Date: 20110630
Docket: IMM-7058-10
Citation: 2011 FC 792
Ottawa, Ontario, June 30, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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BACILIA NUNEZ (MERCADO)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Court is asked to rule upon the legality of a decision made by the Refugee
Protection Division of the Immigration and Refugee Board of Canada (IRB), which
denied the Applicant the quality of Convention refugee or person in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, LC 2001, c 27.
[2]
The
Applicant is a citizen of the Dominican Republic. She alleges being the
victim of domestic abuse at the hands of her ex-husband, with whom she
maintained a relationship after their divorce. Having arrived in Canada in July
2005, she made her claim for asylum in September 2008.
[3]
The
determinative issue in the RPD’s decision was the fact that the Applicant had
an internal flight alternative (IFA) in Santo Domingo, the
capital, and that the Dominican Republic’s inability to protect
her had not been established. These findings established that she could not
benefit from the surrogate protection of Canada.
[4]
The
Applicant’s testimony and documentation state that she is afraid of returning
to the Dominican
Republic,
even in the capital, as she alleges that her ex-husband is still motivated to
cause her harm. The IRB noted that there was insufficient evidence that the
Applicant’s ex-husband was still motivated to harm her, and that he has
continued to threaten her. A letter from one of the Applicant’s daughters
referred to ongoing threats on the Applicant and her daughters, none of which
had been carried out. Also, the IRB did not consider probative the fact that
the Applicant states her daughter saw a gun in her ex-husband’s possession.
[5]
Also,
the Applicant had not taken any steps to find help from authorities in the Dominican
Republic,
despite the fact that there were witnesses to at least one of the alleged
assaults. The IRB made a negative inference from this omission to seek
protection from the authorities. Thus, after assessing that there was
sufficient state protection in the Dominican Republic and in Santo
Domingo,
the IRB denied the Applicant’s claim for asylum.
Analysis
[6]
The
Court is asked to review the IRB’s assessment of the existence of an IFA and
the sufficiency of state protection. It is well established that these findings
are to be reviewed on the standard of reasonableness (Sanchez v Canada (Citizenship
and Immigration), 2007 FCA 99; Myle v Canada (Citizenship
and Immigration), 2006 FC 871). As such, the Court will preoccupy itself
with the decision’s justifications, consideration of evidence and similar
issues: the Court will not substitute its decision to that of the IRB, as the
principles of administrative law recognize (Dunsmuir v New
Brunswick,
2008 SCC 9).
[7]
The
IRB’s findings in regards to the finding of an IFA for the Applicant are
reasonable. Firstly, the IRB stated and relied upon the correct legal test for
the existence of an IFA, set out by the cases of Thirunavukkarasu v Canada
(Employment and Immigration), [1994] 1 FC 589 (FCA), Canada (Citizenship
and Immigration) v Ranganathan, [2001] 2 FC 164 (FCA) and Rasaratnam v
Canada (Employment and Immigration), [1992] 1 FC 706 (FCA). Thus, the case
at bar is not about whether the right test was applied by the IRB, but whether
the IRB’s assessment of the evidence in the case was within this legal
framework was reasonable.
[8]
The
ongoing nature of the Applicant’s ex-husband’s threats were supported by a
letter from the Applicant’s daughter and the Applicant’s testimony as to the
threats. However, the IRB held that the ex-husband had never materialized his
threats against his daughters, despite the fact that the eldest daughter eloped
and later returned to live with her father and the fact that the youngest was
pregnant at the age of fifteen. The IRB then found that the threats and risks
of persecution were not established on a balance of probabilities. This
weighing of the evidence is reasonable: no important elements were forgone in
the analysis and the Court cannot reweigh the evidence as the Applicant submits
it should.
[9]
More
importantly, even if the threats were found to be existent, the IRB’s findings
in regards to state protection and IFA are determinative. Firstly, the
Applicant never took steps to report her abuse to authorities. Secondly, while
the IRB conceded that the Dominican Republic did not offer perfect
protection, it analyzed how the laws and steps taken by authorities had been
implemented. Evidently, much remains to be done in the Dominican Republic for the
protection of battered women. However, the IRB considered the evidence as it
related to the IFA, Santo Domingo. In doing so, the IRB found that resources
were made available to victims of domestic abuse, including psychological
counselling and legal help.
[10]
The
IRB was not to assess the hardship that could arise from removal, as is
suggested by the Applicant’s arguments pertaining to the psychological report.
Rather, the proper assessment was made by the IRB: that of the objective risk
arising from removal and the availability of state protection in facing this risk.
In this respect, the IRB properly relied upon the presumption of state
protection arising from the case of Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689. In respect to the IFA, the IRB properly
identified that Santo Domingo was a reasonable alternative where state
protection would be available. In doing so, the IRB addressed the important
elements of the evidence and relied upon the proper principles of law.
[11]
As
for the application of the Gender Guidelines, the IRB’s decision does not run
counter to the principles expressed in the Guidelines. It is not the case of
whether credibility was impugned, or if the IRB erred in not truly appreciating
the Applicant’s background. That is not to say that the Guidelines apply only
to those situations. However, in reading the transcript of the hearing and the
decision itself, it is clear that the particular nature of the gender-based
violence arising from the case was considered. Moreover, it cannot be said that
the psychological report submitted was ignored, as the decision and hearing
addressed its essential aspects.
[12]
More
precisely, the IRB did indeed consider the particulars of the Applicant’s
situation, such as her lengthy employment history and studies. In doing so, the
IRB properly addressed the harshness of seeking alternate refuge within the Dominican
Republic.
This assessment, while not beneficial to the Applicant, is nonetheless
reasonable. The Applicant did not meet her burden of establishing that on a
balance of probabilities, there is a serious possibility of being persecuted in
the proposed IFA area, or that in all the circumstances, it would be
objectively unreasonable for the claimants to seek refuge there (Thirunavukkarasu,
above).
[13]
The
other arguments submitted by the Applicant seek to have the Court re-weigh the
evidence before the IRB, something excluded by the framework of judicial review
on a standard of reasonableness (Legault v Canada (Minister of Citizenship
and Immigration), 2002 FCA 125; Molina v Canada (Citizenship and
Immigration), 2007 FC 289; Bolanos v Canada (Citizenship and
Immigration), 2011 FC 388).
[14]
The
decision is reasonable. The application for judicial review is denied. No
question for certification arises and none was suggested by the parties.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is denied. No
question is certified.
“Simon Nöel”
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