Date:
20121210
Docket:
IMM-3376-12
Citation:
2012 FC 1444
Ottawa, Ontario, December 10, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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DEYCILIA SILVA LOPEZ
FRIDA AYLIN MARTINEZ SILVA
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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
[1]
The
principal claimant, Ms. Deycilia Silva Lopez [applicant] and her minor
daughter, Frida Aylin Martinez Silva, seek judicial review of the decision of
the Refugee Protection Division of the Immigration and Refugee Board [Board]
determining that they are neither Convention refugees nor persons in need of
protection.
[2]
The
applicants are citizens of Mexico who arrived in Canada in July 2009 and
submitted their claim for refugee protection shortly thereafter. The claim is
based on the principal claimant’s fear of persecution at the hands of her
ex-husband, Mr. Armando Martinez Padilla, with whom she had a violent and
abusive relationship.
[3]
After
the birth of the minor applicant, the applicant noticed that her husband was
using illicit drugs. Late in 2001, he began physically abusing the applicant.
The applicant recounts that her ex-husband brought drugs and weapons into their
home, and was involved in other criminal activity. He was imprisoned for car
theft in 2004, and his friends forced the applicant to visit him conjugally and
to bring him various items in prison. The applicant believed that his friends
had gang connections and suspected that they bribed officials to arrange for
his early release. The applicant apparently attempted to flee from her husband
on several occasions prior to coming to Canada, including to the United States in 2005; to Sonora, Mexico, a roughly 38-hour car ride from her home town, in 2007;
and to Tijuana, Mexico, roughly 8 hours away by car, in 2008. Each time, Mr.
Padilla’s friends purportedly threatened the applicant, with the goal of having
her return to him in Mexico City. The final time the applicant returned to Mexico City – from Tijuana – was to respond to a petition for divorce filed by Mr.
Padilla. After deficiencies in the petition were cured, the couple was divorced
on March 24, 2009. Mr. Padilla retained access rights with respect to the
couple’s daughter, though he purportedly did not exercise them.
[4]
Since
the applicant brought the minor applicant to Canada without the knowledge or
consent of Mr. Padilla, the hearing before the Board was adjourned to give the
Minister an opportunity to participate. The Minister determined that no missing
child report had been filed with Interpol and that, as such, Canada was not in contravention of its Hague Convention obligations. The claim was
eventually dismissed by the Board because there is adequate state protection,
while the applicant also lacks subjective fear.
[5]
First,
the Board concluded that the applicant had not rebutted the presumption of
state protection because she had not taken all reasonable steps in the
circumstances to avail herself of state protection. The Board further found
that the evidence proffered in support of the applicant’s sole attempt to seek
such protection was not credible. That said, the Board identified
contradictions between the applicant’s testimony and a letter from the Attorney
General’s office summoning her to a hearing before a unit specializing in
domestic violence, and determined that the applicant only once disclosed her
history of domestic violence to a state official – the judge hearing her
divorce petition. The Board concluded that the divorce judge had referred her
to the domestic violence unit, and that the Attorney General’s letter
demonstrated immediate action on the part of the Mexican officials, who gave
her access both to a social worker and a hearing before a judge whose specialty
included domestic violence. The Board thus concluded that the applicant failed
to provide any persuasive evidence that the Mexican police, through the
Attorney General or the judicial system, were unwilling to protect her and her
daughter.
[6]
Second,
the Board drew an adverse inference with regard to the applicant’s subjective
fear based on her failure to claim refugee status in the United States and her subsequent re-availment to Mexico, where she returned to live in the same
house as her then-husband. The applicant testified that she went to the United States with the “intention to stay,” but returned to Mexico after she received threatening
phone calls from her ex-husband’s friends on local numbers. She recounted that
she could not go to the police because she was afraid that she would be
deported. The Board was not satisfied with the applicant’s account that she did
not make any inquiries as to how to acquire status in the United States,
determining that this, along with her cognizance of the risk to which she was
subjecting herself and her daughter in returning to Mexico, were inconsistent
with a subjective fear of persecution at the hands of her ex-husband.
[7]
While
they have not necessarily been pleaded by her counsel in the following order,
the applicant’s contentions in this application are four-fold: first, the Board
erred in its consideration of the applicant’s subjective fear; second, the
member was not sensitive to the Guidelines on Women Refugee Claimants Fearing
Gender-Related Persecution, issued by the Chairperson of the Board [Gender
Guidelines]; third, the Board made an erroneous finding of fact with
respect to the purported referral by the applicant’s divorce judge to a
“domestic violence unit”; fourth, the Board erred in failing to consider both
the applicant’s specific circumstances and the effectiveness of the measures
taken in Mexico to protect women who are abused by men in its state protection
analysis.
[8]
The
present application must fail as I find, on the whole, the impugned decision
reasonable, and the ultimate conclusion of the Board an acceptable and
defensible outcome in light of the facts and the law.
[9]
Firstly,
I agree with the applicant that the Board erred in determining that her
re-availment indicated a lack of subjective fear. This Court has found that persecution
subsequent to re-availment “does not preclude a person from making a claim for
refugee status without being faced with the re-availment issue” (Gurusamy v
Canada (Minister of Citizenship and Immigration), 2011 FC 990 at para 40,
[2011] FCJ No 1217; Prapharan v Canada (Minister of Citizenship and
Immigration), 2001 FCT 272 at para 17, [2001] FCJ No 481), and there is no
dispute that the applicant was not subject to further violence between her
return to Mexico from the United States in 2005 and her arrival in Canada in
2009. However, this issue was not determinative of the Board’s decision, and
this error alone is insufficient to return the decision for re-determination.
[10]
Secondly,
I am also satisfied that the Board was adequately alert to the Gender
Guidelines in coming to its decision. The Board made several comments
throughout the hearing that demonstrated its sensitivity to the particular
issues faced by the victims of domestic abuse, including those faced by the
applicant. The
Board accepted the applicant’s horrific allegations of violence as true, and
did not question her on this sensitive and painful topic at the hearing. The fact that the Gender
Guidelines are not explicitly mentioned throughout the Board’s reasons is
not sufficient to overturn its decision on the circumstances of this case. The
decision of the Board must be read as a whole and the comments made by the
Board in the paragraphs indicated by the applicant’s counsel are either cited
out of context or not demonstrative of any marked insensitivity of the member to
the Gender Guidelines.
[11]
Thirdly,
I am unable to accept the applicant’s argument with respect to the Board’s
purported error of fact. The Board’s findings of fact are subject to a high
level of deference because such questions fall squarely within its specialized
expertise, and the record before the Board supports its interpretation of the
summoning letter from the Attorney General’s office. The applicant’s testimony
on this point was not particularly clear. More importantly, however, the Board
was concerned about the contradiction the letter from the Attorney General’s
office presented to her earlier statement that she had approached no state
official for assistance. Whether the divorce judge referred her to the domestic
violence unit or she approached it of her own accord, this contradiction
remains, and speaks to the Board’s credibility finding. Again, the decision of
the Board must be read as a whole and it cannot be said that the finding made
by the Board is not a defensible one in light of the evidence that was before
the Board at the hearing.
[12]
Fourthly,
the applicant bears the onus of rebutting the presumption of state protection
with “clear and convincing evidence” (Canada (Attorney General) v Ward,
[1993] SCJ No 74 at para 50). The primary issue for the Board was that, despite
her ex-husband’s connections, the applicant failed to take reasonable steps to
access the protective services of her state. This Court has already held that
an applicant’s subjective view of the adequacy of state protection does not
constitute “‘direct, relevant and compelling evidence’ of the inadequacy of
state protection” (see Martinez v Canada (Minister of Citizenship and
Immigration), 2005 FC 1050 at para 7, [2005] FCJ No 1297). While recognizing
examples of police failure in Mexico, the Board found that in the applicant’s case,
she got an immediate response from the Attorney General’s office after
disclosing her history of domestic violence. Moreover, after analysing the
totality of the evidence, the Board notes: “[w]hile there are some
inconsistencies among sources, the preponderance of the objective evidence
regarding current country conditions suggest that, although not perfect, there
is effective and adequate state protection in Mexico and that Mexico is making
serious efforts to address the problem of domestic violence and that police are
both willing and able to protect such victims”. Thus, I find that the
Board’s conclusion in respect of state protection is reasonable when the
decision is considered as a whole.
[13]
For
these reasons, the present application shall be dismissed. No question of
general importance has been proposed for certification and none shall be
certified by the Court.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed. No question is certified.
“Luc
Martineau”
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