Date: 20070307
Docket: IMM-4284-06
Citation:
2007 FC 263
Ottawa, Ontario, the 7th day of March 2007
PRESENT:
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
MARIA DEL PILAR VILLARREAL
ZEMPOALTE
MONSERRAT HERNANDEZ VILLARREAL
AMNER HERNANDEZ VILLARREAL
LUIS ANGEL HERNANDEZ VILLARREAL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act), of a decision dated May 17, 2006, by the Refugee
Protection Division (RPD) of the Immigration and Refugee Board that the
applicants are neither “Convention refugee[s]” nor “person[s] in need of protection”
under sections 96 and 97 of the Act.
[2]
The principal applicant, Maria Del Pilar
Villarreal Zempoalte, and her three minor children, all citizens of Mexico,
left their country for Canada in August 2005. They claimed refugee protection
in Canada by reason of the principal applicant’s membership in a particular
social group, namely, abused women.
[4]
During the 11 years of her marriage, the
applicant was assaulted by her husband, especially during sexual relations. The
applicant allegedly informed the police in 2004 and 2005, but to no avail. The
fact she did this allegedly made her husband more violent and forced the
applicant to take cover in the city of Puebla. Her husband allegedly found her
and forced her to return home with him.
[5]
The applicant and her husband divorced in 2005;
after the divorce, the husband became more aggressive towards her and the
children. She was in family therapy, but that did not improve the situation. Believing
that she would not receive police protection, she left her country with her
children to go to Canada in August 2005.
[6]
In dismissing the applicant’s claim, the RPD
found that she was not credible because of omissions, the absence of any persuasive
documents, and her vague evidence.
Analysis
[7]
It is settled law that
that the RPD has the expertise to determine questions of fact and to gauge the
credibility of refugee protection claimants (Aguebor v. Canada
(Minister of Employment and
Immigration), [1993]
F.C.J. No. 732 at paras. 3-4 (C.A.) (QL)); therefore, the appropriate standard of
review is patent unreasonableness.
[8]
That being said, the RPD decision must still be supported by
the evidence and must not be made in a perverse or capricious manner or be
based on erroneous findings of fact or be made without regard for the material
before the panel (Mugesera v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 100 at para. 38; Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 at
para. 14 (QL)).
[9]
The applicants claim that the RPD made an error
warranting the Court’s intervention by failing to consider Women Refugee
Claimants Fearing Gender-based Persecution: Guidelines Issued by the
Chairperson Pursuant to Section 65(3) of the Immigration Act (Guidelines)
in its analysis of the applicant’s credibility.
[10]
It is
clearly settled by Federal Court caselaw that the RPD is required to take the Guidelines
into consideration with
regard to gender‑based persecution (Griffith v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1142 (Trial Division) (QL);
Myle v. Canada (Minister of Citizenship and Immigration), 2006 FC
871, [2006] F.C.J. No. 1127 (F.C.) (QL)).
[12]
In relation to this, Mr. Justice Yves de
Montigny stated the following in Kaur v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1066, [2006] F.C.J. No. 1345 at para. 12 (QL):
As to the Guidelines first of all, it is
true that the RPD did not expressly refer to these in its reasons. However,
that is not fatal as such, since the board member’s silence in this regard does
not support a conclusion that the Guidelines were not considered in his
analysis of the case. In the same way, a mere ritual mention that the
Guidelines had been considered would not suffice to establish that the panel
had complied with them. What matters is that the reasons for decision
demonstrate that the decision-maker was aware of the particular situation of
women when the basis of their claim was related to their vulnerability.
Although the Guidelines are not binding on the RPD, they must still be
considered in appropriate cases (Fouchong v. Canada
(Secretary of State) (1994), 88 F.T.R. 37, at paras. 10-11 (F.C.), [1994]
F.C.J. No.1727 (QL); Khon v. Canada (Minister of Citizenship
and Immigration), 2004 FC 143, (2004), 36 Imm. L.R. (3d) 55, at para. 18
(F.C.), [2004] F.C.J. No.173 (QL)).
[Emphasis
added.]
[13]
In my
view, the reasons for the decision in this case did not demonstrate any
awareness on the part of the panel of the special situation of an abused woman.
Her vulnerability could explain her behaviour, especially the fact that she did
not report her ex-husband’s alleged abuse of her.
[14]
The member
impugned the applicant’s credibility because she should have reported her
husband to hospital staff when she was being treated in hospital, and she
should have informed the police. Questioned about this, she explained that she
was afraid, that her husband had been outside with the children and that he had
threatened her and her children if she reported him.
[15]
The member
rejected her explanation. However, reluctance on the part of the victim to
reveal the existence or the seriousness of abuse is consistent with battered‑woman
syndrome and explains why a woman will stay in an abusive situation (R. v.
Lavallée, [1990] 1 S.C.R. 852).
[16]
With
regard to this, the psychology reports from the therapy that the applicant
received in Mexico and Canada explain her behaviour. This is important evidence
in the applicant’s file. However, these reports were rejected by the member
because they were not evidence of the truthfulness of the information on which
the expert opinions were based.
[17]
In my view, these reports, at the very least,
demonstrate the applicant’s traumatized state and explain in detail the many
symptoms she was suffering because of conjugal violence.
[18]
The Supreme Court of Canada stated in Lavallée,
supra, that expert testimony is admissible to assist the fact‑finder
in drawing inferences in areas where the expert has relevant knowledge or
experience beyond that of the lay person. The Court reminds us that each of the
specific facts underlying the expert’s opinion need not be proven in evidence
before any weight can be given to the opinion. In this case, the allegations of
conjugal violence and the specialized knowledge required in such a case should
have led the panel to review the psychological reports and determine what
weight they should be given.
[19]
The member should not have immediately rejected
this relevant evidence and should not have found that there was no compelling
evidence that could allow the member to find the applicant credible.
[21]
For these reasons, the application for judicial
review is allowed. The matter is referred to a differently constituted panel
for redetermination.
JUDGMENT
The application for judicial review is allowed. The matter is
referred to a differently constituted panel for redetermination.
“Danièle
Tremblay-Lamer”
Certified true translation
Gwendolyn May, LLB
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