Docket: IMM-4501-11
Citation: 2012 FC 181
Ottawa, Ontario, February 8, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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CARMEN ROSA PINTO PONCE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board
(IRB), dated 13 June 2011 (Decision), which refused the Applicant’s application
to be deemed a Convention refugee or a person in need of protection under
sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 38-year-old citizen of Bolivia. She currently lives in
Toronto and has a
one-year-old daughter. The Applicant’s daughter is a Canadian citizen by birth
and is not a party to this application.
[3]
In
2004, the Applicant met her former common-law husband, Manuel Rodriguez
(Manuel). Shortly after they met, the couple moved into a house together in Cliza, Bolivia. After they
moved in together, Manuel began to physically and sexually abuse the Applicant.
He often came home drunk and forbade the Applicant from seeing her family. On 4
May 2005, Manuel threw the Applicant to the floor of their home and kicked her.
After this assault, the Applicant went to the police in Cliza.
[4]
When
the Applicant went to the police station, the police officer who took her
complaint laughed at her. He said that if Manuel was a abusing her she should
be a better wife and stop blaming her husband for her problems. The police
officer then went into an office and made a telephone call. The Applicant heard
the police officer tell the other party that a woman was making a complaint
against Manuel. The police officer returned and told the Applicant that he had
spoken with Demetrio Rodriguez – Manuel’s uncle and a senior police officer
(Demetrio). The police officer told the Applicant that Demetrio said she should
go home and stop wasting police time. Demetrio also said that the police were
there to solve real crimes, not the complaints of a woman who could not keep
her husband happy.
[5]
On
the same day that the Applicant went to the police station, she also saw a
doctor. The doctor gave her a report on 6 May 2005 which documented the
injuries Manuel had inflicted on her. The Applicant did not return to the
police station with this report.
[6]
The
Applicant did not tell Manuel about her visit to the police station.
Nevertheless, the next day, Manuel came home in a rage. He told the Applicant
that she was making a fool of him to his uncle and that what went on under his
roof was his business and no one else’s. To show the Applicant that he was in
charge, he beat and raped her.
[7]
By
July 2005, the Applicant found her situation unbearable. She quit her job and
fled the home while Manuel was at work. She left Cliza and went to live with
her brother in Cochabamba, Belize. Manuel hunted the Applicant down in Cochabamba. One day, he
found the Applicant in a market in there; he grabbed her by the hair, dragged
her to the ground, and kicked her. He said she would come back to him whether
she liked it or not. Other people who were at the market intervened to stop the
violence. Manuel told the Applicant it was not over between them and left.
[8]
After
Manuel attacked her in the market, the Applicant went to see a doctor in Cliza.
This doctor also provided her with a report setting out the injuries she had
suffered. The Applicant then returned to the same police station in Cliza she
had gone to before to file a report. She went there because she believed she
had to report in the jurisdiction where Manuel lived. On this second occasion,
the Applicant spoke with a different police officer than she had on her first
visit. This police officer gave her a form to complete. After the Applicant
completed the form, the police officer stamped her form and gave her a letter
with a stamp on it. He also told her that the police would call Manuel, so she
gave the police Manuel’s contact information. She also gave the police her
parents’ contact information in Cochabamba, but she did not
provide the police with a copy of the report from the doctor she had obtained
earlier that day. The Applicant left the police station and returned to Cochabamba.
[9]
Because
she thought she could not stay in Cochabamba, and believed that
Manuel would find her there again, the Applicant went to La Paz, Bolivia, to
live with her uncle. While she was in La Paz, she did not leave her
uncle’s house for fear that Manuel would find her as he had in Cochabamba. During this
time, the Applicant’s parents told her that the Manuel was still looking for
her and the police were not investigating her complaint against him.
[10]
The
Applicant’s uncle advised her to leave Bolivia because he
thought there was no safe place for her there. She left Bolivia on 22 August
2005 and travelled to Managua, Nicaragua. In Managua,
the Applicant hired a smuggler who, for $1300 US, took her to Guatemala. A second
smuggler took her to Mexico, and a third smuggler took her to Texas, in the
United States of America (USA). From Texas, the Applicant travelled to Arlington, Virginia. She lived
and worked around Arlington until 20 December 2009, when she came to Canada.
[11]
In
July 2009, the Applicant learned of Canada’s refugee protection
system. She hired a smuggler who brought her across the Canada-USA border to Sherbrooke, Quebec on 20
December 2009. The Applicant claimed protection on 22 December 2009.
[12]
The
RPD heard the Applicant’s claim on 30 May 2011. At the hearing, the Applicant,
her lawyer, a Refugee Protection Officer, a translator, and the RPD panel
member were present. After the hearing, the RPD considered the Applicant’s
claim. On 13 June 2011, the RPD denied her claim for protection and gave her
notice of the Decision on 28 June 2011.
DECISION UNDER REVIEW
[13]
The
RPD determined the Applicant’s claim solely on the availability of state
protection and found that she had not rebutted the presumption of state
protection.
[14]
The
RPD reviewed the Applicant’s allegations of abuse by Manuel, her attempts to
get help from the Bolivian police, and her travel from Bolivia to Canada. It noted
that it had considered the IRB Chairperson’s guideline Women Refugee
Claimants Fearing Gender-Related Persecution. The RPD also said that it had
considered all the evidence before it, including a psychological report
prepared by Dr. Judith Pilowsky, a clinical and rehabilitation psychologist
practising in Toronto, the
Applicant’s testimony, and counsel’s submissions.
State Protection
[15]
Following
Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, the RPD noted
that states are presumed to be able to protect their citizens and that
international protection only comes into play when a claimant’s own state is
unable to provide protection. Though the Applicant is from Bolivia, the RPD
found that Costa
Rica
is in control of its territory and has a functioning security force in place.
The RPD also noted that Carillo v Canada (Minister of Citizenship and
Immigration) 2008 FCA 94 establishes that, to rebut the presumption of
state protection, a claimant must provide reliable and probative evidence to
satisfy the RPD, on a balance of probabilities, that state protection is
inadequate. Further, the RPD noted that a claimant cannot assert subjective
reluctance to engage the state in order to rebut the presumption (see Camacho
v Canada (Minister of
Citizenship and Immigration) 2007 FC 830 at paragraph 10) and that the
burden of proof on a claimant increases directly with the level of democracy in
the state against which protection is claimed.
[16]
Because
Bolivia is a
democracy, the RPD said that the Applicant had to show more than that she went
to the police for protection and that her efforts to get protection were not
successful. The RPD pointed out that no government is expected to provide
perfect protection and that local failures in providing protection are not
enough to rebut the presumption of state protection.
Country Condition Evidence
[17]
The
RPD reviewed the evidence before it and concluded that Bolivia is a
multi-party democracy, in which President Evo Morales was elected in 2009 after
free and fair elections. It also found that Bolivia faced some
human rights problems, including killings by security forces, harsh prison
conditions, and a corrupt judiciary. The RPD also found that rape is a serious
and underreported problem in Bolivia, even though it is a
criminal offence. In addition, the RPD found that spousal rape is not a crime
in Bolivia and that violence against women is a pervasive and underreported
problem; laws against domestic violence in Bolivia were
enforced irregularly and the government took few meaningful steps to combat
domestic violence. The RPD noted that, to November 2010, the Family Protection
Unit (FPU) had handled 70,792 cases of domestic violence. The FPU is a police
authority established to handle cases of assault which are not crimes under the
Bolivian Penal Code and has sub-units in many regions of Bolivia.
[18]
Though
services for women who experience domestic violence are limited, the RPD found
that Bolivia was taking
steps to address the issue. The Bolivian government had rewritten a law (Law
1674) to address the roles of FPUs, municipal legal services, and
non-governmental organizations in combating domestic violence, though this law
had not fulfilled expectations. Municipalities in Bolivia are required
by law to provide support shelters for women. Although, at the time the
Decision was rendered, only thirteen shelters for women existed, the RPD found
that more were going to be established within a short time. Victims of domestic
violence in Bolivia can record
complaints against abusers with the FPU, family courts, and public health
centres. An ombudsman is also in place to handle complaints about the reporting
service if a victim was not satisfied with the response received.
The Applicant’s Efforts
[19]
The
RPD found that, after the Applicant had attempted to file a complaint against
Manuel on 4 May 2005, she did not pursue further action when the police officer
laughed at her and told her to go home. She also did not give the police a copy
of the report she had obtained from her doctor at that time. The RPD found that
the Applicant was speculating when she said that the police officer had
telephoned Demetrio and that her first attempt to get protection against Manuel
was not a credible rebuttal of the presumption of state protection because it
was a local failure and was based on speculation.
[20]
The
RPD also examined the Applicant’s second report to the police, after Manuel
attacked her in the Cochabamba market. The RPD noted that the second police
officer took her complaint and provided her with a stamped letter, even though
he worked at the same station she had reported to before without success. After
going to the police a second time, the Applicant fled to La Paz and then
left Bolivia. The RPD
further noted that, during her second complaint, she had not given the police
an address at which she could be contacted in La Paz and had not informed them
of her departure from Bolivia. The RPD found that
these events were not enough to rebut the presumption of state protection
because her departure from Bolivia had effectively ended
the police investigation into Manuel’s attack on her.
[21]
The
RPD also noted that the Applicant had lived in the USA for four
years between her flight from Bolivia and her claim in Canada. It found
that her continuing fear of Manuel was based on her mother and sister’s
experiences of abuse and her belief that the police in Bolivia do not take
domestic violence seriously. Although Bolivia had difficulty
protecting women from abuse in the past, the RPD found that the country is
demonstrating an awareness of its past problems and is making advances in
protecting women from domestic violence.
Conclusion
[22]
The
RPD found that there was no persuasive evidence that the Applicant faced
persecution in Bolivia. It also found that the Applicant would not
face a risk to her life, or of cruel and unusual treatment or punishment, or a
risk of torture if she returned to Bolivia. The RPD concluded that
the Applicant is not a Convention refugee or a person in need of protection and
denied her claim.
ISSUES
[23]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD’s state protection finding was reasonable;
b.
Whether
the RPD provided adequate reasons;
c.
Whether
the RPD applied the correct test for state protection.
STANDARD
OF REVIEW
[24]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[25]
In
Carillo, above, the Federal Court of Appeal held at paragraph 36 that
the standard of review on a state protection finding is reasonableness. This
approach was followed by Justice Leonard Mandamin in Lozada v Canada (Minister of
Citizenship and Immigration) 2008 FC 397, at paragraph 17. Further, in Chaves
v Canada (Minister of
Citizenship and Immigration) 2005 FC 193, Justice Danièle Tremblay-Lamer
held at paragraph 11 that the standard of review on a state protection finding
is reasonableness. The standard of review on the first issue is
reasonableness.
[26]
Recently,
in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board) 2011 SCC 62, the Supreme Court of Canada held at paragraph
14 that the adequacy of reasons is not a stand-alone basis for quashing a
decision. Rather, “the reasons must be read together with the outcome and serve
the purpose of showing whether the result falls within a range of possible
outcomes.” The adequacy of the reasons will be analysed along with the
reasonableness of the Decision as a whole.
[27]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
[28]
On
the third issue, Justice Michael Kelen held in Ramotar v Canada (Minister of
Citizenship and Immigration) 2009 FC 362 at paragraph 12 that, where an
applicant asserts that an officer applied the wrong test, the standard of
correctness applies. Further, in Saeed v Canada (Minister of
Citizenship and Immigration) 2006 FC 1016, Justice Yves de Montigny
held at paragraph 35 that, when examining the RPD’s application of the test for
state protection, the appropriate standard of review is correctness. Justice
Paul Crampton made a similar finding in Cosgun v Canada (Minister of
Citizenship and Immigration) 2010 FC 400 at paragraph 30. The standard
of review on the third issue is correctness.
[29]
In
Dunsmuir, above, at paragraph 50, the Supreme Court of Canada held that
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.
STATUTORY PROVISIONS
[30]
The following
provisions of the Act are applicable in this application:
|
Convention refugee
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.
Person in Need of Protection
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
[…]
|
Définition de « réfugié
»
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.
Personne à protéger
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.
[…]
|
ARGUMENTS
The Applicant
The RPD
Accepted Her Evidence
[31]
The
RPD did not make any adverse credibility findings in the Decision. As such, the
Applicant says that the RPD must have accepted her account of the abuse she
suffered in Bolivia and her
attempts to seek protection there. She also says that the RPD accepted as
credible the evidence she submitted to support her belief that Manuel still
pursues her.
The State
Protection Finding was Unreasonable
The RPD
Ignored Evidence
[32]
The
Applicant argues that, when it relied on country condition evidence in making
the Decision, the RPD improperly relied on older pieces of evidence which it
preferred over more recent evidence.
[33]
The
RPD relied on the IRB’s Response to Information Request (RIR) BOL102093.FE,
dated 15 December 2006 (RIR 2006), which established that Law 1674 had not
lived up to its promises. RIR 2006 also established that not all the regional
FPUs recorded domestic violence complaints. Further, RIR 2006 shows that Law
1674 is preventative, rather than punitive and that, although domestic violence
victims can complain to the Municipal Legal Services, only 39% of
municipalities have such services. The RPD also referred to a 2009 report (CIDA
Report) from the Canadian International Development Agency (CIDA) which said that
CIDA was going to support a shelter for women in Bolivia.
[34]
The
RPD improperly preferred these two pieces of evidence over a more recent report
from the USA Department of State, written in 2011 and entitled Bolivia: Country
Reports on Human Rights Practices for 2010 (DOS Report). The DOS Report
establishes that domestic violence is prevalent in Bolivia and that the
situation there has not improved. The RPD’s conclusion on state protection was
unreasonable because it relied on older evidence rather than the most recent
evidence available. Had the RPD properly used the most current evidence, it would
have concluded that state protection is not available for abused women in Bolivia, including
the Applicant. It cannot be that the RPD considered all the evidence before it
when it relied on older evidence for a conclusion which is contradicted by
newer evidence.
[35]
In
Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425, Justice John Evans
held at paragraph 17 that:
[…] the
more important the evidence that is not mentioned specifically and analyzed in
the agency’s reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact “without regard to the
evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993),
63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation
increases with the relevance of the evidence in question to the disputed facts.
Thus, a blanket statement that the agency has considered all the evidence will
not suffice when the evidence omitted from any discussion in the reasons
appears squarely to contradict the agency’s finding of fact. Moreover, when the
agency refers in some detail to evidence supporting its finding, but is silent
on evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact.
[36]
The
Applicant says that the documentary evidence before the RPD clearly shows that
the Bolivian police are not capable of accepting and acting upon domestic abuse
complaints. The RPD’s conclusion that the Applicant did not provide clear and
convincing evidence to rebut the presumption of state protection was
unreasonable.
Future
Changes do not Amount to State Protection
[37]
The
Applicant also says that the RPD improperly looked at what will happen
in Bolivia with respect
to protection against domestic violence, rather than at what actually is
happening. The DOS Report, which shows the current state of affairs,
contradicts the RPD’s conclusion. The RPD unreasonably relied on unrealized
change to support its conclusion that state protection is available to the Applicant.
The Treatment of the
Applicant’s Evidence was Unreasonable
[38]
After
she went to the police on 4 May 2005 and was laughed at, the Applicant did not
complain to a senior officer. The Applicant says that the RPD downplayed the
significance of her encounter with the police officer who laughed at her. The
RPD’s finding that she should have approached a senior officer to complain was
unrealistic because Demetrio is a high-ranking police officer. Both Demetrio
and the police officer she spoke to on this occasion refused to help her.
Further, although the RPD found that she was speculating when she said the
police officer who laughed at her spoke to Demetrio, this finding was
unreasonable. That police officer told the Applicant that he had spoken to
Demetrio. Also, the fact that Manuel beat the Applicant after she went to the
police shows that the police officer called Demetrio.
[39]
The
RPD’s conclusion that her departure ended the police investigation into her
second complaint ignored several pieces of evidence:
a.
She
gave the police her parents’ address but the police never contacted anyone;
b.
Manuel
continues to harass her family and friends, which shows the police took no
action against him;
c.
She
was afraid Manuel would find out her address if she gave it to the police;
d.
There
was no police investigation into the complaint she filed against Manuel.
The RPD did not Consider Similarly Situated
Individuals
[40]
At
the hearing, the Applicant testified that her sister had also experienced
domestic abuse in Bolivia; her testimony also established that her sister
had been turned away by the police when she had tried to report the abuse. The
Applicant argues that, when the RPD concluded that she should have gone to a
higher authority to complain about her treatment by the police, it ignored this
evidence. Her sister’s treatment by the police and the documentary evidence
before the RPD establish that it is pointless to go to the police for
protection from domestic abuse in Bolivia.
The RPD Considered the Wrong Country
[41]
The
RPD’s statement that “Costa Rica is in effective control
of its territory and has in place a functioning security force to uphold the
laws and constitution” shows that it considered country documents from the
wrong country. This means the Decision is unreasonable.
The Reasons
are Inadequate
[42]
The
Applicant says that the RPD failed to make a finding as to whether the state
protection available in Bolivia was adequate, so the
reasons it gave for the Decision are inadequate. When it held that Bolivia was
aware of its problems and was making advances, the RPD failed to consider
whether these advances actually resulted in adequate state protection (see E.Y.M.V.
v Canada (Minister of
Citizenship and Immigration) 2011 FC 1364).
The
RPD Applied the Wrong Test for State Protection
[43]
The
RPD based its conclusion on state protection in part on legislation Bolivia had enacted.
However, the Applicant says that the documentary evidence before the RPD showed
that these laws are ineffective in practice. Further, in Garcia v Canada (Minister of
Citizenship and Immigration) 2007 FC 79, Justice Douglas Campbell held
at paragraph 14 that
It cannot be said that a state is making “serious efforts” to
protect women, merely by making due diligence preparations to do so, such as
conducting commissions of inquiry into the reality of violence against women,
the creation of ombudspersons to take women's complaints of police failure, or
gender equality education seminars for police officers. Such efforts are not
evidence of effective state protection which must
be understood as the current ability of a state to protect women. [Emphasis in
original]
[44]
In
Elcock v Canada (Minister of Citizenship and Immigration), [1999] FCJ
No 1438, Justice Frederick Gibson held at paragraph 15 that
[The] ability of a state to protect must be seen to comprehend not only the existence of
an effective legislative and procedural framework but the capacity and the will
to effectively implement that framework.
[45]
Although
the RPD in this case found that counselling services, legal aid, medical
assistance, and shelters existed in Bolivia, these do not meet the
required standard of adequate state protection. There is legislation in place
in Bolivia to protect
victims of domestic violence, but Garcia and Elcock, above, show
that legislation alone is not enough; legislation must translate into adequate
protection on the ground. When it failed to look at the adequacy of state
protection, the RPD applied the wrong test, so the Decision must be returned
for reconsideration.
The
Respondent
The
RPD Considered all the Evidence
[46]
Although
the Applicant has argued that the RPD did not consider the DOS Report, the
Respondent notes that the RPD specifically referred to this report at
paragraphs 10 to 12 of the Decision. Since the RPD considered the DOS Report,
which went against its conclusions, Cepeda-Gutierrez, above, has no
application here.
The Applicant
did not Rebut the Presumption of State Protection
[47]
Ward and Carillo,
above, establish that state protection is presumed and that this presumption
can only be displaced on clear and convincing evidence. Kadenko v Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 1376 establishes that it is
not enough to show that the government of a state is not always successful in
protecting its citizens. In this case there was clear evidence that Bolivia is a
democracy, and so the Applicant bore a heavy onus to rebut the presumption of
state protection. She did not discharge this onus.
[48]
The
evidence before the RPD was that the Applicant had sought state protection on
two occasions, and was unsuccessful the first time she went to the police. The
second time she approached the police, she was issued a formal complaint, but
she left Bolivia before the
police process could be completed. Based on the evidence before it, the RPD
reasonably concluded that the Applicant had made only minimal efforts to seek
state protection. Although she testified that her parents had followed up with
the police, this is not supported by the affidavit the Applicant’s mother
produced and which the Applicant submitted to the RPD.
[49]
The
documentary evidence before the RPD was sufficient to ground a finding that the
Applicant had not rebutted the presumption of state protection. The RPD
referred to evidence which showed that the FPUs handled 70,792 cases of
domestic violence up to 2010. Although the Applicant has argued that this shows
inadequate protection, the Respondent notes that Canada (Minister of
Citizenship and Immigration) v Villafranca, [1992] FCJ No
1189 (FCA) teaches that imperfect protection does not rebut the presumption of
state protection.
[50]
The
Respondent also points to evidence before the RPD to show that the FPUs, to
which victims of domestic violence or their families could complain, are
present in many regions of Bolivia. Although the Applicant
has said that FPUs are not available in all areas, the Respondent says that she
has not shown that they are not available in the area where she lived. The
limited implementation of FPUs in Bolivia cannot, on its own,
rebut the presumption of state protection.
[51]
The
Bolivian government has also passed legislation to combat domestic violence.
The existence of a legal framework is an appropriate indicator of a state’s
efforts to provide protection. The RPD considered the application of the laws
which are in place and not simply their existence.
[52]
The
Respondent acknowledges that domestic violence is prevalent in Bolivia, but he points
to Cho v Canada (Minister of Citizenship and Immigration), [2000]
FCJ No 1371, at paragraph 16, where Justice Gibson held that
In Canada (Minister of Employment and
Immigration) v. Villafranca, Mr. Justice Hugessen wrote:
No government that makes any claim to
democratic values or protection of human rights can guarantee the protection of
all of its citizens at all times. Thus, 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. Terrorism in the name of one warped ideology or
another is a scourge afflicting many societies today; its victims, however much
they may merit our sympathy, do not become Convention refugees simply because
their governments have been unable to suppress the evil.
Precisely the same can be said about the evil
of family violence.
[53]
The
Applicant’s arguments amount only to an invitation to the Court to re-weigh the
evidence which is not the proper function of the Court. Because the RPD
considered the evidence and drew a reasonable conclusion, the Decision should
stand.
The Applicant
Bears the Onus to Rebut the Presumption of State Protection
[54]
Although
the Applicant has said that the RPD applied an incorrect test for analysing state
protection, the Respondent says that the RPD correctly stated the law
established by Ward and Carillo, both above, and Hinzman v
Canada (Minister of Citizenship and Immigration) 2007 FCA 171. The RPD was
not obligated to make a finding on whether or not state protection was adequate.
The Applicant simply did not discharge the onus she bore to rebut the
presumption of state protection. The RPD clearly applied the correct test when
it considered whether the Applicant had rebutted the presumption of state
protection.
The
Respondent’s Further Memorandum
[55]
The
Respondent further argues that Newfoundland Nurses’ Union, above, and
Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association 2011 SCC 61 establish that the correctness standard is only
applicable where the question at issue is one of central importance to the
legal system which is outside the decision-maker’s specialized area of
expertise. Since the RPD’s state protection finding is subject to the
reasonableness standard, a failure to mention contradictory evidence cannot render
the Decision unreasonable. Rather, the reviewing Court must ask whether “when
read in light of the evidence before it and the nature of its statutory task,
the tribunal’s reasons adequately explain the bases of its decision.” (Newfoundland
Nurses’ Union at paragraph 18).
[56]
In
this case, the Decision was reasonable because it provided clear and
intelligible reasons for the conclusion that the Applicant had not rebutted the
presumption of state protection. Since the RPD’s conclusion falls within the Dunsmuir
range, this Court should not interfere.
The Applicant
did not Adequately Test State Protection
[57]
The
Respondent says that it is clear that the RPD rejected the Applicant’s claim
because she did not rebut the presumption of state protection. The RPD concluded
that state protection was forthcoming after her second complaint, but the
Applicant prematurely ended the investigation into that complaint when she
failed to provide a correct address to the police or inform them she was
leaving Bolivia. The
Applicant made no complaint to a higher authority in Bolivia about the
conduct of the first officer she interacted with and only made minimal efforts
to seek state protection.
The State
Protection Finding was a Possible Outcome
[58]
The
Applicant failed to follow up with the police on the state of their
investigation, and her allegation that her mother followed up on her behalf is
not supported by her mother’s affidavit. Further, the Applicant’s argument that
Manuel’s continued freedom shows that state protection is inadequate amounts to
a suggestion that the Bolivian police should have imprisoned him without trial,
solely on the strength of her allegations.
[59]
If
the Applicant was correct when she said at the hearing that her parents told
her the police said there was nothing they could do about Manual, this actually
supports the RPD’s conclusion that her departure ended the investigation into
her complaint. Without the Applicant’s testimony, the Bolivian police could not
do anything. The Applicant’s own evidence supports the RPD’s conclusion on
state protection and, since the record supports the RPD’s conclusion, the Court
should not interfere with the Decision.
The RPD Appropriately
Considered the Evidence
[60]
The
Applicant challenges the RPD’s use of the RIR 2006 at the same time as she uses
that document to support her position. At the hearing, the Applicant pointed to
this document (see page 206 of the Certified Tribunal Record) and cannot now
complain that the RPD relied on it. This document was part of the IRB’s
National Documentation Package for Bolivia, so it was properly
before the RPD.
[61]
In
the Decision, the RPD pointed to evidence that was contrary to its findings.
The RPD also explicitly acknowledged that Bolivia faces difficulties
in addressing domestic violence. The objective evidence before the RPD also
showed that assault was a crime under the Bolivian Penal Code; the second
incident the Applicant complained of was an assault forbidden by the Bolivian
Penal Code. Although there was evidence to suggest that laws specifically
addressing domestic violence are not enforced, there is no evidence that the
Bolivian Penal Code is not being enforced.
[62]
Although
there was evidence which showed that up to 70% of Bolivian women suffer
domestic violence, this does not show a lack of state protection. These
statistics show the magnitude of a social problem, but do not speak to Bolivia’s ability to
protect its citizens. It is not clear that laws on spousal rape were relevant
to the Applicant, who was never married to Manuel.
[63]
Although
the Applicant’s mother and sister may have suffered domestic violence, their
experiences do not demonstrate a lack of state protection in this case. Apart
from the Applicant’s testimony, there was no evidence that the sister had
sought and been denied state protection. The Applicant’s mother did not say in
her affidavit that she too had been denied state protection. Neither the mother
nor the sister’s experiences provided the clear and convincing evidence
necessary to displace the presumption of state protection.
The
RPD is not Required to Mention all the Evidence
[64]
The
Respondent argues that Newfoundland Nurses’ Union, above, has
presumptively overruled Cepeda-Gutierrez, above, and any other case
which requires a specific finding or line of analysis. He notes that Cepeda-Gutierrez
was based on Singh v Canada (Minister of
Citizenship and Immigration), [1995] FCJ No 1044, which held that the
failure to mention a report was an error of law. After Alberta Teachers’
Association, above, questions of law are no longer presumptively evaluated
on the correctness standard. Rather, Alberta Teachers’ Association establishes
that the standard of review in this case is reasonableness; in the context of
review on the reasonableness standard, the Applicant’s argument that the RPD
failed to address contradictory evidence is precisely the kind of formalistic
argument the Supreme Court of Canada rejected in Newfoundland Nurses’ Union.
This argument cannot raise a reviewable error.
[65]
In
the alternative, the Respondent says that Cepeda-Gutierrez, above, does
not stand for the proposition the Applicant says it does. In that case, Justice
Evans concluded that there was no reviewable error with respect to the RPD’s
conclusion on persecution, notwithstanding that the RPD did not mention one particular
piece of contradictory evidence (see paragraph 22). The totality of the
evidence established that Cepeda-Gutierrez did not face a risk of persecution.
Where the RPD has mentioned evidence to justify an inference that it referred
to that evidence, there is no reviewable error (Cepeda-Gutierrez at
paragraph 28). In this case, the RPD mentioned all the contradictory evidence
before it, so the Court can infer that it considered all the evidence.
[66]
The
Respondent also says that Nation-Eaton v Canada (Minister of Citizenship and
Immigration) 2008 FC 294, Shen v Canada (Minister of Citizenship and
Immigration) 2007 FC 1001, Pena v Canada (Minister of Citizenship and
Immigration) 2011 FC 746 and Quinatzin v Canada (Minister of Citizenship
and Immigration) 2008 FC 937 establish that Cepeda-Gutierrez, above,
does not apply to country condition evidence. In Monjaras v Canada (Minister of
Citizenship and Immigration) 2010 FC 771, at paragraphs 20 to 22, Justice
Michael Kelen held that
It is trite law that the reasons given by the
RPD are not to be read hypercritically by a court and nor is it required to
refer to every piece of evidence that it received that is contrary to its
finding, and to explain how it dealt with it: Cepeda-Gutierrez v. Canada (MCI) (1998), 157 F.T.R.
35, 83 A.C.W.S. (3d) 264 (F.C.T.D.), per Justice
Evans (as he then was) at paragraph 16. The RPD is presumed to have considered
all the evidence, however, the more important the evidence that is not
mentioned specifically and analyzed in the RPD’s reasons, the more willing a
court may be to infer from the silence that the RPD reached its decision
without regard to the evidence: Cepeda-Gutierrez, supra, at para.
17.
The applicant has cited a number of recent
decisions of this Court where the RPD’s determinations on state protection were
overturned because the RPD selectively analyzed or failed to deal with
compelling evidence of a state’s inadequate provision of protection: Gilvaja v.
Canada (MCI), 2009 FC 598, per Justice O’Keefe at para. 38; Mendoza v.
Canada (MCI), 2008 FC 387, per Justice Dawson at para. 15; Mejia v.
Canada (MCI), 2010 FC 530, per Justice Near at para. 17; Villicana v.
Canada (MCI), 2009 FC 1205, per Justice Russell at paras. 70-71. In all of
the above cases, the RPD failed to explain why it preferred certain documentary
evidence over significant and reputable documentary and testimonial evidence
which indicated that state protection was inadequate.
In this case, the RPD acknowledged at paragraph
14 of the decision that violence against women was a serious problem in Mexico and that
enforcement action against male abusers is sorely lacking:
para14 Counsel's well-crafted submissions point
to a number of failings of the Mexican authorities in dealing with gender
violence including a culture of acceptance of the practice even among those who
are to enforce the laws against it, a culture of impunity for the abusers and
obstacles to protection such as corruption, financial resources available to
women, judges discretion in deciding what measures to grant, and practical
matters such as orders not being effective until they are served on the abuser.
Certainly, documentary evidence indicates that Mexico is having
an ongoing battle with violence against women, crime and corruption. While the
documentary evidence does support some of what the female claimant fears, it is
also mixed with information on current efforts Mexico is taking
to combat crime, corruption and violence against women,
There is no basis in view of the above excerpt
to hold that the RPD ignored contrary evidence. The RPD may not have referred
to specific documentation but it is clear from the reasons that the RPD read
and considered the applicants' written submissions and the documentary
references which they cited.
[67]
Here,
the RPD considered all the evidence the Applicant cited and addressed all of
her arguments. There is therefore no basis to conclude that the Decision is
unreasonable.
The Applicant Bore the Onus to Rebut the
Presumption of State Protection
[68]
When
she argues tat the RPD failed to establish the adequacy or effectiveness of
state protection, the Applicant has improperly shifted the burden of proof to
the RPD. At all times, the Applicant bore the onus to establish that state
protection was inadequate. The RPD found that state protection was available to
the Applicant without limitation or qualification, and the RPD was aware that
the appropriate test for protection is adequacy.
[69]
Newfoundland
Nurses’ Union, above, establishes that a tribunal need not make an explicit
finding on the constituent elements leading to its final conclusion. So long as
the reasons permit the Court to determine how a result in the acceptable range
was reached, the Decision should stand. The Court should not substitute its own
view by designating certain omissions from the reasons as fatal (see Newfoundland
Nurses’ Union at paragraph 16).
ANALYSIS
[70]
There
were no credibility problems in this case, and the RPD based its Decision upon
the Applicant’s failure to provide “clear and convincing evidence of the
state’s inability to protect.”
[71]
The
RPD concluded that the Applicant had not herself taken sufficient steps to
secure protection, so her experiences did not show that adequate protection
would not be there if she reasonably attempted to access it. However, the
Applicant also argued and pointed to evidence that there is no protection in Bolivia for women
who are the victims of domestic violence and that the state is either unwilling
or unable to protect her.
[72]
In
order to answer this branch of her argument, the RPD reviewed the country
condition documents and then reasoned and concluded as follows:
The claimant lived in the United States for the next four years
before she made a refugee claim in Canada,
but maintains that Manuel still looks for her. The claimant fears the police
would not protect her if she returned to Bolivia as “the police do not believe domestic
abuse is important. It is normal behaviour.” The claimant bases her opinion, in
part, on past experiences of her mother and her sister, who were victims of
gender related violence. I accept that Bolivia’s past history of offering
protection to women as victims of domestic violence was lamentable combined
with societal beliefs that accepted this violence as a way of life. Yet, as
this claim is forward looking, I accept that Bolivia is demonstrating an awareness of its
past problems and is making advances through legislation, application and
continued dialogue within the government, its citizens and foreign countries on
further efforts to improve its past weakness related to domestic violence.
[73]
In
my view, the RPD failed to assess whether, notwithstanding the government
initiatives referred in the Decision, there is adequate protection in practice.
There was certainly a significant amount of evidence before the RPD that Bolivia’s “lamentable”
past history of protecting victims of domestic violence has not changed. This
is why it was important for the RPD to look at the situation on the ground and
ascertain whether the presumption of adequate state protection had not been
overcome in this case.
[74]
Several
recent decisions of the Court have dealt with this issue but I think it is
sufficient to refer to the guidance provided by Justice Mosley in E.Y.M.V.,
above, at paragraphs 13 and 16, whose words in relation to Honduras could
equally apply to the case before me:
The Board
outlined the correct legal principles applicable to refugee claimants alleging
persecution at the hands of a non-state actor and the presumption of state
protection as set out in Canada (Attorney General) v
Ward, [1993] 2 S.C.R. 689 and Canada
(Minister of Citizenship and Immigration) v. Flores Carillo, 2008 FCA
94, [2008] F.C.J. No. 399 [Carillo]. The claimant “must
adduce relevant, reliable and convincing evidence which satisfies the trier of
fact on a balance of probabilities that the state protection is inadequate” (Carillo, above at para 38). State protection need not be
perfect, but it must be adequate.
…
The Board
did not provide any analysis of the operational adequacy of the efforts
undertaken by the government of Honduras and international actors to improve
state protection in Honduras. While the state’s efforts are indeed relevant to an
assessment of state protection, they are neither determinative nor sufficient (Jaroslav v. Canada (Minister of Citizenship and Immigration), 2011 FC 634, [2011] F.C.J. No. 816 at para 75). Any
efforts must have “actually translated into adequate state protection” at the
operational level (Beharry v. Canada (Minister of Citizenship and Immigration), 2011 FC 111 at para 9.
[75]
In
the present case, the RPD relied upon: the evidence from 2006, which shows how
the 1995 law on domestic violence was “rewritten”; on the CIDA Report, in which
the RPD noted that a shelter was going to be built with funds from CIDA and
that things in Bolivia “are about to change.” However, the evidence
from the DOS Report suggests that things have not improved and confirms that:
1.
Violence
against women is pervasive;
2.
70%
of women suffer abuse in Bolivia;
3.
Spousal
rape is not a crime;
4.
That
the government took few meaningful or concrete steps to combat domestic
violence;
5.
That
the FPUs, which are supposed to help women, lack financial and structural
support and personnel to follow-up complaints, and that most cases went
unreported.
[76]
Given
this evidence, I think it was unreasonable for the RPD not to assess what Justice
Mosley calls “the operational adequacy” of the efforts undertaken by the
government of Bolivia before
concluding that the Applicant has not rebutted the presumption of state
protection. Had the RPD done so, its views of the Applicant’s own efforts might
well have been different.
[77]
Counsel
agree that there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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