Date: 20101215
Docket: IMM-4414-09
Citation: 2010 FC 1200
Ottawa, Ontario, December 15, 2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
MARCELA CORTES MARTINEZ
CARLOS
MANZANARES JR.
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for a judicial review of the decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
August 12, 2009, wherein the Applicants were determined to be neither
convention refugees nor persons in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, R.S. 2001, c. 27 (IRPA). The
Applicant failed to rebut the presumption of state protection.
I. Background
A. Factual
Background
[2]
The
Applicant, Marcela Cortes Martinez, is a citizen of Mexico. The other Applicant
is her minor son, Carlos Manzanares Jr., a citizen of the United
States of America. They entered Canada on September 3, 2008
and claimed refugee protection the same day on the basis that the Applicant
feared being found by her estranged husband.
[3]
The
Applicant was married to a lieutenant in the Municipal Police Force of
Tezonapa. His two brothers are also members of the same police force. The
Applicant’s husband was abusive towards her before and after the marriage. The
situation did not improve after the birth of their daughter in August 1996, and
so the Applicant decided to leave her husband.
[4]
The
Applicant sought help from the Mexican authorities several times. She made a
denunciation to the Public Ministry after she first decided to leave her
husband. As a result, the Applicant’s husband was called in and spoken to. He
told the police he had beaten the Applicant because she was unfaithful. No
further action was taken at that time.
[5]
A
lawyer was able to obtain a restraining order on behalf of the Applicant, but
in January 1997 the husband broke the order when he went to the Applicant’s
uncle’s home in the Federal District. The Applicant had moved in with him along
with her daughter. The husband assaulted the Applicant’s uncle, threatened her
brother and forced the Applicant and their daughter to go back with him.
[6]
In
January 1998, the Applicant reported her husband to the police for beating
their daughter. The authorities detained the husband for three weeks, and the
Applicant and daughter fled to Guadalajara.
[7]
The
Applicant returned to Cordoba in February 1999. Her
husband found her and threatened her with a gun. The Applicant left her
daughter with her mother and fled to the U.S.A.
[8]
While
the Applicant was in the U.S.A. the husband took their daughter to a party
and refused to return her to the Applicant’s mother. The government family
services agency intervened, and the police were eventually successful in
recovering the daughter. Charges were not laid because the Applicant and
husband were not divorced.
[9]
In
2004, after having started a common law relationship with her present partner
and giving birth to their son in 2002, the Applicant returned to Mexico in
order to arrange for her daughter to join her in the U.S.A. The
Applicant could not obtain the required passport, and so returned to the U.S.A. after she
heard that her husband was looking for her.
[10]
In
2006 and again in 2008 the Applicant learned through friends that her husband
was in the U.S.A. looking for
the Applicant in order to kill her. That is why the Applicant fled to Canada in early
September 2008.
B. Impugned
Decision
[11]
The
Board found that the minor claimant did not have a well-founded fear of
persecution in his first country of residence, which is the U.S.A.
[12]
The
Board found that the Applicant was a victim of domestic violence. The Board
also found that Mexico is a functioning democracy, and although there is
criminality throughout the country, the documentary evidence shows that Mexico is making
serious efforts to professionalize the police.
[13]
The
Board found that when the Applicant reported her husband to the authorities,
action was taken. The Board found that this was adequate state protection,
even though the Applicant testified that she didn’t feel that any punishment
her husband had received was severe enough.
[14]
The
Board acknowledged the ample documentary evidence that the Applicant submitted
regarding domestic violence, criminality and corruption in Mexico. However,
the Board’s same documentary evidence also demonstrates the government of Mexico is making
serious efforts to protect its citizens.
[15]
Furthermore,
the Board found that the Applicant would have access to psychological counselling
in Mexico, and
provided a list of services that the government provides for victims of
gender-related violence.
[16]
The
Board concluded that the Applicant had not persuaded the Board on a balance of
probabilities that state protection is inadequate.
II. Issues
[17]
The
Applicant raises the following issues:
(a) Did the Board err in failing to
address the Internal Flight Alternative (IFA) in its reasons?
(b) Did the Board err in concluding that
the Applicant failed to rebut the presumption of state protection?
Specifically, did the Board err in:
(i) Failing
to recognize that the police did not provide protection;
(ii) Incorrectly
applying the test for state protection;
(iii) Failing
to consider documentary evidence that supported the Applicant’s position and
contradicted the Board’s finding;
(iv) Failing
to consider the psychological evidence.
III. Standard
of Review
[18]
The
Board’s conclusion regarding the availability of an IFA, the application of the
test for state protection and the disregard of evidence in doing so are issues
of mixed fact and law and are reviewable on a standard of reasonableness (see Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R.
339; Barajas v. Canada (Minister of
Citizenship and Immigration), 2010 FC 21 (QL) at para. 21 and
Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 696, 170 A.C.W.S. (3d) 168
at para. 11).
[19]
As
set out in Dunsmuir, above, reasonableness requires consideration of the
existence of justification, transparency, and intelligibility in the
decision-making process. It is also concerned with whether the decision falls
within a range of acceptable outcomes that are defensible in respect of the
facts and law.
IV. Argument
and Analysis
A. The
Board Did Not Err in Failing to Address the IFA in its Reasons
[20]
The
Applicant submits that the Board committed a reviewable error in not addressing
an IFA in its reasons, even though the option of fleeing to Puebla was surveyed
during the hearing.
[21]
The
Respondent argues that the Board made no finding regarding an IFA as the
determinative issue was the Applicant’s failure to rebut the presumption of
state protection.
[22]
The
Applicant cites many cases in which the Board has committed some kind of
reviewable error in relation to an IFA analysis. But these are of little help
to the Applicant. When the Board concluded that state protection is adequate
in Mexico, the need to
analyze an IFA was negated. There is no basis for the Applicant’s submissions
relating to how the Board might have improperly analyzed an IFA, if they had
decided to do an IFA analysis.
B. The
Board’s Finding that there is Adequate State Protection
is Reasonable
(i)
Police
Action
[23]
The
Applicant submits that the Board erred in concluding that there was adequate
state protection, based in part on the finding of fact that, “the times that
[the Applicant] did report the crimes to the police, the police acted”
(decision para. 33). The Applicant argues that the Board’s conclusion is
perverse.
[24]
In
its reasons the Board admits that the Applicant may be justified in her view
that the punishment was not severe enough. However, the Board concerned itself
with whether the authorities took appropriate action when a complaint was made,
and decided based on the evidence that they had. The Board found that this amounted
to an adequate level of state protection.
[25]
The
Applicant contends that the action taken by authorities was ineffectual and allowed
the estranged spouse to act with impunity. Be that as it may, the standard is
one of adequacy and not perfection. The Board has the job of making
determinations of fact. It was reasonable to conclude based on the evidence of
the restraining order, detention of the husband, and police involvement in the
recovery of the Applicant’s daughter that the police took action when it was
requested.
[26]
Furthermore,
just as the Board did in its decision, Justice Richard Mosley relies on Canada (Minister
of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R.
(2d) 130 (F.C.A.) in Flores v. Canada (Minister of
Citizenship and Immigration), 2008 FC 723, [2008] F.C.J. No. 969 (QL)
for the proposition that, “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” (at para.10).
[27]
There
is no merit to the Applicant’s argument that the Board made a perverse finding
of fact regarding the police action.
(ii) The
Test to Rebut the Presumption of State Protection
[28]
The
Applicant submits that the Board erred in concluding that the Applicant failed
to rebut the presumption of state protection based on the “serious efforts”
being made by the government of Mexico to protect its citizens.
The Applicant suggests that this test does not meet the standard set out in Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, and that the
Board erred in relying on Villafranca, above.
[29]
In
my view, the Applicant has confused where the onus lies in the matter of state
protection. The Board is not obliged to prove that Mexico can offer the
Applicant effective state protection, rather, the Applicant bears the legal
burden of rebutting the presumption that effective state protection exists by
adducing clear and convincing evidence which satisfies the Board on a balance
of probabilities (Carillo v. Canada (Minister of Citizenship and
Immigration), 2008 FCA 94, 69 Imm. L.R. (3d) 309 at para. 30). The
quality of the evidence will be proportional to the level of democracy of the
state (Avila v. Canada (Minister of
Citizenship and Immigration), 2006 FC 359, 295 F.T.R. 35 at para.30).
And, as Justice Russell Zinn noted in Sandoval v. Canada (Minister of
Citizenship and Immigration), 2008 FC 868, [2008] F.C.J. No. 1084 (QL)
at para. 16:
Where, as in this case, protection was
sought and provided, an applicant will have a challenge to show that it was an
aberration unless there has been some material change in personal or state
circumstances.
[30]
Here
the Board found that Mexico is a functioning democracy. This Court
has recently held that Mexico is a democracy with the willingness and ability
to protect its citizens (Alvarez v. Canada (Minister of
Citizenship and Immigration), 2010 FC 197, at para.20) The Board also
found that the Applicant had successfully sought protection from the Mexican
authorities. If anything has changed in the decade plus since the Applicant
fled Mexico, the
documentary evidence before the Board suggests that the awareness level and
ability of the government to appropriately handle the issues surrounding
domestic violence have improved.
[31]
Although
one needs to keep in mind that the Federal Court of Appeal decided Villafranca,
above, before the Supreme Court reached their decision in Ward, above,
the proposition that state protection need not be perfect is still a correct
one. The Federal Court of Appeal confirmed in Carillo, above, that the
test for a finding of state protection is whether that protection is adequate,
rather than whether it is effective, per se (Carillo, above, at para.
32).
[32]
In
the present case, the Board determined that the Applicant failed to adduce
persuasive evidence that protection would be less forthcoming in the future
than it was the three times she sought aid from the authorities in the past.
In this case, absent any failure by the Board to appreciate the totality of the
evidence, it was reasonable and open to the Board to conclude that the
Applicant failed to rebut the presumption of state protection. The Board did
not err in applying the test.
(iii) Contrary
Documentary Evidence
[33]
The
Applicant submits that the Board failed to assess the substantial amount of
documentary evidence that contradicted its finding that Mexico would be
able to offer the Applicant, a victim of domestic violence, adequate state
protection. It is the Applicant’s position that had the Board turned their
mind to this evidence, the Applicant would have been successful in rebutting
the presumption of state protection.
[34]
The
Applicant lists several recent cases dealing with Mexico to support
her argument that the Board is required to explain why it prefers some evidence
over other evidence, especially when the rejected evidence contradicts the
Board’s finding (Avila, above, Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration) (1998), 157 FTR 35, 83 A.C.W.S. (3d) 264).
[35]
The
Respondent does not address this argument in their written submissions.
[36]
The
Board twice addresses the issue of contrary evidence in its decision. It is
therefore a matter of determining whether this “nod” to the Applicant’s
submitted evidence is sufficient.
[37]
First
the Board discusses the state of Mexico generally at para. 32:
The panel agrees there is
criminality throughout Mexico, however, documentary
evidence shows that Mexico is making serious efforts to
professionalize the police. There are many state agencies that address
criminality, including drug trafficking, kidnapping, and corruption to assist
Mexicans in obtaining state protection. Documentary evidence indicates that
public officials, including police and the army, are punished for their
misconduct.
[38]
Secondly
at para. 40 when referring to the articles submitted by the Applicant’s
counsel:
Counsel submitted several
articles on domestic violence, criminality, and corruption. The panel agrees
there are problems in Mexico with the above issues. The
Board’s documentary evidence supports this fact. However, the Board’s same
documentary evidence demonstrates that the government of Mexico is making serious efforts to
protect its citizens.
[39]
The
Board then provided an extensive bulleted list of services offered, laws
enacted and training available related to gender-related violence as proof that
the Government of Mexico is making serious efforts.
[40]
There
is an abundance of case law emanating from the Federal Court dealing with cases
of domestic abuse in Mexico. The Applicant cites many that have found
reviewable errors in a Board’s disinclination to discuss documentary evidence
that suggests that state protection is ineffective or inadequate while relying
on other documentary evidence that shows that the government is making serious
efforts at improving state protection for women (Huerta v. Canada (Minister
of Citizenship and Immigration), 2008 FC 586, 167 A.C.W.S. (3d) 968 at
paras. 23-25; Avila, above, at para. 36; Zepeda v. Canada (Minister
of Citizenship and Immigration), 2008 FC 491, 167 A.C.W.S. (3d)
144).
[41]
There
is equally case law holding that a decision is not defective if it is clear
from the reasons that the Board read and considered the applicants' submissions
and the documentary references they cited, even if the Board does not reference
specific documents in its reasons (Monjaras v. Canada (Minister of
Citizenship and Immigration), 2010 FC 771).
[42]
In
the present case, I think the above excerpts make it obvious that the Board
turned their attention to the Applicant’s submissions. The Board acknowledged
that their own documents attest to the same social problems emphasized in the
Applicant’s submissions. However, given the Applicant’s personal experience
with the Mexican authorities coupled with the documents evidencing the support
available for victims of domestic violence, the Board’s conclusion that
adequate state protection is available to the Applicant is not outside the
range of reasonable outcomes justifiable in facts and law. After all, this
Court has ruled that it is insufficient for an Applicant to rely solely on
documentary evidence of flaws in the judicial system if they have failed to
avail themselves of available state protection (Alvarez, above, at para. 22)
and each case is sui generis, to be analyzed on its own specific set of facts (Avila, above, at para. 28).
(iv) Psychological
Evidence and IRB Gender Guidelines
[43]
I
disagree with the Applicant’s submission that the Board failed to consider the
psychologist’s report and the impact that returning to Mexico would have
on the Applicant’s mental health. In paragraph 41 of the decision, the Board
finds that the Applicant would still be able to receive counselling in Mexico, something
that the psychologist believes the Applicant needs in order cope with her
symptoms of post-traumatic stress disorder.
[44]
As
for the Gender Guidelines, without explaining how the Board erred, the
Applicant argues that the Board was not alive to the sensitivity required
therein and failed to make any meaningful reference to the guidelines in the
context of the Applicant’s claim. I do not see how the Board could have placed
greater weight on the Guidelines, for this was not a case that centered on the
Applicant’s unwillingness to seek state protection or whose outcome was
affected by the Applicant’s reluctance to testify at the hearing. I believe
the Board was reasonable and appropriately sensitive to the Applicant’s
situation.
V. Conclusion
[45]
[…]
[46]
No
question to be certified was proposed and none arises.
[47]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“ D.
G. Near ”
Email this Content