Date: 20060811
Docket: IMM-6203-05
Citation: 2006 FC 973
Ottawa, Ontario, August 11, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ANDREA ANGELINA DEL
CARMEN BARRERA JARA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
THE APPLICATION
[1]
This is an
application for judicial review, made pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27, of a decision (Decision) of
the Refugee Protection Division of the Immigration Refugee Board (Board) dated
September 1, 2005, wherein the Board determined that the Applicant was not a
Convention refugee or a person in need of protection.
BACKGROUND
[2]
The Applicant is a
citizen of Chile. She says she endured emotional,
psychological and, at times, physical abuse at the hands of her ex-fiancé.
[3]
As a result of the
abuse, the Applicant came to Canada in August 2004 “with the hope,” as she
expressed it in her Personal Information Form (PIF), that “if I was away for
sometime, he would lose interest in me and stop persecuting me.” The Applicant
stayed in Canada for approximately a month and a half.
[4]
After the Applicant
returned to Chile, she says the abuse continued. She said
in her PIF that “My parents and I decided that I should return to Canada.”
[5]
The Applicant
returned to Canada on December 15, 2004. She says that she came with the “same
objective” as on her first visit, namely, “to relax, to try and forget a bit.”
The Applicant says she “didn’t know that [she] could make a refugee claim” but
“found out about it after a week of having arrived here.” She got the idea of
making a refugee claim from her parents’ friends with whom she was staying.
[6]
The Applicant claimed
refugee status in January, 2005.
DECISION
UNDER REVIEW
[7]
The Board rejected
the Applicant’s claim. Although the Board accepted that she had been abused by
her ex-fiancé, it did not accept as reasonable the Applicant’s explanation that
she made no effort to seek state protection in Chile “on account of the conservative
nature of the country and the macho attitude of society in general and the
police in particular.” The Board concluded that the Applicant had “not
discharged the onus of showing clear and convincing proof of [Chile’s] inability or unwillingness to protect [her].”
ISSUES
[8]
The Applicant submits
that the Board erred in its state protection analysis in two ways: first, by ignoring
documentary evidence “contrary to the position on country conditions adopted by
the Board”; and, secondly, by applying the “incorrect test”, i.e., “whether the
state was making serious efforts” rather than “whether the protection afforded
to women was adequate.”
ANALYSIS
Basic
Principles
[9]
As the Board stated
at the outset of its reasons, “states are presumed to be capable of protecting
their citizens” (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 725). That
assumption operates “[a]bsent a situation of complete breakdown of state
apparatus,” and, accordingly, “clear and convincing confirmation of a state’s
inability to protect must be provided” (Ward, pages 724 to 725).
[10]
Also in Ward,
the Supreme Court of Canada held that a refugee claimant must approach his or
her home state for protection if such protection “might reasonably have been
forthcoming” (page 724). The failure to do so in such circumstances is fatal to
a refugee claim.
[11]
Torres v. Canada
(Minister of Citizenship and Immigration), 2005 FC 660 at paragraph 10 is authority for the following
proposition:
Absent
a complete breakdown of state apparatus … the claimant must do more than simply
show that she went to see some members of the police force and that her efforts
were unsuccessful. The more democratic the state's institutions, the more the
claimant must have done to exhaust all the courses of action open to her.
[12]
Similarly, as stated
by the Federal Court of Appeal in Canada (Minister of Employment and Immigration)
v. Villafranca, (1992),
99 D.L.R. (4th) 334 at page 337: “… it is not enough for a claimant
merely to show that his government has not always been effective at protecting
persons in his particular situation.”
[13]
Generally speaking,
it will be difficult to fault the Board’s conclusion that a claimant has not
rebutted the availability of state protection where the claimant has made “no
effort whatsoever to seek protection”: Skelly v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1244 at paragraph 51).
Documentary Evidence
[14]
In the context of
these basic principles, the Applicant points to documentary evidence allegedly
ignored by the Board which, in the Applicant’s submission, “reveals that the
actual protection is inadequate.”
[15]
The Board acknowledged
that “there are serious problems affecting women in Chile in domestic violence cases.” It also acknowledged that “Chile’s law governing domestic violence, which is the 1994
Domestic Violence Law, prohibits the police from making an arrest for a
domestic violence offence unless they directly observe a person committing a
violent act.”
[16]
The Board nevertheless
concluded that it was “reasonable that the claimant ought to have made serious
efforts to report the threats against her to the authorities before seeking
international protection.” The Board expressed its conclusion in the following
terms:
…
the documentary evidence indicates that Chilean law provides that all persons
affected by domestic violence can lodge a complaint with the Carabineros,
who are the uniformed police, or the investigative police who are the plain
clothes police. The police then must transfer the complaint to the Civil Court.
Cases
involving serious injuries, attempted murder, rape or threats, are then
transferred to the Criminal Court in the locality where the alleged incident
took place.
Further
precautionary measures are available, and the aggressor can be prohibited from
entering the victim’s home or work place.
An
order to enforce a precautionary measure on failure to comply could result in a
jail sentence for a period of up to five years. I am referring to the Request
for Information CHL36926.
…
…
although the type of protection afforded by Chile is not perfect, the country
is making serious efforts to protect the women of that country, and case law
also says that state protection does not have to be perfect. [Canada (Minister of Employment and Immigration)
v. Villafranca, (1992),
18 IMM. L.R. (2d) 130 (F.C.A.).][Footnotes omitted.]
[17]
The Board is entitled
to prefer some documentary evidence over other documentary evidence. As well,
the Board need not refer in its reasons to every piece of evidence before it:
see Gomez v. Canada (Minister of Citizenship and Immigration), 2006 FC
406 at paragraph 16. This is not, in my view, a case in which the Board failed
to discuss “contradictory” evidence so as to found a conclusion that the Board
ignored or misapprehended the evidence before it.
[18]
In my view, the basic
issue in this case is whether, given the fact that the Applicant did not even
attempt to seek state protection, she presented clear and convincing evidence
that, had she done so, there was no reasonable expectation she would receive it
because, in Chile, the state is unable or unwilling to protect persons in the
Applicant’s position. As the Supreme Court of Canada pointed out in Ward,
at pages 723 to 725:
Does the plaintiff first have to seek the protection of the
state, when he is claiming under the "unwilling" branch in cases of
state inability to protect? The Immigration Appeal Board has found that,
where there is no proof of state complicity, the mere appearance of state
ineffectiveness will not suffice to ground a claim. As Professor
Hathaway, supra, puts it, at p. 130:
Obviously, there cannot be said to be a failure of state
protection where a government has not been given an opportunity to respond to a
form of harm in circumstances where protection might reasonably have been
forthcoming:
A refugee may
establish a well-founded fear of persecution when the official authorities are
not persecuting him if they refuse or are unable to offer him adequate
protection from his persecutors ... however, he must show that he sought their
protection when he is convinced, as he is in the case at bar, that the official
authorities -- when accessible -- had no involvement -- direct or indirect,
official or unofficial -- in the persecution against him. (José Maria da
Silva Moreira, Immigration Appeal Board Decision T86-10370, April 8, 1987,
at 4, per V. Fatsis.)
This is not true in all cases. Most states would
be willing to attempt to protect when an objective assessment established that
they are not able to do this effectively. Moreover, it would seem to
defeat the purpose of international protection if a claimant would be required
to risk his or her life seeking ineffective protection of a state, merely to
demonstrate that ineffectiveness.
Like Hathaway, I prefer to formulate this aspect of the
test for fear of persecution as follows: only in situations in which
state protection “might reasonably have been forthcoming”, will the claimant's
failure to approach the state for protection defeat his claim. Put
another way, the claimant will not meet the definition of “Convention refugee”
where it is objectively unreasonable for the claimant not to have sought the
protection of his home authorities; otherwise, the claimant need not literally
approach the state.
The issue that arises, then, is how, in a practical sense,
a claimant makes proof of a state’s inability to protect its nationals as well
as the reasonable nature of the claimant’s refusal actually to seek out this
protection. On the facts of this case, proof on this point was unnecessary, as
representatives of the state authorities conceded their inability to protect
Ward. Where such an admission is not available, however, clear and
convincing confirmation of a state's inability to protect must be provided. For
example, a claimant might advance testimony of similarly situated individuals
let down by the state protection arrangement or the claimant's testimony of
past personal incidents in which state protection did not
materialize. Absent some evidence, the claim should fail, as nations
should be presumed capable of protecting their citizens. Security of
nationals is, after all, the essence of sovereignty. Absent a
situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it
should be assumed that the state is capable of protecting a claimant.
[19]
The Applicant points
to the following as being clear and convincing evidence that the Board failed
to consider that Chile does not protect people in her position:
1.
The summary provided
to the Board that appears at page 49B of the Tribunal Record and, in
particular, the following passage:
In
January 2001, Delpiano reported that the ability of the Chilean state to handle
the volume of domestic violence cases was “woefully inadequate” and that the
social services in place were only adequate to address the needs of about 5 per
cent of domestic violence victims (Santiago Times 21 Jan. 2001). The
Chilean National Women’s Service (SERNAM) hopes to establish by the end of
2001, care centres that would offer services to victims in all of Chile’s regional capitals with more centres in the provinces to
follow (ibid.). The centres would be managed by municipal governments and
private companies (ibid.). Delpiano reported that the creation of the national
network of care centres would begin in March 2001 (Boletin Oct.-Dec
2000, 23). No reports as to whether the network has begun could be found among
the sources consulted.
2.
The specific case
mentioned in the same document at page 49A of the Tribunal Record:
The
Santiago Times report states that Marcela Valdes, a former Carabineros
lieutenant, filed a complaint against her abusive spouse, Claudio Vasquez
Cardinalli, a Carabineros captain, before the Inter-American Human Rights
Commission in Costa Rica after exhausting her options for prosecution in Chile
(15 Nov. 2000). Valdes first sought to launch a police process against Vasquez
in May 1999 (ibid.). The internal review of the case concluded in January 2000
that Valdes’ “liberal behavior had provoked conflicts with her husband” and
therefore she and a male friend would be sentenced to 10 days in prison, while
Vasquez would be sentenced to 4 days (ibid.). Valdes sought to have the ruling
reviewed and overturned by the Ninth Zone Valdivia Carabineros, but this
authority ratified the decision of the lower tribunal (ibid.). Valdes then took
her case before the Carabineros Order and Security Directorate for appeal but
the Directorate increased her sentence to 15 days in prison (ibid.). She
appealed the decision once again but this time before the Valdivia Court of
Appeals; while the appeal was being heard, Valdes was fired by the Carabineros
for violating “ethical and moral standards” and the appeal court determined
that in light of “her actions as contrary to Carabineros behavioral standards,”
her sentenced would be only on procedural matters (ibid.). She then approached
the institute for Women, a Chilean NGO, which helped her lodge her case with
the Inter-Amercian (sic) Human Rights Commission in October 2000
(ibid.). No corroborating information, including the outcome of this case,
could be found among the sources consulted by the Research Directorate.
3.
Section 5 of the U.S.
Department of State Report that appears at page 60 of the Tribunal Record:
Women
Domestic
violence against women was a serious problem. A 2001 University of Chile study, the most current available, indicated that more than
half the women in the country had experienced violence in their relationship
with their partner. The study estimated that 34 percent of women had been
subjected to physical violence (of which 15 percent was sexual violence), and
another 16 percent had suffered psychological violence.
The
courts may order counseling for those involved in intra-family violence. At year’s
end, there were 17 government and 8 private centers to attend to victims of
intra-family violence. An awareness program to prevent intra-family violence in
the country’s 13 regions reached 3,000 social workers, 2,000 families, and
2,500 young adults. During the year, the National Women’s Service (SERNAM)
together with other NGOs conducted courses on the legal, medical, and
psychological aspects of domestic violence for police officers and judicial and
municipal authorities.
Rape
is a criminal offense. The age for statutory rape was raised from 12 to 14. The
law protects the privacy and safety of the person making the charge. SERNAM’s
latest statistics indicated that 859 cases of rape were reported to the police
in the first half of 2003. This number did not include other forms of sexual
violence or abuse. Experts believed that a majority of rape cases went
unreported.
The
Ministry of Justice and the Investigative Police had several offices
specifically to provide counseling and assistance in rape cases. A number of
NGOs, such as La Morada Corporation for Women, provided counseling for victims
of rape.
Adult
prostitution is legal; however, police often detained prostitutes (usually as a
result of complaints by residents of the neighborhood) on charges of “offenses
against morality,” which could lead to a $70 (50,000 pesos) fine or 5 days in
prison. Procurement or pandering is illegal and punishable under law. Including
a minor (below age 18) to have sex in exchange for money or other favors is
illegal; punishment ranges from 3 to 20 years in prison and a $1,000 (612,000
pesos) fine depending on the age of the minor.
Laws
passed in December 2003 specifically targeted child pornography and cyberporn,
substantially increasing penalties for these activities. The Investigations
Police has a Sexual Crimes Brigade charged with investigating and prosecuting
pedophilia and child pornography cases.
There
were no laws against sexual harassment, although it generally was recognized as
a problem. A SERNAM study in the Greater Santiago area estimated that 11.8
percent of female employees suffered some form of sexual harassment. In
industrial and service sectors, more than 20 percent of female employees
reported some form of sexual harassment, and a third of female office employees
reported harassment. More than half of those interviewed for the study, both
male and female, said that sexual harassment in the workplace was frequent or
very frequent. Legislation that would provide specific protections against
sexual harassment was pending in Congress at year’s end.
Women
enjoy the same legal rights as men. In November, a Law on Civil Marriage
entered into force that allows for civil divorces, although it still imposes
lengthy waiting periods between filing for divorce and issuance of a final
decree.
A
2001 SERNAM study found that in 1999 the average earnings of women were 77
percent of those of male heads of household. The minimum wage for domestic
helpers, probably the largest single category of working women, was only 75
percent of the standard minimum wage (see Section 6.e.). Women with university
education earned 60 percent of what their male counterparts did. A study during
the year suggested that the overall income gap remained at 24 percent in 2003.
The Labor Code provides specific benefits for pregnant workers and recent
mothers, including a prohibition against dismissal; these also apply to
domestic workers. Employers may not ask women to take pregnancy tests prior to
hiring them, although La Morada received reports that the practice continued in
some companies.
There
were 25 registered NGOs working on women’s issues. The top five were La Morada,
Study Center for Women’s Development (CEDEM); the Women’s Institute
(Instituto de la Mujer), Movement pro-Chilean Women Emancipation (MEMCH), and
Information and Communication among Women Service (ISIS International). La
Morada engaged in political activism aimed at overcoming gender discrimination
by modifying sexist political and cultural patterns. CEDEM worked in rural areas
and provided training and consulting to different women’s organizations to
implement social and economic development programs. The Women’s Institute
advocated for women’s rights and political participation. MEMCH promoted
personal development of women. ISIS International coordinated a network of
women’s organizations devoted to defending and promoting women’s rights.
[20]
The Applicant also
says that the Board did not examine and address the societal and cultural
context of this matter in accordance with the Gender Guidelines. If it
had done so, it would have seen that Chile is an extremely macho culture in which
women are constantly at risk and that this is condoned by the state and its
institutions even though there are laws against domestic violence.
[21]
I believe the correct
approach to the issues raised by the Applicant was recently outlined by Justice
Dawson in Muszynski v. Canada (Minister of Citizenship and
Immigration), 2005 FC
1075 at paras. 6-9:
6. In my view, the
determinative issue in this case is the panel's finding of state protection.
More particularly, the RPD concluded that Mr. Muszynski failed to establish
that state protection would not be available to him in Poland, noting that
there was no evidence that Mr. Muszynski had ever approached the police or
other authorities in order to seek protection. The RPD pointed to the fact that
Poland is a democratic country with institutions and infrastructure which
created the presumption of adequate state protection that Mr. Muszynski failed
to rebut. In particular, the RPD referred to documentary evidence to the effect
that while there was some problem with criminality in Poland, the state was
making serious efforts to combat crime, and that state protection was available
to victims of extortion.
7. In order to reach a
conclusion with respect to the adequacy of state protection, the RPD is obliged
to make certain findings of fact. Those findings of fact can only be set aside
by this Court, if made in a perverse or capricious manner, or without regard to
the material before the tribunal. See: Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] S.C.J. No. 39, 2005 SCC 40, at
paragraph 38.
8. Once those findings of
fact are made, they must be assessed against the legal test articulated by the
Supreme Court in Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689 at page 724, namely do the facts constitute "clear and
convincing confirmation of a state's inability to protect" so as to rebut
the presumption of state protection? This is a question of mixed fact and law.
On the basis of the pragmatic and functional analysis conducted by my colleague
Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship
and Immigration), [2005] F.C.J. No. 232, I accept that the appropriate standard
of review of the decision as to the adequacy of state protection is
reasonableness simpliciter.
9. The documentary evidence
before the panel does indicate that organized crime is a problem in Poland, and
that cases of "extortion robbery" increased from 1997 to 2000.
However, the documentary evidence also establishes that Poland has implemented
legislative amendments to combat crime, particularly extortion. While the
documentary evidence indicates problem areas and weaknesses in Poland's current
handling of various criminal activities, in my view, it cannot be said that the
panel ignored or disregarded evidence on this issue or that its weighing of the
evidence was perverse or capricious. The view which the RPD then took of facts
as it found them when applied to the legal test articulated by the Supreme
Court in Ward was one which could reasonably be taken. There is,
therefore, no basis for intervention by this Court.
[22]
If I apply the
approach outlined by Justice Dawson to the Decision in the case before me, I
accept that there was evidence before the Board of the following:
a)
The ability of the
Chilean state to handle the volume of domestic violence cases is “woefully
inadequate”;
b)
An example of one
woman’s attempts (Marcela Waldes) to have the police and the courts deal with
an abusive spouse that were totally unsuccessful as far as the available
information went, but this information came from the Santiago Times, was
not corroborated and the final outcome of the case was unknown;
c)
A U.S. Department of
State County Report for 2004 that confirms that “domestic violence against
women was a serious problem.”
[23]
Taken as a whole, I
cannot say that the Applicant provided the Board with clear and convincing
evidence that Chile is unable or unwilling to protect people
in her position. The passages she relies upon to support her position appear
with other documentary evidence that supports the Board’s conclusions, and the
Applicant has not convinced me that she should not at least have given the
state the opportunity to respond to the risks she was facing. The evidence is
clear that her parents felt she should go to the police, and this would not
make sense in a situation where no response could reasonably be expected. In
addition, I cannot say that, on the facts before me, the Board failed to
address the effectiveness of state protection in Chile.
The situation required the Applicant to provide clear and convincing evidence
of the state’s inability or unwillingness to protect people in her position and
she did not, in my view, provide this evidence.
[24]
Having come to this
conclusion, I cannot say that the Decision was unreasonable. This application
for judicial review is therefore dismissed.
JUDGMENT
THIS COURT
ORDERS that:
1.
This application for
judicial review is dismissed.
2.
There is no question
for certification.
“James Russell”
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