Date: 20090127
Docket: IMM-2825-08
Citation: 2009 FC 83
Ottawa, Ontario, January 27, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ROCIO
MORALES PECH
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by the
Refugee Protection Division of the Immigration and Refugee Board, dated May 14,
2008, denying the refugee claim on the basis that the applicant had not
established that “state protection” was not available to her in Mexico City.
FACTS
[2]
The facts and the credibility of the applicant in this case were
accepted by the Board. The applicant, born November 11, 1986, is a citizen of Mexico.
In July 2004, at the age of 17, the applicant became the girlfriend of a 47
year-old army officer, a Lieutenant Colonel in the Mexican Army based in Mexico
City. At the time, the applicant was living with her parents in Mexico City.
[3]
On January 8, 2005 the applicant moved to the city of Veracruz to live
with the Colonel, who had been transferred to Veracruz with the Mexican Army.
She had just turned 18.
[4]
The applicant states that at the beginning of their relationship in Veracruz
there were no problems. However, on September 19, 2005, (when the applicant was
18 years of age), the Colonel beat her causing her serious injury. After the
incident, the Colonel apologized and asked her not to report the incident to
the police because he “had had a bad day and would never do it again”. However,
he soon again lost his temper and beat her. Then, on Christmas Eve, December
24, 2005 the Colonel returned home under the effects of alcohol or drugs and,
without provocation, beat her, and strangled her until she lost consciousness.
When she awoke, she realized that her clothes had been tattered and that she
had been raped. The applicant immediately reported the rape, the assault and
the injury to the police in Veracruz on Christmas Eve. She was examined by a
doctor at the police station in Veracruz. She then left Veracruz and moved back
to her parents’ home in Mexico City.
[5]
On January 2, 2006 (six days later) the Colonel arrived at her parents’
house in Mexico City, pointed a gun at the applicant’s head and ordered the
applicant to return with him. She refused. The applicant thought that because
of the police report that she had made in Veracruz, the applicant would soon be
incarcerated. Following the incident on January 2, the Colonel stalked her
around her house, and when she left her house. Then, on January 15, 2006 the
Colonel tried to kidnap her while she was shopping. She struggled, kicked and
yelled while the Colonel was trying to take her away in his car with the help
of two men. This caused the Colonel’s car to crash at a busy intersection. The
two men in the Colonel’s car who were holding her were injured. As people
approached the car, she took the opportunity to run away. The applicant took a
taxi to the bus station and went to the city of Irapuato to live with her
grandparents. The Colonel found her in Irapuato and threatened her with death
if she would not return to him. She refused. The Colonel then telephoned her
and said that he was outside her house in Irapuato. The applicant called the
police and reported that the Colonel was outside her house and wanted to kill
her. After 10 or 15 minutes, the police arrived, the Colonel left and the
police went after him.
[6]
The next day, March 1, 2006, the applicant moved to a distant city in
the northern part of Mexico called Torreon to live with a friend of her mother’s.
During that time she met the son of the friend and started a romantic
relationship. This young man was a truck driver and she traveled constantly
with him in the truck with the expectation that the Colonel would never find
her. Then, on July 31, 2006 while her boyfriend was “trucking” in the city in
the city of Guadalajara, she saw her boyfriend running and yelling for help.
Behind her boyfriend she saw a van. The driver of the van shot her boyfriend in
the head and killed him right in front of her eyes. The applicant recognized
the driver of the van as one of the men who had tried to kidnap her six months
before in January. Another woman, whom the killers may have mistaken for the
applicant, was killed along with the applicant’s boyfriend. The applicant
escaped through the back door of the hotel and returned to Mexico City. She
went to the airport, bought an airplane ticket to Canada and left Mexico on
August 4th, 2006, arriving in Canada that same day.
[7]
The applicant stayed in Canada thinking things would calm down back in Mexico
and she could return. However, just prior to her refugee claim, the applicant’s
cousin in Mexico City was kidnapped and brutally beaten. Her cousin was in the
hospital in critical condition. The applicant was told that the people who beat
her cousin were trying to get information about the whereabouts of the
applicant.
Decision under review
[8]
The only issue for the Board was the availability of state protection in
Mexico City. At the outset of the hearing, the Board member said that the only
issue he wanted to consider was whether the applicant could establish on the
balance of probability that there was not adequate state protection in Mexico
City, the Federal District. The Board member also said at the outset of the
hearing that:
… as counsel and I discussed,
much of the basis for my decision on that issue (state protection) will be from
the documentary evidence both submitted by your counsel and disclosed by the
Board.
(Transcript,
page 4, lines 15 to 18)
Counsel for the applicant added on the record that
the Board member did not want the applicant to repeat her personal story
because her credibility or the facts are not in issue. The only issue is state
protection.
[9]
The Board held that the applicant had not established that state
protection was unavailable to her in Mexico City. He stated in his decision at
page 1:
The claimant never approached any
authority in the D.F. concerning incidents that occurred in that jurisdiction.
Counsel submitted that because
the claimant made a report in Veracruz, then this should have protected the
claimant from the attack in the capital. I have no evidence as to what the
police did with the Veracruz report. Counsel submitted the former lover should
have been questioned or maybe arrested and if [so], as in Canada, held until
released on bail. All of this could have happened.
I note it was eight days later
before the former lover approached the claimant in the capital. There is no
way counsel or I would know what actions the police actually took in Veracruz.
[10]
The Board member stated at page 21:
In this matter, the claimant made
two attempts[,] neither in the D.F. where she had lived and where both the
abuse and criminal acts occurred.
[11]
The Board member concluded that the applicant had not established
that state protection would be inadequate in Mexico City should she return to Mexico
City, and therefore rejected her claim.
ISSUES
[12]
The applicant raises three issues in this application:
a. whether
the Board took the Chairperson’s Guidelines on “Women Refugee Claimants Fearing
Gender-Related Persecution” into account;
b. whether
the Board gave appropriate consideration to the profile of the applicant’s
abuser as a high ranking army colonel in evaluating whether the police would
take action against him; and
c. whether
the Board erred in conducting a selective analysis of the evidence, engaging in
speculation, and making a decision unsupported by the evidence before it.
The Court raised another issue at
the hearing: whether the failure to assess the credibility of the applicant in
this case is a reviewable error of law.
STANDARD OF REVIEW
[13]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of [deference] to be accorded
with regard to a particular category of question.”
[14]
The
Federal Court of Appeal has ruled that questions as to the adequacy of state
protection are subject to a standard of reasonableness see Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 362 N.R. 1, at paragraph
38. Accordingly, the
Court will consider "the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” (Dunsmuir at paragraph 47).
ANALYSIS
Issue No. 1: Did the Board err
by failing to apply the Gender Guidelines?
[15]
The
applicant submits that the Board failed to consider the Gender Guidelines in
concluding that the applicant had not established that state protection was
unavailable. In particular, the applicant refers to the following section of
the Guidelines:
… Evaluation of the weight and credibility of the claimant's
evidence ought to include evaluation of the following considerations, among
others:
…
2. Decision-makers
should consider evidence indicating a failure of state protection if the state
or its agents in the claimant's country of origin are unwilling or unable to
provide adequate protection from gender-related persecution. If the
claimant can demonstrate that it was objectively unreasonable for her to seek
the protection of her state, then her failure to approach the state for
protection will not defeat her claim. Also, the fact that the claimant did or
did not seek protection from non-government groups is irrelevant to the
assessment of the availability of state protection.
[16]
The
applicant did report her Christmas Eve rape and assault to the police in Veracruz. The police
referred her to a doctor at the station and she was examined. The basis for
the finding that she had not established that there was inadequate state
protection was that she had failed to report the Colonel’s harassment in the
D.F., and his attempted kidnapping in the D.F., to the police in the D.F.
[17]
When
the applicant was kidnapped by the Colonel in Mexico City, she took
the opportunity to run away when the Colonel’s car was in a traffic accident
due to her struggles. Moreover, the two persons helping the Colonel kidnap her
were injured. The applicant immediately took a taxi to the bus station and then
a bus to her grandparents’ house in the city of Irapuato. Applying
the Gender-Related Guidelines, the applicant was able to demonstrate that it
was objectively unreasonable for her to seek the protection of the police in Mexico City. She had no
time to waste. She had just reported to the police that the Colonel beat her to
unconsciousness and raped her in Verzcruz on Christmas Eve. Nothing happened to
the Colonel. Moreover, she was only 18 years of age. Accordingly, I agree that
the Board did not reasonably apply the sensitivity and understanding required
by the Gender-Related Guidelines with respect to understanding why the
applicant did not report the kidnapping on January 15, 2006 to the police in
the D.F.
Issue raised by the
Court: Failure to assess the credibility is a reviewable error
[18]
At
the hearing of this application, I raised a concern that the Board did not
evaluate the credibility of the applicant’s evidence and made no negative
findings in this regard. Instead, the Board member confined his analysis to
whether there was adequate state protection in the D.F., i.e. Mexico City.
[19]
Madam
Justice Anne Mactavish in Gutierrez v. Minister of Citizenship and
Immigration 2008 FC 971, 169 A.C.W.S. (3d) 175 held at paragraph 13:
In the absence of any credibility
analysis, the applicant’s story must be taken as having been accepted by the
Board member as true.
[Emphasis added.]
I
agree.
[20]
If
the applicant’s story is taken as true, the applicant may have had no logical
or reasonable choice but to escape Mexico because the Colonel
would have killed her. The police in Mexico City might not have been
able to stop the Colonel. The applicant had already reported the Colonel’s
beating and rape of the applicant on Christmas Eve to the police in Veracruz. The
applicant had resisted the Colonel when he came to her parents’ house in Mexico City and pointed
a gun at the applicant. The applicant had struggled and fled Mexico City when the
Colonel tried to kidnap her, and lost control of his car. The applicant reasonably
left Mexico
City
as soon as possible to get far away. She went to her grandparents’ home a long
distance away. Then the Colonel came after her there and she called the police.
The police scared the Colonel away and she ran immediately for another distant city
whereupon she became romantically involved with a truck driver. After several
months of traveling around Mexico with the truck driver, she witnessed one
of the Colonel’s men murder (her boyfriend) the truck driver and a woman with
him. The applicant understandably took a plane out of Mexico as soon as
possible. Reporting the Colonel to the police may not have been a logical or
reasonable option. The applicant may have had no reasonable option but to flee Mexico to avoid
being seriously injured or killed by the Colonel.
[21]
In
my view, the Board member did not properly execute his duty in conducting a
Refugee Board hearing in a case such as this because he did not assess the
credibility of the applicant. This is an error of law in the conduct of the
hearing and warrants setting aside the decision. This is obvious in the case at
bar because if the applicant’s story is true, no amount of police protection may
be able to stop this Colonel from his fanatical and psychopathic pursuit of the
applicant. That decision is for the Board to make after assessing credibility.
Issue No. 2: Did the Board err
in failing to consider the profile of the applicant’s abuser?
[22]
The
applicant submits that the Board failed to give sufficient consideration to the
profile of the applicant’s abuser. The applicant submits that where the abuser
is a member of the state, the Board must conduct more than a blanket assessment
of the protection available in that country. The applicant relies on Chaves
v. MCI, 2005 FC 193, 137 A.C.W.S. (3d) 392 wherein Justice Tremblay-Lamer
stated at paragraph 15:
...where agents of the state are
themselves the source of the persecution in question, and where the applicant’s
credibility is not undermined, the applicant can successfully rebut the
presumption of state protection without exhausting every conceivable recourse
in the country.
[23]
The
applicant also relies on Gallo Farias, supra, wherein I held that the
Board did not adequately address the issue of whether adequate state protection
was available to a claimant who had suffered abuse at the hands of a
high-profile Mexican politician:
¶ 26 …it is important that the Board not
merely provide a blanket assessment of whether adequate state protection is
available in the Federal District of Mexico City. Rather, having accepted that
the applicant suffered significant abuse at the hands of a high ranking and
high profile Mexican politician, the Board must account for such factors in
determining whether such protection will be available to the applicant.
[24]
The
respondent submits that in this case, the Board clearly considered the fact
that the applicant was being harassed by an army officer, and there is no
evidence that the actions of the officer were condoned by the state. The
respondent argues that the Court should not reach a conclusion that the Colonel
had control or influence over Mexican police or was acting in a government
capacity. The respondent states that acts of personal vengeance committed by a
state official do not establish state involvement: Dorado v. Canada (MCI), 2006
FC 928, 159 A.C.W.S. (3d) 564; Singh v. Canada (M.C.I.) 2006 FC 136, 289
F.T.R. 34; and that the actions of one or a few police officers do not indicate
that the state is unable or willing to protect members of a social group: Kadenko
v. Canada (M.C.I) [1996]143 D.L.R. (4th) 532; Soto v. Canada 2005
FC 1654, 145 A.C.W.S. (3d) 136.
[25]
The
Board noted at page 12 of the decision that human rights organizations have
reported that army abuses are investigated by military authorities, but that in
a case such as this, where the officer was acting as a civilian, such problems
would not apply. There was no specific evidence that army officers in general exercised
any degree of authority over the police or the civilian justice system.
Nothing on the record indicates that the applicant’s abuser himself exercised
influence over the police or had special resources at his disposal that would
allow him to abuse her without fear of reprisal. Moreover, when the applicant
reported the abuse to the police, action was taken. The authorities in
Veracruz took a report, while in Irapuato, the police arrived and
gave chase to the applicant. These incidents undermine the applicant’s
submission that her abuser’s position as an army officer affected her ability
to seek state protection.
[26]
I
agree with the respondent that the fact that the applicant’s former partner is
an army officer is not sufficient to establish him as an agent of the state in
relation to his persecution of the applicant. In many of the cases cited by
the applicant where successful claimants were the victims of abuse at the hands
of high-profile lovers, the applicants were unable to file police reports or
were abused by the police themselves when they attempted to seek protection.
Here, the applicant was able to access state protection on the two occasions
when she attempted to do so. In the absence of any evidence that the officer
was able to influence the authorities or that the police were unwilling to help
the applicant, the Board’s discussion of the abuser’s profile is sufficient.
Issue No. 3: Was the Board’s
decision supported by the evidence?
[27]
The
applicant states that the Board engaged in a highly selective analysis of the
documentary evidence regarding state protection in Mexico. In
particular, the applicant refers to the Board’s finding that the conditions in
the D.F. are better than the rest of the country in relation to corruption and
domestic violence. The panel stated, at page 10 of its reasons:
The Human Rights Watch Report note few
rape victims report the crime to the authorities. I would note that in the
D.F. there are a number of initiatives to deal with this reality. The report
states that state laws do not adequately protect women but there have been
recent policy development at the federal level (sic). It is one of the
reasons that I am satisfied that at the federal level, the situation for women
is better than in some other areas.
[28]
The
applicant points to several pieces of evidence contradicting these findings.
First, the 2006 Human Rights Watch Report states:
Ulises Sandal Ramos Koprivitza, human
rights director for the attorney general’s office in teh Federal
District...said that the Federal District since 2004 had employed a policy
that encourages all non-serious crimes (of which domestic violence is
considered one) to pass through mediation. “Criminal punishment should be the
last option. This is in order to open the door for other types of alternatives
of conflict resolution,” he said. Later in the interview, however, he noted
that “the victim [of domestic and sexual violence] comes to us when the
aggressor has abused them once too often or is continually abusing them.”
[29]
The
applicant submits that this is crucial evidence that goes toward the behaviour
and attitude of those that deal with sexual violence complaints in the Federal
District.
The applicant submits that such evidence cannot be reasonably ignored when
considering whether the applicant could safely return to the D.F.
[30]
The
applicant also submits that the Board quoted selectively from a 2003
Immigration and Refugee Board report, citing a regulation that requires health
professionals to report abuse to the authorities “in special instances.” The
applicant states that this same report also states:
...according to the chairperson of the
Committee on Equality and Gender of the Federal District Legislative Assembly,
the incidence of violence against women in the Federal District is the same as
for Mexico as a whole, which means that it occurs in one in every three
households.
[31]
Thus,
the applicant submits that the Board’s statement that the situation is better
in the D.F. than in other areas is unfounded, and ignores directly
contradictory evidence that not only are domestic violence rates equally high,
but the legislative initiatives in the D.F. have not caused domestic violence
to be regarded by or dealt with by the authorities as a serious crime.
[32]
The
respondents state that the Board cited ample evidence to support its
conclusions, including evidence that:
a.
The
Federal Penal Code stipulates a penalty of six months to four years for any
person who fails to prevent the use of physical, mental or emotional violence
against a member of the family;
b.
There were
44 shelter for women nationally, including shelters located in the D.F.;
c.
The applicant
could have gone to various government agencies for protection from domestic
violence, including the Citizens Information and Services Network (SIAC)
established by the Minister of Public Security; and the Attorney General’s
Office’s Services for Victims of Crime Branch, among others;
d.
The
applicant could obtain assistance from the Domestic Violence Assistance Centre
(CAVI) in filing complaints with the public prosector’s office
e.
The
applicant could have gone to various agencies if she had experienced problems
with the police, (which she did not) including the Attorney General’s Office
and, in the D. F., the Federal District Human Rights Commission;
f.
There are
disciplinary measures for police abuses, including suspensions, fines; and
g.
The three
main offices of the Special Prosecutor for Crimes of Violence Against Women
(FEVIM) are located in the D.F.
[33]
The
respondent submits that the appropriate standard is the adequacy, not the
effectiveness, of state protection, but states that the Board also turned its
mind to the effectiveness of state protection in the D.F., citing the following
statistics:
a.
CAVI
helps 22,000 persons seeking assistance in the D.F. for domestic-related issues
per year, on average;
b.
Two SIAC
centres were operating in Mexico
City, where they
provided services to 2,707 clients in 2006; and
c.
The
government removed 284 federal police commanders and provided rigorous training
and evaluation of their replacements.
[34]
The
respondent further submits that the board acknowledged that state protection in
Mexico was not
perfect, and noted several ongoing problems including corruption, inefficiency,
and poor conditions for women. However, after considering all the evidence,
the Board found the applicant had failed to establish that on a balance of
probabilities, state protection would be inadequate should she return to Mexico. The
respondent submits that this was reasonably open to the Board, that the Board
is not required to refer specifically to all the evidence, and that deference
is warranted to the panel’s weighing of the evidence.
[35]
While
I agree with the applicant that there was evidence on the record that
contradicted the Board’s statement that the conditions were better for victims
of domestic violence in the D.F. than in other areas, there was also evidence
before the Board that supported its finding that the situation in the D.F. was
better than in other areas. Statistics before the Board indicated that
reported domestic violence cases in the D.F. had a 56% conviction rate, as
opposed to the 28% conviction rate throughout Mexico. The
respondent therefore argues that although there is evidence on the record that
the rate of domestic violence is the same in the D.F., there is also evidence
that the response to domestic violence is substantially different and that
women in the D.F. have recourse to many more options in availing themselves of
state protection. Accordingly, the Court finds that the Board’s decision on
this matter is reasonable.
[36]
This
application for judicial review must be allowed because of the Board’s failure
to properly apply the Gender Guidelines or to assess the applicant’s
credibility.
[37]
Both
parties indicated that this case does not raise any question which ought to be
certified for an appeal. The Court agrees and no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application for judicial review is allowed and the decision of the Board dated
May 14, 2008 is set aside; and
2.
the
refugee claim is referred to another panel of the Board for redetermination in
accordance with these Reasons.
“Michael
A. Kelen”
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