|
Federal Court
|
|
Cour fédérale
|
Date: 20090609
Docket: IMM-5380-08
Citation: 2009 FC 604
Ottawa, Ontario, June 9, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
VERONICA
MENESES ARIAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated November 7, 2008, where the Board found the Applicant is not a
Convention refugee or a person in need of protection.
Issues
[2]
Although
the Applicant raises two more questions, the following is determinative:
1) Did
the Board err in finding that it would be reasonable for the Applicant to
re-locate in Guadalajara?
2) The
application for judicial review shall be allowed for the following reasons.
Factual Background
[3]
The
Applicant is a 32 year old woman from Mexico City. She came to Canada to escape
her abusive common law spouse, Juan Manuel Mendoza Arguelles (Mr. Mendoza), a
federal anti-drug judicial police officer she met in May 2003. The Applicant
said that the relationship soon became very abusive and violent and she alleges
she was frequently a victim of his physical, emotional and sexual abuse. Mr.
Mendoza was often drunk and he used cocaine. He beat her frequently, he raped
her and she had bruises to her face and body. At times, Mr. Mendoza threatened
the Applicant with a gun. He also targeted the Applicant’s father, brother and
sister when they intervened to protect her.
[4]
Police
officers were involved in a few incidents. On one occasion in August 2004, following
an argument, Mr. Mendoza arranged to have another police officer take her in a
police car on the pretence of going to file a complaint against him, but the
officer drove to a location where she was given to Mr. Mendoza instead.
[5]
In
July 2005, the Applicant left her home to stay with her sister in La Paz, Baja
California,
Mexico.
However, two weeks later, Mr. Mendoza appeared outside a supermarket where the Applicant
was shopping and forced her to return to Mexico City to live with
him.
[6]
In
August 2006, Mr. Mendoza violently assaulted the Applicant, causing a
spontaneously aborted pregnancy. She reported the incident to the Public
Ministry who sent her for medical attention and reported the matter back to
police. The Applicant stayed at a hotel until she made arrangements to come to Canada on September 9, 2006.
[7]
The
Applicant returned to Mexico on February 28, 2007 thinking that Mr.
Mendoza would not bother her any longer because he had stopped calling her
parents’ house to find out where she was. However, immediately following her
arrival, Mr. Mendoza started calling the Applicant and threatening her and her
family. The Applicant decided to return to Canada. She arrived
on April
16, 2007
and made a claim for refugee protection on April 24, 2007.
Impugned Decision
[8]
The
Board did not make a negative credibility finding with respect to the
Applicant. However, the Board found that the documentary evidence indicated
that an Internal Flight Alternative (IFA) existed for the Applicant in Guadalajara, Jalisco
state. State protection would be available to the Applicant there and she could
safely live without a serious possibility of being persecuted.
Analysis
Standard of Review
[9]
Prior
to the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the standard of review of an IFA was patent
unreasonableness (Khan v. Canada (Minister of Citizenship and Immigration),
2005 FC 44, 136 A.C.W.S. (3d) 912 and Chorny v. Canada (Minister of
Citizenship and Immigration), 2003 FC 999, 238 F.T.R. 289).
[10]
Following
Dunsmuir, the decision on an IFA is reviewable on the standard of reasonableness.
As a result, this Court will only intervene if the decision does not fall
“within a range of acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, above at para. 47). For a decision to be
reasonable there must be justification, transparency and intelligibility within
the decision making process.
Did the Board err in
finding that it would be reasonable for the Applicant to re-locate in Guadalajara?
[11]
One
of the Board’s reasons for finding that Guadalajara is a viable IFA for the Applicant is that
Guadalajara, with a population of 1.8 million people, is an international
destination for tourists, has a diverse atmosphere where many different
lifestyles exist and is relatively more western in its profile than other rural
areas of Mexico. The Applicant
submits that these are irrelevant considerations which have no relevance to
whether the Applicant, who hails from Mexico City, the biggest urban
metropolis in Mexico, would be safe from Mr. Mendoza in Guadalajara. On the
contrary, the population of Guadalajara militates against the
protection system.
[12]
The
Board analyzed the protective legislation for domestic violence in Jalisco
state, where Guadalajara is the
capital city. The Board stated that Jalisco’s state Congress passed its own law
in order to comply with the new February 2007 federal legislation on women’s
access to a life free of violence.
[13]
The
Applicant makes the following comments in relation to the objective evidence:
a. Jalisco state
did not comply with its 1999 legal obligation to create a care centre for
victims of crime;
b. the new
Jalisco domestic violence legislation will only be enforceable in December
2008;
c. the new
legislation provides for only relatively weak deterrence of 72 hours detention
for the violation of restraining orders;
d. the police do
not receive the appropriate training and public prosecutors discourage women
from filing complaints;
e. access to the
only relatively secure “official” shelter for abused women is not easy and may
be primarily for minors;
f.
even
“temporary” non-secret private shelters are full;
g. women tend
not to report abuse, and
h. the number of
women who have died as a result of violence in Jalisco has increased
substantially in the last two years (57% killed by their partners).
[14]
The
Applicant alleges that it is perverse for the Board to conclude that adequate
protection would be forthcoming given Mr. Mendoza’s proven propensity for
extreme violence including the use of firearms and abduction in broad daylight
in public outside a supermarket in La Paz.
[15]
The
Board concluded that although he is a federal police officer, Mr. Mendoza would
not have influence in Guadalajara. The Applicant argues
that this is an irrelevant consideration when considering her personal
inability, given her fragile psychological state (as described in the psychological
report, Tribunal’s record pages 146 to 150), to access a limited protection
regime which is already difficult to access. Furthermore, to conclude that Mr. Mendoza’s
influence as a federal police officer would not be consequential, given the
uncontradicted evidence of how Mr. Mendoza had colluded with local police in Mexico City to force the
Applicant back to him, is perverse.
[16]
The
Applicant adds that there is no evidence that the new legislation in Jalisco
state, which would come into force in December 2008, provides greater
protection for women at risk than before. On the contrary, the evidence shows
that the protection regime in Jalisco increasingly fails to provide actual
protection, as evidenced by the increase in the number of women murdered by
their former spouses (Martinez v. Canada (Minister of Citizenship and
Immigration), 2008 FC 399, 166 A.C.W.S. (3d) 325). The Applicant submits
that the Board failed to properly weigh all the relevant evidence (Ballesteros
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1246, 75 Imm. L.R. (3d) 221 at
para. 14).
[17]
The
Applicant alleges that the Board had no basis on which to conclude that Mr.
Mendoza would not likely follow the Applicant’s family members to Guadalajara. It would be
unreasonable to require her to live alone, without visits or communication with
her family members in Guadalajara, as it would amount to
requiring the Applicant to go into hiding (Huerta v. Canada (Minister of
Citizenship and Immigration), 2008 FC 586, 167 A.C.W.S. (3d) 968 at para.
29). The Board’s IFA finding is flawed as it does not address the psychological
evidence. It is based on a selective regard for the documentary evidence and
the Applicant’s testimony.
[18]
The
Respondent argues that the legal determination of whether a reasonable IFA is
available to a refugee claimant is a question within the special expertise of
the tribunal and should be accorded significant deference. An IFA finding must
be unreasonable in order to be reviewable and in the case at bar, the Applicant
has not shown this (Sivasamboo v. Canada (Minister of Citizenship and
Immigration), [1995] 1 F.C. 741 (T.D.) at para. 26; Chorny, above).
[19]
The
Applicant submitted that the Board failed to consider the risk issues in her
case but based upon a thorough review of the Applicant’s testimony and the
documentary evidence, the Board did consider the Applicant’s personal
circumstances, including the fact that Mr. Mendoza had sought her out when she
went to stay with her sister in La Paz. The Board acknowledged
this fact in its reasons but found, based on a review of the documentary
evidence, that protection and assistance were available to the Applicant in
that city. This finding was reasonable given the Board’s careful examination of
the documentary evidence.
[20]
The
principle that state protection needs to be adequate, not perfect, is well
established in law. The Board must be satisfied that there is actual adequate
protection, not perfect protection (Blanco v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1487, 143 A.C.W.S. (3d) 904 at para.
10; Canada (Minister of Employment and Immigration) v. Villafranca
(1991), 150 N.R. 232, 37 A.C.W.S. (3d) 1259 (F.C.A.)). The onus is on the
Applicant to provide evidence to rebut the presumption that state protection
exists. The test is an objective one and it is not sufficient for the Applicant
to simply believe that she could not avail herself of state protection (Judge
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1089, 133 A.C.W.S. (3d) 157). In
the present case, the Board noted that there was no evidence that Mr. Mendoza
had located the Applicant near her sister’s home by using any federal
databases. The Board made no error in its formulation and application of the
test for state protection (N.K. c. Canada (Minister of Citizenship
and Immigration) (1996), 206 N.R. 272, 143 D.L.R. (4th) 532 (F.C.A.)
at para. 5).
[21]
The
Board’s reasons demonstrate that it considered not only the efforts made by the
government in addressing violence against women in its review of the
documentary evidence, but also the result of those efforts, including the
actual resources that now exist for abused women in Mexico. After noting that
the documentary evidence was mixed, it was open to the Board to find that the
evidence demonstrating the serious and concerted efforts in Jalisco state to
protect women against violence was more persuasive. The excerpts from the
documentary evidence reproduced by the Applicant amount to a disagreement about
the manner in which the Board weighed this evidence and this does not afford a
basis for judicial review (Brar v. Canada (Minister of Employment and
Immigration), [1986] F.C.J. No. 346 (F.C.A.) (QL)).
[22]
Contrary
to the Applicant’s submissions, the Board did not fail to consider that the
Applicant had attempted to file a complaint with police on one occasion and she
filed a complaint with police on another occasion before leaving Mexico. The Board
noted these facts in the decision but found that current country conditions in
Jalisco were such that the Applicant would be able to access state protection
in Guadalajara. The
Respondent notes that the Board is entitled to rely on documentary evidence in
preference to the testimony provided by an Applicant, even it if finds the
Applicant trustworthy and credible (Zhou v. Canada (Minister of Employment
and Immigration), (1994), 49 A.C.W.S. (3d) 558, [1994] F.C.J. No. 1087
(F.C.A.) (QL)).
[23]
In
the present case, the Applicant attempted to move with her sister in La Paz,
which is situated more than 4000 kilometres from Mexico City but Mr.
Mendoza still managed to find her. He was able to abduct her and fly her back
to Mexico
City
to force her to live with him.
[24]
The
suggested IFA of Guadalajara is situated more than 500 kilometres from Mexico City. Although
the population of Guadalajara is over five times that of La Paz, the Board
should have further considered the resources available to Mr. Mendoza as a
federal police officer in concluding whether the IFA was reasonable.
[25]
Furthermore,
the Applicant did attempt to seek protection from the state, and she did so
more than once. On one occasion, the police officers even brought the Applicant
back to Mr. Mendoza. This does not constitute adequate state protection. The
Applicant has thus rebutted the presumption of state protection in the
circumstances surrounding her situation.
[26]
Although
the Board can give more weight to the documentary evidence, in the case at bar,
considering the Applicant’s credibility was not in doubt and considering the
particular circumstances of the Applicant’s situation, the Board’s conclusion
was unreasonable.
[27]
No
questions of general importance were proposed and none arise.
JUDGMENT
THIS COURT ORDERS
that the
application for judicial review be granted. The decision is set aside and
remitted for redetermination by a differently constituted Board. No
question is certified.
“Michel
Beaudry”
Email this Content