Date: 20070608
Docket: IMM-4698-06
Citation: 2007 FC 616
Ottawa, Ontario, June 8, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
REINA ISABEL ALMENDAREZ MATUTE
FRANDER ARMENGO VELASQUEZ ANTUNEZ
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application by Reina Isabel Almendarez Matute and Frander Armengo
Velasquez Antunez from a decision of the Refugee Protection Division of the
Immigration and Refugee Board (Board) rendered on July 24, 2006 following a
hearing on March 6, 2006. In its decision the Board rejected the Applicants’
claims for refugee protection on the ground that state protection is available
in their home state of Honduras.
Background
[2]
Ms.
Matute and Mr. Velasquez are married. Ms. Matute left Honduras in February
2005 and made her way to Canada through Guatemala, Mexico and
the United
States.
She arrived here on June 27, 2005 and promptly claimed refugee protection. Mr.
Velasquez followed and arrived in Canada on July 18, 2005. He
applied for protection at the Canadian border.
[3]
The
Applicants’ claim was based on a history of physical abuse and threatening
behaviour meted out by Ms. Matute’s previous husband, Miguel Antonio Zelaya
Mejia. Mr. Zelaya is a violent person who repeatedly abused Ms. Matute
throughout their marriage. Ms. Matute gave a history of numerous assaults and
several unsuccessful attempts on her part to escape the marriage. By 1984 she
was able to secure a divorce but Mr. Zelaya continued to harass her.
[4]
In
1999 Ms. Matute met Mr. Velasquez and they began to live together in October
2000. Mr. Zelaya was not pleased by this relationship and frequently
threatened and harassed them. On the night of September 10, 2004, Ms. Matute
and Mr. Velasquez were confronted at gunpoint by Mr. Zelaya and four other
members of his gang. Ms. Matute said that she was gang-raped in front of Mr.
Velasquez and then both were savagely beaten and left in the street. When they
were found the next morning, they were taken to a medical clinic where they
each remained for 28 days. The medical records from that stay disclosed
multiple fractures and dislocation injuries, soft tissue trauma and, in the
case of Ms. Matute, evidence of sexual abuse.
[5]
Ms.
Matute said that she did not approach the police during this long history of
violence because spousal abuse was not taken seriously by the Honduran
authorities and because Mr. Zelaya was a leader of a violent criminal gang and
had threatened to kill her if she reported him. She also believed that Mr.
Zelaya was connected to the Honduran police and would be protected from
prosecution.
[6]
It
was following the incident of September 10, 2004 that the Applicants decided to
leave Honduras. They
stayed out of sight for some time while they attempted to sell their shop to
raise the money necessary to come to Canada.
The Board Decision
[7]
Although
the Board found Ms. Matute to be “credible with respect to the incidents which
were alleged”, it rejected the claims because of the availability of state
protection. In coming to that conclusion the Board the following findings:
a.
the
Honduran police “are under-funded, under-trained, understaffed and corruption
is a serious problem, giving way to widespread public frustration at the
inability of the security forces to prevent and control crime”;
b.
under
the current administration, joint police and military patrols had led to a
significant reduction in petty crime;
c.
although
the Honduran police “are plagued by corrupt officers, at least 3000 police
officers have been fired since 1998 for corrupt practices”;
d.
Congress
had created a new Council to monitor and prevent police abuses;
e.
the
police are under the control of the Ministry of State and Security; and
f.
the
Honduran authorities had been cited by international agencies for carrying out
an unofficial social cleansing policy against criminal gangs including the
mobilization of death squads to assassinate and attack gang members.
[8]
Solely
on the strength of these findings, the Board concluded that the corruption of
the Honduran police was “not so persuasive [sic] that the claimant could not or
would not have her complaint addressed in a proper manner”. The Board also
stated that it had “no credible evidence to indicate that the state is
unwilling or unable to provide protection”. Ms. Matute’s failure to seek the
protection of the Honduran authorities was, accordingly, found to be
unreasonable.
Issues
[9]
(a) What
is the appropriate standard of review for the issues raised on this application?
(b) Did
the Board err in its analysis of the evidence bearing on the issue of state
protection?
Analysis
[10]
The
issues raised on this application involve questions of mixed fact and law
applicable to the Board’s state protection conclusions. These are issues which
are reviewable on a standard of reasonableness: see Hinzman v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 584, 2007 FCA 171, at
para. 38.
[11]
Much
of the Applicants’ argument on this application was directed at the issue of
gender-based abuse and the Board’s apparent mischaracterization of the
protection claims as being based on a generalized criminality risk. There is
no question that spousal abuse was at the root of both of these claims and that
the Board should have assessed them against that particular risk, including the
issue of Ms. Matute’s reluctance to approach the police. However, the
fundamental flaw in the Board’s analysis is its obvious failure to consider all
of the material evidence bearing on the issue of state protection and, in
particular, the Applicants’ reasons for not seeking it out.
[12]
Here,
the Board rejected the Applicants’ claims solely on the basis that they had
failed to seek the protection of the Honduran authorities which the Board concluded
would have been forthcoming. The problem, however, is that the decision fails
to take account of significant aspects of the evidence. Nowhere does the Board
reference Ms. Matute’s explanations for not seeking police protection in Honduras, explanations
which were entirely consistent with much of the documentary record. In short,
the Board failed to consider Ms. Matute’s personal circumstances as a victim of
severe and prolonged spousal abuse at the hands of a vicious abuser with
apparent connections to the local police. Ms. Matute also testified that she
considered that a complaint to the police would not only be futile but would
inevitably lead to life-threatening retaliation. The failure to consider Ms.
Matute’s testimony is particularly troubling given the Board’s unqualified
acceptance of her evidence including her description of the culminating assault
and rape which left her and Mr. Velasquez hospitalized for almost a month.
Clearly her former spouse was not a person much troubled by the likelihood of
arrest and the viciousness of the assault added considerable weight to Ms.
Matute’s fear of further abuse at his hands.
[13]
Ms.
Matute had testified that her former spouse had repeatedly threatened to kill
her – a threat that was almost carried out at the time of her final rape and
assault. Although the Board took note of the evidence that police corruption
in Honduras is a serious
problem and seems to have accepted, as fact, that “the Honduran police are
plagued by corrupt officers”, no where did it assess Ms. Matute’s evidence
against that established environment of police corruption. In fact, the Board
not only ignored considerable evidence that state protection was largely
illusory in Honduras, it wrongly asserted that there was “no credible evidence
to indicate that the state is unwilling or unable to provide protection ” to
Ms. Matute. This assertion was inconsistent with the Board’s own findings of
rampant police corruption and other material evidence that cases of spousal
assault and rape in Honduras are often not taken seriously by the police or
within the judicial system. While it was open to the Board not to adopt that
evidence, it was still necessary to consider it and it was an error to say that
the Board had no credible evidence on this point before it.
[14]
One
of the Board’s further justifications for its state protection conclusion was
based on the existence of an “unofficial social cleansing policy” directed at
criminal gangs in Honduras whereby police “death squads” systematically
assassinate or abuse suspected gang members. This is not the first time that I
have seen the Board rely upon evidence of police criminality in this way. In
my view, it is manifestly wrong to consider police criminality as evidence of
the effectiveness of state protection. Systematic or wide-spread violations of
human rights, whether condoned by the state or not, are only properly
considered as evidence of the breakdown of the protective apparatus of the
state. Police corruption in all of its forms is the antithesis of state
protection. It is incompatible with the rule of law and it is a corrosive
force which undermines the public trust in the civil authorities. As such, it
should never be considered to be a form of effective law enforcement or seen as
enhancing the public perception that state protection is available. The
Board’s reliance on such evidence was, to my thinking, perverse and could not
support a finding of available state protection. To the credit of counsel for
the Respondent, this was a point that was not embraced during argument, albeit
that the decision was vigorously defended on other grounds.
[15]
I
would also note that the Board’s conclusion that state protection was available
in Honduras is not
supported by its remaining factual findings. The finding that the Honduran
police were ineffective and corrupt was hardly displaced by evidence of
reductions in the petty crime rate and the oversight efforts of the civilian
administration noted by the Board. There may well have been other evidence
available to the Board to support such a conclusion but what it identified was
entirely insufficient, particularly in the absence of any consideration of Ms.
Matute’s contrasting evidence.
[16]
The
Board’s decision in this case does not stand up to scrutiny based on a standard
of reasonableness. In the result, it is necessary to quash the Board’s
decision and to remit this matter to a differently constituted panel of the
Board for reconsideration on the merits.
[17]
Neither
party proposed a certified question and no question of general importance
arises from this decision.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be remitted to a differently constituted panel of the Board for
reconsideration on the merits.
“R.L. Barnes”
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