Date: 20080416
Docket: IMM-3471-07
Citation: 2008 FC 490
Ottawa, Ontario, April 16,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MARIA GUADALUPE MIRON GUZMAN
MARCOS FERNANDO SOLIS MIRON
FERNANDA LORENA MIRON GUZMAN
MARIA
GUADALUPE MIRON GUZMAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant’s request for judicial review questions whether the Refugee
Protection Division (RPD) failed to consider the actual effectiveness of state
protection in Mexico both in
respect of domestic abuse generally and in respect of the Applicant in
particular.
II. BACKGROUND
[2]
The
Applicant and her children lived with the Applicant’s common-law partner, over
which time the physical, emotional and verbal abuse were said to have occurred.
[3]
Following
incidents of abuse, beatings, insults and choking, the Applicant said that she
complained to the authorities. One incident occurred in 2000 but the complaint
was filed in 2004. After that, the Applicant continued to live with her
partner.
[4]
Following
an incident in 2004 where the Applicant was required to wear a neck brace for
three months, the Applicant’s complaint resulted in her receiving legal
assistance, psychological counselling, and assistance with her custody battle.
The partner was summoned to the Sub-Attorney General’s Office for the Service
of Victims of Crime and Services to the Community - Centre for the Attention on
Family Violence (CAVI). The partner did not appear at CAVI when summoned and
the Applicant was told that nothing further could be done.
[5]
As
a result of the 2005 incident, a police report was made out. The Applicant
moved from the partner for a brief time but resumed cohabitation. She did not
know and did not follow up on whether criminal proceedings were instituted.
[6]
The
Applicant moved out finally in August 2006 and came to Canada on a
visitor’s visa.
[7]
The
RPD agreed that the Applicant was a victim of domestic abuse but concluded that
she had not shown that state protection was not available. The RPD found that
action was taken each time the Applicant went to the authorities, whether it
was securing legal and psychological assistance, ensuring filing for financial
support and assuring that she obtained custody of the children.
[8]
The
RPD held that the presumption of state protection applied to Mexico, a country
with a functioning democracy, and that the Applicant had not provided “clear
and convincing” evidence to rebut that presumption.
[9]
The
RPD recognized that there were areas of protection of abused women that needed
improvement but that the Federal District of Mexico City had taken great
strides in securing protection. The RPD relied on documentation that set forth
the legislative framework, the efforts made to implement protection, as well as
the regulatory and practical regime for protection. The RPD assigned greater
probative value to this documentary evidence than to the Applicant’s testimony
about the lack of protection.
III. ANALYSIS
[10]
As
a result of the decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
this Court’s jurisprudence on the standard of review for state protection will
coalesce around reasonableness except in respect of issues of law and
procedural fairness.
[11]
The
Applicant’s position is that RPD failed to address the gap that exists between
Mexican state protection in principle and state protection in practice, and
failed to consider the evidence, in the documents relied on, which contradicted
the presumption of state protection.
[12]
This
Court, in numerous cases, has held the presumption that state protection
generally exists in Mexico (De La Rosa v. Canada (Minister of
Citizenship and Immigration), 2008 FC 83; Ortiz Juarez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 288). The RPD’s starting premise
that such protection exists was reasonable.
[13]
The
RPD was clearly aware that there were issues, both systemically and
individually, with state protection. Most particularly, the RPD focused on the
Federal District of Mexico City, where the Applicant lived, and noted that this
area had functioning state protection. The RPD recognized that other states in Mexico did not have
as developed a system of protection.
[14]
Therefore,
on a general level, the RPD addressed the gaps or inconsistencies in Mexican
state protection – a matter referred to in the documentation relied upon. In
that regard, this RPD decision can be distinguished from my decision in Gontijo
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 962.
[15]
The
Applicant was required, in accordance with the decision in Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, to put forward clear and
convincing evidence that state protection was not available to her. Aside from
the presumption of state protection, and the actions of state authorities which
the Applicant said were helpful but did not address the actual experience and
fear, the Applicant could not establish that the police refused or were unable
to investigate her complaint. Her evidence is less than clear and convincing.
[16]
It
is open to the RPD to find as it did. The decision was reasonable in all the
circumstances.
IV. CONCLUSION
[17]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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