Date:
20110420
Docket:
IMM-4907-10
Citation:
2011 FC 326
Ottawa, Ontario, April 20,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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JUANA LOURDES
VALENCIA PENA, ERIKA VANESSA FIORENTTINI VALENCIA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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AMENDED REASONS FOR ORDER AND ORDER
[1]
The
principal applicant
is a citizen of Peru who fled to the United States and then to Canada where she and her daughter, Erika Vanessa Fiorenttini Valencia, the minor applicant,
claimed refugee protection. The claim was considered by the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board)
which,
in a decision dated July 29, 2010 rejected the claim. It is this decision
that is the subject of this application for judicial review. For the
reasons that follow, I am granting this application and remitting the
matter to the Board for redetermination by a differently constituted
panel.
[2]
While
the
applicant raised numerous issues with respect to both the factual findings of,
and legal analysis conducted by the Board, it is sufficient for the
purposes of this decision to address two issues; the Board’s rejection of
the explanation tendered by the applicant for not making a claim while in the
United States, and secondly, the legal test applied by the Board to assess the
adequacy of state protection.
[3]
The
Board
accepted that the applicant was abused by her former husband, but held that her
failure to claim protection in the United States undermined her
credibility. The applicant testified that she left the United States only because she was afraid of deportation to Peru as a result of increased activity
by U.S. immigration officials. She testified that she considered herself
safe while in the United States and hence felt no need to make a claim for
protection.
[4]
The
failure
to claim elsewhere is not, in and of itself, determinative. However, the
Board must carefully consider any explanation provided by the applicant and
give reasons for rejecting it. Given that the Board accepted that
the applicant was abused, and that her testimony as to why she did not claim
while in the U.S. was not challenged, the Board was under an obligation
to give considered reasons for rejecting the explanation; Owusu-Ansa
v Canada (Minister of Employment and Immigration) [1989] FCJ 442;
Bobic v Canada (Minister of Citizenship and Immigration) 2004 FC
1488. In this case, the explanation before the Board was
consistent with the existence of subjective fear, and its unilateral
dismissal, was, without more, in error. The Board’s rejection of this
explanation informed much of its approach to the balance of the applicant’s
testimony and cannot be considered immaterial to the outcome.
[5]
The
Board
also erred in its approach to state protection. The Board accepted that on
three occasions the applicant sought the protection of the police. It also
had before it police reports which corroborated the applicant’s
testimony. However, the Board asked for production of a copy of a
guarantee (an order of a Peruvian state agency which might be considered to be
analogous to a peace bond) issued against her former partner. The
applicant explained her efforts to obtain a copy of the guarantee and as she
could not produce it, including the fact that the document itself was of
temporal duration. The inferences drawn from her inability to produce the
document, namely that the applicant had not sought state protection with the
diligence required, and hence that she had not made all reasonable efforts to
seek state protection, were, in light of the whole of the applicant’s
testimony, unreasonable.
[6]
Finally,
the
Board erred in its determination as to the nature of the state protection that had
to be established. The Board found that Peru was making serious efforts
to address the issue of domestic violence and held that to be the standard in
assessing the availability of state protection. The standard is of
course, as expressed by the Supreme Court of Canada (SCC), in Canada (Attorney
General) v Ward [1993] 2 SCR 689, and as further elucidated and
applied by this Court in decisions such as Lopez v Canada (Citizenship
and Immigration) 2010 FC 1176.
[7]
Given
my finding that the Board applied the wrong legal test to the issue of state
protection, it is not strictly necessary for me to address its findings with
respect to state protection. However, it is my view that the
evidence before the Board as to the adequacy and effectiveness of state
protection against domestic abuse and violence did not support the conclusions
reached by the Board. Indeed, the applicant’s evidence and the documentary
evidence all pointed in the opposite direction.
[8]
The
application for judicial review is granted and the decision of the Board
dated July 29, 2010 is set aside. The matter is remitted to the Board
for determination by a differently constituted panel.
[9]
No question arises for certification.
ORDER
THIS
COURT ORDERS that:
1. The
application
for judicial review is granted and the decision of the Board dated July
29, 2010 is set aside. The matter is remitted to the Board
for determination by a differently constituted panel.
2. No question arises for
certification.
"Donald J. Rennie"
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