Date: 20110310
Docket: IMM-4996-10
Citation: 2011 FC 283
Ottawa, Ontario, March 10, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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SLETZA ELIZABETH NEGRETE GUDINO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRAITON
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
“[T]he
applicant lived, and her family continues to live, in Mexico City, where the
most developed services for abused women exist”, as was stated in a decision by
the Pre-Removal Risk Assessment (PRRA) Officer. After examining the documentary
evidence, the PRRA Officer determined that “there are means of protection other
than simply reporting abuse to disinterested or corrupt police”. The PRRA decision
underscores the range of protective measures available to victims of domestic
abuse in Mexico, especially in the Federal District:
The report notes that “the Federal District established the Centre for
Victims of Domestic Violence (Centro Atención a Victimas for Violencia
Familiar) to provide legal, psychological and social assistance to
victims.” It refers to special domestic violence units in urban areas and the
National System for Integral Family Development (Desarrollo Integral de la
Familia, or DIF), which “provides important support and assistance to many
minors and adults at risk.”
(PRRA Decision at 5 and 7).
II. Judicial Procedure
[2]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of
a decision of a PRRA Officer, dated July 26, 2010, wherein the Applicant was
determined to be neither a Convention refugee within the meaning of section 96
of the IRPA nor a person in need of protection, as defined in subsection
97(1) of the IRPA.
III. Background
[3]
The
Applicant, Ms. Sletza Elizabeth Negrete Gudino, was born on August 13, 1990,
and is a citizen of Mexico. Ms. Negrete Gudino met her husband,
Mr.
German Garfias Martinez,
approximately 20 years her senior, when she was 15 years old. Ms. Negrete Gudino alleges that
she became, soon thereafter, a victim of physical, emotional, verbal and sexual
abuse.
[4]
In
May 2007, Ms. Negrete Gudino learned
that she was pregnant with Mr. Martinez’s child. In July 2007,
during an altercation, Mr. Martinez kicked her in the stomach, two months
pregnant at the time, in proximity of a subway station. Ms. Negrete Gudino had requested
assistance from police in a patrol car parked near the subway station. Both Ms.
Negrete Gudino and Mr. Martinez
were taken to the police station, and as Ms. Negrete Gudino was a
minor at the time, a police officer called her mother. As for Mr. Martinez, he was
arrested.
[5]
Approximately
two months later, Mr. Martinez visited Ms. Negrete Gudino who was now
living at her mother’s house and convinced her to move back with him. In the
following months, Mr. Martinez also convinced Ms. Negrete Gudino to marry him
and to come live with him in Canada. Ms. Negrete Gudino’s mother
signed the wedding papers for her minor daughter and the couple was married on
January 8, 2008. Ms. Negrete Gudino’s father
refused to sign the papers. On January 23, 2008, Ms. Negrete Gudino entered
Canada with her husband, who sought refugee status in respect of persecution
for a political opinion. Ms. Negrete Gudino’s claim for
refugee protection was based upon her husband’s claim.
[6]
Ms. Negrete Gudino alleges that
her husband continued to abuse her physically, sexually, emotionally and
verbally while they were living in Canada. In October 2008, Ms. Negrete Gudino alleges that
her husband pushed her violently, tried to strangle her and punched her in the
stomach. Ms. Negrete
Gudino managed to
call the police, but immediately hung up. The police arrived soon after the
missed call and interviewed them. The physical abuse was not disclosed, but Mr.
Martinez was told to leave the house for the night.
[7]
In
January 2009, Ms. Negrete Gudino alleges that Mr. Martinez pushed her,
which caused her to slip on the bathroom floor. She woke up in the hospital and
realized, subsequently, on the basis of a police report, that Mr. Martinez had told the
hospital staff that she had attempted to commit suicide. She was sent back home
with her husband.
[8]
Later
that year, Mr. Martinez
withdrew his refugee claim; he then told Ms. Negrete Gudino that she
could return to live with her mother if she returned to Mexico; however, she decided
to remain in Canada for fear of what Mr. Martinez would do to
her and their son if they were to return with him. Ms. Negrete Gudino attended her
refugee hearing alone and was very confused by what was required of her during
the hearing. The Refugee Protection Division (RPD) made a negative
determination of her claim for Convention refugee status (RPD Decision,
September 11, 2009, Tribunal Record (TR) at 355).
[9]
Ms.
Negrete Gudino submitted a
PRRA application and received a negative decision in this regard, on July 26,
2010. She now lives in Canada with her common law spouse, Mr. Raul
Avila, a Canadian citizen, her first Canadian-born son, Felix Ayax Garfias
Negrete, and her second Canadian-born child, who is Mr. Avila’s child.
IV. Decision under Review
[10]
In
his decision, the PRRA Officer reviewed several documents in evidence provided
by Ms. Negrete Gudino in
support of her application: one police report from Mexico, one medical report,
two police reports from Canada, and a recent letter written by her mother (PRRA
Decision at 3). The PRRA Officer concluded that Ms. Negrete Gudino’s corroborative
evidence was at odds with her sworn statement in her affidavit and that there
was little evidence which would demonstrate that her husband would continue to
try to harm her if she was to return to Mexico.
[11]
The
PRRA Officer also found that Ms. Negrete Gudino failed
to rebut the presumption of state protection. He concluded that, even if
domestic abuse is a pervasive problem in Mexico, many existing means of
protection, especially in the Federal District, were accessible for Ms. Negrete Gudino.
V. Position of the Parties
[12]
The
Applicant submits that her claim should not be rejected where there is evidence
that state protection is not effective with regard to gender-related abuse. She
also argues that the PRRA Officer found her to be not credible without
providing her with an oral hearing, which she considers a procedural fairness
error.
[13]
The
Respondent argues that the PRRA Officer’s decision is reasonable. The
Respondent submits that the PRRA Officer’s decision was based on the weight of
the evidence presented and not on a negative credibility finding; moreover, the
Respondent submits that it was reasonable for the PRRA Officer to find that the
Applicant did not rebut the presumption of state protection available to her in
Mexico.
VI. Issues
[14]
(1)
Did the PRRA Officer err by not allowing the Applicant an oral hearing?
(2) Did the
PRRA Officer err in his assessment of the availability of adequate state
protection?
VII. Pertinent Legislative Provisions
[15]
Section
167 of the Immigration and Refugee Protection Regulations, SOR/2002-227,
provides:
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Hearing — prescribed factors
167. For the purpose of determining whether
a hearing is required under paragraph 113(b) of the Act, the factors are the
following:
(a) whether there is evidence that raises
a serious issue of the applicant's credibility and is related to the factors
set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the
decision with respect to the application for protection; and
(c) whether the evidence, if accepted,
would justify allowing the application for protection.
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Facteurs pour la tenue d’une audience
167. Pour l’application de l’alinéa 113b)
de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience
est requise :
a) l’existence d’éléments de preuve
relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui
soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
b) l’importance de ces éléments de preuve
pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments
de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée
la protection.
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VIII. Standard of Review
[16]
The
applicable standard of review with regard to a finding of state protection is
that of reasonableness (Ferguson
v Canada (Minister of Citizenship and Immigration), 2008 FC 903 at
para 8, 169 ACWS (3d) 629; Bautista v Canada (Minister of Citizenship and
Immigration), 2009 FC 1187 at para 25). The PRRA Officer’s
findings will only be interfered with on judicial review if they fall outside
of the range of possible, acceptable outcomes which are defensible in respect
of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190).
[17]
As
for the oral hearing issue, it refers to the procedural fairness of the
impugned decision and is to be determined on the standard of correctness (Gonzalez v Canada
(Minister of Citizenship and Immigration), 2008 FC 983 at para 16,
169 ACWS (3d) 173; Prieto v Canada (Minister of Citizenship and Immigration),
2010 FC 253 [Prieto]).
IX. Analysis
(1) Did
the PRRA Officer err by not allowing the Applicant an oral hearing?
[18]
This
Court has already examined section 167 of the Federal Courts Rules,
SOR/98-106, with regard to the necessity of an oral hearing at the PRRA level:
[29] In Tekie v. Canada (Minister of Citizenship and
Immigration),
2005 FC 27, 50 Imm. L.R. (3d) 306, Mr. Justice Phelan at paragraph 16, held
that section 167 becomes operative where credibility is an issue which could
result in a negative PRRA decision and that the intent of the provision is to
allow an applicant to face any credibility concern which may be put in issue.
After reviewing Tekie above, I held in Ortega v. Canada (Minister of
Citizenship and Immigration), 2007 FC 601, [2007] F.C.J. No. 816 at
paragraph 29, that an oral hearing was required because in that case, “The
officer found that absent the principal applicant’s lack of credibility before
the Board, the circumstances were such that the state would not be able to
protect the applicants.”
[30] In my opinion, section 167
describes two types of circumstances where issues of credibility will require
an oral hearing. Paragraph (a) relates to the situation where evidence before
the officer directly contradicts an applicant’s story. Paragraphs (b) and (c),
on the other hand, essentially outline a test whereby one is to consider
whether a positive decision would have resulted but for the applicant’s
credibility. In other words, one needs to consider whether full and complete
acceptance of the applicant’s version of events would necessarily result in a
positive decision. If either test is met, an oral hearing is required.
(Prieto, above).
[19]
The
present case does not meet either test; moreover, the credibility issue is not
“central to the decision in question” (Prieto, above at para 26). The
PRRA Officer’s central reason for rejecting Ms. Negrete Gudino’s claim is
the ability of the state of Mexico to adequately protect her. The PRRA Officer examined that issue “[f]rom the
perspective of the fears set out by the Applicant [in her] application” (Jessamy
v Canada (Minister of Citizenship and Immigration), 2009 FC 20 at para 68,
342 FTR 250); thus, an oral hearing was not required.
(2) Did the PRRA Officer
err in his assessment of the availability of adequate state protection?
[20]
The
Applicant has the onus to rebut the presumption that a state can protect its
citizens (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, 103 DLR
(4th) 1). In a state protection issue, an applicant must put forth clear and
convincing confirmation of inadequate state protection:
[7] The Federal Court of Appeal in Carillo v. Canada
(Minister of Citizenship and Immigration, 2008 FCA 94, in considering the
issue of state protection wrote at paragraphs 17 to 19 that the Applicant bears
the burden of adducing evidence of inadequate state protection and the burden
of persuading the trier of fact that such evidence demonstrates that state
protection is inadequate. At paragraphs 20 to 26 the Court wrote that the trier
of fact is to consider the evidence on a standard of proof which is not higher
than that established by the normal standard of balance of probabilities.
(Gonzalez v Canada (Minister of
Citizenship and Immigration), 2008 FC 1259, in a judicial
review of a RPD decision).
[21]
The
more democratic a state’s institution is, the greater an applicant’s burden to
prove that all avenues of protection available were exhausted (Kadenko v
Canada (Minister of Citizenship and Immigration) (1996), 143 DLR (4th) 532 at
para 5, 68 ACWS (3d) 334 (FCA)).
[22]
There
is an abundance of jurisprudence with regard to gender-related violence in
Mexico and the Federal District in particular; each case must be appreciated
according to its own specific facts:
[14] There
is no dispute that Mexico is a democracy with an elected president and a
bicameral legislature. It is in effective control of its territory,
institutions, military, police and civilian authorities. The RPD found that it
makes serious efforts to protect its citizens and “the mere fact that it is not
always successful at doing so is not enough to justify a claim that the victims
are unable to avail themselves of such protection”. In my view, that conclusion
was reasonably open to the RPD on the evidence before it. I find myself in
complete agreement with the reasoning of Mr. Justice Russell in Ortiz v. Canada (Minister of Citizenship and Immigration) 2006 FC 1365,
F.C.J. 1716 where at paragraphs 43 and 44, he stated:
¶
43 Let me say at the outset that, having reviewed the evidence and the
Decision, it would have been quite reasonable for the Board to have reached a
conclusion favourable to the Applicants. But this does not mean that the
Board's negative conclusions were patently unreasonable, or even unreasonable,
and that is the point of this review.
¶
44 In the end, the Applicants just find it unbelievable that, given the
evidence before the Board, the specifics of this case, and the Gender
Guidelines, the Board could have concluded as it did. But this is merely to
disagree with the Board, and disagreement with the Board is not a sufficient
basis for this Court to interfere with the Decision.
(Canseco v Canada (Minister of
Citizenship and Immigration), 2007 FC 73, 154 ACWS (3d) 1182, in a judicial
review of a RPD decision).
[23]
Prior
to stating that Ms. Negrete Gudino failed to rebut
the presumption of state protection, the PRRA Officer examined the various
reports and country condition documents that he had before him, and assessed her
claim and contradictory evidence. In his decision, the PRRA Officer referred to
the following documents:
1)
Amnesty
international Report 2010 –Mexico, 28, May 2010;
2)
Human
Rights Watch, World Report 2010 – Mexico, January 20, 2010;
3)
2009
Country Reports on Human Rights Practices, March 11, 2010;
4)
Women’s
Struggle for Safety and Justice – Violence in the Family in Mexico, Amnesty
International August 2008;
5) Responses to Information
Requests (RIRs), MEX102926.E, May 26, 2009.
[24]
The
PRRA Officer specified: “The applicant lived, and her family continues to live,
in Mexico City, where the most developed services for abused women exist”.
After examining the documentary evidence, the PRRA Officer determined that
“there are means of protection other than simply reporting abuse to
disinterested or corrupt police”. The PRRA decision underscores the range of
protective measures available to victims of domestic abuse in Mexico, especially
in the Federal District:
The report notes that “the Federal District established the Centre for
Victims of Domestic Violence (Centro Atención a Victimas for Violencia
Familiar) to provide legal, psychological and social assistance to
victims.” It refers to special domestic violence units in urban areas and the
National System for Integral Family Development (Desarrollo Integral de la
Familia, or DIF), which “provides important support and assistance to many
minors and adults at risk.”
(PRRA Decision at 5 and 7).
[25]
In
addition, the PRRA Officer examined the evidence provided with regard to Ms. Negrete
Gudino’s attempt to
obtain state protection:
The applicant contacted the police after
she was assaulted in 2007. Her husband was arrested, but no information
regarding the outcome is known, other than the fact he was eventually released.
It appears the police did not follow up, but neither did the applicant or her
mother. Given the lack of information, I find this does not evidence that state
protection is inadequate.
(PRRA Decision at 5).
[26]
The police report
(Police Report, July 5, 2007, AR at 39-40) specifies that Mr. Martinez
had been arrested on the night of the altercation. A police officer contacted Ms. Negrete
Gudino’s parents,
and they did not hear from Mr. Martinez for two months after the
incident. It was reasonable for the PRRA Officer to find that the police
intervention does not provide sufficient evidence that state protection is
inadequate, although it was not possible to determine to what extent the police
actually intervened.
[27]
Finally,
Ms. Negrete Gudino alleges that
she is in a relationship with Mr. Raul Avila, Canadian
citizen and father to her second child, born in October 2010. Mr. Avila
allegedly plans to sign a sponsorship undertaking in support of her application
for permanent residence based on humanitarian and compassionate (H&C)
grounds (Applicant’s Affidavit at para 2). The PRRA Officer addressed that
portion of her affidavit in his decision and explained that these factors were
more suitable to a H&C application (PRRA Decision at 7) and, as such, must
not be considered. The Court agrees that this approach is consistent with the
jurisprudence (Varga v Canada (Minister of
Citizenship and Immigration), 2006 FCA 394, [2007] 4 FCR 3).
X. Conclusion
[28]
It
is interesting that neither party spoke of the Gender-Related Guidelines,
although they were fully taken into consideration by the positions advocated by
both parties. The PRRA Officer reasonably concluded that state protection was
available to Ms. Negrete
Gudino in Mexico.
Although the Court is sympathetic to Ms. Negrete Gudino’s circumstances,
it finds that the PRRA Officer’s decision is justified; consequently, the application
for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the
Applicant’s application for judicial review be dismissed; no question of
serious question of general importance for certification.
“Michel M.J. Shore”
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