Date: 19980211
Docket: IMM-4480-96
BETWEEN:
ANGELICA ELIZABETH NAVARRO AROS,
GENNARO FRANCESCO BENONI NAVARRO,
ROMINNA ORNELLA BENONI NAVARRO,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review of and for an order setting aside, the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated November 4, 1996 which determined that the applicants are not Convention refugees within the definition in s-s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended.
[2] The principal applicant, Angelica Elizab (or Elizabeth) Navarro Aros, is a native and citizen of Chile. The other two applicants are her infant children and their claims are dependant on that of their mother. They arrived in Canada on February 14, 1995 and on April 4, 1995 they claimed to be Convention refugees.
[3] The principal applicant's claim is based on alleged abuse by her former common law husband in Chile and the unwillingness or inability of the state to provide protection for her and her family. In 1989 she had commenced living with her former common law husband, a Mr. Carrasco, with her two infant children. By July of that year she was the victim of continuing verbal and physical abuse by Carrasco. In June 1990 she left Carrasco in the town where they were living and fled with her children to her mother's home in Santiago. There she reported to police the abuse inflicted by Carrasco but the officer who took her complaint allegedly told her police would not intervene in a marital dispute. The police took no action. As the panel noted she and her common law husband were then residing in different towns.
[4] Soon after that, Carrasco appeared at her mother's home and pleaded with her to return on promises he would reform. She relented and with her children returned to live with him, only to find his abusive conduct soon began again. She left and returned to her mother's. The pattern of leaving Carrasco and returning repeated itself periodically until the spring of 1991. By that time the abuse was serious, both physically and psychologically. When she would speak of possible separation he would threaten dire consequences and on one such occasion he threatened her while brandishing a revolver.
[5] Ms. Aros' family, apparently frustrated by her repeated reconciliations with Carrasco, began to refuse to shelter her and her children. On several occasions she was rushed to hospital for emergency treatment but did not then report the source of her injuries since Carrasco was with her. She claims to have called the police on about eight occasions to ask for protection after she had been beaten. They responded three times but on arrival, when they found the abuse was a marital dispute, they refused to intervene. Each time after the police left, Carrasco threatened greater abuse if she should call the police again.
[6] The pattern of abuse and beatings continued. In January 1992, after she insisted they separate, Carrasco inflicted even more serious sexual and physical abuse upon her. She fled again with her children and went into hiding with a friend. She claims to have hidden at an apartment next door to the girlfriend of her brother and that her family did not then know of her whereabouts. After a time she began working but in 1994 Carrasco appeared where she worked and, with a weapon at her back, forced her to leave and accompany him to his house where he raped, tortured and abused her. She fled to hospital for treatment but refused to report Carrasco's abuse because of her lack of faith in police offering protection and her fear that Carrasco would take out his vengeance upon her children and her family. That last attack was more than two years after she had left him and had ceased living with him.
[7] She learned from a friend that Canada offered protection for abused women. She obtained a passport in 1994. Several of her friends contributed money to purchase air tickets for her and her children and they left Chile and arrived in Toronto on February 14, 1995 as visitors. Through contact with a Chilean woman in Toronto she was assisted to complete applications for refugee status which she filed in April 1995.
[8] Since their arrival in Canada, by letter and a telephone call, Ms. Aros' sister told her that Carrasco has visited the sister seeking Ms. Aros. The sister refused to tell of her whereabouts even though she was out of the country, and even though the sister reportedly moved thereafter to avoid further enquiries from Carrasco. The applicant claims that among all her family, only this one sister, Nancy, knows where she and her children are. She hopes this will avoid problems for the applicants and for her mother and other siblings in Chile.
The Panel's Decision
[9] When their refugee claim was heard the panel of the CRDD found the applicants not to be Convention refugees. The decision was based on the panel's assessment of a lack of credibility in the evidence of the principal applicant, and on the panel's conclusion on the evidence, including documentary evidence, that it was not satisfied the applicant had established a well-founded fear of persecution if she were to return to Chile.
[10] The panel found certain aspects of the principal applicant's evidence was not credible because they were implausible, in particular that she lived for some time in an apartment adjoining the house of her brother's girlfriend without anyone in her family knowing, that she did not inform her family of her whereabouts then or, except for one sister, after she came to Canada, that she would ask former fellow employees for financial aid to leave the country without seeking any assistance from her family. These elements of her evidence and her conduct in not leaving Chile soon after obtaining a passport in 1994, and her delay in applying for refugee status after her arrival in Canada in February 1995 until April of that year, led the panel to conclude that her evidence, and her behaviour, was not consistent with a well-founded fear of persecution.
[11] More significantly, the panel found that with evolving concern in Chile for preventing and controlling violence against women, for which it found support in the documentary evidence, and with the establishment of legislative and support programs for women, much of which was in place before the applicants left Chile, the principal applicant's claimed fear of persecution, for reasons recognized by the definition of a Convention refugee, was not well-founded. Moreover, her claim to fear persecution as a member of a particular social group, within that definition, was not established since, in the panel's opinion, there was no documentary evidence to support a conclusion that women fearing domestic violence were persecuted as a group in Chile. In reaching its decision the panel referred to and relied upon the Supreme Court of Canada decision in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 659 and upon guidelines issued by the Chairperson of the I.R.B., March 9, 1993 respecting Women Refugee Claimants Fearing Gender-Related Persecution.
Issues
[12] The applicant urges that the panel failed to consider the totality of evidence, in particular that it failed in its decision to refer to sworn testimony of the applicant about her experience and the state's unwillingness or inability to provide protection, or that the panel did not properly weigh this evidence but rather it relied upon irrelevant considerations and upon documentary evidence selectively referred to in support of the panel's conclusions. Further, it is urged that the panel implicitly applied an improper standard of proof in assessing the applicant's claim and thus it exceeded its jurisdiction.
[13] The applicant also contests the panel's finding that her evidence lacked credibility, based on certain implausibilities, as the panel characterized certain aspects of her evidence, and she contests the panel's view of her conduct in delaying leaving Chile after she had a passport and her delay in claiming refugee status after arriving in Canada.
[14] The panel's finding of credibility is a matter of concern here only if it erred in finding that the claim, assuming it were credible, did not establish an objective basis for a reasonable likelihood of persecution if she were to return to Chile.
[15] The applicant's argument about an error in the standard of proof, set out in written submissions, arises from the perception that the panel implicitly imposed a standard requiring the applicant to show by clear and convincing proof, other than the applicant's own experience, of the state's inability or unwillingness to provide effective protection. In my opinion that perception is not warranted. It is true that in review of her evidence, the panel stated (at p. 7 of its decision):
| "... With respect to her individual fear of persecution we find that the claimant has not met the onus, as set in Ward, to show that protection, adequate though not perfect, was not available to her at the time she left her country of nationality.". |
|
[16] In Ward, the Supreme Court of Canada did talk of the onus on an applicant to establish by evidence that the implicit assumption of a sovereign state's interest in and capacity for protecting its citizens should not apply. In considering that matter the evidence of the applicant is not ignored. Here the panel found the applicant's failure to report to authorities, or to support organizations, the final abusive attack in 1994, when there was no longer a domestic relationship between the applicant and her attacker, Carrasco, was a significant factor limiting the significance of her evidence of reports to police, that had elicited no helpful response, more than two years earlier. That, and the evidence of legislative action and development of community organizations and programs supportive of abused women, were considered by the panel in assessing whether her evidence established lack of state support and protection for her. In my opinion, it cannot be concluded that the panel erred by so doing.
[17] The alleged failure of the panel to consider evidence before it is based on the Board's failure to refer in detail to all of the evidence proffered by the applicant. Mere failure to refer to that evidence does not mean that it was ignored by the panel. Nor does the absence of conflicting evidence directly contradicting her story mean that the panel must accept her sworn evidence. It is subject to assessment as the panel here did, in general in relation to standards of plausibility or of internal consistency, and it may be weighed in relation to the evidence available from documents before the panel.
[18] Here the panel considered documentary evidence indicating that even before the applicant had left Chile there had been significant legislative activity and the establishment of community organizations and educational programs intended to limit and to punish abuse of women and to provide support for those subjected to abuse. The applicant urges that the panel's assessment of developments within Chile, before the applicant left for Canada in 1994, and since, was not supported by the documentary evidence. However, I am persuaded that there was some documentary evidence generally supportive of the panel's appraisal of the situation. I am not persuaded that the panel's conclusion was perverse or that it was not based on some of the evidence before it. I might have reached a different conclusion, another panel might also have done the same, but this panel's decision cannot be said to be perverse or capricious or unreasonable on the basis of evidence before it. In those circumstances the Court will not intervene on judicial review
[19] The panel's conclusion not to accept the applicant's claim to refugee status on the basis of membership claimed in a social group, women threatened with abuse, is disputed. The panel's finding that the evidence did not support a conclusion that women subject to domestic abuse were a social group persecuted as a group in Chile was based on its assessment of documentary evidence concerning legislative actions and practices introduced, and community organizations established for support for women in that country in recent years. The applicant's evidence was of her experience in coping with domestic violence, and of her perception of conditions in her own country up to the time she left in 1995. I am not persuaded the panel erred in finding no documentary evidence in support of the applicant's claim that abused women in domestic situations were a persecuted social group in Chile. In the absence of such a group facing persecution, the applicant's claim to be within the Convention refugee definition by reason of her membership in that group, simply had no basis that would qualify in terms of the definition. Put another way, there was no nexus established between the experience of the applicant, a victim of abuse at the hands of her former common law spouse, and the grounds for recognition as a Convention refugee.
Conclusion
[20] Accepting that the applicant suffered serious physical and psychological abuse at the hands of her common law husband from 1989 to 1992, and once again in 1994, the panel made no overriding error in concluding she was not a member of a social group that faced persecution within the definition of Convention refugee at the time she left Chile in 1995, or subsequently. Nor did it err in its assessment of her personal situation as not establishing inability of the state to provide reasonable protection for her, if she were to return to Chile, against the prospect of abusive vengeance of her former partner.
[21] In the circumstances, the claim of the principal applicant is dismissed as are the claims of her two infant children which are dependant on their mother's claim.
(Sgd.) "W. Andrew MacKay"
Judge
Vancouver, British Columbia
February 11, 1998
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4480-96
STYLE OF CAUSE: ANGELICA ELIZABETH NAVARRO AROS,
GENNARO FRANCESCO BENONI NAVARRO,
ROMINNA ORNELLA BENONI NAVARRO,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 21, 1997
REASONS FOR ORDER OF THE COURT BY: MacKAY, J.
DATED: February 11, 1998
APPEARANCES:
Mr. P. Jeejeebhoy for Applicant
Ms. Susan Nucci for Respondent
SOLICITORS OF RECORD:
Mr. Juan Carranza for Applicant
| George Thomson for Respondent |
Deputy Attorney General of Canada
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