Date: 20080225
Docket: IMM-752-07
Citation: 2008 FC 247
Ottawa,
Ontario, February 25, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
GRACIELA
ORTIZ SANTIAGO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to section 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated December 13, 2006, in which the Board found that the
applicant is neither a Convention refugee nor a person in need of protection.
I. Issues
[2]
The
applicant raises three issues in the present application:
A. Did the Board
err in its application of the law relating to state protection?
B. Did the Board
err by failing to consider the particular circumstances of the applicant in the
assessment of whether an internal flight alternative (IFA) was available to the
applicant?
C. Did the Board
err in such a way as to deny the applicant’s right to natural justice by
failing to address the central argument relating to the applicant’s
psychological state?
II. Factual background
[3]
The
applicant is a citizen of Mexico, who was 33 years old at the time of the
Board hearing. She is a bank professional with a good education. She claims
that she was abused by her mother’s common-law partner, Mr. Bartolo San Juan.
The applicant lived with her mother and sister in Mexico City when Mr. San
Juan moved into their home and her problems with him began when she opposed any
transfer of family property to him. She was threatened and harassed by him,
and finally on March 30, 2004, he raped her or attempted to, depending on what
version of the PIF is believed.
[4]
The
applicant reported the rape at the police station, and was informed that she
required witnesses and medical evidence in order to press charges. According
to her account, the police contacted Mr. San Juan to alert him to the
allegations. As a result of the incident, the applicant moved out of the
family home and went to live with her aunt, elsewhere in Mexico City.
[5]
She
did not seek medical attention or testing and did not report the names of
potential witnesses. She did not return to the police afterwards.
[6]
The
applicant continued to receive threats and continued to be harassed by Mr. San
Juan. She therefore decided to take a trip to Canada on May 1,
2004, in the hope that the tension would dissipate in her absence. Meanwhile,
her mother and Mr. San Juan moved from Mexico City to Oaxaca, where he
and his family are involved in illegal activity.
[7]
The
applicant testified at the Board hearing that Mr. San Juan is involved with a
group involved in smuggling people across the boarder between Mexico and the United
States.
She stated that she learned through her sister that, in her absence, Mr. San
Juan distributed a picture of her to other members of the smuggling group, with
the intention of having her killed.
[8]
The
applicant claimed refugee protection on December 1, 2004, as a result of this new
information.
III. Decision under
review
[9]
The
Board found that there were inconsistencies in the applicant’s account, but
determined that most, if not all, were not central to the claim, and she was
therefore given the benefit of the doubt with regard to credibility. In her
PIF, the applicant described the sexual assault as an attempted rape, but she
amended her PIF to describe the incident as “a complete rape” prior to the
hearing.
[10]
The
claim was rejected by the Board for two reasons. First the Board determined
that the applicant did not have a well founded fear because state protection
was available to her for the following reasons:
A. While the
documentary evidence acknowledges crime, corruption and widespread domestic
abuse in Mexico, the Board
found that the government has taken steps to address the problem. There are
legislative, enforcements and correctional institutions in the various levels
of government to protect victims of domestic abuse. The Board relied on the
existence of criminal and civil laws dealing with family-related matters, as
well as several public and private programs and institutions in place to assist
women and victims of violence.
B. Mexico is a functioning
democracy, and therefore the presumption of state protection applies. Mexico has national
and local police forces, and an independent judiciary.
C. The applicant
did not exhaust all reasonable courses of action available to her. Local
failures to provide effective policing do not amount to an absence of state protection.
The Board did not find it reasonable for the applicant to report the abuse to
the police only once, given her level of education and her professional
standing. The Board noted that she did not seek medical attention, or secure
witnesses in order to substantiate her rape. She also failed to seek legal
advice.
[11]
Second
the Board concluded that the applicant had an IFA in Mexico. The Board
stated that the Gender Guidelines as well as the psychological report submitted
by the applicant were considered. It was found that there was no serious
possibility of the applicant being persecuted in another location in Mexico,
and that it was not unreasonable in the circumstances for the claimant to seek
refuge within Mexico. The Board
offered the following reasons in support of this conclusion:
A. The Board
found that it would not be unreasonable for the applicant to live in a large
city such as Mexico
City
if she avoided contact with her family, and thus Mr. San Juan.
B. The Board
found it would not be unduly harsh for the claimant to move to another part of
the country. Given that the claimed is a well educated professional she could
find employment in any major city.
C. The Board
noted that Mr. San Juan no longer lives in Mexico City.
[12]
For
the above mentioned reasons, the Board concluded that there was no more than a
mere possibility that the applicant would be persecuted if she returned to Mexico.
IV. Analysis
A. Did
the Board err in its application of the law relating to state protection?
[13]
The
Board’s determination with regard to the availability of state protection is
reviewable on the basis of patent unreasonableness. It is entitled to great
deference and will only be set aside if patently unreasonable, Quijano v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1706. Once these findings are
made, they are assessed as a question of mixed fact and law, i.e. a standard of
reasonableness simpliciter, see Chavez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193 at para 11; Monte Rey Nunez v.
Canada (Minister of
Citizenship and Immigration), 2005 FC 1661.
[14]
The
applicant submits that the Board erred in its assessment of state protection by
failing to mention or address negative evidence pointing to the lack of state
protection for abused women in Mexico. The Board listed various measures in
place to assist women and victims of violence; however, the only
acknowledgement of contradictory evidence is as follows:
Documentary evidence acknowledges crime,
corruption and a prevalence of domestic abuse in Mexico, but it also states that the government
is taking steps to address these issues. As Mexico is a democracy, the presumption of state
protection applies.3
…
The panel recognizes that domestic abuse
of women is a serious problem in Mexico.
The documentary evidence, however, shows that Mexico is making serious efforts to address
this problem.
[15]
The
applicant argues that the Board merely made a blanket statement without
specifically addressing the evidence that suggests that protection for abused
women in Mexico can be less
than forthcoming. In particular, the applicant submits that evidence in the
National Documentation Package indicates that the mechanisms in place to assist
women seeking protection are not effective. The applicant submits that by
ignoring an article from Human Rights Watch in 2006, the Board’s error is
twofold: the Board failed to give reasons as to why the evidence that state
protection is available to the applicant was preferred to contradictory
sources, and the Board failed to engage in an analysis of the effectiveness of
the mechanisms of state protection available abused women.
[16]
The
particular article from Human Rights Watch (see Application Record pp. 143-144)
states the following:
At the Core of this issue is a
generalized failure of the Mexican justice system to provide a solution for
rampant domestic and sexual violence, including incest and marital rape. Many
of the girls and women Human Rights Watch Interviewed had not even attempted to
report the abuse they endured, seeing the impunity for rape in the justice
system…
…
But even the existing inadequate
protections were not properly implemented. Police, public prosecutors, and
health officials treat many rape victims dismissively and disrespectfully,
regularly accusing girls and women of fabricating rape. Specialized public
prosecutor’s offices on sexual violence, where they exist, are often in
practice the only place to report sexual violence, further impeding the access
to justice for rape victims in more remote locations. Many victims of violence
fear retribution from the perpetrator, especially if he is a family member. As
a consequence, the vast majority of rape victims do not file a report at all…
[17]
This
Court has established that the Board has an obligation to explain why it
certain documentary evidence was preferred to contrary sources. In Jean v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1768, 2006 FC 1414,
Layden-Stevenson J. reaffirmed this principle:
[11] The documentation also contained
negative comments. The RPD did not refer to, or acknowledge, the statements of
the representative of the crisis centre. Those accounts were to the effect that
"most complaints of domestic violence received by the police were not
taken very seriously and were placed on the 'back burner.' The prevailing
attitudes of the police and the population in general are that the man of the
household is the chief and that he can impose discipline in the home by violent
means." There were also declarations that the "entire justice system
needs to be modernized to reflect the seriousness of domestic violence".
Additionally, the documentation contains an admonition that, despite years of
promises from the government, there are no legal aid clinics in the country.
[12] None of the negative information
regarding the availability of state protection was addressed. While it is
clearly open to the RPD to ultimately prefer the statements of one spokesperson
over those of another, in so doing it must first deal with both and provide its
reasons for choosing one position over the other. It is not open to it to adopt
only the positive statements and totally disregard the negative statements
without providing an explanation as to why it has done so. It is settled law
that evidence that directly contradicts the findings of the board must be
acknowledged: Ragunathan v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 229
(F.C.A.); Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration)
(1998), 157 F.T.R. 35 (T.D.).
[Emphasis added]
[18]
This
principle was most recently reaffirmed by Simpson J. in Cejudo Lopez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1341 at paragraph 24, released
December 21, 2007:
[24] Moreover, the Board failed to address
contradictory evidence that was critical to the reasonableness of the
applicant’s failure to seek state protection. In Simpson v. Canada (Minister of Citizenship and
Immigration),
2006 FC 970, [2006] F.C.J. No. 1224 (QL), at para. 44, Russell J. asserted
that:
While it is true that there is a
presumption that the Board considered all the evidence, and there is no need to
mention all the documentary evidence that was before it, where there is
important material evidence on the record that contradicts the factual finding
of the Board, [it] must provide reasons why the contradictory evidence was not
considered relevant or trustworthy […]
Thus, a Court may infer that an erroneous
finding of fact was made from a failure of an administrative board to “mention
in its reasons some evidence before it that was relevant to the finding, and
pointed to a different conclusion from that reached by the agency.” (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(QL), at para. 15).
[25] As Layden-Stevenson J. indicated in Castillo
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 56, [2004] F.C.J. No. 43 (QL), at para. 9:
The question of effective state
protection was identified as the central issue. Where evidence that relates to
a central issue is submitted, the burden of explanation increases for the board
when it assigns little or no weight to that evidence or when it prefers
specific documentary evidence over other documentary evidence.
Thus, in the context of the central
issue of state protection, the Board is required to explain its preference for
certain documentary evidence over other relevant sources.
[Emphasis added]
[19]
Lopez also states
that it is the effectiveness of the mechanisms of state protection must be evaluated:
[19] Further, country conditions must
also be taken into account in the objective analysis. While an analysis of
country conditions includes determining the existence of mechanisms of state
protection, it also involves an analysis of the effectiveness of those
mechanisms.
[20] While I recognize that in the
present case, the Board did consider the existence of state protection in Mexico, it failed to consider the
effectiveness of that protection. My finding is bolstered by the fact that the
Board ignored contradictory evidence in this regard.
[20]
The
Respondent argues that the state protection findings of the Board were
reasonable. The onus is on the Applicant to rebut the presumption of state
protection in Mexico, a democracy
of the middle range.
[21]
State
protection does not have to be perfect. Even in countries where adequate state
protection exists, authorities cannot guarantee protection of all of citizens
at all times. The respondent submits that the Board was entitled to find that the
Applicant had not rebutted the presumption of state protection. See Kadenko
v. Canada (Minister of
Citizenship and Immigration), 143 D.L.R. (4th) 532 (F.C.A.).
[22]
This
principle is particularly crucial in a case such as this one where the alleged
persecution is not by the authorities or heads of the state but by an
individual.
[23]
Furthermore,
in this case, the Applicant only sought assistance from the police on one
occasion. She did not follow their advice by obtaining medical testing or
providing names of witnesses. She did not follow-up on her complaint to the
police. Without names of witnesses or medical evidence, the ability of the
police to effectively investigate the complaint is limited.
[24]
The
determination of state protection must be based upon the evidence. In this
case, the Board analyzed the documentation, which illustrated the serious
problems of domestic abuse of women, and family violence, as well as the
efforts of Mexico to address
these problems.
[25]
The
Board specifically referred to the “Country Reports on Human Rights practices
for 2005: Mexico, of the
United States Department of State, 8 March, 2006. The Board describes these
findings and the action taken by Mexican authorities, over 2 pages (pages 6 and
7) of its decision.
[26]
The
Board is presumed to have considered all of the evidence, and is not obliged to
refer to every detail of such evidence unless, of course, the contrary is
shown.
Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598
(F.C.A.) (QL);
Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (QL);
Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946
(F.C.A.) (QL).
[27]
In
this case, based upon the evidence before it, I believe the Board was entitled
to find that the Applicant had not rebutted the presumption of state
protection.
Re: Carrillo v. Canada (Minister of
Citizenship and Immigration), 2007 FC 320
[28]
The
parties’ counsels have referred to the recent Carrillo case, supra,
where Justice O’Reilly granted a judicial review from a decision of the Refugee
Protection Division Board which denied the applicant’s claim because she had
not rebutted the presumption of state protection.
[29]
The
applicant, Ms. Carrillo, a Mexican citizen claimed that she was afraid of being
murdered by her former common-law spouse in Mexico. Her
complaint to the Mexican police made matters worse. Her former common-law
spouse was the brother of a police officer.
[30]
Justice
O’Reilly discussed the presumption of state protection that had to be rebutted
and the applicable cases, particularly in Canada (Attorney General) v. Ward,
[1993] S.C.J. No. 74 (QL), in which the “the presumption that Justice La Forest had in mind
was clearly a legal presumption, not a factual one”.
[31]
In
Justice O’Reilly’s view “Justice La Forest contemplated
a burden merely to adduce reliable evidence on the point….in other words,
merely an evidentiary burden.” (Para 17) (this decision is
under appeal).
[32]
The
applicant relied heavily on the Lopez decision which is very well substantiated
in the matter of effective state protection. It is perhaps necessary to repeat
that each case must be decided upon its particular facts.
[33]
In
the case of Mexico, on the matter of state protection and effective state protection,
three recent court decisions have granted judicial reviews of negative rulings
of the Refugee Protection Division; here are a few:
Soberanis v. Canada (Minister of Citizenship and
Immigration),
2007 FC 985;
Hernandez
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1211;
Lopez
v. Canada (Minister of Citizenship and
Immigration), 2007 FC
1341.
[34]
On
the other hand, many decisions have dismissed judicial review applications
because Mexico has a
functioning system of state protection, even if imperfect.
Santos v. Canada (Minister of Citizenship and
Immigration),
2007 FC 793;
Lazcano c. Canada (Ministre de la
Citoyenneté et de l'Immigration), 2007 CF 1242 ;
Baldomino c. Canada (Ministre de la
Citoyenneté et de l'Immigration), 2007 CF 1270.
B. Did
the Board err in it’s assessment of the availability of an IFA?
[35]
The
standard of review applicable to a determination of whether an IFA exists is
patent unreasonableness. (Singh v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 100, 2007 FC 67 at
paragraphs 8-9.) The
issue of existence of IFA is namely a factual one, Ramirez c. Canada
(Ministre de la Citoyenneté et de l'Immigration), 2007 CF 1191.
[36]
The
applicant submits that the Board failed to consider the evidence of Mr. San
Juan’s links to
organized crime, and of his circles of influence around the northern border of Mexico, both of
which would increase his chances of locating the applicant regardless of her
location in Mexico. There was
no evidence presented on this point except for the applicant’s deposition.
[37]
A
review of the transcripts from the hearing before the Board indicates that Mr.
San Juan’s ties to organized crime were an important topic of discussion.
However, counsel’s submissions before the Board do not make a link between Mr.
San Juan’s ties to organized crime, and the applicant’s inability to avail
herself of an IFA. By raising this argument before the Court, the applicant is
asking the Court to make factual determinations on the basis of arguments which
were not before the Board. This does not amount to an error on the part of the
Board.
[38]
The
applicant further submits that the Board made no mention of the applicant’s
psychological state in the context of the IFA. I do not accept this argument.
While an extensive analysis of her psychological state was not performed, the
Board clearly stated that the psychological report was considered. The Board
also stated that it did not consider that it would be unduly harsh to require
the applicant to relocate. For these reasons I do not believe that the Board
committed a reviewable error.
C. Did
the Board deny the applicant’s right to natural justice?
[39]
A
violation of natural justice is reviewed on a standard of correctness.
[40]
The
applicant submits that by failing to address a central argument, the Board
violated the applicant’s right to natural justice.
[41]
The
applicant submits that psychological harm may constitute persecution under
section 96 of the Act, and cruel or unusual treatment under section 97. This
argument has no basis in law. As stated by Russell J. in Nadjat v. Canada (minister of
Citizenship and Immigration), [2006] F.C.J. No. 478, 2006 FC 302 at
paragraphs 60-61:
This would mean that, under 97(1)(b),
subjective fear could, even if groundless on an objective basis, constitute
objective fear if the Applicant is so fearful of non-objective risks that his
health is deteriorating.
I do not believe this is the purpose of,
or intent behind, section 97(1)(b). The Applicant's position is that the
removal itself can trigger the application of 97(1)(b) irrespective of the
objective risks that he faces in Iran.
In effect this would mean that the Applicant could qualify under section
97(1)(b) if he is at risk from himself and his own fears, no matter how lacking
in objectivity those fears actually are. I do not believe that the scheme of
the Act, the intention of section 97(1)(b), or the jurisprudence concerning the
need for objective risk when considering section 97 allow for such a
conclusion. I believe the Officer handled the medical evidence
appropriately and assessed the risk under section 97(1)(b) in accordance with
the jurisprudence of this Court.
It has also been decided in Nadjat
at paras 60-61, that risk of traumatisation is not sufficient to constitute an
objective basis of risk.
[42]
The
Board performed the correctly analysed the applicant’s claim under sections 96
and 97 of the Act. While it is preferable to address the submissions of the
parties more thoroughly, even if they might not be legally sound, the Board did
not make a reviewable error.
V. Conclusion
[43]
For
the above reasons, the application must be dismissed. The parties’ counsels
asked for time to produce questions for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. The parties’ counsels have 7 days
from the date of this order to submit appropriate questions for certification.
"Orville
Frenette"
Email this Content