Date: 20081008
Docket: IMM-52-08
Citation: 2008 FC 1138
Ottawa, Ontario, October 8,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
FRANCISCA DURAN LIMA AND GUADALUPE RIOS DURAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Ms.
Duran Lima and her daughter, Ms. Rios Duran, are citizens of Mexico, who
resided in Mexico City in the Federal District, and who claimed refugee
protection on the basis of abuse Ms. Duran Lima suffered at the hands of her
common-law partner. Their claim was dismissed by the Refugee Protection
Division of the Immigration and Refugee Board (RPD).
[2] In its reasons, the RPD made comments to the
effect that Ms. Duran Lima made her one report to the police for the sole
purpose of supporting her refugee claim, and that one aspect of her claim was
embellished. However, I am satisfied that the RPD's decision to reject the
claim was based upon a single ground: the applicants had failed to rebut the
presumption of state protection.
[3] With respect to the RPD’s comments about
credibility, this Court has cautioned the RPD that any negative credibility
finding must be expressed in clear and unmistakable terms. No purpose is
served by making gratuitous comments about embellishment, or by casting
aspersions about motive, if the RPD is not prepared to make clear, rational
credibility findings that are supported by the evidence.
[4] Turning to the RPD's finding of state
protection, the applicants submit that the finding is unreasonable because the
RPD ignored documentary evidence that contradicted its conclusion, specifically
the expert opinion of Mr. Francisco Rico-Martinez.
[5] For the following reasons I have concluded
that the RPD did not err as alleged, and that its decision was reasonable.
[6] The RPD wrote that it had considered the
documents provided on the applicants' behalf and it expressly referred in a
footnote to the report of Mr. Rico-Martinez. The report was not, therefore,
overlooked.
[7] The RPD later went on to state that it
preferred the documentary evidence cited in its reasons to the information
submitted by the applicants (which included Mr. Rico-Martinez’ report) because
the "documentary evidence cited herein is drawn from a variety of reliable
and independent sources, none of whom can have any vested interest in whether
or not the claimants are determined to be Convention refugees."
[8] Mr. Rico-Martinez describes himself to be a
"co-director of FCJ Refugee Centre (formerly known as FCJ Hamilton House
Refugee Project: an institution that strives to meet the diverse needs of
uprooted people, particularly refugee claimants and non-status people)."
He states that he has "a long history of advocacy and volunteer activity
on behalf of victims of human rights violations, particularly refugees."
It is for the RPD to assess the weight to be given to evidence before it. I am
not persuaded that it was unreasonable for the RPD to prefer evidence that
conflicted with Mr. Rico-Martinez’ evidence for the reasons given by the RPD.
[9] The fact that the RPD specifically referred
to the applicants’ evidence, albeit briefly and in general terms, makes this
case distinguishable from Castillo v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 43 (F.C.), an authority
relied upon by the applicants.
[10] Nonetheless, the applicants argue that the
evidence contained in Mr. Rico-Martinez’ report was so relevant to the issue of
state protection, and so contradictory of the RPD's finding, that the RPD was
obliged to specifically deal with the contents of the report.
[11] It is trite and well-accepted law that the
more important the evidence is that is not specifically mentioned and addressed
in the RPD's reasons, the stronger the inference becomes that the RPD came to
its conclusions without regard to all of the evidence before it. This is
particularly so where the evidence contradicts the RPD's conclusion.
Illustrative of the application of this principle is Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.).
[12] The question then becomes whether Mr.
Rico-Martinez’ report had such probative value that the RPD could not dispose
of it on the basis that it viewed other evidence to originate from more
independent or objective sources.
[13] In my view, the RPD was entitled to do so for
the following reasons.
[14] First, I can imagine no factor more relevant
to the probative value of information about country conditions than the source
of the information.
[15] Second, the report was based upon information
collected in March 2005. The documentary evidence relied upon by the RPD was
primarily an Issue Paper prepared by the Research Directorate of the
Immigration and Refugee Board, dated February 2007. Telling is the fact that
Mr. Rico-Martinez reported that the National Women's Institute informed him
that Mexico City had only one shelter for women. In November 2006, that same
entity reported to the Research Directorate that three shelters existed in the
Federal District, two operated by non-governmental organizations and one
operated by the government. It would elevate form over substance to require
the RPD to state that it prefers more recent information.
[16] Findings of state protection are reviewable on
the standard of reasonableness. Ms. Duran Lima filed only one report with the
police in the course of what she testified was approximately 20 years of severe
domestic abuse. This report was filed after she had decided to come to Canada
and Ms. Duran Lima never followed up on the report. At, or shortly after, the
time she filed the police report, she was assisted by CAVI, the Domestic Violence
Assistance Center, a government run center that operates from the office of the
Attorney General of the Federal District. The documentary evidence before the
RPD was to the effect that CAVI offers psychological, legal, medical and social
assistance to victims of domestic violence. It also assists women in filing
complaints with the public prosecutor.
[17] There was documentary evidence before the RPD,
which it accepted, that legislative protection was in place in Mexico City and
that initiatives (including CAVI) were in place to promote the effectiveness of
those protection measures. The RPD made a justified, transparent and
intelligible finding that the applicants had not rebutted the presumption of
state protection with clear and convincing evidence. The decision was,
therefore, reasonable.
[18] The application for judicial review will,
therefore, be dismissed.
[19] Counsel posed no question for certification
and no question arises on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The
application for judicial review is dismissed.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-52-08
STYLE
OF CAUSE: FRANCISCA
DURAN LIMA AND
GUADALUPE RIOS DURAN, Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 1, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: OCTOBER 8, 2008
APPEARANCES:
D. CLIFFORD LUYT FOR
THE APPLICANTS
KRISTINA DRAGAITIS FOR
THE RESPONDENT
SOLICITORS OF RECORD:
D. CLIFFORD LUYT FOR
THE APPLICANTS
BARRISTER AND
SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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