Date:
20130325
Docket:
IMM-2716-12
Citation:
2013 FC 297
Ottawa, Ontario,
March 25, 2013
PRESENT: The Honourable Madam
Justice Gagné
BETWEEN:
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MARTHA DELIA SANDOVAL MARES
KEVIN ANTONIO CASTILLO SANDOVAL
JOSE ANGEL CATILLO SANDOVAL
(BY THEIR LITIGATION GUARDIAN,
MARTHA DELIA SANDOVAL MARES)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act],
for judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board [panel], dated February 21, 2012, which determined
that Ms. Sandoval Mares [applicant] and her two minor children, Kevin and José
[collectively called the applicants], were not Convention refugees or persons
in need of protection as defined in sections 96 and 97 of the Act.
[2]
For the reasons that follow, I have concluded that the Court’s
intervention is not warranted in this case. The applicants’ arguments amount to
no more than a disagreement with the panel’s credibility findings, and it is
not the role of this Court to substitute its own assessment of the evidence to
that of the panel. In any event, I find that the panel could reasonably
conclude that there was adequate state protection and that the applicants
failed to rebut the presumption of state protection in the circumstances.
Facts
[3]
The applicants are citizens of Mexico from Ciudad Juarez in
the state of Chihuahua. They arrived in Canada on July 11, 2009 and immediately
made a claim for refugee protection. In the applicant’s initial Personal
Information Form [PIF], submitted in July 2009 in support of her claim, the
only stated ground for the refugee claim was the applicant having been a victim
of domestic violence at the hands of her former common law spouse, the father
of her children. The applicant stated that her former partner was a drug
addict and was physically, verbally and sexually abusive towards her throughout
their relationship. The applicant also declared to immigration authorities that
she was abused and threatened by her former spouse’s family in the United States.
[4]
In
December 2000, the applicant applied for and was granted a ten-year visa for
the United States. However, she stayed in Mexico until May 2007.
[5]
The
applicant lived with her former spouse from July 2002 to June 2005 in Mexico. As the applicant stated in her initial PIF, in May 2003 she found out that her
husband consumed cocaine on a frequent basis. She also noticed at one occasion
in December 2003 that her spouse’s sister and her husband arrived with a small
luggage in their house and left two bags containing a certain quantity of
cocaine. As the applicant questioned her spouse about what he was doing, he
became violent and threatened to kill her siblings.
[6]
The
applicant left her former partner in June 2005 in order to protect her children
from their abusive father and his family, including his brother who has been
accused and convicted of child abuse.
[7]
In
2006, the applicant entered into a homosexual relationship with her current
partner, an American citizen who then lived in the United States and often
travelled to Mexico to visit the applicant. The applicant alleges that as
she moved in with her female partner in Juarez, her former partner became
increasingly violent and abusive. At one point, he put a gun to her head in
front of her children. The applicant fled to the United States on May 22, 2007,
leaving her
children in Mexico in the care of their maternal grandparents. She lived in California until January 2009.
[8]
In
January 2009,
she returned to Mexico and applied for a visa to bring her children to the United States, having found out that her parents were allowing her former spouse to see the
children. As the applicant’s visa application for her children was refused, she
decided to travel to Canada to seek refugee protection and her female common
law partner joined her in Canada.
[9]
On
July 4, 2011, the applicant submitted an amended PIF in which she added two new
grounds for her claim, stating that she feared her former spouse not just
because of the domestic violence but also because he was involved in organized
crime and drug trafficking as a member of Los Aztecas drug cartel in Mexico. The applicant also described her former spouse’s family members in the United States as having ties to organized crime and to corrupt police officers in Mexico.
[10]
In
addition, the applicant stated in her amended PIF that she was subjected to
increased threats of violence by her former spouse, that she was rejected by
her own family, and that she suffered harassment due to her lesbian identity.
The applicant alleged that her parents disapprove of her being a lesbian and
wish her to return to her former partner despite the abuse.
Decision under
Review
[11]
The
panel conducted a thorough and lengthy analysis of the applicant’s various
allegations and came to the conclusion that she lacked both a subjective and an
objective fear of persecution. The panel considered the determinative
issues to be the applicant’s lack of credibility with respect to some of her
new allegations, the availability of adequate state protection, an internal
flight alternative [IFA] in Mexico, as well as the applicant’s failure to demonstrate
a subjective fear of persecution. As I find the panel’s reasons to be comprehensive
and reasonable in all respects, I will summarize them in relative detail below.
Adverse
credibility findings
[12]
The
panel found that the applicant was credible in regard to her identity as a
lesbian and as a victim of domestic violence at the hands of her former common
law spouse in Mexico. However, the panel found that, on a balance of
probabilities, the applicant embellished her allegations to include in her
second PIF narrative the allegation that her former spouse and his family were
members of Los Aztecas drug cartel and had connections within the police. The
panel found that nothing in the evidence demonstrated that the applicant’s
former partner had a formal affiliation with any drug cartel in Mexico and that
had this been the case, the applicant would have undoubtedly mentioned it in
her initial narrative.
[13]
The
applicant’s explanations regarding why she did not state these facts in her
initial PIF were not found reasonable or credible by the panel. The applicant
notably stated that she did not know how much information to provide as she
completed her PIF alone. She also stated that her basic English allowed her to
understand the PIF but not the narrative, and that she was told by a translator
from the community agency to focus on the information relating to domestic
violence. She later mentioned that she did not remember the details of her
spouse’s association with Los Aztecas at the time she completed her PIF as she
had tried to forget everything. The panel found that the applicant offered contradictory
explanations for this major omission and was not spontaneous and trustworthy in
her oral testimony.
State Protection
Analysis
[14]
The
panel further found that the applicant’s lack of concerted effort to seek any
protection from the police or the judiciary at any time throughout the period
when she lived with her former spouse, or after her return from the United States, was fatal to her claim. According to her oral testimony, the applicant’s
former spouse was imprisoned in January 2009, prior to her leaving for Canada, and was released in November 2011. The panel found that since the applicant’s
former spouse was repeatedly arrested by the police and then released and that
the Mexican police and judiciary had demonstrated a willingness to charge and
prosecute him in regard to crimes he had committed, the applicant should have sought
protection for herself and her children.
[15]
The
applicant testified that she did not approach the police because she had
witnessed police officers engaged in the drug trade and because she believed
police officers to be corrupt. She also stated that she did not seek help at
any state agencies, such as women’s shelters or legal advisors, because she was
ashamed of having been abused. The panel found that the applicant adduced
insufficient evidence to rebut the presumption of state protection or establish
that the protection was inadequate in her circumstances.
[16]
In
view of the relevant documentary evidence, including the Hellman Report (“Report
on Human rights in Mexico”, Judith Adler Hellman), the panel determined
that even though some inconsistencies existed among the sources, “the
preponderance of the objective evidence regarding current country conditions
suggest that, although not perfect, there is effective and adequate protection
in Mexico and that Mexico is making serious efforts to address the problem of
domestic violence and that police are both willing and able to protect such
victims.” The panel concluded that according to the jurisprudence, the
applicant’s subjective reluctance to seek help and her doubts concerning the
effectiveness of the protection offered by the state were insufficient to rebut
the presumption of state protection.
[17]
The
panel noted that the applicant had not taken any legal precautions to ensure that
she retains legal custody of her children although she claimed that she feared
her former spouse would take the children away from her. The panel further
noted that during his non-custodial visits, the children’s father never refused
to return them to the applicant and never harmed or abused them in any way. He
also consented to providing his signature and related authorisation for the
purposes of procuring passports for the children to travel outside of Mexico in 2009. The panel found that there was no persuasive evidence upon which it could
determine that the children’s father or his family had any intention to harm
them in the future or that they did so in the past. To conclude, the panel
found that, on a balance of probabilities, the minor applicants faced no risk
of harm at the hands of their father or his extended family in Mexico.
Persecution
versus discrimination
[18]
The
applicant alleged that given her identity as a lesbian she faced an increased
risk of harm in Mexico. She provided oral evidence regarding discriminatory
remarks and actions by her former spouse, her own family or unknown community
members in Mexico. The panel found that although the seriousness of such
incidents cannot be understated, they do not rise to the level of persecution,
as according to section 54 of the United Nations High Commissioner for Refugees
Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992. As per that documentation, alleged differences in treatment or
discrimination amount to persecution “if the measures of discrimination will
lead to consequences of a substantially prejudicial nature for the person
concerned, e.g. serious restrictions on her right to earn a livelihood, her
right to practice her religion or her access to normally available education
facilities.”
[19]
Furthermore,
the panel noted that the applicant did not provide any evidence of having
endured persecutory practices in her daily life and did not face any
restrictions to her rights that would be characterized as persecution.
Internal Flight
Alternative
[20]
The
panel stated that since the applicant lived in Juarez with her former spouse
and that, according to the documentary evidence, homophobic attitudes continue
to persist particularly in smaller urban areas in Mexico, the applicant and her
children could find a reasonable and accessible IFA in Guadalajara or in Mexico City. The panel stated that the applicant admitted that she and her children could
live safely in one of those cities but her partner would not be able to live
with them because she has no legal status in Mexico. The panel added that the
applicant and her partner could return to California where the applicant’s
partner previously resided and where, contrary to the applicant’s belief, same
sex marriage is recognized.
[21]
The
two-part test for a finding of an IFA was established by the Federal Court of
Appeal in Rasaratnam v Canada (Minister of Employment and Immigration), [1992]
1 FC 706 (CA) and Thirunavukkarasu v Canada (Minister of Employment and
Immigration), [1994] 1 FC 589 (CA). The onus was on the applicants to show,
on a balance of probabilities, that i) there is a serious possibility of
persecution in all parts of the country, even in the alleged IFA area, i.e.
Guadalajara and Mexico City; and that ii) it would not be unduly harsh for the
applicants to relocate to Guadalajara or Mexico City. Both prongs of the test
were explored by the panel.
[22]
Applying
the first prong of the IFA test, the panel considered the applicant’s
allegation that she feared her former spouse would be able to find her anywhere
in Mexico, with the help of his family or associates, by accessing government
databases through their contacts in police and governmental authorities. The
panel considered whether it would be possible for criminals to track the
applicant through government databases using, for instance, the Voter’s
Registration Card [VRC] issued by the Mexican Federal Electoral Institute, and
came to the conclusion that according to the information found in the objective
documentary evidence, the VRC information is confidential and protected by law,
and the Board’s Research Directorate could not find any concrete example of
illegal use by unauthorized parties among sources consulted (National
Documentation Package, April 20, 2011, item 3.4 MEX101353.E. 2 June 2006. Voter’s
Registration Card (Credencial para votar); item 3.6 MEX41642.E. 24 June
2003. Information on the Clave Unica de Registro de Poblacion (CURP);
item 14.1 Canada. October 2005. Immigration and Refugee Board (IRB). Mexico:
Selected Issues of Internal Flight Alternatives (July 2003 - July 2005)). The
panel stated that even if the database was vulnerable and not sufficiently
protected, nothing indicated that specifically-targeted individuals could be
tracked in the system within a reasonable time frame and the current
limitations of data processing technology. The panel concluded that, on a
balance of probabilities, VRC could not be used by the applicant’s former
spouse to track her down in Mexico.
[23]
As
regards the applicant’s homosexuality, the panel found that although
discrimination against homosexuals remains a serious issue in Mexico, the government has demonstrated a strong commitment to protect homosexual citizens,
and has shown that it can provide them with adequate protection. In addition,
the panel noted that there is anti-discrimination legislation in place in Mexico City as well as mechanisms through which the applicant can ensure that her rights as
a lesbian are protected (National
Documentation Package, April 20, 2011, item 6.1 Reding, Andrew. December 2003.
World Policy Institute. “Mexico.” Sexual Orientation and Human Rights in the
Americas; item 6.3 Global Rights / International Gay and Lesbian Human Rights
Commission (IGLHRC) / International Human Rights Clinic (IHRC) (Harvard Law
School) / Colectivo Binni Laanu A.C. March 2010. Virginia Corrigan. The
Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in
Mexico: A Shadow Report; item 6.4 MEX102682.E. 9 January 2008. Reports
of sexual abuse committed by police officers against homosexuals, and against
other vulnerable individuals (2006 - November 2007); item 6.5 MEX103460.FE.
21 April 2010. The panel concluded that on a balance of
probabilities, the applicant would not face a serious possibility of persecution
due to her sexual orientation in Mexico City, or in the alternative, in Guadalajara.
[24]
Applying
the second prong of the IFA test, the panel noted that the applicant expressed
no concerns regarding employment and housing or other relocation issues should
she return to Mexico with her children, and determined that, on a balance of
probabilities, she could find employment in the populous cities of Mexico City and Guadalajara.
Subjective fear analysis
[25]
Lastly,
the panel found that the applicant’s choice not to make a claim for refugee
protection in the United States was inconsistent with a subjective fear of
persecution and undermined her various allegations that she feared serious harm
in Mexico.
[26]
The
applicant offered two explanations for failing to make a refugee claim in the United States. She stated that she did not wish to be legally tied down to another country
while her children were in Mexico and further testified that she was unaware
that she could file a refugee claim in the United States. The panel rejected
both explanations, stating that the applicant had an American common law
partner and relatives in the area she lived and worked, and could have
reasonably sought consultation about obtaining legal status in that country.
[27]
The
panel also noted the applicant left Mexico in 2007 with the assurance that her
children would be properly taken care of by her parents. According to her oral
testimony, the applicant returned to Mexico in February 2009 when her former
partner expressed willingness to take custody of the children, while the
documentary evidence showed that the applicant’s former partner was imprisoned
as of January 2, 2009. The panel there concluded that the applicant’s reason to
return to Mexico remained unclear but the reason for her failure to seek
refugee protection in the United States could not be the fact that her children
were in Mexico. The panel further stated that the evidence did not demonstrate
any serious possibility of persecution on a Convention ground or risk of cruel
and unusual treatment or punishment or danger of being tortured in the proposed
IFA area.
Issues and
Standard of Review
[28]
The
applicant raised the following issues in this application for judicial review:
a. Did
the panel err in law in making its credibility findings regarding:
i.
the
applicant’s abuser and his family’s association with a drug crime group, and,
ii.
the
applicant’s reasons for returning to Mexico in 2009?
b. Did
the panel err in law in making a veiled credibility finding regarding the
children’s fear of being kidnapped by their father and in doing so, ignored the
evidence before it?
c. Did
the panel err in law in assessing the applicant’s burden to seek state
protection and in doing so, misconstrued and ignored the relevant evidence and Guideline
4, Women Refugee Claimants Fearing Gender-related
Persecution? [Gender Guidelines]?
d. Did
the member err in law by ignoring evidence in the application of the IFA test?
e. Did
the member err in law in misapplying the subjective fear test in relation to
the applicant’s failure to claim refugee protection in the United States?
[29]
Although
the applicant did not specifically address the issue of the appropriate
standard of review,
the jurisprudence has consistently held that questions of credibility, just
like questions as to whether an applicant has rebutted the presumption of state
protection and IFA findings, are questions of mixed fact and law, to be
reviewed on a standard of reasonableness (Villegas v Canada (Minister of
Citizenship and Immigration), 2011 FC 699 at paras 11-12; Lopez v Canada
(Minister of Citizenship and Immigration), 2011 FC 1349 at para 14; Soto
v Canada (Minister of Citizenship and Immigration), 2011 FC 360 at paras
17-19).
In
reviewing the panel’s decision against the standard of reasonableness, the
Court considers “the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
Analysis
Did
the panel err in law in making its credibility findings?
[30]
The
applicant takes issue with a number of credibility findings made by the panel.
[31]
Having
carefully read the applicant’s initial PIF narrative, it is clear to me that
the applicant only referred to her former spouse’s drug consumption and
described one incident where her sister-in-law arrived at their place with a
luggage and presumably left two bags of cocaine. Nothing in the narrative
unequivocally indicates that the applicant’s former partner or any members of
his family were engaged in drug trafficking and there is no mention of them
being connected in any way to drug cartels or to organized crime. The panel
reasonably found that the applicant’s omission was more general than a simple
failure to mention the name of the group. It was open to the panel to find that
if the applicant’s former partner was in a notorious drug cartel, she would
have stated it in more explicit terms even if she did not mention the name of
the group or other details, especially considering that the applicant did
elaborate in some detail on her partner’s drug habit. The panel was reasonable in
making an overall adverse credibility finding based on the applicant’s omission
to include an essential aspect of her claim in the initial narrative. As a
result, the panel could reasonably reject her explanation that she was told to
concentrate on the domestic violence allegations or that her basic knowledge of
the English language did not allow her to understand the translated version of
her narrative before signing it.
[32]
The
applicant takes issue with the panel’s finding that her reasons for returning
to Mexico in January 2009 were unclear as her former partner was in prison at that
time and could not seek custody of the children or try to take them away. The
applicant asserts that only after she heard that his former spouse planned to
kidnap the children she was told that he was in jail. Besides, she decided to
go to Mexico because her former partner was in prison and she left shortly
after she heard that he was coming out.
[33]
Again, I
cannot agree with the applicant that the panel erred by misstating the
evidence. Firstly, the applicant did not state these details in her amended PIF
narrative or in her oral testimony. As such, it was open to the panel to make
this finding based on the evidence. Secondly, the panel did not base its
negative credibility finding on the implausibility of the reason for her travel
to Mexico, but exclusively when determining her lack of subjective fear. As a
result, even if an error was committed in the assessment of the evidence, it
would not be determinative of this application for judicial review (see Hernandez
v Canada (Minister of Citizenship and Immigration), 2012 FC 197 at paras
25-32).
[34]
The
applicant challenges the panel’s finding regarding the risk of harm faced by
the minor applicants at the hands of their father or his extended family in Mexico. The applicant submits that the panel ignored the evidence regarding the criminal
record and the abusive behaviour of the children’s father, and made a veiled
credibility finding that they did not fear being kidnapped by their father.
Furthermore, the applicant argues that because the panel dismissed the
children’s claim without sound reasons, it also denied the minors a state
protection analysis in light of their own circumstances as minors.
[35]
There cannot be finding that a person is a refugee under the Act
unless it is demonstrated that
that person has subjective fear of persecution or risk of harm and that his or
her fear or risk is objectively well-grounded (Flores v Canada (Minister of
Citizenship and Immigration), 2010 FC 503 at paras 26-27). Only those risks
raised by the refugee claimant will be assessed.
[36]
In the case
at bar, no risks were raised as being faced by the minor applicants separate
from those faced by their mother. Given that the principal applicant has
custody of the children and that their father has had limited visitation rights
since their separation in 2005, it is reasonable to find, as the panel did,
that the children’s subjective and objective fear is closely intertwined with
their mother’s. It was therefore not an error to address all claims
simultaneously and come to what the Court holds to be a reasonable decision
regarding the applicant’s lack of objective fear. Furthermore, in reaching this
conclusion the panel could reasonably rely on the evidence that the presence of
the children’s father in their lives has never been harmful to them. In
addition, the fact that the principal applicant’s parents are suspected to be
in touch with her former partner is not determinative of their risk insofar as
the principal applicant is the custodial parent and can take the required measures
to protect her children from the alleged harm.
[37]
Similarly,
I find that in assessing the children’s subjective fear, the panel could
reasonably rely on the testimony of the principal applicant acting as the
children’s designated representative. As Justice Lagacé stated in Canada (Minister of Citizenship
and Immigration) v Patel,
2008 FC 747 at paras 21-38, where
a claimant is not competent, whether by age or disability, and the evidence
establishes an objective basis for his fear, the panel should determine whether
the designated representative established a subjective fear in his or her role
as designated representative and whether the subjective fear be inferred from
the evidence. The
Court accordingly held that it is
not unreasonable or incorrect not to explicitly address the subjective fear of
the minor child, as it is open to the panel “to infer the subjective fear of
the minor child from the evidence presented, including the testimony of the
child’s designated representative who was speaking on his behalf.”
Did
the panel err in law in assessing the applicant’s burden to seek state
protection and in doing so, misconstrue and ignore the relevant evidence and
the Gender Guidelines?
[38]
The
applicant submits that the panel erred by ignoring the evidence of lack of
state protection in Ciudad
Juarez and in the state
of Chihuahua,
where the applicant lived and where the persecution took place, while there was
ample evidence on this location which characterize it as a high-risk area for
women.
[39]
I
agree with the applicant that as per the principles established in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, “[w]here a tribunal determines the
applicant has failed to take steps to seek protection this finding is only
fatal to the claim if the tribunal also finds that protection would have been reasonably
forthcoming. A determination of reasonably forthcoming requires that
the tribunal examine the unique characteristics of power and influence of the
alleged persecutor on the capability and willingness of the state to protect.”
(Mendoza v Canada (Minister of Citizenship and Immigration), 2010
FC 119 at para 33(6)).
[40]
However, the evidence
relied upon by the applicant is essentially statistical in nature and lacks
context. As a result, I am unable to conclude that this evidence should be
considered “relevant, reliable and convincing evidence which satisfies the
trier of fact on a balance of probabilities that the state protection is
inadequate” in the applicant’s specific circumstances (Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para 30). It
is important to bear in mind that the Court is required to presume that the
panel has weighed and considered all of the evidence unless the contrary is
shown (Florea v Canada (Minister of Citizenship and Immigration) (FCA),
[1993] FCJ No 598). The panel acknowledged that all was not well in Mexico, and that there were conflicting reports as to the effectiveness of existing
legislation, and reached a finding that is defensible in
respect of the law and the facts of this case.
[41]
Justice
Russell reached a similar conclusion regarding analogous statistical evidence
of lack of state protection invoked by the applicants in Jimenez v Canada (Minister of Citizenship and Immigration), 2011 FC 1523 at paras 33-35, where he
wrote:
Refugee
protection is available to those at risk who can establish a nexus to a
Convention ground. Protection is also available to those who face a
personalized risk of harm in their home country. In either circumstance, the
home state must be either unwilling or unable to protect its own citizens
before international protection is engaged. In the present case, the state is
not the agent of persecution and the Applicants, who have lived in the USA for a considerable time, did not approach the authorities in El Salvador in a meaningful way to
ask for protection against those who would cause them harm.
A
high homicide rate in El Salvador tells us nothing about what the state can
and/or will do if approached by the Applicants for protection. In order to have
any relevance, in my view, the statistics would have to show what happens to
those whose lives are threatened and who approach the state and ask for
protection. The general homicide rate, which will include those people murdered
for non-Convention reasons, as well as people who never seek protection, tells
us little about the case at hand. Homicides may be epidemic in El Salvador and the authorities may be finding it difficult to improve the figures, but
this does not mean they cannot or will not protect potential refugees who ask
for protection.
The
RPD looked at the evidence and concluded that, if the authorities are
approached and asked for protection in El Salvador, they can and will provide
adequate protection. Reliance upon general homicide statistics does not really
go to this issue and the RPD’s failure to specifically address those statistics
does not render the Decision unreasonable. Homicide rates vary considerably
around the world. They are not in themselves a measure of the extent to which a
state is willing or able to protect those who could seek protection from
persecution under section 96, or are at risk under section 97, of the Act if
given the opportunity to do so. Protection requires communication from, and the
cooperation of, the person who feels at risk. In the present case, the
Applicants’ cooperation was not forthcoming.
[42]
Furthermore,
I find that the panel’s findings regarding the applicant’s complete failure to
seek any kind of protection in Mexico do not display a lack of the sensitivity
or the contextualization called for by the Gender Guidelines or the Supreme
Court’s decision in R v Lavallee, [1990] 1 S.C.R. 852.
[43]
The Court is
mindful of the importance of clearly applying the Gender Guidelines and the
necessity for the panel to carefully, knowledgeably, and understandingly assess
what actions can be realistically expected of a woman who has suffered violence
(see Debora De Araujo Garcia v Canada (Minister of Citizenship and
Immigration), 2007 FC 79 at paras 24-28 and Yoon v Canada (Minister of
Citizenship and Immigration), 2010 FC 1017). However, the applicant raised
no specific issues or findings of fact, and I find none, that would demonstrate
a lack of understanding or sensitivity on the panel’s part. As Justice
Layden-Stevenson pointed out in Canseco v Canada (Minister of Citizenship
and Immigration), [2007] FCJ No 115 at para 10, “the gender guidelines do
not necessarily absolve applicants from seeking the protection of the state.” In
absence of any specific allegations demonstrating a misapplication of the
Gender Guidelines, I find that the panel’s finding is reasonable and
sufficiently supported by the evidence that the applicant did not seek
protection in Mexico at any point of time. She even failed to take legal
precautions to ensure that she retains legal custody of the children although
she allegedly feared her former spouse might take them away from her.
[44]
It
is well established that a reasonable finding of adequate state protection is fatal
to claims under both sections 96 and 97 of the Act. Consequently, the impugned
decision must stand (Macias v Canada (Minister of Citizenship and
Immigration), 2010 FC 598 at para 14).
[45]
No
question of general importance has been proposed for certification by counsel
and none will be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
a.
This application for judicial review is dismissed.
b.
No
question of general importance is certified.
“Jocelyne Gagné”
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