Date: 20031120
Docket: IMM-6074-02
Citation: 2003 FC 1354
Between:
CARLOS OSCAR DI NASSO
MARTA PATRICIA FEBRER
VERONICA ROMINA DI NASSO
GASTON NICOLAS DI NASSO
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated October 24, 2002, wherein the Board found that the applicants are not Convention refugees or "persons in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The principal applicant, Carlos Oscar di Nasso, is accompanied by his three dependants: his wife Marta Patricia Febrer, his son Gaston aged 18, and his daughter Veronica aged 20.
[3] The applicants are citizens of Argentina and allege a well-founded fear of persecution and a risk of torture or cruel and unusual treatment or punishment at the hands of a group of organized criminals if they should return to Argentina.
[4] The applicants' problems began on April 5, 2000 when they were victims of a violent home invasion. Following this incident, the applicant's wife filed a police report and ten days later, the principal applicant was called to the police station in order to identify two of the assailants. The following day, a note was found informing the applicants that unless they retract the police report, the criminals would pursue the children. Concerned, the principal applicant requested security surveillance from the police. Surveillance was granted for a period of four days and was discontinued due to insufficient resources.
[5] After this incident, the applicants received constant threats by telephone. In addition, Gaston was assaulted and robbed on the street several times. No evidence suggests that the applicants reported these particular incidents to the police.
[6] On June 16, 2001 the applicant's place of work was robbed. A few days later, the applicant's car, parked on a downtown street, was broken into and the vandals stole the car stereo and left a threatening note in the destroyed car. Again, nothing suggests that either of these incidents were reported to the police.
[7] On June 23, 2001, Gaston narrowly escaped from an attempted kidnapping by some men in a truck. Although a police report was filed with respect to this incident, the attackers were not arrested.
[8] In July 2001, the applicants moved to Buenos Aires from Mendoza in order to get away from the threats, assaults and robberies. The applicants even considered leaving Argentina and in August 2001 they were denied visitor visas to Canada.
[9] Towards the end of August 2001, the applicants received a threatening note at their new home in Buenos Aires. The applicants left Argentina on September 29, 2001 and travelled through the United States of America until their arrival in Canada on October 19, 2001.
[10] The applicants' argument is twofold. First, the applicants submit that the Board misinterpreted the meaning of "cruel and unusual treatment or punishment". When evaluating whether an applicant is a "person in need of protection," the Board must consider whether credible and trustworthy evidence has been presented to establish that there is a reasonable chance that the applicants face a risk to life or a risk of "cruel and unusual punishment or treatment" (see Boateng v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 810 (T.D.) (QL)). A thorough reading of the file allows me to conclude that the Board did not misinterpret and unduly restrict the scope of the definition of "cruel and unusual treatment or punishment". The Board's evaluation of this aspect of the claim was reasonable, thorough and legally sound. The Board evaluated the applicants' claims, considered the evidence presented and concluded that the threats and the harm suffered by the applicants were not serious enough to meet the threshold of "cruel and unusual treatment or punishment."
[11] Second, the applicants submit that the Board erred in finding that state protection was available to them. According to the applicants, recourse to the police did not put an end to the threatening incidents and therefore, the police was unable to provide the protection that the applicants required. There is a general presumption that the state is able to provide protection to its citizens and there must be clear and convincing evidence of the state's inability to do so (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).
[12] The applicants argue that country reports confirm that the police in the applicants' province were found to be involved in criminal gangs. However, the applicants' complaints are largely with respect to the efficiency of police services, and a local failure to provide effective policing does not amount to a lack of state protection unless the evidence, including the documentary evidence of widespread police corruption, situates the individual applicants' experiences within the context of the police corruption (Zhuravlvev v. Canada (M.C.I.), [2000] 4 F.C. 3). In this case, upon reviewing the evidence and presuming that the Board considered all of the evidence that was presented to it, I find that the applicants have failed to situate themselves within the context of the documentary evidence.
[13] As the applicants' two submissions are unfounded, the application for judicial review is dismissed.
[14] The applicants proposed the following question for the purpose of certification:
Is it necessary for a claimant who claims to be a person in need of protection because of a fear of cruel and unusual treatment under s. 97 of the Immigration and Refugee Protection Act to have suffered physical harm in order to meet the threshold?
[15] I agree with the respondent that the question is not determinative of this application and, therefore, there is no certification (see Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4).
JUDGE
OTTAWA, ONTARIO
November 20, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6074-02
STYLE OF CAUSE: CARLOS OSCAR DI NASSO, MARTA PATRICIA FEBRER, VERONICA ROMINA DI NASSO, GASTON NICOLAS DI NASSO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 15, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 20, 2003
APPEARANCES:
Ms. Chantal Desloges FOR THE APPLICANTS
Mr. Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Green & Spiegel FOR THE APPLICANTS
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario