JOSE ANDRES CORTEZ LUIS MARIO CORTEZ HERNANDEZ Applicants v. THE MINISTER OF CITIZENSHIP AND, 2013 FC 551

Date: 20130524 Docket: IMM-5333-12 Citation: 2013 FC 551 Ottawa , Ontario , May 24, 2013 PRESENT: The Honourable Mr. Justice de Montigny BETWEEN: JOSE ANDRES CORTEZ LUIS MARIO CORTEZ HERNANDEZ Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review pursuant to

section 72.1 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA or the Act] of a decision made by the Refugee Protection Division of the Immigration and Refugee Board (the panel), dated May 8, 2012, whereby it was decided that Jose Andres Cortez and his brother Luis Mario Cortez Hernandez (the Applicants), both citizens of El Salvador, were neither Convention refugees nor persons in need of protection pursuant to sections 96 and 97(1) of the Act. The determinative issue before the panel was the availability of state protection in El Salvador.

For the following reasons, I believe the intervention of this Court is warranted. Facts [ 2 ] The Applicants are brothers and citizens of El Salvador. Jose, the older brother, was born in 1976. Luis was born in 1982. Both Applicants have had problems with the Maras, a criminal and violent organized gang. [ 3 ] In 2009, members of the Maras attempted to recruit Luis. Luis was told that he had to pay a “renta” if he did not join the gang. Luis refused to join the gang and began paying the renta. He could not always come up with the money.

In February 2010, Luis was violently attacked by members of the Maras armed with a machete. His hands and face were severely injured. [ 4 ] Members of the Maras also approached Jose and demanded he pay a renta. Jose paid some money but he too had trouble coming up with the full amount. In November 2009, three members of the Maras assaulted Jose, who was robbed and shot in the chest. He managed to escape and spent ten days in the hospital.

[5] In November 2010, both Applicants were involved in an incident in front of a variety store with two members of the Maraswho demanded the renta and threatened to kill them. During the altercation that ensued, one of the Maras was injured and Jose wasblamed for the incident. Fearing that the Maras would kill him in retaliation, Jose went into hiding at his uncle’s home. [6] Jose left El Salvador with his other brother Nixon on January 25, 2011, but Nixon was returned to El Salvador by Americanauthorities. Luis then left El Salvador and caught up with Jose in the United States.

They arrived together in Canada on July 25, 2011,and made a refugee claim that day. The impugned decision [7] The panel took no issue with the Applicants’ credibility and considered that the risk they faced from the Maras was notgeneralized. The panel found, however, that the Applicants had not rebutted the presumption of state protection. [8] The panel noted that the Applicants admitted to having made no attempt whatsoever to obtain police protection despite theseriousness of the attacks.

The panel explained that El Salvador is a democratic country presumed capable of protecting its citizens, andthat claimants who do not seek police protection must demonstrate with clear and convincing evidence why they did not do so (Canada(Attorney General) v Ward, (SCC), [1993] 2 SCR 689, [1993] SCJ No 74 [Ward]). The panel noted that the Applicantsbelieved the police were in cahoots with the Maras, and that they had learned that the Maras had killed a neighbour who had refused topay the renta after he had gone to the police.

The panel also recognized that there is a problem of police corruption in El Salvador, andthat there are enforcement issues with regards to gang-related crimes. The panel noted, however, but without referring to specificdocumentary evidence, that El Salvador has been fighting gangs and gang violence since 2000 through a variety of measures, includinglegislation that makes it illegal to be part of a gang.

Considering the seriousness of the attacks, the panel found that it was reasonable toexpect the Applicants to seek some form of protection in El Salvador and that fear of retaliation was not a reasonable explanation forfailing to seek police protection. Issues [9] This application raises only one issue, that is, whether the panel’s state protection finding is reasonable. Analysis [10] The parties made no submissions with regard to the standard of review.

It is settled law, however, that findings on stateprotection are to be reviewed on a standard of reasonableness: Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA171 at para 38, 282 DLR (4th) 413 [Hinzman].

In applying the reasonableness standard, a reviewing court must consider “the existenceof justification, transparency and intelligibility within the decision-making process” as well as “whether the decision falls within a rangeof possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para47, [2008] 1 SCR 190. [11] In their memorandum, the Applicants (who were not represented by counsel at the time) argued that the panel failed toanalyze the issue of generalized risk and failed to conduct an individualized inquiry.

Yet, it is clear from the panel’s reasons that itaccepted that the Applicants did not fall into the category of persons who were not in need of protection because the risks they fearedwould be faced generally by other individuals in or from that country.

At the hearing, counsel for the Applicants conceded thatgeneralized risk was not an issue. [12] The Applicants argue that the panel failed to consider their explanation for not going to the police, that is, that they believedthat police were in cahoots with the Maras, that their father had told them going to the police would further jeopardize their security, andthat they knew of a neighbour who was killed by the Maras after he had made a denunciation to the police. [13] The Applicants further argue that the panel failed to consider documentary evidence that shows that police protection in ElSalvador is inadequate.

The Applicants cite only one document, the U.S. Department of State Report on El Salvador for 2011, whichspeaks of “widespread corruption, particularly in the judicial system; weaknesses in the judiciary and the security forces that led to ahigh level of impunity; and violence and discrimination against women”. While this Report was published on May 24, 2012, andtherefore some weeks after the RPD decision, the 2010 U.S. Department of State Report on El Salvador is substantially to the sameeffect. [14] It is trite law that the onus was on the Applicants to rebut the presumption of state protection.

Absent a complete breakdownof the state, a state is presumed to be capable of protecting its nationals. To rebut this presumption, an applicant must produce clear and

convincing confirmation of a state’s inability to protect. State protection need not necessarily be perfect, but rather adequate. The moredemocratic the state, the more an applicant must have done to exhaust all avenues of protection available.

Only in exceptionalcircumstances will an applicant be exempt from seeking state protection: see, inter alia, Ward at 709, 724-725; Hinzman at paras 41, 43-44; Mendoza v Canada (Minister of Citizenship and Immigration), 2010 CF 119 at para 33, 88 Imm LR (3d) 81; Carillo v Canada(Minister of Citizenship and Immigration), 2008 FCA 94 at paras 18, 30, 69 Imm LR (3d) 309. [15] That being said, there will be situations where an applicant’s failure to approach the state will not be fatal, essentially in thosesituations where state protection might not reasonably have been forthcoming.

As the Supreme Court stated in Ward at 724, “…it wouldseem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protectionof a state, merely to demonstrate that ineffectiveness”. [16] In other words, a contextual approach is required when assessing the availability of state protection and whether an applicanthas rebutted the presumption of state protection.

As the Supreme Court recognized in Ward, at 724-725, clear and convincingconfirmation of a state’s inability to protect may sometimes be established through the testimony of similarly situated individuals letdown by the state protection arrangement or through the applicant’s testimony of past personal incidents in which state protection did notmaterialize. [17] In the case at bar, the panel did consider the Applicants’ explanations for failing to seek police protection.

At paragraph 15 ofits reasons, the panel notes that the Applicants believe that police officers are in cahoots with the gangs and that they feared adenunciation would further jeopardize their security. This explanation, in and of itself, would clearly not be sufficient, as subjective fearalone is not enough to rebut the presumption of state protection: see, for example, Paguada v Canada (Minister of Citizenship andImmigration), 2009 FC 351, [2009] FCJ No 401. [18] At paragraph 16, the panel also noted that Luis knew of someone in a similar situation who was killed by the Maras afterhaving gone to the police.

While the Applicants did not provide details or independent evidence about the incident involving this otherindividual, the panel did find the Applicants’ entire testimony credible.

In such circumstances, it was no answer simply to comment thatthis is the view not only of the Applicants but also probably of many people from El Salvador with respect to the police. [19] Finally, the panel referred to the documentary evidence (without identifying any particular document) and noted that ElSalvador has been fighting gangs and gang violence for years, that there have been, at times, unintended consequences such as violationsof human rights and prison over-crowding, that enforcement of the new anti-gang law is far from acceptable, and that huge resources arededicated to this purpose.

The panel, however, somehow trivialized the challenges faced by the Salvadorian law enforcement authoritieswhen it stated, at paragraph 21: There may be criminal connections, indeed there probably are criminal connections, in every police force in the world. Fear of retaliationby perpetrators is, similarly, a fear on the part of every victim who must report and complain and sometimes testify against theirperpetrators. This is a huge problem in every judicial system, including in Canada.

This is not a reason which justifies grantinginternational refugee protection. [20] Such a blanket statement, in my view, belittles and seriously misrepresents some of the very credible evidence found in theNational Documentation Package on El Salvador. A careful reading of the document entitled No Place to Hide: Gang, State andClandestine Violence in El Salvador from the International Human Rights Clinic of the Harvard Law School (2010) shows, in particular,that people who refuse to join the Maras and to pay the renta are targeted and particularly at risk.

Far from being an improvement, itappears that the witness protection program offers no effective protection to witnesses after the trial is over, and may even put witnessesmore at risk because the authorities, in relying almost exclusively on witnesses in court to obtain convictions, are effectively sending themessage to gang members that they should get rid of these witnesses if they want to avoid being sent to jail.

In light of that evidence, thepanel’s statement that “enforcement of that law is not at high levels yet” appears to be, at best, an understatement. [21] The role of this Court, of course, is neither to reweigh the evidence nor to replace the decision with that which the Courtwould have made in the first place. It is also trite law that the panel does not have to refer to each document on the record, and that it ispresumed to have considered all the evidence. The panel had an obligation, however, to specifically mention and analyze the evidencethat seems to contradict its findings.

As the Federal Court of Appeal stated in Cepeda-Gutierrez v Canada (Minister of Citizenship andImmigration) (1998), (FC), 157 FTR 35, 83 ACWS (3d) 264 at para 17: …the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court maybe 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 explanationincreases with the relevance of the evidence in question to the disputed facts.

In the absence of any explicit reference to or analysis of the extensive documentation contained in the National Documentation Package, it is impossible to determine whether the assessment of the evidence on state protection by the panel is reasonable. [ 22 ] For all of these reasons, I am therefore unable to find that the Board’s conclusion, according to which the Applicant had failed to rebut the presumption of state protection, is reasonable. Accordingly, the decision must be quashed and the matter remitted to the Immigration and Refugee Board for re-determination by a differently constituted panel.

No question is certified. JUDGMENT THIS COURT’S JUDGMENT is that this application for judicial review is granted. No question is certified. "Yves de Montigny" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5333-12 STYLE OF CAUSE: JOSE ANDRES CORTEZ ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, ON DATE OF HEARING: March 12, 2013 REASONS FOR JUDGMENT AND JUDGMENT: de MONTIGNY J. DATED: May 24, 2013 APPEARANCES :

Sandra Lozano FOR THE APPLICANTS Ildikó Erdei FOR THE RESPONDENT SOLICITORS OF RECORD : Lozano Law Office Woodbridge , ON FOR THE APPLICANTS William F. Pentney Deputy Attorney General of Canada Toronto , ON FOR THE RESPONDENT