Federal Court Decisions

Date: 20031215

Docket: IMM-1114-03

Citation: 2003 FC 1465

Ottawa, Ontario, this 15^th day of December, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                                CESAR ARTURO ZOMETA MEDINA

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                      REASONS FOR JUDGMENT AND JUDGMENT

[1]                 Cesar Arturo Zometa Medina is a young man from El Salvador. He alleges that he was repeatedly harassed and assaulted by a large and violent gang called Mara Salvatrucha ("MS") who wished him to join their ranks. He says that he came to Canada out of fear that he would be constantly subjected to cruel and unusual punishment in El Salvador: Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 97(1)(b) (see Annex).

[2]                 A panel of the Immigration and Refugee Board considered Mr. Medina's claim and concluded that he was not in need of Canada's protection. In particular, the Board found that Mr. Medina had failed to seek the protection available in his home state. He argues that the Board was mistaken when it concluded that state protection was available in El Salvador. He asks me to overturn the Board's decision and order another panel to re-consider his claim.

[3]                 I cannot find any error on the Board's part that would warrant the Court's intervention. I must, therefore, dismiss this application for judicial review.

Issue

[4]                 There is a single issue in this case: Did the Board err when it concluded that state protection was available to Mr. Medina?

[5]                 Mr. Medina claimed that MS members harassed him over a five-year period, from 1996 to 2001, always trying to get him to participate in the gang's unlawful activities. In 2001, he was threatened with something drastic if he continued to refuse. Soon thereafter, he was beaten and robbed twice. He went to visit his cousins in California, spent some time in custody in the United States and then made his way to British Columbia, where his brother lives.

[6]                 Mr. Medina never went to the police to complain about mistreatment by the MS gang. He said that he did not do so because the police could not protect him and it probably would have made matters worse.

[7]                 Applicants for refugee protection must show that state protection was not available to them, or that it would be unreasonable in the circumstances to expect them to have sought it out. States are presumed to be in a position to protect their citizens, unless applicants prove otherwise: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The question, then, is whether Mr. Medina's evidence should have persuaded the Board that state protection was not available to him, or that it was unreasonable to expect him to have tried to obtain it under the circumstances.

[8]                 Mr. Medina told the Board that police officers are quite ineffective in El Salvador. Even when they do make arrests, they usually release suspects soon thereafter. He said that the MS threatened him with further harm if he went to the police.

[9]                 The Board referred to documentary evidence that supported some of Mr. Medina's testimony. There are real problems with crime in El Salvador and the police have a hard time responding to it. Indeed, criminal activity on the part of police officers themselves seems to be a serious problem. But the Board also consulted documents and video evidence showing police arrests of gang members, and cited further measures that were being undertaken to provide greater protection to witnesses and victims of gang violence. According to Mr. Medina's testimony, the gang was worried about being reported to the police. The Board felt this indicated that the police apparently do respond when a citizen makes a complaint. Still, the Board accepted that there were actually "very few reports that describe police protection that is available to private citizens in El Salvador."

[10]            On balance, however, the Board concluded that Mr. Medina should have tried to obtain protection from the authorities because there was at least some assistance available in El Salvador. It said it believed that "if he returns to El Salvador, [he] has a responsibility, if he is again threatened by gang members or other criminals, to report these incidents to the police and that protection could be obtained."

[11]            Mr. Medina provided no evidence that other persons in his situation sought and failed to obtain state protection. Nor did he show that he had tried and failed to get state protection. In this situation, "the claim should fail, as nations should be presumed capable of protecting their citizens", Ward, above, at p. 725.

[12]            I can find no error in the manner in which the Board analyzed the legal issue or the evidence before it. Accordingly, I must dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.

                                                                        JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is dismissed.

2.          No question of general importance is stated.

                                                                                                                                      "James W. O'Reilly"         

                                                                                                                                                               Judge                   

                                                                            ANNEX

Immigration and Refugee Protection Act, S.C. 2001, c. 27 Person in need of protection 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                                                   ... (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.		Loi sur l'immigration et la protection des réfugiés, 2001, ch. 27 Personne à protéger 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_:                                                 [...] 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

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-1114-03

STYLE OF CAUSE:                           CESAR ARTURO ZOMETA MEDINA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Vancouver, British Columbia

DATE OF HEARING:                       December 2, 20033

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                                December 15, 2003

APPEARANCES:

SOLICITORS OF RECORD: