Date: 20100722
Docket: IMM-6659-09
Citation: 2010 FC 772
Ottawa, Ontario, July 22,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
FATIMA
MORENO HERNANDEZ
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division (the Board), dated December 2, 2009, where
Fatima Moreno Hernandez (the Applicant) was found not to be a Convention
refugee or a person in need of protection.
[2]
This
application shall be granted for the following reasons.
Factual Background
[3]
The
Applicant is a citizen of Mexico who resided in the state of Guanajuato.
She claims that she fears her ex-husband, Juan Luis Hernandez, and their
relationship has a long history of psychological and physical abuse. The
Applicant married Hernandez in 1994. She has two children. Throughout the
marriage, Hernandez was physically and psychologically abusive. He is a
municipal police officer and used his position to threaten the Applicant and
would tell her that any complaints would be ineffective and that he would frame
her for a crime so that she would have to go to jail. The couple separated in
December 2000 but the abuse and threats continued.
[4]
In
March 2006, Hernandez went to the Applicant’s home saying he wanted to bring
the children to a family party. The children refused to go with him; he then
punched the Applicant in the face. After this incident, the Applicant filed a
complaint and sought medical treatment. She also brought a motion for divorce
which was granted along with a restraining order against Hernandez.
[5]
Despite
the order, Hernandez continued to threaten and harass the Applicant. On June 3,
2008, Hernandez presented himself at the Applicant’s home under the pretext
that he wanted to see the children. However, he went into a fury and tried to
rape the Applicant. Her mother and sister arrived during the attack and
Hernandez ceased and went away. She did not report the attempted rape. She
arrived in Canada on June 14,
2008 and made a claim for refugee protection shortly thereafter.
Impugned Decision
[6]
The
Board identifies credibility and state protection as determinant issues in this
case.
[7]
With
regard to credibility, the Board notes that the Applicant did not obtain a copy
of the complaint that she made regarding Hernandez and cites evidence that
indicates that it is a relatively simple process to obtain a copy of a
complaint. The Board also mentions that she did not provide a copy of the
restraining order. The Board states that the Applicant has the burden of proof
to present corroborative evidence and finds that the explanations given were
not reasonable and the Applicant did not make a diligent effort to obtain
documentation. The Board concludes that this affects the Applicant’s
credibility regarding those aspects of her testimony.
[8]
As
for state protection, the Board writes that the Applicant testified that she
did not mention the violence committed by Hernandez to the judge during the
divorce motion. Furthermore, the Applicant did not make a complaint to the
police after the granting of the divorce and the restraining order. The Board
remarks that even though Hernandez is a municipal police officer, this does not
grant him immunity regarding criminal acts.
[9]
The
Board goes on to review the documentary evidence on country conditions which
states that 30 out of 32 Mexican states have passed the law on women’s access
to a life free of violence and that the Federal District has entered
into force regulations requiring immediate police intervention in violent
situations. The Board also cites documentary evidence on the process for filing
a complaint regarding a public servant in the Federal District. The evidence
also states that in Guanajuato state there is a free service for citizens who
want to file complaints against a public servant for any type of human
rights-related violation and from April 2003 to March 2004, 1119 complaints
were filed including 334 against municipal police.
[10]
The
Board mentions the applicable legal principles on state protection and
emphasizes that Mexico is a democratic country which places a heavy
burden on the Applicant to rebut the presumption of state protection. The Board
then finds that, in the circumstances of this case, the Applicant did not take
all reasonable steps and those that she did take were not sufficient. The Board
also adopts the reasoning with regard to state protection in the persuasive
decision in file TA6‑07453. The Board concludes that the Applicant has
not refuted the presumption of state protection and the claim is rejected.
[11]
The
Board’s consideration of evidence is a matter of fact which attracts a
deferential standard (Villicana v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1205, 357 F.T.R. 139 at paras 35
to 39). This Court has also held that the Board’s decisions on credibility and
state protection should be reviewed on a standard of reasonableness (Aguirre
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] F.C.J.
No. 732 at para. 14; Guzman v. Canada (Minister of
Citizenship and Immigration), 2008 FC 490, [2008] F.C.J.
No. 624 at para. 10).
[12]
Accordingly,
the Court will only intervene if the decision does not fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para. 47).
[13]
The
parties agreed at the hearing that the main issue in this case is state
protection.
[14]
The
Applicant has raised three grounds which she submits renders the Board’s
decision unreasonable.
[15]
There
is a well accepted principle that the Board is presumed to have considered all
of the evidence before it and that it need not comment on every piece of
evidence. That being said, when the Board relies heavily on evidence supporting
its finding, but is silent with regard to evidence leading to the opposite conclusion,
it may be easier to infer that the contradictory evidence was overlooked (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 para.
17 (QL)).
[16]
In
the case at bar, as its analysis of country conditions, the Board cites
extensively from a document titled Implementation of the General Law on
Women's Access to a Life Free of Violence (Ley General de
Acceso de las Mujeres a una Vida Libre de Violencia) (May 26, 2009). This document
details the resources available to women who are victims of violence under the
new law. The Board cites the beginning of the second paragraph which states
that 30 of 32 states have adopted the legislation but then omits to mention the
following lines from the very same paragraph:
(…) however, there remain a number of states that have not
realized key provisions, including "implementation mechanisms," an
agency coordination mechanism, and the building of new shelters. Nevertheless,
according to the ex-legislator and co-creator of the General Law, Angélica de
la Peña Gómez, the law has been successful for two reasons: the first because
it has been able to gain approval in almost every state in the country, and
"broke the inertia" (ha roto la inercia) other national laws have
faced in state congresses; and the second concerns the approval of budgetary
payments of 3 million pesos [$1 CAN = 10.62 MEX (Canada 22 Apr. 2009)] for each
state to implement the law (CIMAC 3 Feb. 2009).
[17]
The
same documents also contains the following evidence:
In March 2009, however, the President of
INMJURES, Rocio García Gaytán, stated that only six states in the country have
approved the corresponding regulations outlined within the General Law (Milenio
9 Mar. 2009). In this context, García Gaytán noted that while efforts to
harmonize state laws were advancing, in states like Campeche, Tamaulipas and
Michoacán provisions such as "murder for reason of honour" (homicidio
por razón de honor), still appear in the criminal code (ibid.). Ex-legislator
Pena Gomez also stressed the urgency for states which passed the General Law,
to begin enforcing the rules outlined in the law so that the system could begin
to function effectively at the local level (CIMAC 3 Feb. 2009). Peña Gómez
stated that in order to enforce the rules, state legal frameworks still require
budgetary endorsement for their implementation (ibid.). AI corroborates the
preceding information, noting that:
The real test of the effectiveness of the
new legislation in combating violence against women will be its impact at the
state and municipal level. In the vast majority of cases, it is the 32 state
governments that have the primary responsibility for ensuring that women who
experience violence have access to justice, security and reparations. To become
effective at this level, legislation in all 32 states needs to clearly identify
responsibilities, lines of accountability and budgets. (1 Aug. 2008, 13)
[18]
I
further note that the same document incorporates a table produced by Amnesty
International which shows that the Applicant’s state – Guanajuato State – has
not adopted either the law or the regulations (Amnesty International, Implementation
of the General Law on Women's Access to a Life Free of Violence in Mexican
States (January 27, 2009)).
[19]
The
Board did not mention any of this evidence, nor does it mention articles
submitted by the Applicant on the ineffectiveness of the implementation of the
law and regulations in general. Such evidence was extremely relevant in this
case and contrary to the Board’s finding that state protection existed for the
Applicant in Mexico.
[20]
As
stated by Justice Martineau in Avila v. Canada (Minister of
Citizenship and Immigration), 2006 FC 359, 295 F.T.R. 35 at para. 27
"...the legislation and procedures which the applicant may use to obtain
state protection may reflect the will of the state. However, they do not
suffice in themselves to establish the reality of protection unless they are
given effect in practice". This makes the evidence on the implementation
of the law and its regulations, which are supposed to provide for the resources,
all the more important.
[21]
There
was also evidence before the Board showing that, in spite of the complaints
mechanisms regarding public servant, police still act with impunity. Once
again, it is the reality of protection that need be acknowledged and analysed
by the Board. The Board does not need to accept the contrary evidence but it
must review it and explain why it relies on other evidence to reach its
conclusion.
[22]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be allowed. The matter
is returned for redetermination by a newly constituted Board. No question is
certified.
“Michel
Beaudry”
APPENDIX
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
|
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.
|
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 mépossibilité d’un refuge internes 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.
|
Email this Content