Date: 20130508
Docket: IMM-9512-12
Citation: 2013 FC 486
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, May 8, 2013
PRESENT: The Honourable Mr.
Justice Shore
BETWEEN:
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ELIZABETH DEL CARMEN GONZALEZ DE
RODRIGUEZ
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary comments
[1]
The
case law from this Court is consistent in cases where the Refugee Protection
Division (RPD) considers the issue of state protection. As Justice Robert
Mainville, now a judge of the Federal Court of Appeal and at the time a judge
of the Federal Court, noted in Jimenez v Canada (Minister of Citizenship and
Immigration), 2010 FC 727:
[4] . . . the availability of state protection should not
be decided in a factual vacuum in terms of a refugee claimant’s personal
circumstances. A decision with regard to the subjective fear of persecution,
which includes an analysis of the refugee claimant’s credibility and the
plausibility of his or her account, must be made by the Immigration and Refugee
Board to establish an appropriate framework for an analysis, where necessary,
of the availability of state protection that takes into account the individual
situation of the refugee claimant in question. . . .
[2]
The
following excerpts from the guidelines of the Chairperson of the Immigration
and Refugee Board on Women Refugee Claimants Fearing Gender-Related
Persecution (1996) [Guideline 4] regarding evidentiary matters relating to
state protection are instructive and worth reviewing:
2. Decision-makers should consider evidence
indicating a failure of state protection if the state or its agents in the
claimant’s country of origin are unwilling or unable to provide adequate
protection from gender-related persecution. If the claimant can demonstrate
that it was objectively unreasonable for her to seek the protection of her
state, then her failure to approach the state for protection will not defeat
her claim. Also, the fact that the claimant did or did not seek protection from
non-government groups is irrelevant to the assessment of the availability of
state protection.
When considering whether it is objectively unreasonable for the claimant not to have sought the
protection of the state, the decision-maker should consider, among other
relevant factors, the social, cultural, religious, and economic context in
which the claimant finds herself. If, for example, a woman has suffered
gender-related persecution in the form of rape, she may be ostracized from her
community for seeking protection from the state. Decision-makers should
consider this type of information when determining if the claimant should
reasonably have sought state protection.
In determining whether the state is willing or able to provide protection to a woman fearing gender-related
persecution, decision-makers should consider the fact that the forms of
evidence which the claimant might normally provide as “clear and convincing
proof” of state inability to protect, will not always be either available or
useful in cases of gender-related persecution.
. . .
In cases where the claimant cannot rely on the more standard or typical
forms of evidence as “clear and convincing proof” of failure of state
protection, reference may need to be made to alternative forms of evidence
to meet the “clear and convincing” test. Such alternative forms of evidence
might include the testimony of women in similar situations where there was a
failure of state protection, or the testimony of the claimant herself regarding
past personal incidents where state protection did not materialize. [Emphasis
in original.]
II. Judicial proceedings
[3]
The
applicant is a 32-year-old citizen of the Dominican Republic. She made a claim
for refugee protection in Canada as a member of a particular social group
within the meaning of the Convention, namely, women who are victims of domestic
violence. She is seeking judicial review of the RPD decision, dated
August 16, 2012, in which it was held that the applicant was neither a
Convention refugee nor a person in need of protection under sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA).
III. Facts
[4]
The
applicant, Elizabeth Del Carmen Gonzalez de Rodriguez, recounted in her
Personal Information Form (PIF) a long history of violent domestic abuse that
began when she was 13 years old. At that age, she was the victim of an
attempted rape by two men. When she was 14 years old, she was in an abusive and
violent relationship with a man who fathered her first child.
[5]
The
applicant then met another man, also very violent, who tried to kill her by
setting fire to their house. The applicant’s mother filed a complaint against
the boyfriend. He was never arrested by the police, but this event put an end
to the relationship.
[6]
The
applicant engaged in prostitution for a time in La Romana, Higüey and Santo
Domingo, when she was only 17 years old. She returned to live with her mother
when she was pregnant with her daughter. The father, who was one of the
applicant’s clients, never accepted any responsibility for the child. The
applicant was only 19 years old at the time.
[7]
The
applicant also alleges that she was subjected to domestic violence at the hands
of her ex‑partner, Juan Manuel Lizardo, to the point that she attempted suicide.
This union lasted seven years, and the couple had twins on July 15, 2002.
The applicant testified that her partner had begun to mistreat her after she
gave birth, since he had wanted her to get an abortion.
[8]
After
their separation, on July 13, 2007, the applicant’s partner began
harassing her. He also took her twins from her. On July 16, 2007, he
allegedly went to the applicant’s mother’s home and attacked her mother with a
knife. On July 17, 2007, he allegedly returned, made death threats against
the applicant and injured her. The applicant’s neighbours drove her to the
hospital, a fact supported by the certificate of the medical examiner dated
July 17, 2007, filed in evidence.
[9]
The
applicant also alleges that she filed a complaint with the police the same day.
A copy of this complaint filed in evidence is dated July 16, 2007.
[10]
The
applicant alleges that, for fear of being arrested by the police, her
ex-partner moved to another city located 10 hours away from her home in Moca. However,
the applicant alleges that her ex-partner tried to attack her again the last
time they saw each other in June 2008.
[11]
In
November 2007, the applicant met another man, Juan Carlos, whom she married on
January 5, 2008. The applicant alleges that her husband abused her constantly.
She alleges that she called the police three times between September 2008 and
February 2009.
[12]
In
2009, the applicant was persuaded to accompany her husband, a Canadian citizen,
to Canada. The situation did not improve. The man continued to abuse and beat
the applicant, and she learned that he had serious mental health issues. The
applicant’s husband withdrew his sponsorship application when the applicant
filed a complaint with the police after several months and the courts issued an
order against him.
[13]
The
applicant returned to Canada on March 17, 2010, and claimed refugee
protection. She left her husband for good in October 2010, and their
divorce was finalized on December 25, 2011.
IV. Decision under review
[14]
For
the purposes of the RPD hearing, the applicant was identified as a vulnerable
person on the basis of psychotherapeutic evaluation reports and her medical
file because of the gender-based persecution she had suffered in her country.
The RPD noted that it had granted the accommodations requested by the
applicant’s counsel, taking into account the requirements of Guideline 4.
[15]
The
RPD also began by noting that the applicant’s testimony was detailed and credible. However, the RPD
mentioned that while it had given a certain amount of weight to the medical
reports describing the history of the applicant’s persecution in assessing her
state of mind and the credibility of her narrative, it had accorded these
documents little weight in making its finding with respect to state protection,
which was a determinative factor in the refusal of the applicant’s claim for
refugee protection.
[16]
The
RPD essentially did not consider credible the complaint filed by the applicant
with the police following the incident of July 17, 2007, since that report
was dated July 16, 2007, and it referred to a medical certificate issued
on July 17, 2007. The applicant stated that she had lost the documents
after moving to Canada and that her mother had picked up copies of the
documents on her behalf. The applicant was of the view that the error was
attributable to the police. The RPD was not satisfied with this explanation and
found that the applicant had not really sought the protection of the
authorities.
[17]
The
RPD noted that the Dominican Republic is a democratic state that benefits from
the presumption that states are capable of protecting their nationals. The RPD
also noted that, according to the case law, the determination of adequacy of
state protection cannot rest on the subjective fear of a claimant (Martinez v
Canada (Minister of Citizenship and Immigration), 2005 FC 1050 at para 9).
[18]
The
RPD therefore rejected the applicant’s allegation that the police failed to
follow up on her complaints, noting that, according to the applicant’s
testimony, Lizardo left Moca and moved to Punta Cana because he was afraid of
being caught by the police. The RPD mentioned that the applicant had herself acknowledged
that the police authorities exercise their authority with respect to
individuals against whom complaints are filed. The RPD also noted that the
applicant had lived at the same address, at her mother’s home in Moca, until
November 2007 without being disturbed.
[19]
Finally,
the RPD asked itself why the applicant had not reported the fact that her
husband had attacked her again in May or June 2008. The RPD also noted that the
applicant had failed to report the kidnapping of her twins by their father upon
their separation in July 2007. The applicant replied that she had been
told that she had to file a complaint in the capital and that she did not do so
because she did not know where the capital was and did not have the means to
take legal action against her partner. However, the applicant stated that she
had gone to the youth protection directorate when her partner refused to let
her visit her children, but that she had not thought to obtain a document
attesting to her dealings with that agency.
[20]
The
RPD recognized that [translation]
“spousal and domestic violence against women is pervasive in the Dominican
Republic”, but it held, on the basis of the documentary evidence, that several
resources and NGOs are available to women who have been subjected to violence.
The applicant did not seek assistance from any agency other than the police.
[21]
The
RPD held that the applicant did not provide an adequate explanation as to why
she had not sought the protection of her own country before seeking protection
in Canada. Nor did the applicant provide clear and convincing evidence that
state protection was not adequate in her country. Accordingly, the applicant’s
claim for refugee protection was rejected on the sole basis of this finding
that she had failed to seek the protection of her state.
V. Issue
[22]
Did
the RPD err in finding that state protection was available to the applicant
without any real analysis of her individual circumstances?
VI. Standard of review
[23]
It
is common ground that the RPD’s findings with respect to state protection are
reviewable on a standard of reasonableness (Zeferino v Canada (Minister of
Citizenship and Immigration), 2011 FC 456 at para 28).
VII. Analysis
[24]
This
Court recently held on the basis of the evidence that there is state protection
available to women victims of domestic violence in the Dominican Republic (Reyes
v Canada (Minister of Citizenship and Immigration), 2012 FC 926 at para 30;
Nunez v Canada (Minister of Citizenship and Immigration), 2011 FC 792 at
para 9). However, it is important to note that in Mendoza v Canada (Minister
of Citizenship and Immigration), 2010 FC 119, Justice François Lemieux
write that “[e]ach case is sui generis so while state protection may
have been found to be available in Mexico, maybe even in a particular state,
this does not preclude a court from finding the same state to offer inadequate
protection on the basis of different facts” (at para 33).
[25]
Therefore,
each case is sui generis based on its own individual circumstances and
facts. This means that, in some cases, exceptional factors may cause the state
to fail to provide adequate protection.
[26]
Having
read the entire record, this Court is of the view that, in this case, the RPD
committed several reviewable errors in its analysis of the state protection
available to the applicant, for example, by relying on erroneous findings of
fact without regard to the applicant’s personal circumstances. Consequently,
the RPD did not properly analyze the applicant’s prospective fear or the
protection that would be available to her in the Dominican Republic if she were
to return under the same conditions.
[27]
First,
the RPD unreasonably rejected all the explanations provided by the applicant
during her testimony. A mere error in the date should not suffice to reject the
evidence of the complaint that the applicant had filed with the police, given
that a copy of the complaint had been obtained by the applicant’s mother and
not the original. Nor should the RPD have relied on the perception of the
applicant’s partner that he was at risk of being captured by the police for
having beaten and injured her to find that the police were capable of
protecting the applicant and following up on her complaint. The evidence
clearly established that nothing had been done to follow up on her complaint,
and the subjective perception or fear that one might have experienced after
committing a crime has no relevance. To meet the standard, a decision must fall
within the “range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 at para 47).
[28]
Second,
even if the RPD were entitled to deference from this Court with respect to its
finding that the applicant had not exhausted the recourses available to her
from government agencies and NGOs in seeking protection in her country, this
Court, in light of the exceptional facts that have been held to be credible, is
of the view that the RPD was not sensitive to the “social, cultural, religious,
and economic context” in which the claimant found herself when it held that it
was objectively unreasonable of her not to have sought state protection,
contrary to the requirements of Guideline 4 (see also the Supreme Court of
Canada’s decision in R v Lavallée, [1990] 1 S.C.R. 852, regarding battered
woman syndrome).
[29]
The
applicant testified that she came from a small town where she lacked both the
necessary information and resources to take action against the violent partner
who had abused her and prevented her from seeing her children. The RPD should
have taken into account the circumstances of the narrative that it held to be
credible (including the social milieu to which the applicant belonged, her abusive
and turbulent marital relations and her state of psychological health); its
failure to do so renders its decision unreasonable.
[30]
The
case law from this Court is consistent with respect to the analysis of state protection
by the RPD. Justice Mainville noted the following in Jimenez, above:
[4] . . . the availability of state protection should
not be decided in a factual vacuum in terms of a refugee claimant’s personal
circumstances. A decision with regard to the subjective fear of persecution,
which includes an analysis of the refugee claimant’s credibility and the
plausibility of his or her account, must be made by the Immigration and Refugee
Board to establish an appropriate framework for an analysis, where necessary,
of the availability of state protection that takes into account the individual
situation of the refugee claimant in question. . . .
VIII. Conclusion
[31]
For
all of these reasons, the application for judicial review is allowed and the
matter referred back to a different RPD member for redetermination.
JUDGMENT
THE COURT ORDERS that the application for
judicial review be allowed and the matter referred back to a different Refugee
Protection Division member for redetermination. No question of general
importance arises for certification.
“Michel M.J. Shore”
Certified true translation
Francie Gow, BCL, LLB
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