Date: 20061110
Docket: IMM-6646-05
Citation: 2006 FC 1365
Ottawa, Ontario, this 10th day of November, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
LUCIA MARTINEZ ORTIZ
LUIS ALFREDO PEREZ MARTINEZ
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
BACKGROUND
[1]
The Applicants
challenge by way of judicial review the determination by the Refugee Protection
Division of the Immigration and Refugee Board (Board) dated October 7, 2005 (Decision)
that they are neither Convention refugees nor persons in need of protection.
BACKGROUND
[2]
The Applicants are
citizens of Mexico. The refugee claim of Luis Alfredo Perez
Martinez was based on that of his mother, Lucia Martinez Ortiz (Principal Applicant).
[3]
In 1996, the Principal
Applicant met and began a relationship with a man whom she characterizes in her
Personal Information Form (PIF) as an influential businessman with political
connections. He lives and works in Mexico
City.
[4]
The Principal Applicant
says that her ex-partner became “possessive, jealous and controlling,” that he
assaulted her physically and sexually, and that he threatened her.
[5]
The Board did not
doubt the credibility of the Principal Applicant’s allegations.
[6]
The Principal Applicant
came to Canada in August 2004 with her son and aunt, purportedly with the
consent of her abusive ex-partner, in an attempt to “rectify what had been
done” (or to “placate” the Applicant, as the Board put it in its reasons). She
returned to Mexico the same month.
[7]
After going to the
Public Ministry to make a statement on November 29, 2004, the Principal Applicant
returned to Canada on December 3, 2004. She claimed refugee
status five days later, on December 8, 2004.
DECISION
UNDER REVIEW
[8]
The Board rejected
the Applicants’ claim. It commented on the fact that the Principal Applicant
had not reported her abuse immediately after it occurred, and that she had
returned to Mexico after her visit to Canada in August 2004.
[9]
The Board said that the
determinative issue was that the Applicants “are not Convention refugees or
persons in need of protection, because they have an internal flight alternative
(IFA) in Mexico City.” In its analysis, the Board examined
documentary evidence and found that “while flawed, the situation with respect
to the issue of domestic violence continues to be addressed and improved in
Mexico, particularly in Mexico
City.”
ISSUES
[10]
The issues raised by
the Applicants are:
1.
Did
the Board err in determining that state protection was available in Mexico City by:
a)
Ignoring
material evidence concerning the Principal Applicant’s persecutor?
b)
Applying
the wrong test for state protection?
c)
Failing
to assess material evidence with respect to the psychological and emotional
risk of return?
d)
Ignoring
and mischaracterizing the documentary evidence relied upon?
2.
Did
the Board err in failing to consider the application of subsection 108(4) of
IRPA?
3.
Did
the Board demonstrate bias by the comments it made regarding the Principle
Applicant’s subjective fear?
APPLICABLE LEGISLATION
[11]
Paragraph
108(1)(e) provides that a person cannot be considered a refugee if the
reasons for seeking refugee protection have ceased to exist. Subsection 108(4)
provides a limited exception to the cessation circumstances provided in paragraph
108(1)(e). These provisions provide as follows:
|
108. (1) A claim for refugee protection shall be rejected, and a
person is not a Convention refugee or a person in need of protection, in any
of the following circumstances:
[…]
(e) the reasons for
which the person sought refugee protection have ceased to exist.
(4)
Paragraph (1)(e) does not apply to a person who establishes that there
are compelling reasons arising out of previous persecution, torture,
treatment or punishment for refusing to avail themselves of the protection of
the country which they left, or outside of which they remained, due to such
previous persecution, torture, treatment or punishment
|
108. (1) Est rejetée la demande d’asile et le demandeur n’a pas
qualité de réfugié ou de personne à protéger dans tel des cas suivants :
[…]
e) les raisons qui lui ont fait demander l’asile n’existent plus.
(4) L’alinéa (1)e) ne s’applique pas si le demandeur
prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la
torture ou à des traitements ou peines antérieurs, de refuser de se réclamer
de la protection du pays qu’il a quitté ou hors duquel il est demeuré.
|
ARGUMENTS
Applicants
Internal Flight Alternative and State
Protection
a) Evidence relating to the Principal
Applicant’s persecutor
[12]
The
Principle Applicant submits that in Mexico City her ex-partner has a
network of power and influence, including influence with the police, and can
act without consequence.
[13]
The
Principle Applicant also submits that her ex-partner is highly motivated to
continue to target her for several reasons: first, he is 20 years older than she
is and she betrayed him in a male-dominated society; second, he provided
financial and employment assistance to the Principal Applicant and her family;
thirdly, the relationship was one of consequence; and finally, the Principle
Applicant entered another relationship.
[14]
According
to the Principle Applicant, her ex-partner’s behaviour has included physical,
sexual and emotional abuse and threats. The threats are ongoing.
[15]
The
Applicants submit that the Board ignored all of these situational factors in
making its determination. Instead, it relied on country conditions in Mexico and the fact
that the Principle Applicant is well-educated with several years of professional
work experience and is well-travelled.
b) The Test for State
Protection
[16]
The
Applicants submit that this Court has already determined on the basis of the
same documentary evidence available in this case that no reasonable IFA exists
in Mexico
City
for abused women. On this point, the Principle Applicant cites the decision in A.Q.
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 677 (Quintanar).
[17]
Furthermore,
the Applicants maintain that this Court has determined that where credibility
is not a live issue, it is patently unreasonable to find an applicant’s
assertion that he or she could not obtain state protection non-credible.
[18]
The
Applicants further submit that the Board failed to address evidence that
suggests the police did not respond to her request for protection, and that she
did not make further requests because she knew the police would view assault as
the right of the man.
[19]
Finally,
the Applicants point to the test in Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1 and submits that they
have rebutted the presumption of state protection through clear and convincing
evidence. They submit that the Board relied on the test in Zalzali v. Canada (Minister of
Employment and Immigration), [1991] 3 F.C. 605, 126 N.R. 126 (C.A.) which
is not the appropriate test to apply. They also note that the jurisprudence
provides that the ability of a state to protect encompasses not just the
existence of a legislative and procedural framework but must also include the
capacity and will to act.
c) Psychological and
emotional risk of return to Mexico City
[20]
The
Applicants submit that reports from the Principal Applicant’s psychotherapists
provide evidence as to the deterioration of her emotional, family and work life
as a result of her relationship with her ex-partner. They also points out that
she was not able to continue with psychotherapy in Mexico, but that the Board
relied on documentary evidence that suggested her need for psychological
assistance will be met in Mexico. They argue that the Board failed to
consider all of the psychotherapy reports and that consideration of the
psychological and emotional risk of return is a constituent element in
determining claims for protection.
d) Ignoring and
mischaracterizing documentary evidence
[21]
The
Applicants provide several excerpts from the Board’s National Documentation
Package, March 7, 2005, that support their position. They argue that these
passages contradict the Board’s interpretation of the evidence upon which it
relies and that this makes the Board’s Decision patently unreasonable.
Compelling Reasons and
subsection 108(4) of IRPA
[22]
The
Applicants submit that the Board should have considered whether there were
compelling reasons for them not to seek state protection. They maintain that
the Immigration and Refugee Board Gender Guidelines contain numerous decisions
determined on the basis of compelling reasons and that the criteria that must
be considered include the psychological and emotional state of the claimant
both at the time of persecution and at the time of consideration.
The Board’s Comments
Regarding the Principle Applicants’ Subjective Fear
[23]
Finally,
the Applicants argue that, although the Board based its Decision on the issue
of IFA, the Board made a gratuitous comment concerning the Principle
Applicant’s subjective fear because of her reavailment in Mexico following
her initial period in Canada. The Applicants submit that by this comment the
Board demonstrated it was biased and that bias tainted the entire Decision.
Respondent
Internal Flight
Alternative and State Protection
[24]
The
Respondent submits that the Board’s Decision with respect to the availability
of an IFA in Mexico
City
is reviewable on a standard of patent unreasonableness.
[25]
With
respect to the Board’s consideration of evidence pertaining to the Principle
Applicant’s ex-partner, the Respondent says that the Board did carefully
examine the documentary evidence, as well as the size and population of Mexico City. The
Respondent says that the Board also considered the personal characteristics of
the Principal Applicant’s ex-partner, the risks associated with him, and the
impact of his current residence in Mexico City. However, the Board
determined on the basis of all of these considerations that an IFA was available.
The fact that some of the documentary evidence is not mentioned in the Board’s
reasons is not fatal to the Decision, nor does it indicate the Board did not
consider that evidence. In fact, the Board found Mexico City to be a
suitable IFA because of the resources available there to protect women in the
position of the Principal Applicant. The Principal Applicant never established
that her ex-partner had any control over organizations dedicated to protecting
persons in her position.
[26]
With
respect to the reports from the Principle Applicant’s psychotherapists, the
Respondent argues that just because the Board did not mention each
psychological report does not mean it did not consider them. The Board was not
required to cite each report. This is particularly so since there was no
dispute as to the contents and the reports were simply not relevant to the
Board’s concerns regarding state protection and the availability of an IFA.
Furthermore, the Board explicitly held that the Principal Applicant’s “need for
psychological assistance will be met in Mexico City as well.”
Finally, the Respondent submits that the Principal Applicant cannot rely on the
psychological reports alone to demonstrate she would be persecuted in Mexico City.
[27]
The
Respondent submits that the Board did not err in relying on the decision in Zalzali.
According to the Respondent, it is a well-established principle in the
jurisprudence that state protection needs to be adequate, not perfect. That
principle is not contradicted by the decision in Ward. The Respondent
also submits that since this is not a case in which the agent of persecution is
the state, the Principle Applicant was required by law to approach state
resources for protection. Furthermore, the Board’s reasons demonstrate that it
not only considered the efforts made by the government to address violence
against women, but also the results and effectiveness of those efforts.
[28]
With
respect to the Board’s consideration of the evidence, the Respondent submits
that where there is conflicting evidence, the Board is entitled to choose the
evidence it prefers, provided it addresses contradictory documents and explains
the reasons behind its preference. Therefore, the excerpts from the National
Documentation Package provided by the Applicants are nothing more than a
disagreement about the manner in which the Board weighed the evidence. Also,
the Respondent argues that the decision in Quintanar cannot be taken to
stand for the principle that state protection can never be found in Mexico. Each case
must be decided on its merits.
[29]
The
Respondent submits that the Board is entitled to consider protection offered by
state agencies other than the police, such as state funded non-governmental
agencies.
[30]
The
Respondent also argues that the Board did not fail to consider that the
Principal Applicant had once filed a police report. This fact was noted in the
Board’s reasons. However, the Board found the Principal Applicant’s efforts to
approach the state and other organizations in Mexico City insufficient.
[31]
Also,
the Board did not make its Decision regarding the absence of state protection
on the basis that the Principal Applicant’s assertion was not credible. Rather,
it found the assertion to be inconsistent with the evidence.
Compelling Reasons and
subsection 108(4) of IRPA
[32]
The
Respondent submits that for a Board to undertake a compelling reasons analysis
it must first find that there has been a valid refugee claim at some time and
that the reasons for the claim have ceased to exist. As the Board did not make
the initial threshold finding that there was a valid refugee claim, it was not
required to consider subsection 108(4).
The Board’s Comments
Regarding the Principle Applicants’ Subjective Fear
[33]
The
Respondent submits that it was open to the Board to note that the failure of
the Principal Applicant to claim refugee protection when she was first in Canada demonstrated
a lack of subjective fear, even if the Board’s Decision ultimately turned on
the availability of an IFA in Mexico City. The Respondent argues
that reavailment in itself can be considered inconsistent with a genuine fear
of persecution.
STANDARD OF REVIEW
[34]
Justice
Richard addressed the standard of review with respect to IFA determinations in Sivasamboo
v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C.
741, 87 F.T.R. 46. He held at paragraph 26 that Board determinations with
respect to an IFA deserve deference because the question falls squarely within
the special expertise of the Board. The determination involves both an
evaluation of the circumstances of the applicants, as related by them in their
testimony, and an expert understanding of the country conditions.
[35]
Justice
Snider in Chorny v. Canada (Minister of Citizenship and Immigration) (2003),
238 F.T.R. 289, 2003 FC 999 at paragraphs 5 to 11, reviewed the jurisprudence
and held, without going into a full pragmatic and functional analysis, that the
appropriate standard of review is that of patent unreasonableness. Several
recent decisions of this Court have held this to be the appropriate standard.
See for instance: Nwokomah v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1535 at paragraph 9, Ashiru v. Canada (Minister of
Citizenship and Immigration), 2006 FC 6 at paragraph 7, Camargo
v. Canada (Minister of Citizenship and Immigration), 2006 FC 472 at
paragraph 7, Nakhuda v. Canada (Minister of Citizenship and Immigration),
2006 FC 698 at paragraph 8. As Justice de Montigny stated in Ako v. Canada (Minister of
Citizenship and Immigration), 2006 FC 647 at paragraph 20:
It is trite law that questions of fact
falling within a tribunal’s area of expertise are generally reviewed against a
standard of patent unreasonableness. More particularly, this Court has
consistently found that this is the proper standard to apply with respect to
the existence of a viable internal flight alternative […]
Thus, it is well-settled that this Court
should not disturb the Board’s finding of an IFA unless that finding is
patently unreasonable. There does not appear to be any reason to depart from
that standard in this case.
ANALYSIS
[36]
The Applicants
challenge the Decision in a number of respects. Principally, they submit that
the Board erred in its analysis of state protection and IFA. I have reviewed
each of the issues and the arguments raised by the Applicants with care. My
conclusion is that this Decision must stand or fall on the way in which the
Board handled the inter-related issues of IFA and state protection. There was
no bias, apprehended or otherwise, and subsection 108(4) is not applicable on
these facts.
[37]
Some general guidance
regarding the issue of IFA is provided in Omekam v. Canada (Minister of
Citizenship and Immigration), 2006 FC 331, where Justice O’Keefe stated as
follows at paragraph 36:
The
two-pronged test for establishing an IFA was aptly summarized by Justice Mosley
in Kumar v. Canada (Minister of Citizenship and Immigration), [2004]
F.C.J. No. 731, 2004 FC 601 at paragraph 20:
In
order for the Board to find that a viable and safe IFA exists for the Applicant,
the following two-pronged test, as established and applied in Rasaratnam v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)
and Thirunaukkarasu, supra, must be applied:
(1)
the Board must be satisfied on a balance of probabilities that there is no
serious possibility of the claimant being persecuted in the proposed IFA; and
(2)
conditions in the proposed IFA must be such that it would not be unreasonable,
upon consideration of all the circumstances, including consideration of a
claimant's personal circumstances, for the claimant to seek refuge there.
[38]
It is well-settled
that this Court should not disturb the Board’s finding of an IFA unless that
finding is patently unreasonable.
[39]
The Board’s IFA
analysis proceeded on the basis that the Principal Applicant’s allegations of
persecution were true. Indeed, the focus of the analysis was on available
avenues of state protection available in Mexico
City.
[40]
The Board was “not
persuaded there is clear and convincing evidence that the authorities would not
reasonably be forthcoming with serious efforts to protect the [Principal Applicant],
if she were to approach them in Mexico
City.”
[41]
The Applicants
disagree with the Board’s conclusions on this issue because they say the Board
failed to take into account, or failed to give due consideration to, the
specifics of the risks faced by the Principal Applicant. Specifically, the
Principal Applicant’s former partner is widely influential in Mexico City and will not desist from his persecution
of the Principal Applicant if she moves there.
[42]
The Applicants also
say that the Decision fails to address the Gender Guidelines in any meaningful
way or to weigh the evidence in accordance with those Guidelines. Also, they
say that compelling psychological evidence was ignored, or was not adequately
dealt with or considered.
[43]
Let me say at the
outset that, having reviewed the evidence and the Decision, it would have been
quite reasonable for the Board to have reached a conclusion favourable to the
Applicants. But this does not mean that the Board’s negative conclusions were
patently unreasonable, or even unreasonable, and that is the point of this
review.
[44]
In the end, the
Applicants just find it unbelievable that, given the evidence before the Board,
the specifics of this case, and the Gender Guidelines, the Board could have
concluded as it did. But this is merely to disagree with the Board, and
disagreement with the Board is not a sufficient basis for this Court to
interfere with the Decision.
[45]
A review of the
Decision reveals the following:
1.
There were no issues
of credibility and the Board accepted the Principal Applicant’s narrative of
events;
2.
The Board
specifically refers to the assault and death threats suffered by the Principal
Applicant and her need for psychological counseling in Mexico and Canada;
3.
The Principal Applicant
did not approach the authorities in Mexico
City to seek protection;
4.
The Board
specifically refers to the Principal Applicant’s assertion that the authorities
in Mexico City cannot protect her because that is where
her assailant lives;
5.
The Board
acknowledges that while domestic violence is a continuing problem in Mexico it is being addressed, particularly in Mexico City;
6.
The Board
acknowledges specifically that violence against women is pervasive in Mexico because of societal attitudes and reluctance on the part of
women to complain to the authorities. The Board refers to literature that
discusses this problem;
7.
Notwithstanding the
acknowledged problems concerning violence against women, the Board refers to
documentation that provides evidence of the availability of protection for the Applicants
in Mexico City. The Board specifically says that “[…] some
of the documents on this issue are mixed.” This means that the Board had to weigh
the evidence and choose what to accept concerning the availability of
protective assistance in Mexico
City;
8.
The Board also deals
with the corruption issues raised by the Applicants;
9.
The availability of
protective assistance in Mexico City led the Board to conclude that the
Principal Applicant had an obligation to relocate to that city and approach the
state and other relevant organizations for assistance before seeking Canada’s
protection;
10.
The Principal
Applicant had failed to rebut the presumption of the state’s ability to protect
her;
11.
There was no “clear
and convincing evidence” that the authorities in Mexico City
would not make a serious effort to protect the Applicants if those authorities
were approached. Thus, it is the Board’s finding that there was no serious
possibility of the Applicants being persecuted in the IFA;
12.
The Board went on to
address the reasonableness of the Applicants availing themselves of a IFA in Mexico City;
13.
In weighing the
evidence, the Board clearly indicates in the Decision that it considered the
Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related
Persecution and the Principal Applicant’s need for psychological
assistance;
14.
The Principal
Applicant’s evidence was clear that she had not attempted to use any of the protective
resources available to her in Mexico
City.
[46]
Was there documentary
evidence before the Board of the availability of effective protection for the
Applicants in Mexico City? The following examples appear in the
record:
1.
Page 131 – Response
to Request for Information Recourse and Protection available to a woman who
is a victim of spousal abuse and whose husband is a police officer in the state
of Mexico, whether charges can be initiated in the Federal District (MEX39866.E September 27, 2002)
In
a 26 September 2002 telephone interview, a representative of the organization
Communication and Information for Women (Comunicacion e Informacion de la
Mujer, CIMAC) provided the following information. The CIMAC representative
explained that a victim of spousal abuse should visit a support group for
victims of domestic violence and mentioned that there are a number of such
groups in the State of Mexico and the Federal
District. In addition, the
representative explained that she could give the victim phone numbers and
addresses of these support groups. The representative added that once contact
with a support group has been established, the victim is given an orientation
session on her rights and on how she can file a complaint against her husband.
2.
Page 150 – Response
to Request for Information Follow-up to MEX39866.E of 27 September 2002. (MEX40336.E
October 11, 2002) The document expresses that the following options, (inter
alia) are available:
CAVIDE
(Centro de Atencion a Victimas del Delito) [support centre for the
victims of crime]), where a complaint can be filed, and an agreement struck;
emotional support is also provided;
UAPVIF
(Unidad de Atencion y Prevencion a la Violencia Familiar) [family
violence prevention and care unit]), where the authorities summon the assailant
to sign a non-aggression agreement in the presence of a lawyer, and take other
administrative steps with regard to fines and the arrest of the assailant.
Therapy is also provided for both the assailant and the victim;
A
third option is to approach a family court judge, which would mean court
proceedings to rule on divorce on the grounds of family violence. The judge
would order the necessary preventive measures at the beginning of the
proceedings such as the temporary separation of the spouses and temporary
benefits. Similarly, an agreement may be signed based on a deal reached by the
parties.
A
fourth option is to ask the Public Prosecutor to launch a preliminary
investigation into the charges of the offence of family violence. A preliminary
investigation would determine whether or not to launch a criminal case with
proceedings before a criminal judge for the crime in question that would result
in a conviction and a sentence of imprisonment being imposed on the assailant.
[47]
As the Board pointed
out in its Decision, some of the documentary evidence on State Protection in Mexico City is mixed, but the Board clearly examined
what was available and came to its conclusions. Other conclusions may have been
reasonable, and I might have come to a different conclusion if presented with
the same evidence. But this does not mean that the Board’s conclusion were
patently unreasonable. There was an evidentiary basis for the Decision as it
stands.
[48]
In finding an IFA,
the Board was required to satisfy itself, on a balance of probabilities, that
there was no serious possibility of the Applicants’ being persecuted in Mexico
City and that, in all the circumstances, including circumstances particular to the
Principal Applicant, conditions in Mexico City were such that it would not be
unreasonable for the Applicants to seek refuge there. The Board in the case at
bar found that Mexico City was such an internal flight alternative
for the Applicants. The Applicants have not demonstrated that the finding is patently
unreasonable in this case.
[49]
The Principal Applicant
has submitted that the Board only considered the fact that she is well
educated, has work experience, and is well traveled, in making its
determination. She says the Board failed to consider the risk issues. This is
not the case. The above factors considered by the Board are part of its
consideration of whether it was reasonable for these Applicants to live in Mexico City. Contrary to the Applicants’ argument,
the Board did consider that the Principal Applicant’s persecutor lives in the
proposed IFA of Mexico city. Indeed, the Board acknowledged this fact in its
Reasons: (“… she averred that the authorities in Mexico City cannot protect her
because that is where De Leon is based.”)
[50]
The Board found Mexico City to be a suitable IFA because of the
resources available there to protect women in the position of the Principal Applicant.
This finding was not patently reasonable, given the Board’s careful examination
of the documentary evidence and in light of the size and population of Mexico City.
[51]
Contrary to the Principal
Applicant’s submission, the Board did not ignore the specific characteristics
and risks from her persecutor (i.e. that he was a powerful businessman and the
brother of a woman who has held important positions in the administration of
the Federal Government of Mexico). Rather, the Board was persuaded that the
resources to protect and support women in the position of the Principal Applicant
in Mexico City would be available to her.
[52]
Further, the Principal
Applicant’s testimony that Mr. De Leon has bribed members of government in
order to achieve his business initiatives does not establish that he has
control or influence over the women’s shelters, family court judges, public
prosecutors, and the various non-profit organizations set up specifically to
protect those in the Principal Applicant’s position. The Principal Applicant
admitted that she did not attempt to avail herself of these resources in Mexico City.
[53]
The Respondent
submits that no error was committed by the Board in relying on the Zalzali
decision. The principle that state protection needs to be adequate, not
perfect, is well established in law, and is not contradicted by the Ward
decision. The Board must be satisfied that there is actual adequate protection,
not perfect protection. This proposition has been re-affirmed again and again
by this Court, including in the recent decision Blanco v. Canada (Minister of Citizenship and Immigration), 2005 FC 1487, where Justice Phelan
found at paragraph 10 that “The legal requirement is that state protection be
‘adequate’ not ‘perfect’”. See also: Canada (Minister of Employment and
Immigration) v. Villafranca (1991), 150 N.R. 232, 99 D.L.R. (4th)
334, (F.C.A.).
[54]
As Justice Snider
succinctly explained in Judge v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1089, at paragraphs 8 and 10,
The
onus is on the Applicant to lead evidence to rebut the presumption that
adequate state protection exists. The test is an objective one and involves the
Applicant “showing that [she] is physically prevented from seeking [her]
government’s aid or that the government is in some way prevented from giving
it”. (Canada (Minister of Employment and Immigration) v. Villafranca (1992),
150 N.R. 232 at 234 (F.C.A.)) […]
In
this case, it is clear that the Board heard and understood the Applicant’s
testimony that she believed that the police were in “cahoots” with the people
for whom she worked. This is a subjective belief; as noted above, the test for
whether state protection “might reasonably be forthcoming” is an objective one.
It is not sufficient for the Applicant to simply believe that she could not
avail herself of state protection.
[55]
It is also well
established that in a democracy, such as Mexico, an applicant must do more than simply
show that she went to see some members of the police force and that her efforts
were unsuccessful. See N.K. v. Canada (Minister of Citizenship and
Immigration) (1996), 143 D.L.R. (4th) 532 (F.C.A.), 206 N.R.
272, at paragraph 5. The burden of proof that rests on the Applicant is, in a
way, directly proportional to the level of democracy in the state in question:
the more democratic the state’s institutions, the more the Applicant must have
done to exhaust all the courses of action open to her. In this case, the Principal
Applicant only approached police on one occasion, and did not make use of the
many resources available to abused women in Mexico City.
This is not a case like Molnar v. Canada (Minister of Citizenship and
Immigration), [2003] 2 F.C. 339, 2002 FCT 1081 in which the state itself was
the agent of persecution; thus it was incumbent upon this Principal Applicant
to approach state resources before seeking international protection.
[56]
The Applicants are
similarly unable to demonstrate any error in the Board’s assessment of the
documentary evidence on the basis of the Quintanar decision. Although in
Quintanar, the Court found that state protection was not available,
based on some of the documentary evidence examined in that case, that decision
cannot be taken to stand for the principle that state protection can never be
found for abused women in Mexico. Rather, each case must be decided on
its own merits and it remains the responsibility of the Board to review and
weigh the evidence. As Justice O’Keefe commented in Castro v. Canada (Minister of Citizenship and
Immigration), 2005 FC
1165 at paragraph 34 regarding the implication of the Quintanar
decision:
[…]
I do not know whether the Board would have come to the same conclusion as
Justice Kelen in Quintanar, supra, that the presumption of the
availability of state protection had been rebutted, if it had directed its mind
to this evidence. I would note that the decision on the evidence is the
Board’s to make, but it must give some reason for not accepting this
evidence. [emphasis added]
[57]
In the case at bar,
the Board recognized that protection in Mexico is not perfect, but found that the Principal
Applicant had not attempted to use the resources that are available and set up
for women in her position.
[58]
As the Applicants
note, credibility was not an issue in this claim because the Board accepted their
testimony. The Board did not need to cite the psychological report at length,
particularly when there was no dispute over its contents. The fact that the Principal
Applicant received therapy in Mexico, and showed symptoms of post traumatic
stress, and that such symptoms may have been triggered by her abusive former
partner, is not at issue. The report was simply not relevant to the Board’s
concerns, namely the Principal Applicant’s failure to rebut the presumption of
state protection and the availability of an IFA in Mexico City.
[59]
Moreover,
psychological reports do not per se prove the underlying refugee claim.
The Principal Applicant cannot rely on the psychological reports alone to
demonstrate that she would be persecuted if returned to Mexico City. It is incumbent on the Board to
consider the evidence and make a determination.
Subsection 108(4)
[60]
Subsection 108(4) of IRPA
allows Canadian authorities to confer refugee status on humanitarian grounds to
the special and limited category of persons who “have suffered such appalling
persecution that their experience alone is a compelling reason not to return
them, even though they may no longer have any reason to fear further
persecution.” In other words, in order to invoke section 108(4) there must have
been a determination that the Applicants were Convention refugees as
contemplated by the statute, and also that the conditions that led to that
finding no longer exist. The exceptional circumstances contemplated by section
108(4) of IRPA only apply to a tiny minority of claimants. See for instance Canada
(Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739,
(1992), 93 D.L.R. (4th) 144 at 157 (F.C.A.).
[61]
Justice Noël recently
discussed this issue in Martinez v. Canada (Minister of Citizenship and
Immigration), 2006 FC 343 at paragraphs 19 and 22, and re-affirmed that if
an applicant is found not to meet the definition of Convention refugee or
person in need of protection, a section 108 analysis is not applicable:
In
my view, sub. 108(4) of the IRPA is not applicable in the present matter. The
RPD should not undertake a sub. 108(4) evaluation in every case. It is only
when para. 108(1)(e) is invoked by the RPD that a “compelling reasons”
assessment should me (sic) made, i.e. when the refugee claimant was
found to be a refugee but nevertheless had been denied refugee status given the
change of circumstances in the country of origin. In Kalumba c. Canada (Ministre de la
Citoyenneté et de l’Immigration), 2005 CF 680, [2005] A.C.F. No. 879, at
para. 18 and 19, Justice Shore
provided a succinct summary of the applicable principles:
[MY
TRANSLATION] As per the wording of the section, before considering the
application of subsection 108(4) of the Act, the Commission must conclude that
the person would have been granted refugee status notwithstanding the change of
circumstances which occurred in the country. In the matter at hand, the Commission
determined that M. Kalumba had an internal flight alternative in his country of
origin and therefore concluded that Mr. Kalumba was neither a refugee nor a
person in need of protection as per sections 96 and 97 of the Act.
[…]
As such, the Commission did not have to conduct a “compelling reasons” analysis
pursuant to subsection 108(4) of the Act.
[…]
In
the present matter, the claim of the Applicants was rejected because the RPD
found that State protection was available. Their claim was rejected as they did
not meet the necessary conditions in order to be considered refugees or persons
in need of protection. The exception enacted at para. 108(1)(e) was not
applicable. Therefore, the RPD was under no obligation to perform any
assessment of “compelling reasons.”
[62]
Similarly, in the
case at bar, the Board found that the Applicants were not Convention refugees
due to the availability of an IFA and state protection in Mexico City. This is not a situation where a
compelling reasons analysis was warranted.
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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