Date:
20100305
Docket: IMM-4398-09
Citation: 2010 FC 261
Vancouver, British Columbia, March
5, 2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MARIA
GUADALUPE MENDOZA CORNEJO
Applicant
and
THE MININSTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee
Board (the RPD) dated August 18, 2009, concluding that the applicant
is not a Convention refugee or a person in need of protection pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA),
S.C. 2001, c. 27 by reason of membership in a particular social group.
FACTS
Background
[2]
The
33-year-old applicant is a citizen of Mexico. She arrived in Canada on October
4, 2007 and made a claim for refugee protection on April 3, 2008.
[3]
The
applicant is a psychologist by profession. Her work in the burn unit of one of Mexico’s hospitals
caused her much stress. She came to Canada on vacation on November
2005 and met the future father of her child while taking English classes. She
later began a romantic relationship with him. The applicant returned to Mexico in July 2006
and resumed her work in the children’s burn unit. She returned to Canada on October
4, 2007 to escape the stresses of her work. The applicant’s prior relationship
resumed upon her return. The applicant discovered she was pregnant in March 2008
and decided to continue with the pregnancy despite the breakdown of the
relationship with the father. The applicant applied for refugee protection on
April 3, 2008, and gave birth to her Canadian child shortly before her hearing
before the RPD.
[4]
The
applicant has been a member of the Camino Neocatechumenate (the “Way”),
a fundamentalist Catholic Christian sect, since she was 21-years-old after
her father was asked to join. The Way intends to reorganize Christian
worship to the way it was in the first Christian communities by emphasizing
adherence to a strictly Catholic way of life through bi-weekly meetings in
small groups of 20 where members must publicly reveal their private lives and
then bear the judgment of their fellow members. The applicant alleges that the
leaders of the Way will pressure her father to physically abuse the applicant
and her child as retribution for the sin of having given birth to a child out
of wedlock. Her refugee claim is based on his alleged anticipated persecution
by reason of her membership in the Way.
Decision
under Review
[5]
On
August 18, 2009, the RPD dismissed the applicant’s refugee claim.
[6]
The
applicant alleged a subjective fear of persecution because of her membership in
the social group comprised of women who became pregnant out of marriage and
whose family belongs to the Way.
[7]
The
applicant testified that she grew up in a very strict family where her mother
subjected her to physical punishment with a wooden stick and her father
physically disciplined her with a horse whip. The applicant submitted that if
returned to Mexico the leaders
of the Way would demand that her father physically “correct” her through
beatings. The applicant contacted her family by telephone. The applicant’s
testimony in this regard is summarized as follows:
1.
the
applicant’s mother believes that the applicant has “betrayed” her family;
2.
the
applicant’s father believes the applicant travelled to Canada to act inappropriately and accordingly
has no desire to ever see her again.
[8]
The
applicant alleged that any member of her extended family would harm her child
because he is proof of her “sin”. The applicant identified a few relatives who
became pregnant out of wedlock and who were either expelled from their
family home or were forced to flee. One suffered physical abuse.
[9]
The
RPD found the applicant’s testimony with respect to the events that she
participated in and the treatment she experienced to be credible and trustworthy,
but determined that the applicant’s testimony with respect to her fears of
persecution was based on speculation. The RPD determined at paragraphs 21 and
22 of the decision that the applicant could not establish persecution:
¶21 I
find that what the claimant describes as persecution does not amount to
persecution as that word is used in the Immigration and Refugee Protection
Act (IRPA). Harassment, ostracism yes, persecution, no. There is no
interface between the claimant and the police which is as frequently portrayed
as the purveyor of persecution of women in Mexico. The claimant has not been in a
situation of complaint to a state authority as of yet.
¶22 What
the claimant has experienced is the environment of a strict but loving family.
The claimant exaggerates for the worst the anticipated conduct of family, the
Neocatechumenate community and of Mexican society in general. The claimant sees
herself as the focus of attention in a country of 110 million individuals.
[10]
The
RPD determined that the applicant could not show a subjective fear of
persecution based on the experiences of her pregnant relatives because unlike
them, the applicant has already given birth and any abuse directed against her could
not lead to a miscarriage, a frequent intention in the infliction of
violence in such instances.
[11]
The
RPD determined that the applicant’s 64-year-old father is not likely to
physically “correct” the applicant, but is rather inclined to ignore her as
their latest telephonic contact indicated. There was no evidence that the
father would harm the child either. The RPD held that there was no evidence to
indicate a tendency for the Way to act in a mean-spirited and cruel way such
that the applicant would be tracked and brought before her father to be
physically abused.
[12]
The
RPD further determined that there was no evidence the applicant would be
subject to torture or personally subjected to a risk of death or a risk of
cruel and unusual treatment or punishment. Any risk of violence or
discrimination alleged by the applicant was general and could not form the
basis of a claim for protection. The applicant’s refugee claim was therefore
dismissed.
LEGISLATION
[13]
Section
96 of IRPA grants protection to Convention refugees:
|
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.
|
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.
|
[14]
Section
97 of IRPA grants to protection to certain categories of persons:
|
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.
|
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.
|
ISSUES
[15]
The
applicant raises the following issues:
1.
Did the
Board err by making speculative findings?
2.
Did the
Board err by making findings which are not founded in the evidence before the
Board?
3.
Did the
Board err by not providing adequate reasons?
STANDARD OF
REVIEW
[16]
In Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R.
1, the Supreme Court of Canada held at paragraph 62 that the first step in conducting a
standard of review analysis is to “ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of (deference) to be
accorded with regard to a particular category of question”: see also Khosa
v. Canada (MCI),
2009 SCC 12, per Justice Binnie at paragraph 53.
[17]
The
issues in this application concern determinations of fact and mixed fact and
law. It is clear that as a result of Dunsmuir and Khosa such
issues are to be reviewed on a standard of reasonableness. Recent case law has
reaffirmed that the standard of review for determining whether an applicant has
established a subjective fear persecution and whether an applicant is a person
in need of protection is reasonableness: Butt v. Canada (MCI), 2010 FC
28, per Justice Pinard at paragraphs 6-7. Questions concerning the adequacy of
reasons are reviewed on a standard of correctness: Via Rail Canada Inc. v. Canada
(National Transportation Agency), [2001] 2 F.C. 25 (C.A.).
[18]
In reviewing the
Board's decision using a standard of reasonableness, the Court will consider
"the existence of justification, transparency and intelligibility within
the decision-making process" and "whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at
paragraph 47; Khosa, supra, at paragraph 59.
ANALYSIS
Issue No. 1: Did the Board err by making speculative
findings?
[19]
The
applicant submits that the RPD made a speculative finding of fact when it
determined at paragraph 28 that the applicant’s father had not physically
corrected the applicant before and would not do it again. The relevant portion
of the paragraph is reproduced as follows:
¶28 I
have some difficulty imagining the 64 years old father “correcting” physically
his 33 year old daughter.
[20]
The
applicant submits that credible testimonial behaviour establishes that the
applicant’s father has in the past physically disciplined the adult applicant
and is likely to do so in the future. The applicant further submits that the
RPD’s conclusion is contradicted by the objective country condition evidence
which indicates a high degree of violence against women in Mexico.
[21]
Viewed
in isolation the above noted excerpt constitutes speculation. This is not so
when evaluated in context. Immediately following the impugned wording the RPD
provides the following reasons:
¶28 …It
would appear that even the claimant has some difficulty with her father’s
resolve in punishing her in that way. Whenever I asked her to explain what
she meant by the word “correcting” and asked how her father would do this, the
claimant, after explaining it would be by a public “correction” in front of the
Neocatechumenate group, volunteered that if her father was not of a mind to
proceed with such “correction”, he would be “told” to correct her. According to
the applicant, he would not have any choice but to do so.
¶29 It
seems that the absence of choice on the part of the father and the insistence
of this by the claimant indicates that the claimant is not at all that
convinced about the father’s resolve in “correcting” her. I believe that the
attitude of the father is more in line with what he said to his wife when
she was talking with the claimant by telephone, when the father expressed the
opinion that “the claimant came to Canada to behave like a whore” and stated that
as far as he was concerned, the claimant did not exist anymore. This
constitutes a far different attitude than one which anticipates a
“correction”; total indifference rather than violent aggression. [Emphasis added]
[22]
The
RPD based its decision on the applicant’s own testimony:
Member: You spoke to your
parents on the phone, after you spoke to your family?
Applicant: yes
[…]
Member: My mother said that I
betrayed the trust that they were giving me. I talked to my father and he said
I went to Canada to behave myself as a
whore.
[…]
Applicant: …He did not want to
talk to me. My sister told me that the comment of my father was that for him I
was dead.
[…]
Member: So what did you
understand your father to mean when your sister said that as far as he was
concerned you were dead?
Applicant: That he never wanted to
see me again.
The applicant’s sister did not suggest or
state that the father would physically “correct” the applicant.
[23]
The
RPD was reasonably entitled to assign more weight to some portions of the
evidence than to others. The applicant’s anticipation of abuse at the hands of
her father upon return to Mexico is inferred from factually unrelated past
experiences and the experiences of some of her cousins. It was reasonably
open to the RPD to determine that the evidence before it did not point toward likely
physical abuse at the hands of the applicant’s father. The Court must defer to
the RPD’s conclusion on this evidence and is not entitled to reweigh it.
Issue No. 2: Did the Board err by making findings which
are not founded in the evidence before the Board?
[24]
The
applicant submits that the same finding of fact mentioned previously is not
founded in the evidence before the Board, particularly the RPD’s
description of the Way. The applicant submits that RPD was not alive and sensitive
to the Immigration and Refugee Board’s Guideline 4: Women Refugee Claimants
Fearing Gender-Related Persecution (Gender Guidelines).
[25]
The
applicant seeks to rebut the RPD’s characterization of the Way. The Court
agrees that the RPD may have erred in describing some aspects of the Way; however,
none of those amount individually or in sum to a reviewable error.
[26]
The
RPD reasonably determined that the Way is not a mean-spirited and cruel
organization that forgoes basic Catholic teachings as forgiveness. The
applicant may sincerely believe that her extended family would trace her
anywhere in Mexico and bring
her before her father and the leaders of the Way for physical “correction,” but
her beliefs are not corroborated by objective evidence. There is no evidence on
the record to indicate that the Way encourages the tracing of errant members
and brings them before the Way’s leaders for punishment. The RPD reasonably
relied on the lack of objective support for the applicant’s allegations when it
held that the applicant could not establish a serious risk of persecution in Mexico: Adu v.
Canada (MEI), [1995] F.C.J. No. 114 (F.C.A.), per Justice Hugessen.
[27]
With
respect to the Gender Guidelines, this Court has previously held that the
applicant must nevertheless bear the onus of proving her claim. The Gender
Guidelines will not corroborate any evidence of gender-based violence so that
the giving of evidence constitutes proof of its truth: Karanja v. Canada
(MCI), 2006 FC 574, per Justice Pinard at paragraph 5.
[28]
The
Gender Guidelines are not of assistance to applicant. The RPD acknowledged the
high degree of gender-violence in Mexico and the
applicant’s prior physical abuse by her father. The RPD’s decision is
based on the applicant’s own clear testimony which indicates that her father
has no interest in ever seeing her again. The RPD could reasonably determine
that the applicant’s allegations of tracing and subsequent abuse by her father
at the behest of the Way were not supported by the evidence. This conclusion
was reasonably open to the RPD.
Issue No. 3: Did the Board err by not providing adequate
reasons?
[29]
The
applicant submits that the RPD erred by failing to engage in a sufficiently
nuanced analysis and provide reasons, particularly with respect to the claim
under subsection 97(1)(b) of the IRPA for protection.
[30]
In Via
Rail Canada Inc. v. Canada (National
Transportation Agency), [2001] 2 F.C. 25 (C.A.) Justice Sexton set out at paragraph 22 the
contents of the duty to provide reasons:
¶22 The
obligation to provide adequate reasons is not satisfied by merely reciting the
submissions and evidence of the parties and stating a conclusion. Rather,
the decision-maker must set out its findings of fact and the principal evidence
upon which those findings were based. The reasons must address the major points
in issue. The reasoning process followed by the decision-maker must set
out and must reflect consideration of the main relevant factors.
[31]
The
RPD determined at paragraphs 40 and 41 of the reasons after citing the
objective country condition documentation that the risks claimed by the
applicant are generalized.
[32]
A
generalized risk of violence in the applicant’s country of origin is
insufficient in and of itself to ground a claim under subsection 97(1)(b) of
IRPA: see my decision in Michaud v. Canada (MCI), 2009 FC 886 at paragraph
41; Prophète v. Canada (MCI), 2008 FC 331, per Justice Tremblay-Lamer at
paragraph 17.
[33]
The
applicant provided ample evidence of generalized gender-based violence but no
evidence of personalized risk which the RPD accepted as likely. The general
risk of gender violence is a regrettable fact of life for many women in Mexico. Some, like
the applicant, may have been victimized before and therefore fear this climate
more so. Despite the Court’s sympathy, this risk is not sufficient to
ground a claim under section 97(1)(b). The Court is not left with any doubt as
to the rationale of the RPD’s negative decision with respect to the reasons of
the RPD with respect to generalized violence. The RPD’s reasons read as a whole
provide adequate justification and reasoning for this determination.
CERTIFIED
QUESTION
[34]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed.
“Michael
A. Kelen”
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