Date:
20120723
Docket:
IMM-8835-11
Citation:
2012 FC 926
Ottawa, Ontario, July
23, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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LILIANA ANTONIA TRINIDAD REYES
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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
[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,
dated 8 November 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 48 years old and a citizen of the Dominican Republic. She seeks
protection in Canada from her former husband (Diaz).
[3]
The
Applicant and Diaz met in 1987 and had a daughter together in 1989. They
married in 1994 and lived together in San Cristobal, Dominican Republic. After
they were married, Diaz began to see other women and to come home drunk. When
the Applicant complained about this behaviour, he began to beat her. The
Applicant worked as a house keeper for a wealthy family in the Santo Domingo, Dominican Republic. After she left Diaz in 2001, he often came to look for her at the house
where she worked. On several occasions, he waited for her on a street corner
near her workplace. He would also follow her home from work in a car. In 2001,
Diaz beat the Applicant so badly that she went to the police in Santo Domingo. They told her they would look for Diaz and would detain him if they caught
him. At that time, the Applicant was also granted a restraining order against
Diaz.
[4]
Diaz
continued to physically and emotionally abuse the Applicant. In 2003, she left San Cristobal for Santo Domingo to get away from him. However, Diaz tracked the Applicant
down. In 2008, the Applicant returned to San Cristobal. Around that time, Diaz
threatened the Applicant with a gun and said he would kill her if she did not
listen to him. At this point, she decided to leave the Dominican Republic for Canada to escape Diaz. The Applicant obtained a visitor’s visa to Canada and came here on 10 October 2010.
[5]
The
Applicant claimed protection in Canada on 30 November 2010. The RPD heard her
claim on 25 August 2011 and refused it on 8 November 2011. It notified the
Applicant of the Decision on 22 November 2011.
DECISION
UNDER REVIEW
[6]
Before
analysing the merits of the Applicant’s claim, the RPD noted that it had
considered the Immigration and Refugee Board Chairperson’s Guidelines on
Women Refugee Claimants Fearing Gender Related Persecution.
[7]
The
RPD refused the Applicant’s claim because she had not rebutted the presumption
of state protection established in Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689. Although state protection determined the Applicant’s claim,
the RPD also said it had some concerns about her credibility. It found it was
not reasonable for Canada to accept the Applicant as a refugee if her daughters
would not permit her to live with them, which would reduce her risk of harm
from Diaz.
[8]
The
RPD referred to a report from the United States’ Department of State, the Country
Reports on Human Rights Practices for 2010: Dominican Republic (DOS
Report). This report showed that violence against women in the Dominican Republic was common. However, the Law Against Domestic Violence allowed the state
to prosecute rape and other forms of domestic violence. The DOS Report also
showed that Violence Prevention and Attention Units existed in Santo Domingo. These units allowed victims of domestic violence to file criminal
complaints, obtain free legal counsel, and obtain medical attention. Further,
the National Directorate for Assistance to Victims coordinates services for
victims of domestic violence, accepts criminal complaints, and provides
protection services to victims.
[9]
The
RPD also referred to the Immigration and Refugee Board’s Response to
Information Request (RIR) DOM103577.E, which showed the Provincial Officer for
Women in the Dominican Republic also offered services to victims of domestic
violence.
[10]
The
RPD noted the Applicant’s evidence that Diaz stalked and abused her even after
they were divorced. However, it concluded that the Dominican Republic was
providing adequate protection to the Applicant. Since adequate state protection
was available, the RPD denied her claim.
ISSUES
[11]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD’s credibility finding was reasonable;
b.
Whether
the RPD’s state protection finding was reasonable.
STANDARD
OF REVIEW
[12]
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.
[13]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Elmi v Canada (Minister
of Citizenship and Immigration) 2008 FC 773, at paragraph 21, Justice Max
Teitelbaum held that findings of credibility are central to the RPD’s finding
of fact and are therefore to be evaluated on a standard of review of
reasonableness. Finally, in Wu v Canada (Minister of Citizenship and
Immigration) 2009 FC 929, Justice Michael Kelen held at paragraph 17 that
the standard of review on a credibility determination is reasonableness. The
standard of review on the first issue is reasonableness.
[14]
In
Carillo v Canada (Minister of Citizenship and Immigration) 2008 FCA 94,
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 second
issue is reasonableness.
[15]
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.”
STATUTORY
PROVISIONS
[16]
The
following provisions of the Act are applicable in this proceeding
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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;
[…]
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,
[…]
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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;
[…]
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,
[…]
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ARGUMENTS
The
Applicant
[17]
The
RPD’s finding that the Applicant’s daughters would take her in and protect her
was unreasonable. The RPD rejected the Applicant’s explanation that her
daughters wanted space from the abusive relationship between the Applicant and
Diaz even though this explanation was reasonable. Diaz could find her if she
lived with her daughters, so the credibility finding is unreasonable.
[18]
The
RPD also ignored evidence when it found state protection against domestic
violence would be available to the Applicant in the Dominican Republic. A
document submitted by the Applicant (Ciaurriz Report) established that, between
January and May 2011, 36 women in the Dominican Republic were killed by their
partners. Further, the DOS Report indicated that violence against women in the Dominican Republic is increasing. The RPD ignored this significant evidence which
contradicted its conclusions.
[19]
RIR
DOM103577.E indicates that Violence Prevention and Attention units exist to
help women in the Dominican Republic who experience domestic violence. The
Applicant submitted documentary evidence that she filed a complaint with one of
the units, but nothing was done. This showed that state protection is not
available to the Applicant, but the RPD ignored this evidence. As the Federal
Court of Appeal held in Owusu-Ansah v Canada (Minister of Citizenship and
Immigration), [1989] FCJ No 442,
The failure to take account of material evidence has
been variously characterized by this Court in allowing s. 28 applications. In Toro
v. M.E.I., [1981] 1 F.C. 652, my brother Heald, for the Court, said:
It appears therefore that the
Board, in making its decision, has not had regard to the totality of the
evidence properly before it. It has therefore erred in law.
[20]
The
RPD misconstrued relevant evidence, so its state protection finding was
unreasonable.
The
Respondent
[21]
Although
the Applicant challenges the RPD’s credibility finding, the RPD actually
considered her explanation and rejected it. The RPD is not bound to accept a
claimant’s explanation. It was reasonable for the RPD to reject the Applicant’s
explanation and conclude her daughter’s refusal to shelter her could not ground
a positive refugee decision.
[22]
When
it considered whether state protection was available to the Applicant, the RPD
acknowledged that the evidence showing state protection for victims of domestic
violence in the Dominican Republic was mixed. The Applicant says the RPD
ignored evidence, but it actually considered the evidence she says it ignored.
The Applicant adduced evidence to show state protection was not available to
her, but the RPD found this evidence was not sufficient to conclude that state
protection was inadequate. The Applicant has alleged the RPD ignored the
Ciaurriz Report, but the RPD is not required to mention every piece of evidence
which comes before it. Earl v Canada (Minister of Citizenship and
Immigration) 2011 FC 312 shows the Applicant had to connect this document
to the availability of state protection, but she has not done this. The
Ciaurriz Report, though it addresses gender-related violence, does not address
state protection.
[23]
The
Applicant has also failed to rebut the presumption of state protection with
clear and convincing evidence that the Dominican Republic is unable to protect
her. See Carillo, above. The Applicant may be unhappy with the response
she received from the police, but this is not enough to rebut the presumption.
There was evidence before the RPD that she had approached the police for
protection and they had attempted to find Diaz. Although the Dominican authorities’
response was not perfect, this is not enough to rebut the presumption. The
RPD’s state protection finding was reasonable and dispositive, so the Decision
should stand.
ANALYSIS
[24]
The
Applicant says that the Decision contains a reviewable error because the RPD
overlooked highly material facts, in that:
a.
There
was significant evidence before the RPD that there is a lack of state
protection “for a person of the applicant’s profile in her country”; and
b.
The
Applicant provided proof of the numerous complaints she had filed with the
authorities in the Dominican Republic, including police reports and
psychological and medical reports documenting her abuse, “yet no action was
taken by the state to protect her.”
[25]
The
Applicant also says that the RPD made selective use of the evidence and ignored
“significant evidence contrary to its findings.”
[26]
As
the Decision makes clear, the determinative issue was state protection and, in
this regard, the RPD:
a.
Does
not question the Applicant’s allegation of abuse at the hands of her former
husband or her attempts to secure state protection;
b.
Makes
its finding that the Applicant has not rebutted the presumption of adequate
state protection “on the basis of the post-hearing and other evidence[…]”;
c.
Acknowledges
that the “evidence regarding violence against women and the state’s response to
it is, at best, mixed,” and quotes two reports in particular which appear to
summarize the situation: the DOS Report and the Immigration and Refugee Board’s
RIR DOM103577.E from 2010.
[27]
In
essence, then, the RPD acknowledged the situation for women in the Dominican Republic and found adequate state protection is not easy to assess. However, its
review of all the evidence available in this case supported the general
descriptions found in the two reports quoted which, in turn, give rise to its
finding that “the state is providing the claimant with adequate if not perfect
protection […].”
[28]
After
reviewing the documentation available to the RPD, I cannot conclude its
assessment of the general situation was unreasonable and based on a selective
use of the documentary evidence.
[29]
The
RPD does not specifically address in the Decision the Applicant’s personal
experience with the authorities and her psychological vulnerabilities. However,
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62, directs me to supplement the written reasons
with the record. When I read the transcript, it is clear that the RPD was well
aware of the Applicant’s position and the attempts she had made to obtain
protection. The issues were addressed at the RPD hearing, and it is clear to
both the Applicant and the Court why the RPD felt that her experiences were not
enough to refute the presumption of state protection.
[30]
As
the Respondent points out, the Applicant’s dissatisfaction with the response
she received from the police is not sufficient to rebut the presumption of
state protection. The record shows the Applicant approached the police on a
number of occasions. At least one “Protection Order and Arrest Warrant” was
issued against her ex-husband. The Applicant submitted to the RPD that the
police and officials at the Ministry responsible for overseeing complaints of
female victims of domestic violence attempted to locate her abuser without success.
Based on the record before this Court, the authorities in the Dominican Republic responded when the Applicant approached them. The RPD felt that their
inability to provide perfect protection to her, and her dissatisfaction with
their response, did not amount to the clear and convincing evidence that rebuts
the presumption of state protection. See Carillo, above, at paragraph
30. This was not an unreasonable conclusion on the evidence.
[31]
In
addition, I do not think that the credibility concerns raised in paragraph 8 of
the Decision about the ability of the daughters to offer her some protection
are material to the determinative issue of state protection.
[32]
The
Applicant is naturally unhappy with this conclusion and points out that there
was evidence before the RPD to support her position that state protection in
the Dominican Republic is inadequate for a woman in her position who fears
violence from her former spouse. It may be that the RPD could reasonably have
accepted the Applicant’s position on this issue, but this does not mean that
its own conclusion was unreasonable. See Khosa v Canada (Minister of
Citizenship and Immigration) 2009 SCC 12 at paragraph 59. The Applicant’s
disagreement with how the RPD weighed the evidence is not a basis for the
intervention of this Court. See Reda v Canada (Attorney General) 2012 FC
79 at paragraph 79 and Zambrano v Canada (Minister of Citizenship and
Immigration) 2008 FC 481 at paragraphs 72 and 73. I may well have come to
different conclusions from the RPD, but if I were to intervene I would merely
be substituting my own assessment of the situation for that of the RPD, and
this I cannot do. See Khosa, above, at paragraph 59.
[33]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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