Docket: IMM-1915-11
Citation: 2011 FC 1364
Ottawa, Ontario, November 25, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
|
|
EVELIN YOLANI MEZA VARELA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant Evelin Yolani Meza Varela is a citizen of Honduras. She seeks
judicial review under section 72 of the Immigration and Refugee Protection
Act, SC 2001, c 27 (“IRPA”) of the decision of the Immigration and Refugee
Board, Refugee Protection Division that found that she was not a Convention
refugee or a person in need of protection.
[2]
For
the reasons that follow, the application is granted.
BACKGROUND
[3]
Ms.
Varela came to Canada on 26 February 2009 and claimed refugee
protection the following day on the basis of her membership in a particular
social group, Honduran women subject to sexual abuse. She also claimed
protection as a person facing a risk to her life and a risk of cruel and unusual
treatment or punishment.
[4]
The
claim for protection arose from an incident that occurred on 26 September 2008,
when, on her way home from school, Ms. Varela was beaten and raped by three
members of the Honduran gang, Maras Salvatrucha (“the Maras”). Ms. Varela
had been previously assaulted in a non-gang related attack. On this occasion, Ms.
Varela noted that one of her attackers had a Maras tattoo. After
being raped, Ms. Varela lost consciousness. She later received medical
attention for a knife wound to her arm.
[5]
On
27 September 2008, Ms. Varela attended at a police station with her parents to
file a report. She claims that, in taking her statement, the police refused to
record the fact that her attackers belonged to the Maras. A few days
later, she received an anonymous note threatening further harm. Ms. Varela’s
father brought this letter to the police and the applicant sought refuge with
her aunt in another city, where she stayed until January of 2009. While she was
with her aunt, her father continued to make inquiries of the police, including
the police chief; however, those inquiries were not followed-up. She says that
the threats were later repeated, via telephone in November of 2009 and another
note in May of 2010.
DECISION UNDER REVIEW:
[6]
In
a decision dated 10 March 2011 and reasons dated 28 February 2011, the Board
determined that Ms. Varela had not rebutted the presumption of state protection
with clear and convincing evidence. Accordingly, the Board dismissed her
application for refugee protection under section 96 and subsection 97(1) of the
IRPA. There was no adverse credibility finding.
[7]
The
Board found that state protection was available to Ms. Varela in Honduras. It found that Honduras is an electoral
democracy that had taken some steps to address the weaknesses in its judicial
system – such as its ongoing problems with vigilante justice, corruption and
impunity – by redirecting the armed forces and implementing new police training
programs, among other measures.
[8]
Although
gang violence was ‘pervasive’ and ‘endemic’ in Honduras, the Government of Honduras and
non-governmental actors had taken steps to address the problem. While the
evidence on the success of these initiatives was mixed, the Board concluded
that “there has been a measure of success in combating gang violence”.
[9]
Dealing
with the particular circumstances of Ms. Varela’s claim, the Board determined
that she had not done enough to seek protection from Honduras. Specifically, Ms.
Varela had made only one denunciation to the police, after which she left town.
Although her father made several follow-up inquiries, Ms. Varela herself never
did, even though she was aged twenty-two at the time.
[10]
The
Board was satisfied that the police had offered assistance to Ms. Varela. As
the Board understood it, the test for state protection did not require that the
police actually succeed in apprehending the attackers. The Board noted that it
had considered the Chairperson’s Guidelines on Women Facing Gender-Related
Persecution (“Gender Guidelines”) in rendering its
decision.
ISSUES
[11]
The
issues raised
in this matter may be reduced to the following:
a.
Did
the Board err by applying the wrong test in its assessment of state protection?
b.
Was
the Board’s determination that the applicant could benefit from state
protection made without regard to the evidence?
ANALYSIS
Standard of
Review
[12]
The
issue of state protection is one of mixed fact and law. The applicable standard
of review has been satisfactorily determined by the jurisprudence to be
reasonableness: Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171 at para 38. In reviewing a
decision against the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision-making process,
and whether the decision falls within a range of possible acceptable outcomes
which are defensible in light of the facts and the law: New Brunswick (Board
of Management) v Dunsmuir), 2008 SCC 9 at para 47.
Did the Board err by
applying the wrong test in its assessment of state protection?
[13]
The
Board outlined
the correct legal principles applicable to refugee claimants
alleging persecution at the hands of a non-state actor and the presumption of
state protection as set out in Canada (Attorney General) v Ward, [1993]
2 SCR 689 and Canada (Minister of Citizenship and Immigration) v Flores
Carillo, 2008 FCA 94, [2008] FCJ No 399 [Carillo]. The claimant
“must adduce
relevant, reliable and convincing evidence which satisfies the trier of fact on
a balance of probabilities that the state protection is inadequate” (Carillo, above at
para 38).
State protection need not be perfect, but it must be adequate.
[14]
Here
the Board appears to have adopted a lesser standard of adequacy by reference on
two occasions in its reasons to what it termed “a measure” of state protection available in Honduras. It is
unclear what the Board meant by “a measure” since it did not define this term. The
respondent contends that this was merely a standard employed by the Board to
assess the evidence and that the reasons, as a whole, disclose that the Board
applied the correct test. I agree that the Board cited the correct legal
principles, as set out in Ward, and Carillo, above. However, I am
not satisfied that they were properly applied in this case.
[15]
The
Board was required to justify its finding that Ms. Varela had not rebutted the
presumption, in a transparent and intelligible way (Hazime v Canada (Minister of
Citizenship and Immigration), 2011 FC 793, [2011] FCJ No 996 at para 17).
The Board did not meet this standard of reasonableness.
[16]
The
Board did not provide any analysis of the operational adequacy of the efforts
undertaken by the government of Honduras and international actors to improve state
protection in Honduras. While the state’s
efforts are indeed relevant to an assessment of state protection, they are
neither determinative nor sufficient (Jaroslav v Canada (Minister of
Citizenship and Immigration), 2011 FC 634, [2011] FCJ No 816 at para 75).
Any efforts must have “actually translated into adequate state protection” at
the operational level (Beharry v Canada (Minister of
Citizenship and Immigration), 2011 FC 111 at para 9.
[17]
Here,
while the Board acknowledged that the police were unsuccessful in providing
protection to Ms. Varela, it failed to assess how the efforts to deal with gang
violence had translated into protection for women targeted for sexual assault,
other than by reference to evidence of attempts by gang members to avoid
detection by changing their style and appearance.
[18]
The extensive
evidence cited by the Board attests to the overwhelming nature of the gang
problem in Honduras. That evidence,
characterized by counsel as “bleak, dire, endemic and pervasive”, supports Ms. Varela’s
position that adequate state protection is not forthcoming for women targeted
by gang members for sexual assault. Honduras’ need to approach the
international community for support in addressing its problems, relied upon by
the Board as evidence of the measures being taken, bolsters Ms. Varela’s contention
that Honduras cannot provide such
protection adequately itself.
[19]
To
the extent that the Board based its findings on the fact that Honduras is a functioning
democracy, it also failed to consider the evidence regarding the situation in
the months following Ms. Varela’s attack. Honduras was in a situation of political tension
culminating in a military coup in June of 2009. While the Board could have
considered whether a change in circumstances had occurred making state
protection once again available – Honduras may have rebounded since its elections in
November of 2009, for instance – it did not.
Was the Board’s
determination that the applicant could benefit from state protection made
without regard to the evidence?
[20]
The Board’s determination
that Ms. Varela did not make sufficient attempts to access state protection in Honduras was made without regard
to the totality of the evidence and is unreasonable.
[21]
The
Board did not turn its mind to Ms. Varela’s evidence that the police were
unwilling to record that the attackers were Maras. That
testimony was at odds with the Board’s theory that the police failure was
attributable to the inherent difficulty in apprehending an attacker whose sole
identifying feature was a Maras tattoo. It was also unreasonable for the
Board to base its evaluation of Ms. Varela’s efforts to seek state protection
on the fact that it was her father who pursued inquiries of the police. That
ignored her evidence that she had to leave town to seek refuge at her Aunt’s
home in another city. She could not reasonably have been expected to make the
inquiries herself.
[22]
While
the Board noted that it had considered the Gender Guidelines, its reasons do not
clearly reflect the specific situation of women who are victims of gender based
violence in Honduras. For example, while the
Board noted a recent improvement in the overall murder rate, it failed to
acknowledge that killings of women in Honduras have actually increased.
[23]
In
conclusion, the Board’s decision was unreasonable and the matter will be
remitted for reconsideration by a differently constituted panel. No serious
questions of general importance were proposed and none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is granted and the matter is
remitted for reconsideration by a differently constituted panel. No questions
are certified.
“Richard
G. Mosley”
Email this Content