Date:
20090702
Docket:
IMM-2557-09
Citation:
2009 FC 685
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 2, 2009
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
MARIA ISABEL POZOS MARTINEZ
SERGIO OMAR HERNANDEZ POZOZ
Applicants
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The principal applicant
Maria Isabel Pozos Martinez, is a citizen of Mexico. She claimed refugee
protection a few months after arriving in Canada in 2003. Her application was
dismissed on April 21, 1998, following a hearing before the Immigration and
Refugee board (IRB) in 2007.
[2]
An application for
leave and for judicial review was filed against the decision, but that
application was dismissed. There was also an application for a pre-removal risk
assessment (PRAR) with new evidence that was dismissed.
[3]
Ms. Pozos Martinez and
her son are now subject to deportation to their country of origin, despite the
fact that there is evidence of danger for both following an in-depth review by
the Court.
II. Facts
[4]
This
is a particular case based on very specific facts that are substantial
based on a review of the evidence that was not analyzed and that was even set
aside due to a series of technical misunderstandings.
[5]
Ms. Pozos Martinez was
born on December 26, 1964 in the city of Cordoba, in the Mexican state of Veracruz.
She claimed refugee protection in Canada due to a well-founded fear of
persecution based on her membership in a specific social group, namely women
who were victims of spousal abuse in Mexico, and the fact that her spouse is a
member of the judicial police in Mexico.
[6]
Ms.
Pozos Martinez fears being persecuted
in her country of origin by Armando Salina Vera, a judicial police officer in
Mexico who was her boyfriend. She had a romantic relationship with him from
1998 to 2000, but tried to end that relationship because he became very violent
toward her. She was able to leave him in about mid-2000, but he continued
harassing her until 2006, to the extent that her life was in danger.
[7]
After a particularly
violence incident in November 2006, she filed a complaint against him. Ms.
Pozos Martinez filed a complaint with the municipal authorities in her city and
her situation received local television coverage. Her distress is known to people
in her city and she has evidence of it in her PRRA. She fled to Canada with her
son to save her life and she also fears for the life of her son, who is also
threatened by the same person.
III. Issue
[8]
Have
the applicants shown the existence of a serious issue and irreparable harm and
that the balance of convenience is in their favour?
IV. Analysis
[9]
The
applicants must meet the conditions in the three-part test set out in Toth
v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302
(FCA). The three conditions must be met, meaning that failure to meet any one
of them would be fatal.
A. Serious issue
[10]
Ms.
Pozos Martinez and her son
risk being deported to Mexico. If Ms. Pozos Martinez is deported to Mexico, she
faces a high risk of torture and death. Armando Salina Vera is still looking
for her and still threatens her. He is a member of the judicial police and
therefore has a privileged position within the Mexican administration.
[11]
A letter from the Movement Against Rape and
Incest in the record support Ms. Pozos Martinez, clearly indicating the
impunity that exists in Mexico in matters of spousal abuse and women.
[12]
Two years ago, the General
Law on Women’s Access to a Life Free of Violence came into effect. “Amnesty
International” notes that that law has had no impact to date in most of Mexico’s
32 states. That law falls under civil law, which is a state jurisdiction.
According to “Amnesty International”, as reported in the letter from the
Movement Against Rape and Incest, nearly one quarter of Mexican women are
victims of sexual or physical violence. That is largely due to the impunity
enjoyed by the authors of such violence. When complaints are filed, few legal
proceedings are launched due to the fear experienced by the women.
[13]
The appropriate measures needed to prevent and
punish acts of violence against women are not implemented. In a report cited by
the Movement Against Rape and Incest, Human Rights Watch refers to a
[translation] “total and widespread failure of the Mexican justice system
regarding the implementation of effective solutions to the serious problem of
domestic and sexual violence, including incest and spousal rape”.
B. Irreparable harm
[14]
The life of Ms. Pozos
Martinez seems to be in danger. She has suffered very serious sexual and
physical abuse in the past and has even lost a child. She has been the victim
of systemic spousal abuse and is still threatened by her former spouse, a
member of the judicial police in Mexico. If Ms. Pozos Martinez were
deported to her country of origin, she risks being exposed to torture and even
death.
[15]
That danger to the
applicants’ lives as victims of domestic abuse is strongly supported by reports
regarding current conditions. Ms. Pozos Martinez’s former common-law spouse
also enjoys a privileged position as a member of the judicial police in his
country.
[16]
Ms. Pozos Martinez risk
torture and death if she is deported to her country of origin and there would
be irreparable harm in this case.
C. Balance of
convenience
[17]
A stay would allow Ms.
Pozos Martinez to remain in Canada while the court examines the facts presented
in support of the application for leave and for judicial review. Ms.
Pozos Martinez fears for her safety in Mexico and it would be precarious to
remove the applicant and her son without her case being examined by the Federal
Court.
[18]
In light of the above,
following a careful review, the motion record and the documents submitted in
support of the application have convinced the Court that a serious issue has
been raised that merits review, also given the possibility of irreparable harm,
and the balance of convenience is in favour of issuing a stay.
V. Conclusion
[19]
For
all these reasons, in this particular case, following a positive assessment of
the three criteria in the Toth test, above, the motion for a stay
filed by the applicants is allowed.
JUDGMENT
THE COURT ORDERS that, for all these reasons, in this particular case,
following a positive assessment of the three criteria in the Toth
test, above, the
motion for a stay filed by the applicants is allowed.
“Michel
M.J. Shore”
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