Date: 20080603
Docket: IMM-4647-07
Citation: 2008 FC 696
Toronto, Ontario, June 3,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ABIGAIL VIDAL SANCHEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is
an application for judicial review made pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act) of a decision by the Refugee Protection Division of the Immigration
and Refugee Board (the Board) dated October 19, 2007, wherein the applicant was
found not to be “Convention refugee” nor a “person in need of protection” under
sections 96 and 97 of the Act.
I. Facts
[2]
A
citizen of Mexico, the applicant lived in and
around Mexico City (the Federal
District) until
some time in 2006. Upon her arrival in Canada, on August 22, 2006, the
applicant claimed refugee status on the basis that she was a “person in need of protection” because of the threats of her
former common-law partner, Israel Mena Bautista (Israel).
[3]
The
applicant alleges that she entered into a common-law relationship with Israel in December 2001, and that
this relationship became physically and emotionally abusive before ending in
approximately August 2002. She then entered into a common law relationship with
another man and had a daughter. However, she did not completely exclude Israel from her life, and his
continued involvement strained that relationship to the breaking point by
August of 2004. The applicant gave Israel
another chance in January of 2005, and he quickly became very possessive.
[4]
Finally,
in April 2006, Israel raped the applicant in her
home, but she did not report it to the police. Instead, she left for Veracruz where she lived with family
members and obtained employment. By July 2006, however, Israel had found the applicant and
allegedly threatened her. The applicant again decided against going to the
police, and instead chose to flee the country.
[5]
The
applicant claims
that she did not approach the police for protection because Israel had some connection with the
Judicial Police through a friend. Additionally, she believes the Mexican police
to be pervasively corrupt because of how she was treated following a mugging,
and claims that they did not help when her mother was the victim of domestic
violence.
II. The Impugned Decision
[6]
The
Board rejected
the applicant’s claim on the basis that she had an Internal Flight Alternative
(IFA) in the Federal
District. In
reaching this conclusion, the Board refers to the documentary evidence which
indicated the following:
·
the
legislative framework for addressing acts of violence against women is complex,
multi-layered and differs from state to state;
·
the
Federal District has a broad range of legislation criminalizing domestic
violence and sexual abuse, including within common-law relationships, and which
include sanctions for family violence of six months to four years;
·
there is a
national health regulation that requires health centres to record domestic
violence complaints with the purpose of ensuring medical staff recognize and
report family violence to the authorities who can notify victims of their right
to file a criminal complaint;
·
that
statistics show that individuals do avail themselves of government services,
such as the Domestic Violence Assistance Centre that offers comprehensive
services and which refer women to shelters and assist women in filing
complaints.
The last two points are specifically referenced in regard to
the effectiveness of protection efforts in the Federal District.
[7]
With
respect to the fact that the applicant did not approach the police, the Board
states that there is no persuasive evidence that Israel’s “friend” in the Judicial Police have
the capacity to prevent the applicant from obtaining protection. Nor is there
any evidence that he is engaged in “any illegal way” with the applicant during
a period when she was separated from Israel.
However, even if there was such evidence, the Board states that the applicant
could still file a complaint against him with the Federal Attorney General.
[8]
The Board
also deals with the applicant’s mugging. The Board notes that the mugger was
arrested, that the applicant made a denunciation, that she was represented by
duty counsel, that the matter was brought before a judge, and that the mugger
was released after he paid what the applicant specifically referred to as a
“bail”. The Board holds this up as an example of state protection, and suggests
that criminal procedure was followed even if the claimant is not satisfied with
the result.
[9]
The
Board concludes
that while there are still serious problems with violence towards women in
Mexico, the documentary evidence indicates that the Federal District authorities are making a serious effort
to fight it and that it would be reasonable for the claimant to approach them
if she felt at risk. The Board then refers to some jurisprudence on state
protection and finds that the applicant has not rebutted the presumption of
state protection. Because of that, the Board finds that she has an IFA in the
Federal District and concludes that it would not be unduly harsh for her to
relocate to Federal District as she had lived there for seventeen years, was
able to find work in Veracruz when she moved there, and there is no persuasive
evidence before it that she would not be able to find employment and a place to
live.
III. Issue
[10]
The
only real issue
in this case is whether or not the Board erred in its determination that the
applicant had an IFA on the basis that state protection was available in the
Federal District.
IV. Standard of Review
[11]
The
Board’s
conclusion on the adequacy of state protection is a question of mixed fact and
law reviewable on a standard of reasonableness (See Mendoza v. Canada (Minister
of Citizenship and Immigration), [2008] F.C.J. No.481 at paragraph 11
which references both Hinzman v. Canada (Minister
of Citizenship and Immigration) (2007), 362 N.R. 1 at
paragraph 38 (F.C.A.), and Dunsmuir v. New Brunswick,
2008 SCC 9 at paragraphs 55, 57, 62, and 64). Further, the Board’s
determination on the IFA should also be reviewed on the reasonableness standard
(Khokhar v. Canada (Minister
of Citizenship and Immigration), 2008 FC 449 at paragraph 22).
[12]
As noted in Mendoza, reasonableness
requires consideration of the existence of justification, transparency, and
intelligibility in the decision-making process. It is also concerned with
whether the decision falls within a range of acceptable outcomes that are
defensible in respect of the facts and law. (See Dunsmuir
at paragraph 47).
V. Analysis
[13]
In
the present case,
the Board determines that the applicant has an IFA in the Federal District. However, in reaching that
conclusion, the Board finds that the applicant had not rebutted the presumption
of state protection. Given that the applicant’s challenge is primarily mounted
against the Board’s findings on state protection, that finding must be dealt
with.
[14]
The
applicant has
attempted to argue that the Board errs because it fails to consider
contradictory evidence, and fails to consider the effectiveness and immediacy
of the police reaction in its determination on state protection.
[15]
It
is true that a
decision-maker should refer
to evidence that contradicts its conclusions, and that the Court could infer
that an erroneous finding of fact was made from “a failure 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, at para. 15). On the other hand, “the reasons given by
administrative agencies, (such as the Board here), are not to be read
hypercritically by a court”, nor are these tribunals required to refer to every
piece of evidence that they received (Cepeda-Gutierrez, above,
at
paragraph 16).
[16]
It
is
also true that the effectiveness of the mechanisms of state protection must be
evaluated. Lopez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1341
deals with this concept.
[17]
However,
it must also be remembered that there is a presumption of state protection,
especially in a democratic state. This presumption has been accepted numerous
times in this court (De La Rosa v. Canada (Minister
of Citizenship and Immigration), 2008 FC 83, Santos v. Canada
(Minister of Citizenship and Immigration), 2007 FC
793; Lazcano v. Canada (Minister
of Citizenship and Immigration), [2007] F.C.J. No. 1630, Baldomino v. Canada (Minister
of Citizenship and Immigration), [2007] F.C.J. No. 1638). The
applicant has the burden of rebutting that presumption.
[18]
The
applicant has only pointed to one piece of evidence that speaks specifically to
the Federal District that would demonstrate that the Board’s conclusions were
incorrect: a
passage in the March 2003 document Mexico: Domestic Violence and Other
Issues Related to the Status of Women (March 2003 Document) that mentions
that there are shortcomings in Family Violence Assistance and Prevention Law
(which had been in force since 1996). The other documentary evidence that the
applicant has referred to deals with drug trafficking and organized crime and
is of limited value in attacking the Board’s findings in this particular case.
[19]
Despite
this one passage, it is clear that the Board considers in its decision the
effectiveness of state protection and, on a general level, addressed
the gaps or inconsistencies in Mexican state protection.
[20]
The
Board recognizes
also that the documentary evidence shows that the Federal District
must be distinguished from the generalized information about Mexico, and that
the legislative framework differs from state to state. In the documentary
evidence that was before the Board, the Federal District is referred to
separately from other states with regard to domestic violence, and its legislative and institutional
framework – as well as some information about its implementation – is dealt
with. While the information regarding the “effectiveness” of the serious effort
to deal with domestic violence in the Federal District is limited, it does not contradict the Board’s findings.
The Board notes that there are serious problems regarding domestic violence in
Mexico, but that the authorities in the Federal District were making serious efforts to deal with
the violence. This is supported in the documentary evidence that was before the
Board in this case. The applicant simply overstates the amount and strength of the
contradictory documentary evidence on the Federal District that was before the
Board when it made its decision.
[21]
In accordance
with the decision in Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, the applicant was required to put forward
clear and convincing evidence that state protection is not available to her.
The applicant admits that she never even asked the police for help with Israel. She offers reasons why she did not
approach the police, but those are dealt with and rejected by the Board. At
best, the applicant has only been able to offer up the suggestion that her
mother was not helped by the police at some point in the past. The applicant
has simply not established that the police refused or were unable to
investigate her complaint.
[22]
However, this still leaves the
question of the reasonableness of the Board’s finding that the applicant has an
IFA. The test for this can be found, reformulated, at paragraph 20 of Kumar v. Canada (Minister of Citizenship and
Immigration), 2004 FC 601:
In order for the Board to find that a
viable and safe IFA exists for the applicant, the following two-pronged test,
as established and applied in Rasaratnam v. Canada (Minister of Employment
and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunaukkarasu,
[1994] 1 F.C. 589 (C.A.), must be applied:
(1) The Board must be satisfied on a
balance of probabilities that there is no serious possibility of the claimant
being persecuted in the proposed IFA; and
(2) Conditions of the proposed IFA must
be such that it would not be unreasonable, upon consideration of all the
circumstances, including consideration of a claimant’s personal circumstances,
for the claimant to seek refuge there.
[23]
Given the above, the Board’s decision on the
first part of the test is reasonable in that it is logical and one of the
possible acceptable outcomes based on the evidence.
[24]
As
far as the second prong of the test, the applicant advanced only the argument
that it would be unduly harsh for the applicant to return to the Federal
District because of the proximity of Israel and given her
unspecified particular circumstances.
[25]
The Board
here takes note of the fact that the applicant was able to find employment and
residence when she moved away from the Mexico City area, and that she lived in the City for
many years, went to school there, and had family there. The applicant has
suggested no other specific personal circumstance other than the fact that Israel lives nearby.
[26]
While the Board does not
specifically deal with this fact in the section about the second prong of the
IFA test, however the Board does effectively deal with it under the state
protection finding. There the Board makes it clear that the applicant can
approach the state for protection from Israel, if he ever threatens her while she is
in the Federal District. This Court sees no reason to disturb this conclusion.
[27]
On the
overall the applicant has failed to show that the impugned decision is unreasonable and
falls outside the range of acceptable outcomes which are defensible in respect
of the facts and law.
And therefore this application for judicial review will be dismissed.
[28]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE FOREGOING REASONS THIS COURT dismisses the
application.
“Maurice E. Lagacé”
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