Date: 20110902
Docket: IMM-5050-10
Citation: 2011 FC 1040
Ottawa, Ontario, September 2, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ERIKA DAFNE GONZALEZ PALOMINO
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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
I. Overview
[1]
Ms.
Erika Dafne Gonzalez Palomino endured an abusive marriage in Mexico for five
years before she fled to Canada. She sought refugee protection but was
turned down by a panel of the Immigration and Refugee Board. The Board
concluded that Ms. Gonzalez Palomino had access to state protection in Mexico and,
therefore, her fear of persecution by her former spouse, Eduardo, was not
well-founded.
[2]
Ms.
Gonzalez Palomino argues that the Board erred in its analysis of state
protection and, in so doing, rendered an unreasonable decision. I agree. I
must, therefore, allow this application for judicial review.
[3]
The
issue is whether the Board’s conclusion that state protection was available to
Ms. Gonzalez Palomino was unreasonable.
II. Factual Background
[4]
In
2005, after they were both assaulted by Eduardo, Ms. Gonzalez Palomino and her
mother went to the Public Ministry to file a denunciation. Officials would only
take a complaint from her mother as her injuries were more serious and she was
not married to Eduardo. Later, Eduardo filed opposing denunciations against Ms.
Gonzalez Palomino and her mother. All three appeared before a judge, who
dismissed all of the complaints. Ms. Gonzalez Palomino believes that Eduardo
bribed the judge.
[5]
In
2006, Ms. Gonzalez Palomino sought the assistance of an organization called
DIF, which specializes in family matters, to begin divorce proceedings and
obtain a protection order. The DIF helped her file a divorce petition, but
Eduardo refused to sign the papers.
[6]
Eduardo
continued to threaten and assault Ms. Gonzalez Palomino over the ensuing years.
She complained to police, but they did not respond. In 2008, she began a
same-sex relationship. Eduardo assaulted and threatened to kill her partner if
he saw the two women together. Ms. Gonzalez Palomino and her partner attempted
to report this incident to the police, but they were told they had attended at
the wrong precinct. They attempted to file a complaint at the proper precinct,
but the police just laughed at them.
[7]
In
2009, Ms. Gonzalez Palomino and her partner obtained passports and left Mexico
for Canada.
III. The Board’s Decision
[8]
The
Board found that Ms. Gonzalez Palomino had not established that the judge she
appeared before had been bribed. Therefore, that incident did not contradict
the existence of state protection.
[9]
Similarly,
the Board found that her difficulty in getting a divorce was the result of her
own lack of time and financial resources to pursue the matter. This was not
evidence of a failure of state protection.
[10]
With
respect to the allegation of ongoing assaults and threats, and the apparent
absence of police response, the Board found Ms. Gonzalez Palomino’s evidence
not to be credible. Had she possessed evidence of these alleged events, a
family court in Mexico would have granted her divorce petition. As a
law student, Ms. Gonzalez Palomino would have been aware of the evidentiary
burden on her, yet she failed to marshal the necessary proof. However, the
Board accepted her evidence that Eduardo was verbally aggressive and would
sometimes grab her arm when he confronted her on the street.
[11]
Further,
the Board believed Ms. Gonzalez Palomino had not made sufficient efforts to
obtain protection. She had only made two formal complaints to the police. While
she proved that she had sought a protection order as part of her divorce
petition, this was the only occasion on which she had sought court protection.
She did not appear to complain to the DIF about the lack of police response to
her circumstances. Nor did she seek the assistance of the numerous other state
agencies which exist to help women who are victims of domestic violence, or the
bodies that deal with complaints of police inaction.
[12]
The
Board pointed out that Mexico is a democracy and has enacted laws to
protect women from violence. It conceded, however, that the laws are not
necessarily enforced. Still, the existence of those laws suggests that Mexico is making
serious efforts to deal with the problem.
[13]
In
conclusion, the Board found that Ms. Gonzalez Palomino had not taken all
reasonable steps to obtain protection in Mexico.
Accordingly, she did not present clear and convincing evidence that would rebut
the presumption that states are willing and able to protect their citizens.
IV. Was the Board’s Conclusion
that State Protection was Available Unreasonable?
1. Basic principles
relating to state protection
[14]
There
are a number of well-established principles that apply to the issue of state
protection.
[15]
A
refugee is a person with a well-founded fear of persecution who is either
unable to obtain protection from that persecution from his or her country of
origin, or is prevented from doing so for fear of further persecution (Immigration
and Refugee Protection Act, SC 2001 c 27 [IRPA], s 96 – see Annex for
statutory references).
[16]
A
well-founded fear means a reasonable chance of persecution. A refugee must subjectively
fear persecution, and that fear must objectively be reasonable.
[17]
The
evidentiary burden and the burden of proof fall on refugee claimants to show
that they come within the definition of a refugee. They must prove on the
balance of probabilities that there is a reasonable chance they will be
persecuted if returned to their country of origin.
[18]
Often,
the question of state protection is not an issue in refugee cases because the
alleged agent of persecution is the state itself. It is self-evident in those
circumstances that the state is unable or unwilling to protect the persons it
is persecuting.
[19]
Where
state protection is an issue, the claimant will meet the definition of a
refugee if he or she shows a well-founded fear of persecution and presents
clear and convincing evidence establishing on a balance of probabilities that
state protection is inadequate.
[20]
Where
clear and convincing evidence establishes that the state lacks the capacity or
the will to protect persons in the claimant’s circumstances, the claimant will
have proved that he or she is unable to obtain state protection; that is, that
state protection is inadequate. However, the fact that the state might not
always succeed does not in itself mean that state protection is inadequate.
[21]
If
the evidence shows that the state has the means and the will to respond to the
claimant’s circumstances by providing protection against the persecution he or
she reasonably fears, the claimant will have failed to make out a claim for
refugee protection. His or her fear of persecution will not be well-founded.
[22]
Ultimately,
given the definition of a refugee, the question to be answered in all refugee
claims involving state protection is whether, taking account of all the
evidence, including the evidence relating to the state’s capacity and
willingness to provide protection against persecution, the claimant has shown
on the balance of probabilities that there is a reasonable chance that he or
she will be subjected to persecution if returned to his or her country of
origin. If so, the person merits refugee protection. If not, the person does
not satisfy the definition of a refugee.
[23]
Similar
principles apply to persons in need of protection under s 97 of IRPA, although
the burden of proof is higher (Li v Canada (Minister of
Citizenship and Immigration), 2005 FCA 1).
2. Application to
this case
[24]
Ms.
Gonzalez Palomino’s main contention is that the Board erred by failing to
consider relevant evidence about Mexico’s actual ability to protect victims of
domestic violence, as compared to the efforts it was making to attempt to provide
better protection in the future. Given that failure, she contests the Board’s
conclusion that she had not taken sufficient steps to obtain state protection.
[25]
In
particular, Ms. Gonzalez Palomino argues that the Board ignored an affidavit
sworn by Professor Guillermo Zepeda Lecouna, in which she reviewed the
practical realities of abused women’s interactions with the Mexican justice
system. The affidavit included the following observations:
• Women seeking
protective orders must have a lawyer;
• Protective orders
take weeks to obtain;
• Due
to corruption in the system, it is the victim who must persistently pursue a
protective order and pay money to a court representative to guarantee its
issuance;
• If
a protective order is violated, the victim must return to the court, not to the
police, with her own evidence;
• Judges
have discretion whether to proceed with charges concerning breaches of
protective orders civilly or criminally, so that the result of a victim’s
application could be a small fine; and
• The
Mexican justice system is overwhelmed, domestic violence cases are not taken
seriously, and proceedings rarely come before the criminal courts given that
they must be initiated by a prosecutor on referral from the police.
[26]
Ms.
Gonzalez Palomino also says that the Board erred by not referring to an Amnesty
International report which largely confirmed Professor Zepeda Lecouna’s
analysis, as well as a 2009 Amnesty International publication (“Protection Law
Fails Mexican Women”) which noted that the new law “has had no impact in the
two years since its inception.”
[27]
In
addition, Ms. Gonzalez Palomino points out that while the Board relied on laws
on the books in Mexico that might help persons in her situation, it
conceded they remained to be implemented. That evidence did not contradict Ms.
Gonzalez Palomino’s evidence that authorities did not respond in any meaningful
way to her complaints of abuse.
[28]
Finally,
the Board clearly expected Ms. Gonzalez Palomino, a law student, to be in a
better position to seek adequate state protection than other victims of
domestic violence. In holding this assumption, Ms. Gonzalez Palomino maintains
that the Board failed to address the contextual factors of her situation, as
required by the Chairperson’s Guidelines for Gender Claims, including social,
cultural, religious and economic factors. She suggests the Board erred in
referring only to her professional qualifications to the exclusion of her
personal circumstances as an abused woman with two young children.
[29]
In
my view, the Board did not address the ultimate question – did Ms. Gonzalez
Palomino show, with clear and convincing evidence, there was a reasonable
chance she would be persecuted if she returned to Mexico? The Board
accepted that she had not been able to engage the police or the courts to
protect her. But it referred to other avenues of redress that appeared to be
available - complaints to other agencies and resort to unimplemented statutes.
But the question remained, particularly in light of the documentary evidence
contradicting the Board’s conclusion, whether those potential remedies would
have made any real difference.
[30]
As
I see it, Ms. Gonzalez Palomino presented clear and convincing evidence of a
lack of state protection. Indeed, the Board accepted most of it. However, it
found that she had, nonetheless, failed to rebut the presumption of state
protection because she could have done more. In my view, that conclusion did
not take account of the evidence before the Board showing the difficulties of
obtaining state protection in Mexico and the apparent inefficacy of
well-intentioned statutes whose purposes remain to be realized. The Board
cannot conclude that a claimant has failed to meet his or her burden of proof
without considering documentary evidence that corroborates the claimant’s
account of events.
[31]
Therefore,
I find that the Board’s conclusion was unreasonable based on the facts and the
evidence before it.
V. Conclusion and Disposition
[32]
I
find that the Board’s conclusion that Ms. Gonzalez Palomino failed to show that
state protection was unavailable to her in Mexico was
unreasonable. It was not a defensible outcome based on the facts and the law
before it. I must, therefore, allow this application for judicial review and
order a new hearing before a different panel of the Board. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is allowed and a new hearing before a different
panel of the Board is ordered;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001 c 27
Convention
refugee
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Définition
de « réfugié »
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
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