Date: 20051214
Docket: IMM-1299-05
Citation: 2005 FC 1690
Toronto, Ontario, December 14, 2005
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
MARIA LUISA REA TUFINO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Refugee Protection Division ("RPD") found the Applicant gave credible evidence of having suffered horrific sexual abuse at the hands of a man in a position of authority to her. A critical fact in the evidence given by the Applicant is that she did not seek state protection for the abuse she suffered because she felt the police would not believe her, and no protection action would be taken by the police because the abuser is a well connected, influential person.
[2] The Applicant is a citizen of Mexico. On the record produced before the RPD, there is cogent evidence going to prove that the police in Mexico fail to protect women who have suffered violence occurring in a relationship. In its reasons, the RPD correctly found that the Applicant has an obligation to seek state protection "unless it is objectively unreasonable to do so" (Decision, p. 5). However, in rejecting the Applicant's claim for protection under the IRPA, the RPD failed to apply this test which requires an analysis of the reality of state protection in Mexico, and a determination as to whether the Applicant's reasons for not seeking it are reasonable.
[3] In addition, the Applicant's well detailed body of evidence produced on the record before the RPD of police failure to protect women in Mexico is not referred to in the decision under review. I find that, since the RPD's decision turns on the issue of state protection, the failure of the RPD to refer to and analyze this evidence constitutes a reviewable error.
ORDER
Accordingly, the RPD's decision is set aside and the matter is referred back to a differently constituted panel for re-determination, but on directions.
In my opinion, since the Applicant's evidence provided to the RPD was accepted as credible, I find it would be unjust to have her credibility questioned on the re-determination only made necessary due to the reviewable errors in the decision under review. As a result, on the facts of this case, I find that the re-determination should be on limited grounds.
Accordingly, I direct that the re-determination be conducted as follows:
1. The Applicant's evidence tendered on the present record under review be considered as credible.
2. However, with respect to the reasonableness of the Applicant's failure to seek state protection, new evidence and argument may be provided, including further questioning of the Applicant at the request of the RPD panel conducting the re-determination.
3. The evidence tendered by the Applicant of lack of state protection by the police in Mexico on the present record under review be considered by the RPD panel conducting the re-determination, together with any further evidence and argument supplied on this issue.
"Douglas R. Campbell"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1299-05
STYLE OF CAUSE: MARIA LUISA REA TUFINO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 3, 2005
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: DECEMBER 14, 2005
APPEARANCES:
|
J. Byron M. Thomas Esq. M.A., LL.B
|
FOR THE APPLICANT
|
|
Robert Bafaro
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| J. Byron M. Thomas Esq. M.A., LL.B
Barrister and Solicitor
Professional Corporation
Toronto, Ontario
|
FOR THE APPLICANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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