Federal Court Decisions

Date: 20050531

Docket: IMM-6007-04

Citation: 2005 FC 772

Ottawa, Ontario, this 31st day of May, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

MARCELA PAZ CORREA ROJAS

LUIS EDUARDO PACHECO BALMACEDA

and THYARE PAULINA PACHECO CORREA

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 June 16, 2004 ,wherein it was determined that the applicants were not Convention refugees nor persons in need of protection.

[2]    The applicants seek an order of certiorari quashing the decision of the Board that the applicants are not Convention refugees; and an order directing that the matter be returned to the Board for redetermination by a different Board member.

Background

[3]    The applicants, Marcela Paz Correa Rojas (the "principal applicant"), Luis Eduardo Pacheco Balmaceda and Thyare Paulina Pacheco Correa (her husband and daughter), are citizens of Chile. The principal applicant claimed a well-founded fear of persecution for reason of political opinion. Her husband and daughter claim a well-founded fear of persecution based upon their membership in a particular social group, members of the principal applicant's family.

[4]    The principal applicant began working as an administrative technician doing data entry at the Instituto De Nomalizacion Previsional ("INP") and Direccion Del Trabajo ("DDT") of the Chilean government, in October 1993. On December 30, 2002, she was told she was to report to the central branch of the INP, to start a new position in the personnel department of the DDT. She commenced work there on January 2, 2003.

[5]    On January 3, 2003, she requested a transfer to a location closer to her home but was advised it would take a year. She learned her job would entail entering personal information about government employees from personnel files. These specific files were kept under lock and key. She had access to sensitive personal information and was to advise of any criminal information or background found in the files. Her work was related to a crackdown on corruption. She dealt with information on theft, bribery, embezzlement and misappropriation of funds.

[6]    In February 2003, the principal applicant arrived at work to find her desk drawers destroyed, she was not able to turn on her computer, and her agenda and the back-up disks of the computer files were missing. She reported the incident to her boss, Mr. Vera.

[7]    On March 10, 2003, she was leaving work late and was grabbed by two men and held at knife point. She was hooded and driven away in a taxi. She was sexually fondled and told to leave her job. She was then left almost completely naked in a dangerous part of town. She was helped by an older woman, and then went to the police and reported the incident. The police took a report but believed it was a mugging, and told her to come back if anything serious happened.

[8]    On March 14, 2003, the principal applicant returned to work after calling in sick for a few days. She could not consider quitting as it would have been impossible to find new work. She told her boss about the attack but not about the warnings to quit her job.

[9]    On April 22, 2003, she received a threatening phone call, which threatened the lives of her husband and children if she did not quit her job. She reported the call to a different police station, and they treated it as she had received a threatening phone call.

[10]                        On April 23, 2003, she told her boss about the call. He provided her with a letter to take to the police to request police protection. She took the letter to the police, but no protection was provided.

[11]                        On April 24, 2003, the principal applicant began getting hang up calls at the office.

[12]                        On April 25, 2003, she called in sick to work and went to pick up her daughter after school. She was followed and stopped at knife point and the lives of she and her family were threatened again if she did not quit her job.

[13]                        She returned to work on April 28, 2003 and she decided she had to leave Chile. She requested a vacation and applied for Canadian visitors' visas for her and her family.

[14]                        On May 19, 2003, she received a threatening phone call. They temporarily moved to another house. On May 23, 2003, she again received a threatening phone call and she was threatened with death if she spoke with the police. She went to the police station and filed another report, not providing them with all the information out of fear.

[15]                        The applicants left Chile on May 25, 2003. The principal applicant alleged that she is in danger because she has information regarding wrongdoing and illegal dealings by high-level officials. The police are unwilling to provide her with protection.

Reasons of the Board

[16]                        The Board found that as the principal applicant was involved in data input and she is no longer an employee of the government of Chile, and further, given the passage of time since she has been outside of Chile, that there is no more than a mere possibility that she would face persecution were she now to return to Chile, for having inputted confidential information in the course of her duties some years ago in Chile.

[17]                        On the issue of state protection, the Board noted that according to the principal applicant, no one in Chile is aware of the link between the threats and her work. In each instance, after she was either attacked or threatened and went to the police, she did not provide them with any evidence regarding who it was if she knew, or information about the reason for the incidents. Despite this, she expected protection from the police.

[18]                        With one exception, the principal applicant also did not advise her employer about the connection between her work and the incidents.

[19]                        The Board noted that the documentary evidence indicated that Chile is a constitutional democracy with a democratically elected government and independent judiciary, then stated:

The panel notes that although the claimant had approached police in relation to the harm suffered by her, that the claimant was unable to identify the persons who caused this harm. She testified that she had no evidence. No one in Chile apart from the claimant and her husband at that time were aware that any of the threats were related to the claimant's employment. Given these factors, the panel finds that there is not clear and convincing evidence of the state's inability to protect the claimant from any harm at the hands of unknown agents of persecution.

[20]                        The Board noted that the principal applicant asserted that she could not relocate outside of Santiago as there is corruption everywhere in the country and the people she feared could find her in any part of Chile. The Board found that any threat of harm to the principal applicant was of a localized nature and related to her employment in the government. The activity is now remote in time and she is no longer a government employee. Further, the threat of harm would be further reduced if the principal applicant were to return to Chile and relocate outside of Santiago. The Board found that there were no linguistic, cultural or other impediments to the principal applicant's relocation outside of Santiago.

[21]                        For all the aforementioned reasons, the Board also found the applicants not to be persons in need of protection.

Issues

[22]                        The issues as framed by the applicants are:

1.          Is the Board's decision that the principal applicant did not have a well-founded fear of persecution in Chile based on irrelevant considerations and an erroneous finding of fact?

2.          Is the Board's decision that the principal applicant failed to provide clear and convincing proof of the inability of the state to protect her patently unreasonable?

3.          Did the Board err in concluding that the principal applicant had an internal flight alternative in Chile?

Applicants' Submissions

[23]                        Issue 1

The applicants submitted that the Board erred in finding that the there was no more than a mere possibility that the principal applicant would face persecution if she returned to Chile, in part because she was no longer an employee of the Chilean government. The applicants submitted that is irrelevant to whether she has a well-founded fear. She retains knowledge concerning the identity of government employees who committed crimes in Chile and therefore poses a threat to people who are under investigation.

[24]                        The applicants submitted that the Board further erred in concluding that the principal applicant would not face more than a mere possibility of persecution as she had been outside of the country for more than three years. In fact, the record showed that she had been persecuted in Chile between late February 2003 and May 2003, and at the time of the refugee hearing, she had only been outside of Chile for ten months.

[25]                        Issue 2

The applicants submitted that the principal applicant sought protection from the state on eight separate occasions between late February 2003 and May 2003 and the state was unable to prevent further assaults. The principal applicant's affidavit cited four separate occasions she asked her employer (the government) for protection:

1.          She told Mr. Vera that her desk had been burglarized and computer disks stolen. He stated he would take care of it.

2.          She told Mr. Vera that she had been abducted and mugged. He told her he thought it had been a random mugging and blamed her for not being more alert.

3.          She told Mr. Vera of the threatening phone calls she received on April 22, 2003. He replied dismissively that what was happening to her was "truly terrible".

4.          Mr. Vera gave her a letter wherein he requested that she receive police protection. Beyond that, no personal protection was provided whatsoever.

[26]                        The principal applicant also cited four occasions when she went to the police to no avail:

1.          She reported the abduction and sexual assault to the police. They made a report, issued her a receipt, and told her to contact them if anything "serious" happened.

2.          She reported to the police the threatening telephone calls she received on April 22, 2003. Once again, the police wrote down in a book that the principal applicant had been threatened, and told her to go home and not worry about it.

3.          She took Mr. Vera's letter to the police station. The police filed the letter and told her to call them if anything serious occurred.

4.          She reported to the police a threatening phone call that occurred on May 23, 2003. The police merely issued a receipt to the principal applicant and took no positive steps to protect her.

[27]                        The applicants submitted that the principal applicant had therefore provided clear and convincing proof of the state's inability to protect her from harm and the threat of harm. The Board's determination that the principal applicant failed to adduce such proof is therefore patently unreasonable.

[28]                        The applicants submitted that the principal applicant was told by Mr. Vera. a government employee, that it was necessary to maintain confidentiality with respect to all information that she saw.

[29]                        The applicants further submitted that the principal applicant was given instructions by the assailants that she was not to talk to the police or anyone about the assaults and/or threats. Her affidavit evidence was that she was told this when she was abducted and sexually assaulted on March 10, 2003, when she received the threatening phone call on May 19, 2003 and again on May 23, 2003.

[30]                        The applicants submitted that it is patently unreasonable to fault the principal applicant for failing to disclose to Mr. Vera or the police what had happened to her. If she had disclosed to the police the link between the assaults and threats, and her having knowledge of crimes committed by government employees, she would have been disclosing confidential information contrary to the state's directive. If she had disclosed to Mr. Vera and the police what the assailants had done, she would risk the wrath of the assailants who had threatened her.

[31]                        The applicants further submitted that in discussing the documentary evidence, the Board failed to consider the documentary evidence concerning whether or not the state protects women who have been sexually assaulted, which was relevant as the principal applicant had been sexually assaulted in Chile. In this case, the principal applicant was at risk of persecution due to gender. The tribunal was therefore required to enquire into the availability of state protection.

[32]                        The applicants further submitted that the US Department of State Report on Human Rights Practices in Chile - 2002, noted that discrimination and violence against women and children continue to be a problem, and there are no laws against sexual harassment, although it is generally recognized as a problem. Other documentary evidence also disclosed that, (i) the police have committed human rights abuses against Chilean women, (ii) in Chile, police authorities have committed crimes with impunity, and (iii) in Chile there is a serious possibility that persons convicted of a crime will remain at liberty.

[33]                        The Board's failure to consider relevant documentary evidence is a reviewable error.

[34]                        Issue 3

The principal applicant believed that agents of the state were persecuting her. For example, outside of the principal applicant's family, Mr. Vera was the only person who knew that she was picking up her daughter on April 25, 2003 but when she attended at her daughter's school, she was assaulted and threatened.

[35]                        The applicants submitted that the principal applicant had reasonable and probable grounds to believe that she was being persecuted by the state. Once a person has been persecuted by agents of the central government, fear of persecution at the hands of the same agents of persecution is well-founded throughout the country because it is unreasonable to infer that persecution is localized. The Board erred in finding that the threat to the principal applicant was localized to Santiago.

Respondent's Submissions

[36]                        Standard of Review

The respondent submitted that the issues raised by the applicants in this case are all factual. The Board's finding that adequate state protection is available is part of its conclusion that there is no serious possibility that the applicants will be persecuted. The appropriate standard of review is patent unreasonableness (see Chorney v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263 (QL)).

[37]                        The respondent submitted that the Board applied the correct standard as to the determination of state protection as set out by the Courts in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 and Villafranca v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 1189 (C.A.) in relation to the principal applicant's evidence. The Board considered her evidence that she reported certain incidents to both the police and to her boss at work, but also noted that she withheld information from the police. She did not disclose to the police that the attacks were related to her work. She failed to provide the authorities the information necessary to demonstrate any link between the incidents. Her failure to provide adequate information to the police impaired the ability of the police to conduct a proper investigation.

[38]                        The Board also considered the documentary evidence that indicated Chile is a constitutional democracy with a democratically elected government and an independent judiciary. In response to the applicants' assertion that the Board failed to take into account certain documentary evidence, the respondent submitted the following:

(a) Chile's poor human rights record with respect to the treatment of women

The US Department of State Report on Human Rights Practices in Chile - 2002 when read in its entirety, shows that while the discrimination and violence against women has been a concern, the Chilean government has addressed and continues to address the problem.

(b) Police committal of human rights abuses against Chilean women

The specific examples cited by the applicants of Chilean police using excessive force against women deal with political demonstrations and have no nexus to this case.

(c) Police commit crimes with impunity

While the August 30, 1999 IRB document indicated that Chilean police commit crimes with impunity, there is no indication of any crimes being committed against the applicants by Chilean police. Accordingly, there is no nexus between the assertion of police crime and the facts of this case. This does not provide sufficient reason for the applicants to not avail themselves of state protection. There was also evidence before the Board that the police are subject to the same criminal and civil action as the civilian population.

(d) Persons convicted of crimes remain at liberty

The document referred to by the applicants, and the examples cited therein, are not relevant to this case.

[39]                        The respondent submitted that in light of all the evidence, the applicants had not rebutted the presumption of state protection. The applicants' submissions impugning the Board's analysis of the evidence regarding state protection are, in effect, asking that this Court re-weigh the evidence.

[40]                        The respondent submitted that as a result of the Board's finding of adequate state protection, the applicants cannot satisfy the definition of a Convention refugee or a person in need of protection. As a result, any error made by the Board in its other findings are "of no consequence, because the Board's ultimate conclusion would not change if those errors had not been made (see Sarfraz v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1974 and Smith v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2190).

Relevant Statutory Provisions

[41]                        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. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.

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. (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.