Date: 20080724
Docket: IMM-3079-07
Citation: 2008 FC 901
Ottawa, Ontario, July 24,
2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
Carolina Martinez Klemp
Applicant
and
The
Minister of Citizenship and Immigration
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Carolina
Martinez Klemp (the Applicant), seeks Judicial Review pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27
(the Act) of a decision of the Immigration and Refugee Board, Refugee
Protection Division dated July 9, 2007 (the Decision) wherein it determined the
Applicant was not a Convention Refugee or a person in need of protection.
BACKGROUND
[2]
The
Applicant was born on August 7, 1979 in Mexico City, Mexico. She
had twelve years of education, had never travelled outside Mexico and was 28
years old at the time of the hearing. There was no evidence that she had any
psychological difficulties.
[3]
In
January 1999, one of the Applicant’s uncles was kidnapped and held for three
months. Shortly after he returned, he approached authorities to report the
crime. Several weeks later he was found murdered two blocks from the
Applicant’s family home. The Applicant’s perception was that the Police took no
action to protect her uncle.
[4]
The
Applicant alleged that her father, an accountant, had been involved in illegal
gas sales and money laundering with Javier Quiroz Macias (Macias), his
brother-in-law from a former marriage. She alleged that Macias is a boss in
organized crime and therefore has the power to bribe Judges and Police. At some
point Macias and her father had a falling out and Macias retaliated against her
father and her family in various ways.
[5]
For
example, Macias allegedly bribed a Judge and an actuary to put a quick end to
an eight year legal battle over possession of the Applicant’s family home. In
September 2004, Police evicted the Applicant and her family. The Applicant’s
perception was that the Police acted in a corrupt manner and were in the pay of
Macias.
[6]
In
February 2005, the Applicant says her father was kidnapped by Macias and jailed
in a prison in the state of Puebla. The Applicant alleged that her father
told her that the State Police and Judges in that state were being bribed by
Macias. Her father was sentenced to seven years imprisonment but was released
in November 2006 following a successful appeal.
[7]
The
Applicant claims that on May 9, 2006, she was approached by a man she did not
know who grabbed her and tried to persuade her to become a prostitute. The
Applicant escaped and did not report the incident to the Police.
[8]
The
Applicant further alleges that on May 23, 2006, she was grabbed by several men
and dragged into a large white car. One of the men told her that he had been
responsible for putting her father in prison and asked whether she had
considered becoming a prostitute. She assumed that he was Macias. The Applicant
alleges she was beaten, threatened with a gun, sexually assaulted and forced to
perform oral sex on the men in the car. She was released when she agreed to
take an HIV test so that she could start working as a prostitute.
[9]
The
Applicant told her family about the incident but did not report it to the Police.
[10]
The
Applicant was not further harassed by Macias or his associates. However, she
claimed that this was because she was escorted by her brother when travelling
to and from work. She mentioned at the hearing that either Macias or his
associates followed her on occasion.
[11]
On
May 24, 2006, the Applicant asked her family for help to purchase a plane
ticket but they were unable to pay for one until July 25, 2006.
[12]
On
July 25, 2006, the Applicant fled to Canada and on September 18,
2006, she claimed refugee status.
THE DECISION
[13]
The
Decision turned on the issue of state protection. The Applicant testified at
the hearing that, in her opinion based on her family’s experience, the Police
were corrupt. She had no expectation that they would pay attention to her
problem and investigate and arrest Macias and others responsible for sexually
assaulting her and trying to force her into prostitution. It is noteworthy that
the Applicant did not testify that she feared the Police. She just thought it
would be pointless to approach them because they hadn’t “paid attention” when
her uncle complained before his murder, when her family was evicted, or when
her father was improperly imprisoned.
[14]
The
Board correctly state the issue as follows:
The issue is whether the government of Mexico is making serious efforts to
provide adequate protection to individuals in the claimant’s situation in Mexico.
[15]
The
Decision turned on the fact that the Applicant never approached the Police and
on the Board’s conclusion, relying on the Supreme Court of Canada in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724, which states that
“the claimant will not meet the definition of ‘Convention refugee’ where it is
objectively unreasonable for the claimant not to have sought the protection of
his home authorities”.
[16]
The
Board quoted extensively from documentary evidence dealing with Police
corruption and methods for filing complaints against authorities and concluded
that adequate state protection is available in Mexico.
[17]
In
reaching this conclusion, the Board said:
The panel assigns far greater probative
value to the documentary evidence than to the testimony of the claimant with
regard to the availability of state protection in Mexico. In this regard, the panel takes
guidance from the case law in Edomsky, which stands for the proposition
that the Board can prefer the objective documentary evidence to the subjective
testimony of claimants. The documentary evidence cited herein is drawn from a
variety of reliable and independent sources, none of which can have any vested
interest in whether or not the claimants are determined to be Convention
refugees. To that extent they are free of bias.
THE ISSUES
[18]
The
Applicant’s principal criticism is that the Board failed to recognize the
gender basis of the claim. The Board analyzed the issue of state protection
only from the perspective of Police corruption rather than considering as well
the potential for harm from Macias which was the fear expressed in the
Applicant’s Personal Information Form.
[19]
The
Applicant says that the Board also erred in quoting extensively from the
documentary evidence without relating the quotations to the Applicant’s
situation.
[20]
Further,
the Applicant is critical of the Board’s decision to accord greater probative
value to the documentary evidence than to her testimony on the basis that the
documentary evidence is from reliable, independent and unbiased sources.
However, her testimony did not actually deal with state protection for women in
her circumstances. Rather, it dealt with her perception of her family’s
experiences with police corruption. Accordingly, this is not an issue of
substance in this case.
[21]
Finally,
the Applicant suggested that the Board’s application of the Gender Guidelines
lacked substance and that its failure to apply the Vulnerable Persons Guideline
(VPG) was an error. In my view, the submissions on this point do not merit further
discussion and I did not call on the Respondent to address them during the
hearing. I reached this conclusion because the Board said that it gave the
Gender Guidelines “serious consideration” and because the Board was sensitive
in its handling of the Applicant’s evidence during the hearing. In addition, the
VPG was not raised at the hearing. It was first mentioned in unsolicited
post-hearing submissions and was not supported by medical or other evidence. In
these circumstances and because of the Applicant’s age and education and the
fact that she managed reasonably well at the hearing, the Board was entitled to
conclude that the VPG did not apply.
THE STANDARD OF REVIEW
[22]
In
light of the decision in Dunsmuir v. New Brunswick¸ 2008 SCC 9, and
noting that the issues involve mixed questions of fact and law, I conclude that
the standard of review should be reasonableness.
DISCUSSION
[23]
The
Board accepted that the Applicant feared persecution by Macias. The Board also
explicitly accepted that there was a gender basis for the Applicant’s fears:
she feared that Macias would force her into prostitution. However, the evidence
did not support a gender based explanation for why it was objectively
reasonable for the Applicant to make no effort to seek protection from the
Police or other authorities.
[24]
Having
accepted those fears, the question before the Board was whether the Applicant
had rebutted the presumption of state protection. The Board noted that the
Applicant had never gone to the Police or otherwise sought state protection.
The Board considered whether this failure was objectively reasonable and
concluded that it was not. Citing Ward, the Board noted that a claimant
must show that it was objectively unreasonable not to seek state protection.
[25]
The
Applicant argued that the Board erred in failing to refer to the documentary
evidence on the availability of state protection for women who have been
subjected to domestic and sexual abuse. In particular, the Board ignored a
section in a February 2007 document entitled “Issue Paper - Mexico: Situation
of Witnesses to Crime and Corruption, Women Victims of Violence and Victims of
Discrimination based on Sexual Orientation” (the Issue Paper) under the heading
“Women victims of violence” (the Section) although it quoted extensively from
other parts of the same document. As the Applicant was a victim of sexual
abuse, the Applicant argued that the Section should have been referred to in
the Decision.
[26]
The
quotation from the Issue Paper was extensive and dealt with efforts to control
security forces, procedures to report and prosecute crimes, efforts to control
corruption in the public service and Police, victim assistance, efforts to
encourage victims to report crimes and increase citizens’ confidence in public
security agencies, redress for human rights violations by Federal District
public servants, and protection for witnesses of crime.
[27]
The
Section primarily dealt with statistics about homicides and spousal abuse which
were not directly relevant to the Applicant’s case. However, the introductory
paragraph of the Section read in part:
violence against women, including
domestic sexual violence, poses a significant challenge for Mexican authorities
… because such violence is not addressed effectively by many law enforcement
agencies … particularly at the municipal and state level.
[28]
While
the Section does suggest that victims of gender based persecution may have less
access to state protection than other victims of crime. It does not suggest
that there is no effective state protection for women in the Applicant’s
situation. The passages to which the Board made no reference do not support an
argument that it was objectively reasonable for the Applicant not to seek state
protection based on her personal belief that the Police would ignore her.
JUDGMENT
UPON reviewing the material
filed and hearing the submissions of counsel for both parties in Toronto on Tuesday, February 26,
2008;
AND UPON being advised that
no questions are posed for certification;
NOW THEREFORE THIS COURT
ORDERS AND ADJUDGES that for the reasons given above the Application is dismissed.
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