Date: 20090630
Docket: IMM-4906-08
Citation: 2009 FC 679
Ottawa, Ontario, June 30, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ROSA MENESES
DORIS ILIANNA CESPEDES MENESES
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
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 by
the Immigration and Refugee Board, Refugee Protection Division (the Board) dated
October 15, 2008, where the Board found that the Applicants, Rosa Meneses (Rosa)
and Doris Menses (Doris) were not Convention refugees or a persons in need of
protection.
Issues
[2]
This
application raises the following issues:
a) Did
the Board err in concluding that Rosa could be safe in Peru?
b) Did
the Board err in concluding that Rosa and Doris could be safe in Mexico?
c) Did
the Board err in adopting the findings in the Persuasive Decision on Mexico (TA6-07453)?
[3]
For
the following reasons, the application shall be allowed.
[4]
Rosa,
a citizen of Peru, and her daughter Doris, a citizen of Mexico, claim
refugee protection pursuant to sections 96 and 97(1) of the Act.
[5]
Rosa
was born in Lima Peru on November
17, 1949, married Jesus Ramon Fernando Cespedes (Ramon) in 1971 and separated
from him in November 1997. Doris, who has never married, was born of that union
in Mexico
City
on September 9, 1980. Four other sons of that union also live in Mexico.
[6]
Rosa
is afraid to return to Mexico because she fears that domestic violence
on the part of Ramon will continue. She would be completely dependent upon him
and because of her age, it would be impossible for her to find stable
employment.
[7]
Doris
states that if she were to return to Mexico, she would be going
back to the same violence. Her siblings have told her that her father is very
upset and he considers her an accomplice to her mother in order to get her
mother out of Mexico.
[8]
The
Applicants’ hearing took place on August 25, 2008 and their refugee claim was
based upon the following evidence:
1. Rosa was a
victim of domestic violence at the hands of her husband for many years. Her
husband Ramon is a citizen of Peru and a permanent resident of Mexico.
2. The violence
occurred during Rosa’s marriage and continued after her husband left her for
another woman in 1997. After the separation, Rosa’s husband
continued to be violent towards her as he controlled her movements and visited
her for sexual relations. He also continued to exercise financial control over
her as he maintained ownership of the family home and he financially supported
her. She went to lawyers in Mexico to inquire about divorcing him but learned
it was extremely difficult.
3. Doris fears
her father, Rosa’s ex-husband, as well as her brother Flavio. Though Rosa
endured the majority of the abuse from her husband, as Doris grew older,
her father began to abuse her verbally and physically too. Doris’s brother
assaulted her when she was younger and also on one occasion when she was an
adult. She called the police and filed a complaint but the police were
unwilling to help her.
Impugned Decision
[9]
In
her Personal Information Narrative (PIF), Rosa alleged that throughout the
years, the only relief she had from the abuse were the short visits to her family
in Canada. Other than
her last visit, Ramon always provided the financial documents to support her
application for the Canadian visas. Rosa’s cousin in Ottawa paid for her
travel costs including air fare.
[10]
Rosa
stated that she never considered not returning to Mexico because her
children were there. She only came to visit with expectations that somehow her
husband’s attitude towards her might change. Rosa never considered returning to
Peru, her country
of nationality. She states that it would be worse there than in Mexico because
Ramon’s family is very influential there. She has no immediate family except
half-brothers and half-sisters whom she only met for the first time at her
father’s funeral. She says she has no way of finding a job as the finances to
sustain her life are in Mexico.
[11]
The
Board noted that for her claim to succeed, the definition of Convention refugee
requires that persecution of the Applicant be linked to a Convention ground
i.e. race, nationality, religion, particular social group or political opinion
(Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). Rosa makes no
allegations in her PIF narrative of persecution or risk to her life or risk of
cruel or unusual punishment should she return to Peru, which is
her country of citizenship. She has a valid passport, she can return to Peru and her
inability to find employment does not constitute sufficient grounds to grant
her refugee status in Canada.
[12]
When
she was interviewed by the immigration officer, Rosa stated she was persecuted
because of domestic violence. She left Peru and all her
children (save for Doris) to come to Canada.
[13]
The
Board found that there is no reason why Rosa could not return to Peru. She is a
relatively young woman in apparent good health. Rosa could organize a new life
in Peru in a
language she uses and understands. Her children are all adults, and save for
Doris who is 28 years old, they are all married and have children.
[14]
As
for Doris, the Board asserted she is a well-educated young woman who worked
full-time in Mexico City from March 2001, following her graduation from Communication University,
until she came to Canada in October 2007. She is independent and she can
decide her own future without interference from her father or her siblings. Her
father’s wrath was directed primarily to her mother and peripherally to her
because she was living with her mother at that time.
[15]
Doris alleges that
Ramon sometimes used physical violence towards her. She gave little or no details
of this violence, or where or when it occurred. There was no evidence that he
continuously or repeatedly mistreated her and the Board had the impression that
she was more concerned that he could be involved in an accident if he were
driving alone after drinking or that he would be an easy target for robbery
while driving drunk. Had she been truly faithful to her father, she would not
have accompanied him to the local watering holes to see that he got home
safely. Most of her father’s violence directed towards Doris was verbal.
[16]
The
Board recognized that the issue of the availability of state protection has
been comprehensively and carefully analyzed in decision TA6-07453 dated
November 26, 2007, which the Board determined was a persuasive decision. There
is a presumption that a state is capable of protecting its citizens and an
Applicant may rebut this presumption by providing clear and convincing proof of
lack of state protection in the country of origin. Where a state is in effective
control of its country (as is Mexico), has military police and civil authority
in place, and makes serious efforts to protect its citizens, the mere fact that
it is not always successful at doing so will not be enough to justify a claim
that the victims are unable to avail themselves of protection.
[17]
When
the state in question is a democratic state, the Applicants must do more than
simply show they went saw a member of the police force and that their efforts
were unsuccessful. The burden of proof that rests on the Applicant is, in a
way, directly proportional to the level of democracy of the state in question.
The more democratic the state’s institutions, the more the Applicants must have
done to exhaust all reasonable courses of action opened to them.
[18]
The
Board was satisfied that the facts of this case are similar enough to the facts
of the decision TA6-07453 and the Board adopted the findings of that decision with
regard to the availability of the police protection and other legal
institutions which are available to the Applicants in Mexico. The Board
found the Applicants failed to provide clear and convincing evidence of the inability
or unwillingness of Mexico to help them should they return there.
[19]
Finally,
the Board dismissed the Applicants' claim on the fact that Rosa could go back
to Peru and both
claimants had an availability of state protection in Mexico.
Standard of Review
[20]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, the Supreme Court established two standards: correctness, and
reasonableness.
[21]
The
issue of adequacy of state protection is a question of mixed law and fact.
This attracts the reasonableness standard. Thus, the Board’s decision is
reviewable with regard to the existence of justification, transparency and
intelligibility within the decision-making process and whether the decision falls
within a range of possible and acceptable outcomes (Dunsmuir at para.
47).
a) Did the Board
err in concluding that Rosa could be safe in Peru?
[22]
It
has to be noted that the Board made no adverse credibility findings on the
domestic violence endured by Rosa. There is no analysis or reference to any
country conditions that support the conclusion that Rosa could go back to Peru and obtain
the protection of that country. On the contrary, the applicant's representative
referred the court to documentary evidence that indicates that the violence
against women, spousal abuse was a problem in Peru (Tribunal's
record, pp. 324 and 325, with an added page on the morning of the hearing).
b) Did the Board
err in concluding that Rosa and Doris could be safe in Mexico?
[23]
The
Board is assumed to have weighed and considered all the evidence presented to
it unless the contrary is shown. The mere fact that the Board’s reasons do not
canvass every piece of evidence does not indicate that the Board did not
consider these documents and is not fatal to its decision (Florea v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.)
(QL); Hassan v. Canada (Minister of Employment and Immigration) (1992),
147 N.R. 317 at 318; 36 A.C.W.S. (3d) 635 (F.C.A.)).
[24]
In
the case at bar, the Board did not refer to some important pieces of evidence
such as a report to the police on a complaint filed by Doris on her
brother's assault in October 2007. It had also in evidence a psychological
report that was not discussed. It is an important document because it goes to
the heart of Doris claim.
c) Did the Board
err in adopting the findings in the Persuasive Decision on Mexico (TA6-07453)?
[25]
The
Board’s decision to adopt the findings in persuasive decision TA6-07453 was
unreasonable. The facts in that case involved drug trafficking. The applicant
in TA6-07453 felt that state protection from Mexican state authorities would
not be forthcoming because of corrupt members of the security forces. The Board
focused its analysis on state protection on this particular aspect.
[26]
In
the case at bar, the facts are totally different. There is no analysis or
reference to any country conditions on domestic violence. This error warrants the
court's intervention.
[27]
The
parties did not suggest questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be allowed. The matter is referred back for redetermination by
a newly constituted Board. No question is certified.
“Michel
Beaudry”
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