Date: 20071126
Docket: IMM-6513-06
Citation: 2007 FC 1206
Ottawa, Ontario, November 26, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
AMELIA ZEBALLOS
AARON
AGUSTIN VEGA ZEBALLOS
MARIANO
GABRIEL VEGA ZEBALLOS
GASTON
ZEBALLOS
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of an Immigration
officer (the officer), dated November 3, 2006, wherein the officer rejected the
applicant’s PRRA application.
Background
[2]
Ms
Zeballos and three of her four children are citizens of Argentina, with the remaining child
being a Canadian citizen. They were found not to be persons in need of
protection in 2001
and again in 2004, with leave to review the second
decision refused in 2004. They applied for a PRRA, which was rejected.
[3]
Ms
Zeballos’ first refugee claim was made in 2001, in combination with her now
ex-common law husband, Mr. Vega. She testified at that hearing that she had
been raped by police officers in 2000, because of her spouse’s political
activities. She states now that this testimony was based on his coaching, and
that she was coerced by him due to the long-standing control he had asserted
over her over the course of their relationship. This claim was denied, and a
PRRA requested.
[4]
Before that PRRA was undertaken,
Ms Zeballos and Mr. Vega had separated, and she learned that she could request
leave to resubmit her claim and those of her children without Mr. Vega. The
PRRA was therefore abandoned. She resubmitted the claims in 2004, and was again
denied. Leave was not granted for judicial review. The PRRA application was
received on May 18, 2005 and denied and delivered to Ms Zeballos on November 30,
2006. She applied for judicial review on December 11, 2006. A stay of deportation
was granted by Mr. Justice John A. O’Keefe on December 18, 2006.
Decision
·
The officer decided that the
principal applicant had not linked the country conditions of Argentina to
her personal risk.
·
The officer further gave limited
weight to the letters of Ms Lala and Dr. Kirstine, a therapist and psychiatrist
who both have treated Ms Zeballos, as they based their knowledge of Ms
Zeballos’ assaults on her information without independent corroboration. The officer
also found the medical opinions that she would suffer psychological harm if
returned to Argentina to be problematic due to the lack of specificity of
where within Argentina would or would not be safe.
·
The officer gave little weight to
the letters from Susana Chiarotti and Sandra de Castro because they were not
directly linked to the situation of Ms Zeballos, and because they had been in
evidence before the Refugee Protection Division.
·
The officer found that Ms Zeballos
had failed to rebut the presumption of state protection because Mr. Albanes’
attacks were localized and she could “reasonably be expected to find employment
to support herself and her family” elsewhere in Argentina. The officer noted that
Ms Zeballos sought out and gained assistance in Canada against the abuse of her
ex-spouse when she had no support from her family and did not speak the
language. The officer further noted that Argentina does provide support to women suffering domestic
abuse.
·
In respect of Dr. Kirstine’s
concerns that Ms Zeballos might become suicidal if returned to Argentina, the
officer noted that there is “adequate medical assistance available” in the
country and that she has family to assist with the children if required.
ISSUES
1.
Did the PRRA officer err in rejecting evidence of “similarly situated
persons”?
2.
Did the PRRA officer err in his assessment of the evidence concerning
state protection?
3.
Did the PRRA officer err in finding, in effect, that the applicant had a
viable IFA in Argentina?
4.
Did the PRRA officer err in making patently unreasonable and perverse
findings?
Standard of Review
[5]
I believe that the majority of the
issues raised in this application are questions about the validity of the PRRA
officer’s factual findings. The standard of review is, therefore, one of patent
unreasonableness: Tekie v. Canada (Minister of Citizenship and Immigration), 2005 FC 27, [2005] F.C.J. No. 39.
ANALYSIS
[6]
In my view, the existence of a
generalized risk will not amount to a well-founded fear of persecution. Proving
that there are poor country conditions for women in Argentina does not bring
the applicants within section 96 of IRPA as fearing persecution directed at
them personally or as members of a targeted group: Darwich v. Canada
(Minister of Manpower and Immigration), [1979] 1 F.C. 365 (F.C.A.).
[7]
While Ms Chiarotti and Ms. de
Castro certainly indicate that there is not a great enthusiasm on the part of
Argentine police to deal with sexual abuse, particularly within families, they
are not thereby made ‘similarly situated persons’.
[8]
Furthermore, the officer did not
reject the evidence as alleged by the applicants. The officer assessed the
letters, noted that they were not about the personal risk of the applicants and
further noted that they had been before the RPD and were therefore not ‘new’
evidence. The letters were then assigned a low probative value. This was not an
unreasonable decision on the part of the PRRA officer and should stand. This
judicial review is not an appeal at which the existing evidence should be
reweighed.
[9]
As noted by Mr. Justice Michael Shore
in E.J. v. Canada (Solicitor General), 2006 FC 165 at paragraph 20:
The fact that violence against
women is universal is irrelevant when determining whether gender-specific
crimes constitute forms of persecution. The real issues are whether the
violence is a serious violation of a fundamental human right for a Convention
ground, and in what circumstances can the risk of that violence be said to
result from a failure of state protection. Women have an internationally
protected right to protection from domestic violence and failure to give that
protection is a form of gender-related discrimination.
[10]
The question which the PRRA officer
needed to find a reasonable answer to is: did the risk of gender violence to Ms
Zeballos result from a failure of state protection? The officer noted the
starting point of such an analysis, which is that in the absence of clear and
convincing evidence, a state is presumed capable of protecting its nationals.
The officer then stated that Ms Zeballos did
not
seek state protection and, on the officer’s reading of the evidence, that she
would be protected by the state if she chose to seek such help. The officer’s
answer to the question posed above was clearly ‘no’, and that does not appear a
patently unreasonable answer to me.
[11]
In Omekam v. Canada (Minister
of Citizenship and Immigration) 2006 FC 331, Mr. Justice O’Keefe cited by
the applicant Omekam, sent the case back for redetermination because the
officer gave little weight to both the applicant’s evidence of poor mental
health and inadequate medical facilities available to him in that case in Benin
City.
[12]
In this case, the officer clearly
noted the existence of the mental health problems suffered by the principal applicant,
but found that the medical assistance available to her in Argentina were
sufficient. This was not a patently unreasonable finding.
[13]
The applicant appears to be
attempting to use this judicial review as an appeal. The officer considered the
psychological reports, noted that they were not new evidence and assigned them
a low probative value. This was open to the officer to do, and it is my sense
that such reasoning is neither patently unreasonable nor perverse.
[14]
I would dismiss the application.
[15]
No question for certification was
suggested by parties, and none will be certified.
JUDGMENT
1.
The
application is dismissed.
2.
There
is no question for certification.
“Pierre
Blais”
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