Docket: IMM-6527-11
Citation: 2012 FC 664
Ottawa, Ontario, May 30,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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FLORA LEYDI SANCHEZ CRUZ and
CARLOS DE JESUS AMOROSO
SANCHEZ,
MIA REGINA SANCHEZ CRUZ
(BY THEIR LITIGATION
GUARDIAN
FLORA LEYDI SANCHEZ CRUZ)
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Applicants
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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
I. Introduction
[1]
This
is an application for judicial review by Ms. Flora Leydi Sanchez Cruz (Ms.
Cruz) and her two minor children, Carlos de Jesus Amoroso Sanchez and Mia
Regina Sanchez Cruz (all together the Applicants), submitted in accordance with
subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of the decision of
the Immigration and Refugee Board
(the Board), dated August 31, 2011. The Board concluded that the Applicants are
neither Convention refugees nor persons in need of protection under section 96
and subsection 97(1) of the IRPA.
[2]
For
the following reasons, this application for judicial review is allowed.
II. Facts
[3]
The
Applicants are all citizens of Mexico.
[4]
Ms.
Cruz married Mr. Luis Amoroso Antele on June 1, 2001. Their son Carlos was born
on December 24, 2002.
[5]
In
June of 2003, Mr. Antele started to verbally and physically abuse Ms. Cruz.
Despite her father’s insistence, she refused to go to the police.
[6]
On
October 2, 2006, Ms. Cruz filed a divorce and received sole custody of their
son.
[7]
In
November 2006, Ms. Cruz and her son moved to a friend’s house in Monterrey. Four months
later, Mr. Antele found them and forced her back to their marital home and
abused her.
[8]
Ms.
Cruz’ father purchased a ticket for her to flee to Canada on April 18,
2007. Ms. Cruz left her son with her parents since she did not have Mr.
Antele’s permission to take her son out of the country.
[9]
While
in Canada, Ms. Cruz
met Jose Alfredo Vasquez Dominguez. She became pregnant with his child.
[10]
While
pregnant, Ms. Cruz returned to Mexico at her parent’s request because they
feared Mr. Antele would kidnap their son. She resided with her parents.
[11]
On
November 4, 2007, Mr. Antele assaulted Ms. Cruz at her parent’s house. She was
hospitalized for five days. She filed a police report. He was arrested and
detained for two days but released after he paid a fine.
[12]
Ms.
Cruz remained at her parent’s house until she gave birth to her daughter Mia on
January 29, 2008.
[13]
Mr.
Antele threatened Ms. Cruz and her daughter over the phone. She refused to
report the incident to the police because Mr. Antele allegedly had contacts
with the authorities, his brother being a police officer.
[14]
Ms.
Cruz left Mexico and arrived
in Canada on August
16, 2008 with her son, having arranged to obtain a passport for her son by falsifying
Mr. Antele’s signature. She made her refugee claim on September 8, 2008.
[15]
In
Canada, Ms. Cruz
resumed her relationship with Mr. Dominguez.
[16]
Ms.
Cruz amended her narrative on May 12, 2010. In her amended narrative, Ms. Cruz
explained that Mr. Dominguez, the father of her daughter Mia, abused her. On
September 19, 2010, Ms. Cruz called the police and Mr. Dominguez was arrested,
charged and sentenced.
[17]
She
left Mr. Dominguez who was granted visitation rights to see his daughter Mia
but solely in a public park.
[18]
Ms.
Cruz’ son
went to live with relatives in Saskatchewan for fear of Mr. Dominguez.
[19]
On
September 19, 2010 while exercising his visitation rights in a public park, Mr.
Dominguez stabbed Ms. Cruz several times. The aggression occurred in front of
their daughter. Mr. Dominguez was charged and convicted.
[20]
Ms.
Cruz is afraid that Mr. Dominguez will be deported to Mexico. She is
afraid that Mr. Antele, her former husband, and Mr. Dominguez will hurt her and
her children if she returns to Mexico.
[21]
In
its decision, the Board determined that the Applicants were not Convention
refugees as they do not have a well-founded fear of persecution. The Board also
determined that the Applicants were not persons in need of protection in that
their removal would not subject them personally to a risk to their lives or to
a risk of cruel and unusual treatment or punishment if they return to Mexico.
III. Legislation
[22]
Sections
96 and 97 of the IRPA provide as follows:
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Convention refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person in need of protection
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Personne à protéger
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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
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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 :
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(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
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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;
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(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
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b) soit à une menace à
sa vie ou au risque de traitements ou peines cruels et inusités dans le cas
suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(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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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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Person in need of protection
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Personne à protéger
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(2) A
person in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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IV. Issues and
standard of review
A.
Issues
1. Did
the Board err in determining that Ms. Cruz was not credible?
2. Did
the Board err in finding that state protection was available to the Applicants
in Mexico?
B.
Standard
of review
[23]
The
first issue, the Applicants’ credibility, is a question of fact that is reviewable on a
standard of reasonableness (see Lawal c Canada (Minister of
Citizenship and Immigration), 2010 FC
558, [2010] FCJ
No 673 at para 11).
[24]
As
for the second issue, state
protection involves questions of fact and mixed fact and law. They concern the
relative weight assigned to evidence, the interpretation and assessment of such
evidence, and whether the Board had proper regard to all of the evidence
presented in reaching a decision (Hippolyte v Canada (Minister of
Citizenship and Immigration), 2011 FC 82).
Issues of fact and issues of mixed fact and law are also reviewable on the
standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9
[Dunsmuir]; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC
12).
[25]
“In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir cited above at para 47).
V. Parties’ submissions
A.
The
Applicants’ submissions
Credibility findings
[26]
In
its decision, the Board found that “[Ms. Cruz] testified that she and her
father [felt] that Luis paid a bribe to be set free… Further, the panel finds
that there was insufficient credible and trustworthy evidence to indicate that
a bribe had been paid for his release. The panel finds [Ms. Cruz]’ allegations
speculative” (see para 43 of the Board’s decision).
[27]
Ms.
Cruz testified that the police would never admit they accepted a bribe from
Mr. Antele and explained that she did not believe the police had charged him since
there was no follow up.
[28]
Ms.
Cruz argues that the Board failed to explain why it speculated on her story.
She affirms that her testimony is presumed to be true unless there are clear
reasons to reject it relying on Sukhu v Canada (Minister of Citizenship and
Immigration), 2008 FC 427; and Camargo v Canada (Minister of Citizenship
and Immigration), 2003 FC 1434).
[29]
Ms.
Cruz alleges that she made a statement to the police but was not afforded the
opportunity to ratify it as she was in the hospital when she was told that Mr.
Antele had been released. She claims that the Board’s decision to reject her
claim based on a lack of credibility is unreasonable and contrary to its own
documentation.
[30]
Furthermore,
the Board found that “[Ms. Cruz] testified that Luis’ brother is a police
officer and, therefore, Luis would have helped with his release. The Panel
finds that there was insufficient credible and trustworthy evidence provided to
indicate that Luis’s brother first of all was a police officer, and, if he were,
there is insufficient evidence to indicate that he was involved with Luis’
release” (RF Board’s decision at para 43). Ms. Cruz affirms that the Board is
entitled to make credibility findings, but its findings must be reasonable and
based on the evidence adduced by the Applicants. She claims that in her case
the board failed to provide reasons for its decision and merely made negative
credibility findings without any justification, which is unreasonable.
State protection
[31]
The
Applicants submit that the Board unreasonably expected they would pursue state
protection under extraordinary circumstances denouncing corruption would not
have brought Ms. Cruz and her children protection. The Applicants further argue
that such an expectation is insensitive to her condition as an abused woman,
thus not consistent with the Gender Guidelines.
[32]
Ms.
Cruz alleges that her complaint was futile as it resulted in the subsequent
release of Mr. Antele. The Applicants rely upon Vargas v Canada (Minister of
Citizenship and Immigration), 2008 FC 709 at para 23, where the Court
held that “the analysis in relation to state protection is similarly flawed…
While this observation is not lacking justification, it nonetheless ignores the
fact that the alleged threats arose as a result of the filing of the lawsuit”.
[33]
The
Applicants further argue that the Board misapplied Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 [Ward], as it does not require
that an applicant continues to seek state protection when it was not originally
forthcoming. The Board imposes too high a burden on the Applicants without
regard to the circumstances of the case and the Gender Guidelines.
[34]
In
addition, the Applicants claim the Board ignored the evidence adduced, which
demonstrated the state’s ineffectiveness towards domestic violence.
[35]
More
importantly, the Applicants allege that the Board ignored the children’s own
claim while assessing the issue of state protection. Ms. Cruz asserts that she
provided evidence that the children were themselves victims of domestic abuse.
Since the Board did not make any adverse credibility findings, with respect to
that portion of the evidence, it is argued that the analysis conducted by the
Board is flawed because it ignored a substantial part of the claim.
[36]
In
essence, the Applicants allege that the Board member ignored the children’s
claim that they feared persecution each from their two abusive fathers.
B.
Respondent’s
submissions
Credibility findings
[37]
The
Respondent submits that the circumstances surrounding Mr. Antele’s release were
speculative and more importantly there were inconsistencies between Ms. Cruz’
Personal Information Form [PIF] and her testimony with respect to Mr. Antele’s
release.
[38]
The
Respondent also underlines the lack of evidence linking Mr. Antele’s release
with the fact that his brother is a police officer. This allegation was mere
speculation. The Board reasonably concluded there was insufficient evidence
adduced to prove the Applicants’ allegations according to the Respondent.
State Protection
[39]
The
Respondent claims that the panel reasonably noted that Ms. Cruz had only sought
state protection on one occasion. In that instance, Mr. Antele was in fact
arrested. Where state protection is reasonably forthcoming, an applicant’s
failure to seek state protection is fatal. The Respondent relies on Carillo
v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] FCJ No 399 [Carillo]
for that proposition.
[40]
The
Respondent submits that the Applicants were unable to adduce sufficient
reliable and convincing evidence that state protection in Mexico is
inadequate. Ms. Cruz only filed one report with the police despite extensive
abuse at the hands of Mr. Antele over several years.
[41]
Moreover,
the Respondent underlines that the test for state protection is not the
effectiveness but the adequacy of state protection. The Court recognized, in Smirnov
v Canada (Secretary
of State),
[1995] 1 FC 780, that “even the most effective, well-resourced and highly
motivated police forces will have difficulty providing effective protection.
This Court should not impose on other states a standard of “effective"
protection that police forces in our country, regrettably, sometimes only
aspire to”. The fact that the state of Mexico does not
provide perfect protection is not in itself a basis for determining that the
state is unwilling or unable to offer reasonable protection to victims of
domestic violence.
[42]
The
Respondent also underlines that Ms. Cruz never filed a request to have the
children’s claim determined separately. Ms. Cruz was the designated
representative for her minor children. The minor children relied on Ms. Cruz’
narrative. The Board was not required to assess the Applicants’ claims
separately. The Board did consider the evidence concerning the children.
However, it found that Ms. Cruz failed to exhaust all avenues of state
protection available to her prior to leaving Mexico. It also
found that state protection would reasonably be forthcoming to the Applicants
in Mexico as it looked
the documentary evidence which indicated that measures existed to exempt
parents from communicating their change of address in instances of domestic
violence, and Ms. Cruz could inform the Court if either father threatened his
respective child.
VI. Analysis
1. Did the Board err in determining that Ms. Cruz
was not credible?
[43]
Determining
the credibility of an Applicant is factual in nature. "The jurisprudence
is clear in stating that the Board's credibility and plausibility analysis is
central to its role as trier of facts and that, accordingly, its findings in
this regard should be given significant deference" (see Lin v
Canada (Minister of Citizenship and Immigration), 2008 FC
1052, [2008] FCJ
No 1329 at para 13).
[44]
The
Board found inconsistencies between the Applicants’ PIF and Ms. Cruz’ testimony
more precisely with respect to the circumstances underlying Mr. Antele’s
release. This finding is reasonable as Ms. Cruz’ allegations concerning Mr.
Antele’s release were speculative in nature. No evidence was adduced to
establish that Mr. Antele had paid a bribe for his release.
[45]
In
addition, no evidence was adduced by the Applicants to demonstrate that Mr.
Antele’s brother had any involvement with the early release.
2. Did the Board err in finding that state
protection was available to the Applicants in Mexico?
[46]
The
Board erred when it determined that state protection was available to the minor
Applicants in Mexico.
[47]
In Mendoza v Canada (Minister of Citizenship and
Immigration), 2010 FC
119, Justice Lemieux held, in paragraph 33, that “each case is sui
generis so while state protection
may have been found to be available in Mexico, maybe even in a
particular state, this does not preclude a court from finding the same state to
offer inadequate protection on the basis of different facts” (see also Avila v Canada (Minister of Citizenship and
Immigration), 2006 FC 359 [Avila]). Applicants were expected to take
all reasonable steps in the circumstances to seek state protection from their persecutors (see Ward
and Avila). It is important to
note that an applicant who fails to do so bears the onus of convincing the
Board of the inadequacy of state protection
(see Carillo).
[48]
Furthermore,
it is important to underline that when a Board finds that an applicant failed
to take the necessary measures to seek state protection, this finding is fatal
to the claim if the Board concludes the protection would have been forthcoming.
The Board must assess the influence of the alleged persecutor on the capability
and willingness of the state to protect (see Ward
and Avila).
[49]
In Ward, cited above, the Supreme Court of Canada held that
the testimony of similarly situated persons, individual experiences with state protection and
documentary evidence can all be adduced to demonstrate that state protection would not have been forthcoming.
[50]
The
quality of the evidence necessary to rebut the presumption of state protection will rise in proportion to
the degree of democracy of the state involved (see Avila
and Ward).
[51]
The
evidence must also be relevant, reliable and convincing to satisfy the trier of
fact on a balance of probabilities that state protection is inadequate (see Carillo).
[52]
In
its decision, the Board wrote that “claimant must do more than merely show she
went to see members of the police force and that those efforts were
unsuccessful. A claimant must show that they have taken all reasonable steps in
the circumstances to seek state protection, taking into account the context of
the country of origin, the steps taken and the claimant’s interactions with the
authorities” (see Board’s decision at para 56).
[53]
Domestic
violence is frequent in the state of Mexico. The Board should have
conducted a separate analysis of the children’s situation.
[54]
As
the Court reviews the evidence adduced with respect to the children, it is
obvious that each child’s fear is distinct and relies on a different factual
basis and circumstances that should have been assessed.
[55]
The
Board failed to take into consideration these claims in their own right. It is
not sufficient to merely rely on a review of existing measures with respect to
changes of address or the existence of organizations to help families caught
with problems of domestic violence.
[56]
The
evidence adduced with respect to the situation of each individual child should
have triggered separate analyses of risk and the ability of the Mexican state
to protect these children and whether they could reasonably access such
protection taking into consideration each child’s individual circumstance.
[57]
The
country conditions should have been contextualized in respect of each child’s
respective situation (see Zhu v Canada (Minister of Citizenship and
Immigration), 2001 FCT 884 and M.L.R.T. v Canada, 2005 FC 1690).
[58]
In
view of this important deficiency, this decision cannot stand. The application
is allowed.
VII. Conclusion
[59]
The
Board failed to properly analyse the children’s situation with respect to the
availability of state protection in Mexico. For this reason, this
application for judicial review is allowed.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
This
application for judicial review is allowed; and
2.
There
is no question of general interest to certify.
"André
F.J. Scott"
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