Date: 20080702
Docket: IMM-3106-07
Citation: 2008
FC 822
Ottawa, Ontario, July 2, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
JANNET
PACASUM (a.k.a. Jannet Basco Pacasum)
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division (the tribunal), rendered on June 20, 2007, which concluded that the
applicant was not a Convention refugee or a person in need of protection. The
tribunal member found the applicant to be credible but concluded that she did
not rebut the presumption of state protection. Despite counsel for the
applicant’s able arguments, I have come to the conclusion that this application
must be dismissed for the following reasons.
I. Facts
[2]
The
applicant is a Catholic citizen of Philippines.
She conceived a child at the age of 18 years old with her Muslim boyfriend
named Edgar Pacasum. As a result of this pregnancy, and upon the insistence of
the applicant’s parents, they got married on June 12, 1994. The couple had a
second child in 1996.
[3]
The
applicant claimed she was unaware that the Muslim tradition allows men to have
more than one wife at the same time. She eventually found out that her husband
was seeing another woman. More than once, she confronted her husband with his
affair, only to be beaten as a result.
[4]
On
February 15, 2002, the applicant reported the physical abuse to the police and
the officials who told her to call them in the event of another violent
episode. Her husband told her that he would take the children away and that she
would never see them again if she reported him to the police again.
[5]
The
applicant and her husband separated for several months but eventually got back
together. In October of 2002, she went into hiding with her children in Cebu;
her husband followed them and pleaded with them to return home, which they did
after the children convinced their mother to go back to Manila.
[6]
On
December 12, 2002, the applicant sought medical attention at Quirino Medical Hospital following a violent episode. She
again reported the beating to the police.
[7]
On another
occasion the applicant was raped by her husband, as a result of which she
became pregnant and gave birth to their daughter on December 14, 2003. Her
situation got worse when she learned that her husband intended to take a second
wife.
[8]
On March
13, 2005, the applicant again went into hiding with her children in the Iloilo Province but her husband
found them and forced them to go back to Manila. The children’s nanny informed her that
her husband had been living with the woman with whom he was having an affair.
[9]
In June
2005, the applicant’s husband learned that the applicant had asked her parents
for money in order to send their children to school, and he beat her again. The
applicant claims that she was beaten almost every day. By August 2005, her
husband had begun to spend most of his time with the other woman and usually
came back home only two or three times a week.
[10]
In October
2005, the applicant’s in-laws asked permission to have the children for a week
and she agreed. When she went to fetch her children at her in-laws’ house, they
were not there anymore. On October 26, 2005, she reported the kidnapping to the
police.
[11]
The
applicant noticed several suspicious incidents; she believed that her husband’s
family hired people to park in front of her house. Her husband’s family is
wealthy and powerful in Mindanao.
[12]
On
February 2, 2006, she came to Canada in order to regain her
strength and to start a new life before she starts searching for her children
again. She claimed for refugee protection on May 18, 2006. The tribunal member
rejected her claim on June 20, 2007 and the applicant asks the Court to review
this decision.
II. The impugned decision
[13]
The
tribunal member concluded that the applicant is not a Convention refugee or a
person in need of protection as she failed to rebut the presumption of state
protection. Although the tribunal member acknowledged that the applicant was a
victim of domestic violence and that domestic violence is still a serious
problem in the Philippines, she pointed out that a state
does not have to provide perfect protection to its citizens. She concluded that
state protection would be available to the applicant in the event that she
would be subjected to domestic violence in the future.
[14]
The
tribunal member noted the serious steps taken by the Philippines in regard to issue of domestic violence
in the last years; the 2004 Anti-Violence Act against Women and Children was
adopted; harm or abuse to women and their children is now criminalized; rape is
a capital offence; and, protection orders are available.
[15]
Although
the applicant denounced her husband to the police on two occasions, the
tribunal member pointed out that she was advised to contact the police if the violence
continued and was referred to the Philippines National Police (PNP) Women in
Crisis Help and Info Desk. Thus she was not ignored by the police. Furthermore,
the tribunal member noted that the police report dated December 2, 2002 showed
that the applicant refused to divulge her husband’s whereabouts and claimed
that the incident was a conjugal argument. She concluded that there was no
indication of a lack of protection by the state.
[16]
After
quoting at length from the U.S. Department of State Country Report on Human
Rights Practices, the tribunal member stated that she assigned a greater value
to the objective evidence than to the applicant’s testimony in regard to the
availability of state protection. She concluded that the applicant had failed
to rebut the presumption of state protection.
II. Issues
[17]
The only
issue to be determined is whether the tribunal member erred in concluding that
state protection was available to the applicant in the Philippines.
[18]
The
standard of review applicable to issues of state protection has been determined
by this Court to be reasonableness: see Chaves v. Canada (MCI),
2005 FC 193, 45 Imm. L.R. (3d) 58. This standard has been confirmed by the
Federal Court of Appeal in Hinzman v. Canada (MCI), 2007 FCA 171,
at par. 38, 282 D.L.R. (4th) 413 (Hinzman) and has not been modified by
the recent decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, 164 A.C.W.S.
(3d) 727 (Dunsmuir). The adequacy of state protection raises questions
of mixed fact and law, and must therefore attract a good measure of deference. A
reviewing court will not intervene if the decision
falls “within a range of acceptable outcomes, which are defensible in respect
of the facts and law”: see Dunsmuir at par. 47.
IV.
Analysis
[19]
The issue
of state protection has been canvassed on a number of occasions by this Court
and by the Federal Court of Appeal, as well as by the Supreme Court of Canada
in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689 (QL) (Ward).
Absent a situation of complete breakdown of the state apparatus, there is a
presumption that a state is able to protect its citizens. To rebut this
presumption, an applicant must adduce clear and convincing evidence of the
state’s inability to protect him or her. My colleague Justice Layden-Stevenson
aptly summarized the applicable principles in B.R. v. Canada (MCI), 2006
FC 269, at par. 20, 53 Imm. L.R. (3d) 229:
Absent a situation of complete
breakdown of state apparatus, it is generally presumed that a state is able to
protect its citizens. This presumption serves to reinforce the underlying
rationale of international protection as a surrogate, coming into play where no
alternative remains to the claimant. Refugee claimants must present clear and
convincing confirmation of a state's inability to protect them in order to
rebut the presumption that states are capable of protecting their citizens: Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689. State protection cannot be
held to a standard of perfection but it must be adequate. It is not enough to
show that a government has not always been effective in protecting persons in a
claimant's particular situation. However, where the state is so weak and its
control is so tenuous as to make it a government in name only, it may be
justifiable to claim an inability to obtain state protection: Canada
(Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R.
(4th) 334 (F.C.A.) leave to appeal dismissed, [1993] S.C.C.A. No. 76.
[20]
The
applicant is no doubt correct in stating that a state’s ability to protect its
citizens must be assessed not only by looking at the legislative and procedural
framework in place, but also the capacity and the will to effectively implement
that framework: see, for ex. Elcock v. Canada (MCI) (1999), 175
F.T.R. 116, 91 A.C.W.S. (3d) 820; Mitchell v. Canada (MCI), 2006
FC 133, 51 Imm. L.R. (3d) 159; Franklyn v. Canada (MCI), 2005 FC 1249, 142 A.C.W.S. (3d) 308.
That being said, the test must not be set so high that it would virtually be
impossible to meet even in the most developed democracies like Canada. As Justice Gibson said in Smirnov
v. Canada (Secretary of State), [1995] 1 F.C. 780 (T.D.), at
par. 11, 52 A.C.W.S. (3d) 398:
With great respect, I conclude
that Madam Justice Tremblay-Lamer sets too high a standard for state
protection, a standard that would, in many circumstances, be difficult to
attain even in this country. It is a reality of modern-day life that protection
offered is sometimes ineffective. Many incidents of harassment and/or
discrimination can be effected in a manner that renders effective investigation
and protection very difficult. The use of unsigned correspondence that does not
identify its source and of random telephone communications where the caller
does not identify himself or herself are examples. A single incident of
defacement of property is another. The applicants suffered from these types of
incidents and received no satisfaction when they reported them to the militia
or police. Random assaults, such as those suffered by the applicants, where the
assailants are unknown to the victim and there are no independent witnesses are
also difficult to effectively investigate and protect against. In all such
circumstances, even the most effective, well-resourced and highly motivated
police forces will have difficulty providing effective protection. This Court
should not impose on other states a standard of "effective"
protection that police forces in our own country, regrettably, sometimes only
aspire to.
See also: Ferguson v. Canada (MCI), 2002
FCT 1212, 118 A.C.W.S. (3d) 702; Malik v. Canada (MCI), 2004 FC
189, 129 A.C.W.S. (3d) 161; Danquah v. Canada (MCI), 2003 FC 832,
124 A.C.W.S. (3d) 553; Syed v. Canada (MCI) (2000), 195 F.T.R. 39,
100 A.C.W.S. (3d) 471.
[21]
More
recently, the Federal Court of Appeal undertook a careful reading of Ward
and confirmed that a refugee claimant coming
from a democratic country “will have a heavy burden when attempting to show
that he should not have been required to exhaust all of the recourses available
to him domestically before claiming refugee status ”: Hinzman, at
par. 57.
[22]
Even more
recently, the Federal Court of Appeal was again asked to answer a certified
question with respect to state protection, in the context of a refugee claim
based on spousal violence (The Minister of Citizenship and Immigration
v. Carrillo, 2008 FCA 94). Writing for the Court, Justice Létourneau
first mentioned that an applicant bears both an evidentiary and a legal burden.
In other words, the applicant must not only introduce evidence of inadequate
state protection (the evidentiary burden), but must also convince the trier of
fact that the evidence adduced establishes the inadequacy of the state
protection (the legal burden). While the burden of proof is the usual balance
of probabilities standard applicable to rebuttals of presumption in
administrative and civil matters, the quality of the evidence adduced to meet
that burden will have to be of a high standard if, as stated in Ward,
the “presumption serves to reinforce the underlying rationale of international
protection as a surrogate, coming into play where no alternative remains to the
claimant” (at par. 51). Accordingly, the evidence adduced will not only have to
be reliable, but also have probative value.
[23]
In the
case at bar, the applicant contends that the tribunal erred by failing to
consider the applicant’s accounts of incidents where state protection did not
materialize. The applicant provided two police reports to the Tribunal, but
these reports were found not to indicate a lack of protection. The applicant
stated that although her case was referred to the PNP Women in Crisis Help and
Info Desk, she did not receive any assistance and was told to wait since there
were other cases before her case.
[24]
However, a
careful reading of the decision reveals that the tribunal did consider the
police reports. The first of these reports, dated February 15, 2002, indicates that
the applicant reported the physical abuse she had suffered at the hands of her
husband, and that she was advised to contact the police and the station if another
incident of violence occurred. She was also referred to PNP Women in Crisis
Help and Info Desk. According to the tribunal, this was an indication that the
applicant was not ignored by the authorities.
[25]
As to the
second report, dated December 2, 2002, it appears the applicant refused to divulge
the whereabouts of her husband and claimed the incident was an argument between
husband and wife. Again, the applicant, her family and accompanying friends
were advised to contact police and the station should the abuse continue, and were
again referred to PNP Women in Crisis Help and Info Desk. Once more, the panel
was of the view that this did not demonstrate a lack of protection on the part
of the authorities.
[26]
I am
unable to conclude that it was unreasonable for the tribunal to find that the
applicant failed to rebut the presumption of state protection with clear and
convincing evidence. There may well have been delays in processing the
applicant’s case at the NGO established at the police station, but this is a
far cry from saying that the applicant’s claim was ignored. Moreover, the
police explicitly told the applicant and her family to come back to the station
if ever there were other instances of domestic violence. Finally, the applicant
herself seemed to have been of two minds on December 2, 2002, when she
complained to the police but refused to give the whereabouts of her husband. The
report shows that, despite the applicant’s reticence, the husband was contacted
by police investigators. This is clearly not illustrative of an unwillingness
on the part of the police to follow up on the applicant’s complaint and as
such, this case can be easily distinguished from previous cases where an
applicant had been rebuffed or ignored by the authorities.
[27]
As this
Court has said time and again, the police cannot be expected to offer effective
protection, especially in a case of domestic violence, when the applicant
herself is not prepared to cooperate. Some crimes are obviously more difficult
to prosecute successfully, and absent a clear and systemic failure, incapacity
or refusal of the authorities to investigate and press charges, we should
hesitate before finding that the state is incapable of protecting its citizens.
[28]
Ultimately,
it is not the task of this Court to determine whether it would have come to the
same conclusion as the tribunal, but rather to consider whether the decision
falls within a range of acceptable outcomes in light of the facts and of the
law. Not only was the tribunal entitled to find that the evidence submitted by
the applicant to rebut the presumption of state protection was not convincing,
but its assessment was bolstered by the documentary evidence that was
submitted. After perusing that evidence, the tribunal recognized that domestic
violence is still a serious problem in the Philippines and that state protection may not be
perfect. The panel found, however, that the Philippines are a functioning democracy, and that
major steps have been taken to address the issue of domestic violence,
including the 2004 Anti-Violence Act Against Women and Children. This statute
criminalizes physical, sexual and psychological harm or abuse to woman and
their children by their spouses or partners, provides for the death penalty in
cases of rape, and makes protection orders available. While this Act, in and of
itself, would be insufficient to conclude that the Philippines do effectively protect women in the
situation of the applicant, there is evidence suggesting that it is actually
implemented. The U.S. DOS Report of 2006, quoted by the tribunal, indicates
that during that year, the PNP reported 818 cases under this new law and 2,015
other cases of wife battering and physical injuries under older laws. This same
report also shows that there is a large network of NGO’s able to provide
support to the victims, and offering gender sensitivity training to deal with
victims of sexual crimes and domestic violence. On this basis, the tribunal
could reasonably find that the applicant did not rebut the presumption of state
protection, and it is not for this Court to reweigh the evidence that was
before the tribunal.
[29]
Finally,
the applicant argued that the tribunal failed to provide any rationale for
preferring the documentary evidence over the applicant’s testimony. I agree
that it would be objectionable to state that documentary evidence should always
be preferred to that of a refugee claimant because the latter is interested in
the outcome of the hearing (see Coitinho v. Canada (MCI), 2004 FC
1037, 132 A.C.W.S. (3d) 1154), especially when the applicant was found to be
credible (see Ramsaywack v. Canada (MCI), 2005 FC 781, 46 Imm.
L.R. (3d) 249). However. it is also true that an applicant’s account cannot be wholly
determinative. One must look at the overall picture to determine if it was
reasonable to expect an applicant to seek state protection. In performing that
assessment, the tribunal is entitled to rely on and prefer documentary evidence
to that of a claimant: Zvonov v. Canada (MCI) (1994), 83 F.T.R. 138
(T.D.), 28 Imm. L.R. (2d) 23; Zhou v. Canada (MEI) (1994), 49 A.C.W.S. (3d) 558, [1994]
F.C.J. No. 1087 (F.C.A.) (QL). In the case at bar, the tribunal found that the
documentary evidence was from a variety of reliable and independent sources,
none of which had any vested interest in whether or not the applicant is
determined to be a Convention refugee. Moreover, the applicant’s experiences
predated the enactment of the new legislation in 2004. On those bases, the
tribunal could prefer the documentary evidence to that of the applicant.
[30]
For all
these reasons, I would therefore dismiss this application for judicial review.
ORDER
THIS COURT ORDERS that the application for judicial
review is dismissed.
.
"Yves
de Montigny"
Email this Content