Date: 20100224
Docket: IMM-780-09
Citation: 2010 FC 216
Ottawa, Ontario, February
24, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALEJANDRA BEATRIZ PEREYRA
AGUILAR
DAMIAN ALEJANDRO ROMERO PEREYRA
Applicants
And
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (RPD or Board), dated January 21, 2009, wherein the applicants were
determined to be neither Convention refugees nor persons in need of protection
under sections 96 and 97 of the Act.
[2]
The
applicants request that the decision be set aside and the matter referred to a
newly constituted panel of the Board for redetermination.
Background
[3]
The
applicants, Alejandra Beatriz Pereyra Aguilar (the principal applicant)
and Damian Alejandro Romero Pereya (the minor applicant), are mother and
son. Both are citizens of Mexico who lived in the Federal District of
Mexico. The applicants came to Canada in April of 2008, seeking international
protection from the principal applicant’s abusive spouse.
[4]
In
1997, the principal applicant married Rodolfo Romero Santa Maria (Romero), a
successful businessman in the arts and entertainment business. After the
marriage, Romero became abusive. By 1998, Romero began abusing the principal
applicant physically and emotionally, controlling the principal applicant. He
would also disappear for days at a time, but would always subsequently
apologize and they would reconcile. This pattern continued for five years, with
the principal applicant occasionally requiring medical treatment. During the principal
applicant’s pregnancy with the minor applicant, Romero was especially abusive.
The principal applicant never reported the abuse because her mother had told
her that that is a woman’s lot in life and because she feared further abuse.
[5]
The
minor applicant was born in 2002, but Romero’s behaviour did not change. Romero
became abusive to the minor applicant as well, telling him he was not his
father and pushing him out of the way on one occasion.
[6]
In
December 2005, Romero threatened to kill both applicants. A few weeks after an
incident of physical abuse, the principal applicant moved out of their home and
went to the Public Ministry. A report was taken and then she was referred to
the Centre of Attention to Intrafamily Violence (CAVI), a department of the
Attorney General’s office. There she received counselling and legal advice.
Romero participated on one occasion but then became uncooperative.
[7]
Later
in 2006, the minor applicant required surgery. Romero’s consent was required.
After meeting on this occasion, the principal applicant and Romero decided to
try living together again for the sake of the minor applicant. Things were fine
for about two months, but then Romero became abusive again after the principal
applicant caught him kissing another woman in February of 2007. By May of 2007,
the abuse had caused the applicants to move in with the principal applicant’s
parents. In June 2007, Romero appeared at the minor applicant’s school and
assaulted the principal applicant. The principal applicant did not go to the
police. The principal applicant moved with her parents to a new area, but she
alleged that she was still concerned that Romero would be able to “track her
down” through his friends in the police.
[8]
By
March of 2008, the principal applicant had decided to come to Canada to escape
Romero. The principal applicant was able to get a passport for her son by
telling Romero that she was just taking the him on a trip to Spain and would
return.
[9]
Romero
continued to contact the principal applicant after her arrival in Canada, by calling
and sending text messages. In the hearing, the principal applicant remarked
that Romero wants them back “…he wants us back, but when he has us, he treats
us terribly.”
Board’s Decision
[10]
The
Board began by discussing the gendered nature of the claim. The Chairperson’s Guidelines
on Women Refugee Claimants Fearing Gender-Related Persecution (the
Guidelines) highlights that women claimants may face special problems in demonstrating
their claims. The Board noted that the Guidelines are helpful considering the
added sensitivities of these claims.
[11]
The
Board then noted that the determinative issue in the case was whether the applicants
had rebutted the presumption of state protection.
[12]
The
Board noted that the principal applicant went to the police only once, in 2005,
that the police had taken her request for help seriously and had provided
service. In the weeks that followed, the principal applicant completed paper
work required by CAVI. The CAVI process included mediation, and if that was
unsuccessful, divorce. By June 2006, Romero had ceased cooperating, and the
CAVI lawyers told the principal applicant that there was nothing else they
could do, besides a divorce. The next month, the principal applicant reconciled
with Romero. The relationship, however, became abusive again. Romero has since
told the principal applicant that he would cooperate in a divorce.
[13]
The
Board was unsatisfied with the principal applicant’s explanation of why she did
not go back to the Public Ministry or CAVI to report further abuse, given that
she received attention the first time she reported abuse.
[14]
The
Board discussed Mexican laws that address violence against women and domestic
violence. These laws apply even if the victims have not suffered physical
injuries. The Board also discussed Mexican policies, laws and initiatives
requiring the recording, investigation, prevention and punishment of domestic
violence. Medical staff are also being trained to recognize and report domestic
violence. The Board also noted that the Federal District of Mexico (FD) is the
most progressive area in implementing some of the newer laws. The FD also
provides women’s shelters.
[15]
The
Board did note that there is a gap between some legal initiatives and actual
practice, and that there were serious problems reported in various states, but
that none were reported in the FD. Progress is being made on the national
front, with the CAVI helping 22,000 women each year in the FD alone, and that
criminal proceedings are now more common. In summary, the Board concluded that
the principal applicant failed to access these avenues open to her despite
getting help the first time.
[16]
The
Board discussed the doctor’s psychological report on the principal applicant,
but did not find that it rebutted the presumption of state protection. The
report noted that the principal applicant was nervous and anxious, and would
benefit from treatment. There was no evidence that treatment would be lacking
in Mexico.
[17]
The
Board also noted the principal applicant’s post hearing affidavit which
detailed Romero’s attempt to enter Canada. Romero was not allowed
to enter Canada, but
persuaded the principal applicant to visit him at the airport in order that he
could see the minor applicant and deliver Christmas presents. It was a
stressful event, and the principal applicant reported that Romero got into an
altercation with a Border Services guard. The Board did not feel that this
evidence was determinative with respect to the issue of state protection.
[18]
In
the end, the Board felt that adequate but not perfect state protection was and
is available to the applicants, should it be required, and that the applicants
did not exhaust all courses of action that were reasonably open to them.
Issues
[19]
In
my view, the issues that need to be resolved are as follows:
1. What is the standard
of review?
2. Did the Board commit
a reviewable error with respect to its finding that the presumption of state
protection had not been rebutted?
Applicants’ Written Submissions
[20]
The
applicant submits that the Board failed to accord proper weight to the
following:
-
Romero’s
arrogance and aggressive behaviour, including his attempt to enter Canada;
-
Romero’s
ability to find the applicants in Mexico as a man with
connections; and
-
Medical
reports from instances of Romero’s violence, including a broken nose.
[21]
The
applicants submit that the presumption of state protection can be rebutted with
testimony of similarly situated individuals let down by the state protection
arrangement or the applicants’ testimony of past personal incidents in which
state protection did not materialize, or some evidence of a state’s inability
to protect.
[22]
The
applicants submit that there is clear evidence that the state has not protected
the applicants, or similar women in the principal applicant’s place. Referring
the principal applicant to CAVI was not providing her with service. CAVI cannot
be considered an agency for providing state protection.
[23]
The
applicants submit that when assessing the obligation to seek protection, the
overall picture must be looked at to determine if it was reasonable. The Board
must explain why it prefers other sources over the applicants’ evidence, and
here the applicants provided cogent evidence of police corruption in Mexico, and the
failure of Mexican government programs. The evidence also showed that in Mexico, protection
is not reasonably available for abused women.
[24]
The
applicants submit that there is evidence that Mexican laws do not adequately
protect women and girls from domestic violence and sexual abuse (see Zamora
v. Canada, 2008 FC 586, Trianna Aguirre v. Canada (Minister of
Citizenship and Immigration), 2008 FC 571, at paragraph 24).
[25]
The
applicants submit that in rebutting the presumption of state protection, it is
the effectiveness of the protection that counts, not state initiatives. Here
the state did not effectively respond. Moreover, the Board is required to
assess the level of democracy in Mexico, which they did not do.
The Board must give regard to the corruption, drug trafficking and kidnapping
that occurs in Mexico when assessing the level of democracy.
[26]
The
applicants submitted many documents, both personal documents and documents with
respect to country conditions. The Board was required to explain why it
preferred other evidence over that provided in those documents.
[27]
The
applicants submit that Board reasons must show that the Board was alive to the
sensitivity required by the Guidelines, in context of the particular circumstances
of the applicants. The Board must balance its expectations against the
realities of the applicants’ situation. These requirements are not satisfied
merely by the Board stating that it considered all the documentary evidence.
Here, the Board did not assess the psychological evidence or the medical
evidence.
Respondent’s Written Submissions
[28]
The applicants seek to revisit the weighing of the evidence and
challenge findings of fact made by the Board. The respondent submits that there
is nothing before the Court which shows the Board failed to consider all of the
evidence. The Board reviewed all the allegations, and the state protection
apparatus in Mexico, with its strengths and weaknesses. It is open
to the Board to decide what weight to give each piece of evidence. The
applicants have not rebutted the presumption that the Board considered all the
evidence in front of it.
[29]
A refugee claimant must provide clear and convincing evidence of
the state’s inability to protect. It is not enough for a claimant to show that
the state is not always effective at protecting persons in a similar situation.
The failure or corruption of some members of the police is insufficient to
demonstrate a want of state protection. The Federal Court of Appeal has ruled
that the test is adequacy of protection, rather than effectiveness per se
(see Canada (Minister of Citizenship and
Immigration) v. Carrillo, 2008 FCA 94).
[30]
The respondent submits that a number of recent decisions have
found Mexico to be capable of providing adequate state protection, even where
the persecutor is highly-ranked or otherwise an agent of the state, and in
cases where domestic violence against a female claimant has occurred (see Flores
v. Canada (Minister of Citizenship and Immigration), 2008 FC 723). The
respondent also submits that the new standard of reasonableness is to be
applied to state protection findings.
[31]
The applicants here had some success with the first attempt
engaging the state apparatus, but chose not to engage the state apparatus when the
principal applicant determined that the reconciliation with Romero would not
work. The principal applicant did not pursue divorce. Having covered all the
facts and then going on at length to discuss Mexico’s
efforts to provide adequate protection, it was reasonable for the Board to
conclude as it did.
Analysis and Decision
[32]
Issue
1
What is the
standard of review?
The applicants’ primary
arguments raise issues concerning the Board’s application of the test for state
protection and the Board’s disregard for evidence in doing so. In my opinion,
once the law regarding the presumption of state protection is correctly set
out, a Board’s conclusions thereon will hinge primarily on determinations of
fact or mixed fact and law. Parliament entrusted these decisions to the RPD not
the courts, and as such, these determinations are reviewable on the standard of
reasonableness.
[33]
Issue
2
Did the Board commit a
reviewable error with respect to its finding that the presumption of state
protection had not been rebutted?
The principal applicant argued
that adequate state protection did not exist for her and her son.
[34]
The
Board’s decision suggests that she should have gone back to the police at the
public Ministry as they suggested help for her on a previous occasion and as a
result, she would receive state protection.
[35]
It
is important to note that the applicants’ testimony with respect to state
protection included the following statements:
PANEL MEMBER: In these various places
when he came looking for you did you ever think to go to the state police?
CLAIMANT: The state police,
the state police is worse than the state of the federal district.
PANEL MEMBER: Earlier when you went
to CAVI back in December, January, I believe it was 2006, you said that your
husband told you he was going to get a lawyer. Did he ever get one?
CLAIMANT: I do not know. I
never got any documents from anyone.
PANEL MEMBER: There are other
organizations in Mexico, in Mexico City in particular outside of CAVI that could
help you, or the documentary evidence that we have suggests that they help
people who are in situations that you describe to us. If you were not satisfied
with what CAVI was able to do for you why would you not go to some other
organization or authority?
CLAIMANT: Well I, another
authority which would be in the public ministry I had already been there and
nothing happened.
PANEL MEMBER: You went there once,
that was in December 2005.
CLAIMANT: That is right and
they channelled me to CAVI which is the institution that takes care of all
that, the divorces and separations and all that.
PANEL MEMBER: Right but if you were
fearful that he was going to beat you again or beat your son again, that is a
little different. Those are actually physical assaults upon you that could be
reported as a crime.
CLAIMANT: Yes.
PANEL MEMBER: But you never reported
that to the police.
COUNSEL FOR CLAIMANT: That is
not accurate, she reported it to the public ministry.
PANEL MEMBER: I am sorry, outside of
this one time in December 2005 you did not go back to the police to report any
beatings, is that correct?
CLAIMANT: No I did not go
back.
PANEL MEMBER: So I just wanted to be
clear. One time you went to the public ministry and that was in December 2005.
CLAIMANT: Yes and that is
when they sent me to CAVI because they told me at the public ministry there is
nothing they could do for me.
PANEL MEMBER: And just to clarify you
did not return to back CAVI when things did not work out between them and your
husband not appearing for any of the meetings that they scheduled.
CLAIMANT: I did not go out
to CAVI because this lawyer by the name of Rivera you know, kept saying to me
well he is not showing up, he is not showing up. And she delayed my case for
about three months to see whether you know if he would show up, but he did not.
PANEL MEMBER: Well what was the last
thing that this lawyer told you? What did he tell you to do?
INTERPRETER: I think it is a
lady.
CLAIMANT: Well she said you
know he is not showing up. The only option we have now is to proceed. Well she
is using the words necessary divorce.
[36]
I
have reviewed the Board’s decision and I am not satisfied that this evidence
was correctly addressed by the Board. What purpose would be served by having
the principal applicant go back to the police who had already told her that
“there was nothing they could do for her”. The police would send her to CAVI
who previously could not help the applicant because of the non-cooperation of
her husband. The suggested remedy of obtaining a divorce is not akin to
offering the applicant state protection.
[37]
As
a result of my findings, I am of the view that the Board made a reviewable
error and therefore, the Board’s decision must be set aside and the matter
referred to a different panel of the Board for redetermination.
[38]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[39]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redeterrmination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A person in need of protection is a
person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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