Date: 20080598
Docket: IMM-1985-07
Citation: 2008 FC 586
Ottawa, Ontario, May 8, 2008
PRESENT: The Honourable Mr. Justice Blanchard
PRESENT:
Erika Angelina ZAMORA
HUERTA
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The Applicant, Erika Angelina Zamora
Huerta, is a citizen of Mexico who claimed refugee protection. She claimed a well-founded fear of
persecution at the hands of her common-law spouse, Ernesto Ibanez Argumedo, a
member of the Federal Investigative Agency (AFI) of the Mexican police, who
sexually abused her and beat her. In its decision rendered on April 25, 2007,
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dismissed the claim for protection because it did not believe the
Applicant was who she claimed to be nor did the Board find her story of abuse
to be credible. The Board further determined that state protection was
available to the Applicant in Mexico and that she had internal flight alternatives (IFA) in Mexico.
[2]
For the reasons that follow, this application
for judicial review will be allowed.
I. Background
[3]
In her claim, the Applicant alleges the
following three specific incidents of abuse at the hands of her common-law spouse:
(a)
On September 17, 2001, when she first moved in
with him, he became very upset with her and hit her because she refused to have
sex with him.
(b)
In April 2003, he beat her severely for not
serving him properly which left her with a broken arm and an unrecognizable
face. He took her to the Medical Clinic Balbuena for treatment and told the
doctor that she had been beaten by criminals. Upon their return home, she
informed him that she wanted to end the relationship, but he burned her ID
documents and threatened her with more beatings to keep her with him.
(c)
Another incident occurred when a neighbour heard
screams and called a social worker from the Integral Family Development Agency
(DIF), who interviewed the Applicant and took her to the Public Ministry of the
judicial police to file a complaint. One of the agents knew her common-law
spouse and alerted him. She was escorted home by police and her common-law
spouse beat her in front of them until she passed out. She also believes
that he attempted to strangle her.
[4]
In 2004, the Applicant fled Mexico City for Queretaro; however, her common-law spouse
located her, took her back home and locked her in the house for a few
days. Subsequently, she managed to escape and flee.
[5]
The Applicant arrived in Canada on September 24, 2004. After her
arrival, she lived with a man for a year who had promised to marry and sponsor
her; however, this did not materialize. The Applicant claimed protection on
April 8, 2006.
II.
The Board’s Decision
[6]
With respect to the Applicant’s identity, the
Board questioned the genuineness of her passport because she “appears to have
obtained it improperly”. The Board noted that she testified she obtained her
passport in Mexico on the
strength of an expired electoral card, since her husband had burned all of her
identification papers and cards. The Board found her explanation to be contrary
to country documents on Mexico
which indicate that a birth certificate is required to obtain a valid passport.
Further, the Applicant admitted that she did have a birth certificate with her
mother in Mexico, but had not
sent for it because counsel had instructed her not to. The Board concluded that
the passport, the only document adduced as to the Applicant’s identity, was not
genuine.
[7]
With respect to her allegations of abuse, the
Board found the following inconsistencies and contradictions in the Applicant’s
testimony:
(1) The psychological report submitted as
evidence explained that, as a result of the trauma caused by her
abusive experience with her common-law spouse, “she is quite adamant that she
will not engage in any sexual activities”, however, shortly after her arrival
in Canada on September 24, 2004, she entered into a common-law relationship
with another man for approximately one year. The Board indicated that the Applicant
was unable to provide an explanation for this inconsistency.
(2) The Applicant testified that she was severely
beaten and had an arm placed in a cast, however, the medical certificate
submitted as evidence indicated that she had suffered “multiples in both arms”
and pelvis, but made no mention of either arm specifically needing to be placed
in a cast. The Applicant was not able to provide an explanation for this
discrepancy.
[8]
The Board found that both inconsistencies taken
together rendered her story of physical abuse not credible.
[9]
With respect to state protection, the Applicant
had not rebutted the presumption that state protection is available in Mexico. The Applicant’s one attempt to file
a complaint was not sufficient in light of the other avenues for
protection available including the National Human Rights Commission, the
National Institute for Women, SACTEL (a 24 hour confidential hotline service
created for the citizens to make complaints about public servant misconduct),
or the General Comptroller’s Citizen Assistance directorate.
[10]
In support of its finding, the Board cited
documentary evidence indicating that the Mexican government is moving forward
with police reform, and investigating possible misconduct by federal officers
and government employees resulting in the issuance of warnings, reprimands,
suspensions, and dismissals.
[11]
The Board also indicated that there was strong evidence of the
government’s serious efforts at improving state protection for women. The
government set up various initiatives aimed at tackling the problem of violence
against women, including pursuing the adoption of new legislation on violence
against women in 15 states and the implementation of programs in 16 states to
combat such violence. Specifically, the UN Special Rapporteur on violence
against women reported that “[t]he Government of Mexico has taken significant
steps to prevent, punish, and eradicate violence against women with due
diligence.”
[12]
Finally, on the issue of the IFA, the Board was of the view that the Applicant
could move to other large cities, such as Guadalajara or Monterrey if she took
reasonable precautions such as not revealing her new address to relatives and
friends. The Board saw no serious possibility that the Applicant would be
tracked down by her ex-common-law spouse despite his employment with the AFI.
The Board evaluated the possibility that, as an AFI agent, he would be able to
track down the Applicant using electronic means on the basis of the Applicant’s
voter registration card but concluded, based on the record, that on a balance
of probabilities this would not occur. Further, given the Applicant’s
education and work experience as a waitress and sales person, the Applicant
would be able to settle in a new city in Mexico without undue hardship.
III. Issues
[13]
This application raises the following issues:
A.
Did the Board err in its credibility findings?
B.
Did the Board err in its state protection
analysis?
C.
Did the Board err in its IFA analysis?
IV. Standard
of Review
[14]
The Board’s conclusions in respect to its
credibility findings, state protection and internal flight alternative in Mexico available to the Applicant are all
reviewable against the standard of reasonableness. The degree of deference to
be afforded to each of these questions of mixed fact and law has already been
satisfactorily considered in the jurisprudence. See Dunsmuir v. New Brunswick, 2008 SCC 9, for the
standard of review generally; (Xu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1701, [2005] F.C.J. No. 2127 (QL), at para. 5; Asashi
v. Canada (Minister of Citizenship and Immigration), 2005 FC 102, [2005]
F.C.J. No. 129 (QL), at para. 6; Canada (Minister of Citizenship and
Immigration) v. Elbarnes, 2005 FC 70, [2005] F.C.J. No. 98 (QL), at para.
19), for credibility findings; Hinzman v. Canada (Minister of Citizenship
and Immigration), 2007 FCA 171, (2007), 362 N.R. 1 at
paragraph 38 (F.C.A.), for conclusion about the adequacy of state protection;
and (Hattou c. Canada (Ministre de la Cityonneté et de l’Immigration),
2008 FC 230, [2008] F.C.J. No. 275 (QL), at para. 12; Chorny v. Canada (Minister
of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No. 1263 (QL),
at para. 11), for conclusions relating to IFA.
[15]
In applying the reasonableness standard to the
Board’s findings, I must inquire “into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” (Dunsmuir, above, at para. 47).
V. Analysis
A. Did the Board err in its credibility findings?
[16]
In the present case, I find the Board’s
credibility findings to be unreasonable in the circumstances.
[17]
In rejecting the Applicant’s passport, her only
identity document, the Board relies on information which pertains to the
procurement of a Mexican passport abroad as opposed to within Mexico. The documentary evidence reveals
that when applying for a passport abroad a birth certificate is required.
However, there is no evidence on the record that indicates the process for
obtaining a passport in Mexico has
the same requirement. The decision to reject the passport establishing the
Applicant’s identity was therefore made on a misapprehension of the facts and without
regard to the evidence. Consequently, the Board erred in finding that the
Applicant had not established her identity.
[18]
With respect to the first of the two
contradictions in the Applicant’s testimony, I find that the Board ignored the
explanation offered by the Applicant. The Board referred to the psychologist’s
report which indicated that the Applicant did not want to engage in sexual
activities because of her traumatic experiences with her common-law spouse in Mexico and contrasted this with the fact
that she had been involved in a relationship with a man shortly after her
arrival in Canada. When faced
with this contradiction, the Applicant offered an explanation which I reproduce
from the transcripts of the hearing:
Member: I have
one question, because there’s something that bothers me.
In reading Dr.
Palowski’s report, he said, on page 4, that you will not engage in any sexual
activities.
Claimant: At
this moment.
Member: So, what
kind of relationship did you have with this man?
Claimant: No, what
I meant was, at that moment, now that I finish my relationship with this man, I
will not engage in any sexual activity until I feel better, until I cure
myself.
Member: Thank
you.
(p. 282,
Tribunal Record)
[19]
While this explanation was indeed offered at the
hearing, in its reasons, the Board indicated that “[s]he could not provide an
explanation for the inconsistency between the statement in the psychological
report and her common-law relationship with Mr. Ramirez.” The Board erred by stating
that no explanation was offered by the Applicant and by failing to address the
sufficiency of the Applicant’s explanation in its reasons. Its finding with
respect to the inconsistency is therefore unreasonable.
[20]
The second contradiction, noted by the Board
involved the Applicant’s statement that she needed a cast after being assaulted
by her common-law spouse while in Mexico and a medical report of the incident which did mention that the
Applicant had suffered “multiples in both arms” but did not refer to a cast being
required. Again, the Board found that the Applicant had failed to explain the
discrepancy. While no explanation was forthcoming, the Board did acknowledge
that this particular contradiction, on its own, would not suffice to render the
Applicant’s story of alleged abuse unbelievable. However, the Board went on to
indicate that when viewed together, the two contradictions justified its
finding of non-credibility.
[21]
In my view, the Board’s finding of a second
contradiction is also questionable in the circumstances. In any event, given my
determination that the Board’s finding with regard to the first inconsistency
is unreasonable, and considering the Board’s statement that it was the
cumulative effect of the two contradictions that rendered the Applicant’s story
not credible, it is not possible to ascertain what effect the erroneous finding
would have had on the Board’s analysis and on its ultimate credibility finding.
I therefore find that the Board’s credibility finding was made in error and is
reviewable. See Qalawi v. Canada (Minister of Citizenship and Immigration), 2007 FC 662, [2007] F.C.J. No. 904 (QL), at para. 17.
B.
Did the Board err in its state protection
analysis?
[22]
The Board relied on documentary evidence to conclude that, “as a
progressive democracy, Mexico can be said to be providing adequate though not
necessarily perfect state protection to its citizens.” The Board found that the
Applicant did not reasonably exhaust any course of action available to her
prior to seeking international protection. It concluded that state protection
is available to the Applicant in Mexico.
[23]
The Board stated that there is strong evidence of the government’s
serious efforts at improving state protection for women. These efforts included
the adoption of new legislation on violence against women, the implementation
of programs to combat such violence, and the creation of the women’s national
health program with the view to assisting victims of domestic violence.
[24]
The same documents relied on by the Board also evidence circumstances
that directly contradict its finding that protection was available to women in Mexico.
A careful review of the documents establishes that:
·
“Unbearably high levels of violence against women continue to
exist in Mexico, the government needs to do more to live up to its
international obligations. The responsiveness of the police and justice sectors
to gender-based violence remains inadequate overall and needs to be improved”;
(UN Rapporteur on violence against women);
·
Police corruption, inefficiency and lack of transparency continue
to be major problems in the justice system and many police officers are
involved in kidnapping and extortion;
·
While the federal government has made some efforts in corruption
awareness and prevention, the same cannot be said for enforcement and
prosecution;
·
Domestic violence is considered by many as a private matter; many
believe that sexism and even violence against women are part of the social
fabric and this mindset has led many men, including policemen, prosecutors,
judges and others in positions of authority, to underestimate the problem of
violence against women;
·
Women who are victims of domestic violence face numerous
obstacles when they attempt to report it.
[25]
The Board failed to explain its selective reliance on the documentary
evidence. It failed to deal with the above noted evidence that directly
contradicted its finding that protection was available for women in Mexico.
This evidence supports the Applicant’s testimony and directly contradicts the evidence
relied on by the Board to conclude that protection was available to the
Applicant in Mexico. The Board’s decision, concerning state protection, lacks
justification and intelligibility. It does not fall within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law. (See Dunsmuir at para. 47.) Consequently, the decision
with respect to state protection is unreasonable and must be set aside.
C.
Did the Board err in its IFA analysis?
[26]
The Board found that the Applicant had an IFA in
other large cities in Mexico, specifically, Guadalajara, West of Mexico City,
North East of Mexico City and Monterrey, provided she took reasonable
precautions and not reveal her new address to relatives and friends.
[27]
In determining the existence of an IFA, the
Federal Court of Appeal stated in Thirunavukkarasu v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 589, [1993] F.C.J. No.
1172 (QL), at para. 12 that:
…Thus, IFA must
be sought, if it is not unreasonable to do so, in the circumstances of the
individual claimant. This test is a flexible one that takes into account the
particular situation of the claimant and the particular country involved.
This is an objective test and the onus of proof rests on the claimant on this
issue, just as it does with all the other aspects of a refugee claim.
Consequently, if there is a safe haven for claimants in their own country,
where they would be free of persecution, they are expected to avail themselves
of it unless they can show that it is objectively unreasonable for them to do
so. [My emphasis.]
[28]
The Court further held that an IFA cannot be
speculative or theoretical but rather it must be a realistic and attainable
option; “…The claimant cannot be required to encounter greater physical danger
or to undergo undue hardship in travelling there or in staying there.” (Thirunavukkarasu,
above, at para. 14). The Court stated that individuals should not be forced to
hide out in isolated areas of the country, but “… neither is it enough for
refugee claimants to say that they do not like the weather in a safe area, or
that they have no friends or relatives there, or that they may not be able to
find suitable work there…” (Thirunavukkarasu, above, at para. 14)
[29]
The Applicant’s evidence is that she did
relocate to Queretaro in 2004,
but was tracked down by her common-law spouse, a trained police interrogator,
who assaulted the Applicant’s mother, and forced her to disclose the Applicant’s
new location. The Board did not expressly address these circumstances in
considering the IFA in its reasons. But the Board did qualify its finding by
stating that an IFA existed for the Applicant in Mexico, provided she took reasonable precautions and not reveal her new
location to relatives and friends. Not to be able to share your whereabouts
with family or friends is tantamount to requiring the Applicant to go into
hiding. It is also an implicit recognition that even in these large cities, the
Applicant is not beyond her common-law spouse’s reach. In these particular
circumstances, this cannot constitute an IFA for the Applicant. The Board’s finding of an IFA does not fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law in the circumstances. As a result, the decision with respect to an IFA is
unreasonable and must be set aside.
IV. Conclusion
[30]
For these reasons, the application for judicial
review will be allowed. Counsel posed no question for certification, and I
agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is
allowed and the decision of the Refugee Protection Division dated April 25,
2007, is hereby set aside.
2. The matter is remitted for redetermination by
a differently constituted panel of the Refugee Protection Division.
3. No
question of general importance is certified.
“Edmond P.
Blanchard”
Email this Content