several threatening telephone calls at his office. Additionally, in his absence, two men attended at his office and told his secretary that it was in his best interest to change the report. Mr. Garcia reported these matters to the police on three separate occasions. Around the same time, various marches occurred in relation to the gas issue. The police violently repressed the marchers. In July, both Mr. Garcia and his employer received a further telephone call regarding the report. The caller claimed that the report contained faulty research and was causing the government inconvenience.
[4] In August of 2004, Mr. Garcia and his girlfriend were intercepted by a black "Blazer with yellow government licence plates". Three armed men exited the vehicle and beat him. The men left, but told him that he would not be so lucky the next time. His girlfriend, who had escaped, returned and took him to a clinic. Mr. Garcia again went to the police who said he could file a report. However, they could do nothing.
[5] He immediately fled to Potosi, where he stayed with his aunt. When he contacted his parents, they told him that two men, identifying themselves as government agents, had come looking for him and said that they were not playing games and would return. Mr. Garcia left Bolivia and came to Canada. Since his arrival in Canada, two government agents allegedly attended his mother's home and inquired as to his whereabouts.
II. The Decision
[6] The RPD considered Mr. Garcia's oral and written submissions, his counsel's submissions and the documentary evidence. It concluded that Mr. Garcia had not rebutted the presumption of state protection. It noted that Mr. Garcia's oral evidence contained significant facts that had been omitted from his personal information form (PIF). It was not satisfied with the responses that he provided when confronted with the omissions. The RPD observed that Mr. Garcia did not attempt to obtain assistance from state institutions other than the police. It preferred the impartial documentary evidence over Mr. Garcia's oral and written testimony.
III. Issues
[7] Mr. Garcia abandoned the "guideline 7" argument, contained in his written submission, prior to and again during the hearing of this application. He identified two issues for determination:
(a) whether the RPD erred in its credibility findings, and
(b) whether the RPD erred in concluding that state protection is available.
IV. The Standard of Review
[8] The applicable standard of review regarding credibility, a finding of fact, is that of patent unreasonableness. In relation to state protection, I adopt the pragmatic and functional analysis of my colleague, Madam Justice DaniPle Tremblay-Lamer in Chaves v. Canada(Minister of Citizenship and Immigration), 2005 FC 193. Accordingly, the applicable standard of review is that of reasonableness.
V. Analysis
A. Credibility
[9] Mr. Garcia submits that, in the absence of an express negative credibility finding, the RPD is taken to have believed the evidence before it. Thus, it accepted that he wrote a report on the nationalization of Bolivia's natural gas and made a number of unsuccessful attempts to seek state protection. It made no adverse credibility findings as to any of the supporting evidence submitted by him.
[10] That position is not totally accurate. The RPD identified two factors relating to credibility. It noted that there was a significant omission from Mr. Garcia's PIF and it noted inconsistencies in his evidence. The jurisprudence in this area is well established. PIF omissions and inconsistencies may constitute a basis for an adverse credibility finding: Sanchez v. Canada(Minister of Citizenship and Immigration), [2000] FCJ No. 536. The RPD's finding in relation to the inconsistencies was clear and unequivocal. It considered Mr. Garcia's explanation but ultimately found it unpersuasive. It provided reasons for its finding. It was not patently unreasonable for the RPD, after confronting Mr. Garcia with the inconsistency regarding the men who attended his parents' home and finding his responses evasive, to conclude that his explanation was insufficient.
[11] Further, the omission from the PIF regarding the expressed reason for the beating was material to the claim. Therefore, it was not patently unreasonable for the RPD to find that Mr. Garcia's credibility was impugned insofar as it related to the identity of the alleged attackers.
[12] Regarding the failure of the RPD to refer to the letter from Mr. Garcia's employer and the licence plates of the vehicle, it is clear from its reasons, when read in totality, that the RPD did not accept Mr. Garcia's claim that the state was involved in his "persecution". Its finding in this respect is not patently unreasonable.
[13] Mr. Garcia's arguments regarding credibility must fail. While it was open to the RPD to conclude otherwise, it was equally open to it to legitimately arrive at the conclusions that it did. It is not the court's function to interfere in this respect, even if it might have regarded the matter differently. In the absence of a determination that the findings were patently unreasonable, which is not the case here, the court's intervention is not warranted.
B. State Protection
[14] Mr. Garcia contends that the RPD erred in preferring the documentary evidence and discounting his testimony. He argues that he made reasonable efforts to seek the protection of the state when he went to the police on four different occasions and received no assistance. Moreover, according to Mr. Garcia, the RPD engaged in a selective reading of the documentary evidence and failed to refer to the fact that corruption and inefficiency in the judicial system remain major problems in Bolivia.
[15] Given my determination that the credibility findings of the RPD are not patently unreasonable, Mr. Garcia's argument regarding state protection is seriously compromised. This is because the RPD concluded that the state was not involved in the alleged persecutory acts against him.
[16] The RPD reviewed the country conditions reports and referred to both the positive and negative aspects in regard to Bolivia's capacity to protect its citizens. It noted that the country is a constitutional, multiparty democracy with an elected president and a bicameral legislature. The government is comprised of separate executive, legislative and judicial branches of government with an independent attorney general. The National Police Force is primarily responsible for internal security, but military forces are called upon to assist in critical situations. Active measures to improve and correct deficiencies (inefficiency, corruption and intimidation by drug traffickers) regarding the police and judiciary had been taken. A Human Rights Ombudsman, chosen by Congress, is charged with providing oversight for the defence, promotion and protection of human rights, and to specifically defend citizens against abuses by the government.
[17] The RPD also noted that the documentary evidence indicates that there were no reported cases of politically motivated kidnapping or murder by government agents. Freedom of speech is generally respected and is constitutionally protected. There had been no reports of assassination or kidnapping related to the "Gas Wars" since October of 2003. The evidence of police misconduct related to mass protests and there was no evidence indicating that the state retaliated against individuals. Events regarding the "Gas War", in August of 2004, ended peacefully following negotiations and without incidents of violence. The President refused to use force to quell protests during a general strike in January of 2005.
[18] In the end, the RPD found that there is adequate, if not perfect, state protection in Bolivia and that Mr. Garcia is obliged to seek its protection before seeking international protection. It concluded that he had the knowledge and ability to avail himself of state protection from agencies other than the police in his locality and that he did not exhaust all reasonable courses of action. That determination, on the evidence before it, was reasonably open to the RPD for the reasons it gave.
[19] The application for judicial review will be dismissed. Counsel did not suggest a question for certification and none arises.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT the application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4319-05
STYLE OF CAUSE: JUAN MANUEL CAMACHO GARCIA
v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2006
AND JUDGMENT: Layden-Stevenson J.
APPEARANCES:
| Mr. Byron Thomas
|
|
| Ms. Angela Marinos |
SOLICITORS OF RECORD:
| Byron Thomas Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |