Date: 20110211
Docket: IMM-650-10
Citation: 2011 FC 173
Ottawa, Ontario, February 11,
2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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ROCIO ANGELICA FLORES ALCAZAR
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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]
Rocio
Angelica Flores Alcazar (Applicant)
applies for judicial review of the Immigration and Refugee Board’s Refugee Protection
Division (RPD) decision to reject her refugee claim, finding she is not a
Convention refugee or a person in need of protection.
[2]
Ms.
Alcazar is a
Mexican citizen who sought protection on the grounds that she feared
persecution from her former partner, a police officer who beat her, raped her,
and threatened her.
[3]
The
Refugee Protection Board rejected her claim on the grounds that the Applicant
did not make use of the available state protection in Mexico.
[4]
For the
reasons that follow, I am granting this application for judicial review.
Background
[5]
The
Applicant was in a relationship with a Mr. Garcia, a member of the General
Headquarters of the Judicial Police of the Office of the Attorney General of
Justice in Mexico. The couple began to
have problems in July 2006. The Applicant said she wanted to continue her
studies but her partner feared that she would meet someone else at university
and leave him. He became controlling and violent, beating and forcing sexual
relations upon her, as well as locking her in the house.
[6]
She
was hospitalized on December 2007 for three days from injuries she sustained
from his assault. The hospital report noted that the Public Ministry was
notified of a “medical legal case.” In March, 2008, she was again hospitalized
because of injuries sustained by her partner.
[7]
After
her hospitalization in 2007, the Applicant went to the Office of the Public
Ministry to make a report but they did not take her report because they said
they did not have a forensic doctor to examine her and because she did not have
a witness. They told her to return another day. She did not. At home, her
partner told her the police told him that she had tried to report him. Later,
he threatened to kill her if she reported again.
[8]
The
Applicant eventually fled to live with her aunt in Tamaulipas, but a month
later, received a text message from him saying he knew where she was. The Applicant moved to Tula, Hidalgo, but two weeks
later saw Mr. Garcia in a nearby park. She then moved to Jalisco, Guadalajara, but learned that Mr.
Garcia had told a member of the family that he would be coming to surprise
her. She moved again to an aunt’s in the Federal District, and then fled to Canada on June 30, 2008, where
she made a claim for protection.
Decision under Review
[9]
In
its decision, rendered on December 31, 2009, the RPD focused on the question of
whether there was adequate state protection available in Mexico.
[10]
The
RPD found that the available documentary evidence indicated Mexico was a democracy with
free and fair elections, in effective control of its territory, with no
evidence to suggest Mexico
was in a state of complete breakdown.
[11]
The
RPD noted that Mexico
had enacted civil, administrative and criminal legislation to prohibit domestic
violence. Mexico had also set up various
processes for victims to seek protection from their aggressors and to report
police misconduct, inefficiency or corruption. The RPD acknowledged that Mexico has had difficulties in
the past with addressing domestic violence, but noted:
With respect to the adequacy of state protection for
the claimant, however, the Board assigns greater probative value to the
documentary evidence. The documentary evidence cited is drawn from a variety of
reliable and independent sources, which have no interest in this particular
claim. While there are some inconsistencies among sources, the preponderance of
the objective evidence regarding current country conditions suggest that,
although not perfect, there is effective and adequate state protection in
Mexico, that Mexico is making serious efforts to address the
problem of domestic violence and that police are both willing and able to
protect such victims.
[12]
The
RPD found that the Applicant had not exhausted all reasonable courses of action
available regarding protection since in a democracy such as Mexico, the Applicant had a
responsibility to do more than merely show that she tried to make one report to
the police. The RPD also found that the Applicant did not present clear and
convincing evidence that the police would not provide adequate protection if
called upon to do so.
[13]
The
RPD noted that even though the Applicant had gone to the Public Ministry once
to unsuccessfully attempt to file denunciation, there were processes to seek
redress at a higher level. The RPD found that the claimant “did absolutely
nothing in the domestic arena to protect herself except to make one attempt at
reporting Mr. Garcia at which time she was told to return the next day, but she
did not return.” The RPD acknowledged that the Applicant had been scared of
Mr. Garcia’s affiliation and influence with the police but noted that it did
not stop her mother from making a denunciation against him at a separate time.
[14]
The
RPD therefore concluded that the claimant did not take all reasonable steps to
pursue the available state protection, therefore failing to rebut the
presumption of state protection with clear and convincing evidence. As a
result, the RPD found that the Applicant was not a Convention refugee or a
person in need of protection.
Relevant Legislation
Immigration and Refugee Protection Act, 2001, c.27 (IRPA)
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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.
97. (1) A
person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country…
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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.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
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Issues
[15]
I
would frame the central issue for this application as:
Did the RPD make
a reviewable error in coming to its conclusion that the Applicant failed to
avail herself of the adequate state protection that was available?
Standard of Review
[16]
The
standard of review of a decision on the determination of state protection is a
matter of mixed fact and law and should be conducted on the standard of
reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9 at
para. 47; Flores v Canada (Minister of
Citizenship and Immigration), 2010 FC 503 at para. 21.
Analysis
[17]
The
Applicant submits that the RPD made a number of errors in its decision. First,
the Applicant submits that the RPD made a factual error in noting that only one
attempt to access state protection was made. Second, the Applicant says that
the RPD failed to properly address any of the contradictory evidence supporting
the Applicant’s assertion that adequate state protection was not available. In
particular, the RPD was required to look at what was actually happening in the
country rather than what the state was endeavouring to put in place; that is,
looking at evidence of actual adequate state protection rather than merely looking
for evidence of serious efforts. Finally, given the Applicant’s situation as
an abused woman, the Applicant submits that the RPD failed to consider the
particular circumstances of the Applicant.
[18]
The
Respondent submits that there is a presumption of state protection, and it is
up to the Applicant to provide clear and convincing evidence to rebut this
presumption, which she failed to do.
[19]
It is
clear to me there were two reports made to the Public Ministry regarding the domestic
abuse. The hospital report of the Applicant’s injuries notes “The P.M. is
notified of medical legal case.” In addition, the Applicant testified that she
also went to the Public Ministry Office once released from the hospital. The
RPD made a factual error in ignoring this evidence and concluding that only one
report had been made to the authorities when there were two, once by the
hospital and once by the Applicant.
[20]
The RPD
also only noted one incident where the Applicant was hospitalized, despite the
evidence showing two separate hospitalizations several months apart.
[21]
The
foregoing factual errors by themselves are not necessarily determinative.
However, the RPD did not consider the Applicant’s personal circumstances nor
did it properly consider the contrary evidence when it assessed if there was
adequate state protection.
[22]
The RPD
failed to consider important aspects of the Applicant’s personal
circumstances. The Applicant was a woman who suffered physical and sexual
abuse from her partner, a police officer, and was hospitalized twice. At least
two reports were made to the Public Ministry. When she tried to make a report,
after the hospital’s notice of a “medical legal case”, not only was she was
told to come back another day but her abusive partner was apparently informed
by the police of her attempt to report him. He subsequently threatened her
against reporting again.
[23]
Jurisprudence
has questioned what purpose would be served in requiring abused women to return
to the police if the first time is not successful: Pereyra Aguilar v Canada (Minister of Citizenship
and Immigration), 2010 FC 216, at para. 36. Here, there arises the issue of
further harm to the Applicant by her abuser if she tries to report to the
police, and it must be addressed.
[24]
The RPD
considered it significant that, after the Applicant left, the Applicant’s
mother filed a denunciation about Mr. Garcia with the authorities because of
his continued attempts to locate the Applicant by harassing the mother. The
RPD fails to make any distinction between the differing circumstances of the
Applicant’s mother and the Applicant. The Applicant is the focused target by
Mr. Garcia whose abuse and harassment is an indication of his controlling
obsession, whereas the mother is not.
[25]
While deference
is to be given to the RPD in its findings of state protection, the RPD’s
analysis of the documentary evidence regarding available state protection is
problematic. The RPD chose to assign “a greater probative value to the
documentary evidence than to the claimant’s opinion with respect to the
adequacy of state protection.” It is an error to discount the Applicant’s
evidence merely because of her interest in the outcome; the RPD must give
reasons for discounting her evidence: Torres Sanchez v Canada (Minister of Citizenship and
Immigration),
2008 FC 1336 at para. 56.
[26]
More
significantly, the RPD must address contradictory evidence that state
protection is not adequate: Toriz Gilvaja v Canada (Minister of Citizenship and
Immigration),
2009 FC 598 at para. 38. This is especially important in light of the
Applicant’s evidence the police had apparently leaked to Mr. Garcia information
about her attempt to report him. While the RPD did acknowledge there was
contradictory evidence, it did not explain why it chose to discount contradictory
evidence, included in an IRB’s Research Directorate and a 50-page Amnesty
International report.
Conclusion
[27]
In my
view, the RPD relied on generalizations when it found that adequate state
protection was available to the Applicant. The RPD failed to assess the
Applicant’s individual circumstances and chose to rely on the documentary
evidence about the state’s efforts to provide state protection, rather than
evidence of what state protection was actually available to a person in the
Applicant’s circumstances.
[28]
I would
grant this application for judicial review
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
The
application for judicial review is granted.
2.
No
order for costs is made.
“Leonard
S. Mandamin”
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