Date:
20130906
Docket:
IMM-9876-12
Citation:
2013 FC 938
Ottawa, Ontario, September 6, 2013
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
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LEIDY DIANA MANRIQUE
FLORES SALOME ILLARY GARCIA MANRIQUE
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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]
The
applicants seek judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of the decision
of the Refugee Protection Division of the Immigration and Refugee Board
of Canada [the Board], made on September 4, 2012, which
determined that they were not Convention refugees nor persons in need of
protection pursuant to sections 96 and 97 of the Act;
[2]
The
applicant, Ms Flores, arrived in Canada from Peru with her young daughter on
September 20, 2011 and sought refugee protection alleging persecution by her
common law husband. The daughter’s claim is derived from that of her mother, Ms
Flores.
[3]
The
Board found that Ms Flores had failed to rebut the presumption of state
protection with clear and convincing evidence. The Board was not persuaded that
Peru would not be reasonably forthcoming with adequate state protection if Ms
Flores returned to Peru and sought such protection.
[4]
For
the reasons that follow, the application is allowed.
Background
[5]
Ms
Flores began her relationship with Michael in 2003 when she was 15 years old.
He began to physically and sexually abuse her after she first became pregnant
in 2005. As a result, she suffered a miscarriage and spent three days in
hospital. Despite this incident, she continued the relationship and the pattern
of abuse continued. Her daughter was born in April 2007.
[6]
Ms
Flores testified that on at least eight occasions she sought to report the
repeated assaults to the police, but the police would not take a report and
advised her to go home and solve her domestic problems. Ms Flores also
testified that the police did take reports regarding four assaults, including
the 2005 assault which resulted in her miscarriage, although Michael was never
arrested or charged with any offence. Ms Flores’ evidence was that she lived in
fear of Michael and that he repeatedly threatened to kill her and her family if
she left him.
[7]
The
Board acknowledged and referred to some of the serious incidents of assault. On
September 18, 2008, Michael punched, kicked, and raped Ms Flores. The following
day, she sought medical assistance and reported the assault to the police. The
police told her to go home.
[8]
On
May 14, 2011, upon her return home from visiting her mother, Michael accused Ms
Flores of being with someone else, and then beat and raped her. She reported
the incident to a special police unit and completed a medical and psychiatric
examination. The police issued a summons to Michael, which he ignored without
consequences.
[9]
On
June 1, 2011, Ms Flores returned home from the market and discovered Michael
sexually touching their daughter. She intervened and was then beaten and choked
by Michael. Michael’s mother arrived shortly after the assault and then took Ms
Flores and her daughter to the hospital. She remained in the hospital for two
days. Although Ms Flores made a statement to the police, she did not have a
police report.
[10]
Ms
Flores then disclosed the abuse to her parents, who lived in the city some
distance away. Her parents assisted her to first go to Lima and then to leave Peru. She travelled to Canada via Mexico and the United States of America.
The
Decision
[11]
The
Board found that Ms Flores’ testimony was, for the most part, consistent with
her written evidence and other documents in support of her claim. However, the
Board noted several credibility concerns, most of which had not been put to Ms
Flores during the hearing. The Board noted that it could not draw any negative
inferences from the concerns not put to the applicant, but it is difficult to
conclude that the Board did not do so given its reference to these issues in
its state protection analysis.
[12]
The
Board found Ms Flores’ testimony about the June 1, 2011 assault to be
inconsistent because she did not have a police report. The Board noted
there was no corroborating evidence to support that the incident occurred.
However, the Board acknowledged that a medical report was provided which
indicated that she had spent two days in the hospital and which described the
injuries suffered. I note that the medical report referred to injuries
consistent with strangulation and other contusions and bruising. The Board found
it unreasonable that she could provide other police reports but not a report
for this incident.
[13]
The
Board seems to acknowledge, later on in its decision, that Ms Flores did report
the June 1, 2011 incident to the police, as it went on to find that she should
have waited to see what protection would be forthcoming following that report
rather than leaving the country. It appears that the Board accepted that the
incident occurred and that the police took a report to support its findings
that there was adequate state protection, but not to support Ms Flores’
evidence of her efforts to seek protection.
[14]
The
Board also found it implausible that the applicant did not have contact with
her parents and other relatives while she was living with Michael, given that
both she and her parents had access to e-mail as of November 2011 (which I note
was after the applicant left Peru). The Board implies that she could have
contacted her parents for help sooner.
[15]
Leaving
aside the lack of evidence about whether Ms Flores had access to e-mail at the
time she was living with Michael, I do not find it implausible that a victim of
repeated abuse by her common law husband would not disclose the abuse to family
members or to others. It is not unusual for such victims to not disclose their
abuse for many reasons, including shame, self blame and their hope that the
situation will improve.
[16]
The
Board also expressed concerns about Ms Flores’ hasty departure from Peru following the June assault, the date of issue of her identification documents, and her
explanation about how she obtained Michael’s authorization to take their
daughter out of the country. The Board noted that these concerns were not
raised with Ms Flores at the hearing.
[17]
Despite
the Board’s concerns about credibility, the Board accepted that Ms Flores was
in a common law relationship with Michael and that he was abusive.
[18]
The
Board examined extensive country condition documentation and found that Peru is a democratic country with a functioning political and judicial system which is able
to provide “a measure of protection” to its citizens and that the presumption
of state protection is strong.
[19]
The
Board considered evidence about support services available to victims of
domestic violence. While the Board recognized that domestic violence is a
serious issue in Peru due to ineffective punishment, lack of policing
resources, and police indifference, it nevertheless found that the situation is
improving due to specialized governmental services, internal investigations
into police ineptitude, and legal reforms, although there was no research on
how these reforms were being implemented. Overall, the Board found that Peru has undertaken significant efforts to provide better protection for its citizens,
including measures to address violence against women and children.
[20]
The
Board also noted Ms Flores’ history in seeking help from the police.
[21]
At
para 36, the Board found:
“I
accept that the claimant has had an abusive relationship with Michael and that
she did report this abuse to police. While at times they advised her to return
home and deal with her domestic situation, the evidence is clear that the
police did ultimately take her reports of abuse seriously, when the claimant
made complaints while at the hospital and when she attended the police
station.”
[22]
At
para 37, the Board concluded:
“Having
reviewed the claimant’s circumstances, I am unable to find that the police
response particularly in May and June 2011, does not provide clear and
convincing evidence that state protection is inadequate.”
[23]
And
at para 51, the Board noted, in response to Ms Flores’ testimony that it would
be pointless to continue to wait for the police to follow up, or to report to
the police or to higher authorities in Lima because “the police do nothing” to
help:
“[…]
although the claimant indicated in response to questions by counsel that she
had previously attended the police on at least eight occasions when they did
not help her, based on the supportive documentation, that is medical reports
and police reports, I find that in the circumstances particular to this
claimant that the police did respond to complaints made to them”.
Standard
of Review
[24]
The
standard of reasonableness applies to the Board’s findings of fact and to its
state protection analysis given that such an analysis is a question of mixed
law and fact (Carillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94,
[2008] FCJ No 399 at para 36 [Carillo]; Morales Lozada v Canada (Minister
of Citizenship and Immigration), 2008 FC 397, [2008] FCJ No 492 at para 17;
Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA
171, [2007] FCJ No 584 at para 38; Lopez Villicana v Canada (Minister of Citizenship
and Immigration), 2009 FC 1205, [2009] FCJ No 1499 at para 38).
[25]
Where the standard of reasonableness applies, as in this case, the
role of the Court is to determine whether the Board’s 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, [2008] 1 SCR
190 at para 47). There may be several reasonable outcomes and
“as long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome” (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 59). While the Court will not
re-weigh the evidence or substitute any decision it would have made, it will
quash a decision which does not reflect this standard and remit the matter back
to the Board for re-determination.
The Issues
[26]
Although
the Board had some concerns about the applicant’s credibility, the
determinative issue was state protection.
[27]
The
applicant submits that the Board’s state protection analysis was flawed: the Board
conducted a selective analysis of the evidence regarding the ability of Peru to
protect its citizens which focused on the efforts being made by
Peru rather than the adequacy of state protection; the Board ignored relevant evidence
which supported the applicant’s submissions that state protection was not
adequate, including the applicant’s own evidence of her experience; and, the
Board erred in assessing the reasonableness of the applicant’s efforts to seek
state protection in concluding that she had not rebutted the presumption of
state protection with clear and convincing evidence.
[28]
The respondent submits that the Board is presumed to have
considered all of the evidence and is not required to mention every single
piece of evidence adduced. The respondent further submits that the Board
acknowledged the criticisms and challenges regarding protection for victims of
domestic violence in Peru and based its findings on the objective evidence. The
respondent submits that, in any event, the applicant did not do enough to seek
assistance from the authorities in Peru and that the Board’s finding that she
failed to rebut the presumption of adequate state protection was reasonable.
[29]
In my view, although the Board correctly articulated the key
principles governing state protection, it failed to apply those principles to
the evidence before it and to the circumstances of the applicant and her
efforts to seek state protection.
State
Protection
[30]
As
the respondent notes, the applicant cannot resort to refugee protection without
first exhausting the resources of her own country. However, this proposition
must be put into context.
[31]
In
Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at para 18,
103 DLR (4th) 1 [Ward], the Supreme Court of Canada set out the
rationale underlying the international refugee protection regime which is meant
to be relied upon when the protection one expects from the state in which the
person is a national is unavailable, and even then, only in certain situations.
Refugee protection is considered to be surrogate or substitute protection in
the event of a failure of national protection. Persecuted individuals are
required to first approach their home state for protection before the
responsibility of other states becomes engaged.
[32]
The
presumption that a state is capable of protecting its citizens is only rebutted
by clear and convincing evidence that state protection is inadequate or
non-existent and the applicant bears the onus of providing such evidence (Carillo
at paras 18-19, Ward at paras 50-52).
[33]
State
protection should be adequate; perfection is not the standard. As noted by
Justice Crampton, as he then was, in Cosgun v Canada (Minister of
Citizenship and Immigration), 2010 FC 400, [2010] FCJ No 458 at para 52,
following a review of the jurisprudence regarding the appropriate test for
state protection:
[…] the law is now well-settled that the appropriate test for
assessing state protection is whether a country is able and willing to provide
adequate protection. In short, a claimant for protection under sections 96 or
97 of the IRPA must establish, with clear and convincing evidence, and on a
balance of probabilities, the inability or unwillingness of the state to
provide adequate protection. This burden of proof remains the same regardless
of the country being assessed, although the evidentiary burden required to
rebut the presumption of adequate state protection will increase with the level
of democracy of the state in question. (Carrillo, above, at paras. 25
and 26.)
[34]
State
protection must also be effective to a certain degree; mere willingness to
protect is insufficient (J B v Canada (Minister of Citizenship and
Immigration), 2011 FC 210 at para 47, 97 Imm LR (3d) 243). Efforts to
provide effective state protection must result in adequate state protection at
the operational level (Henguva v Canada (Minister of
Citizenship and Immigration), 2013 FC 483, [2013] FCJ No
510 at para 18).
[35]
In
E
Y M V v Canada (Minister of Citizenship and Immigration), 2011 FC 1364,
[2011] FCJ No 1663, Justice Mosley noted the need for the Board to analyze the
operational effectiveness of the state’s efforts, at para 16:
While the state’s efforts are indeed relevant to an assessment of
state protection, they are neither determinative nor sufficient (Jaroslav v Canada (Minister of Citizenship and Immigration), 2011 FC 634, [2011] FCJ No 816 at
para 75). Any efforts must have “actually translated into adequate state
protection” at the operational level (Beharry v Canada (Minister of
Citizenship and Immigration), 2011 FC 111 at para 9.
[36]
An
applicant need not seek state protection if to do so would expose her to a risk
to her life (Ward, at para 48). The onus on an
applicant to seek state protection is commensurate with the state’s ability and
willingness to provide protection. As noted by Justice
Rennie in Sow v Canada (Minister of Citizenship and Immigration),
2011 FC 646, [2011] FCJ No 824 at para 10:
This principle,
however, does not stand in isolation. It is tempered by the fact that the
presumption varies with the nature of the democracy in a country. Indeed, the
burden of proof on the claimant is proportional to the level of democracy in
the state in question, or the state’s position on the “democracy spectrum”: Kadenko
v Canada (Minister of Citizenship and Immigration) [1996] FCJ No 1376 at
para 5; Avila v Canada (Minister of Citizenship and Immigration), 2006
FC 359 at para 30; Capitaine v Canada (Citizenship and Immigration) 2008
FC 98 at paras 20-22.
[37]
In this case, while the Board extensively reviewed the country
condition documents and noted some of the criticisms of Peru’s ability to offer protection to victims of domestic violence, it did not conduct a real
analysis of the operational adequacy of Peru’s state protection efforts.
[38]
The
Board referred to a range of initiatives and efforts underway in Peru to address domestic violence. However, the existence of other agencies and
resources is not a substitute for police protection. This Court has
held that where an applicant is at risk of violence, it is the police that are
presumed to be primarily responsible to provide protection and to enforce the
law. While other resources may exist to assist victims of violence, these do
not provide adequate state protection for individuals in the circumstances of
the applicant (Katinszki v Canada (Minister of Citizenship and Immigration),
2012 FC 1326, [2012] FCJ 1444 at para 15; Aurelien v Canada (Minister of
Citizenship and Immigration), 2013 FC 707, [2013] FCJ No 752 at para
16 [Aurelien]). This principle was articulated by Justice
Tremblay-Lamer in Zepeda
v Canada (Minister of Citizenship and Immigration), 2008 FC 491,
[2008] FCJ No 625 at para 25:
25 I
am of the view that these alternate institutions do not constitute avenues of
protection per se; unless there is evidence to the contrary, the police
force is the only institution mandated with the protection of a nation’s
citizens and in possession of enforcement powers commensurate with this
mandate. For example, the documentary evidence explicitly states that the
National Human Rights Commission has no legal power of enforcement (“Mexico:
Situation of Witness to Crime and Corruption, Women Victims of Violence and
Victims of Discrimination Based on Sexual Orientation”).
See
also: Risak v Canada (Minister of Employment and Immigration), [1994]
FCJ no 1581, 25 Imm LR (2d) 267 at para 11.
[39]
Bearing
these principles in mind, it was not reasonable for the Board to conclude that
state protection for domestic violence victims in Peru, like the applicant, was
adequate at the operational level. The Board noted the laws on the books, but
then acknowledged that the police were indifferent, that few victims reported
due to delays in processing or expense, that punishments, if any, were light
along with other such criticisms. This evidence does not support the Board’s
finding.
[40]
The
analysis of the adequacy of state protection and an applicant’s efforts to
rebut the presumption of state protection must also take into account the
particular context and the circumstances of the applicant. In this case, the
applicant was a young woman who had been abused by her common law partner for
over six years, with limited education, living in a rural area without family
or other relatives close by. The Board’s expectation that she would wait for
the police to follow up on her report of the June 2011 assault, pursue higher
authorities in major cities (which she explained were eight hours travel
distance away), or seek out other agencies for assistance, suggests that the
Board failed to consider her circumstances – a young woman in a longstanding
abusive relationship, in a rural area, with a young child and a history of
police indifference and inaction.
[41]
Although
the Board indicated that it considered the Chairperson’s Gender Guidelines
[the “Guidelines”] in its analysis, the Guidelines are not sufficient on their
own to provide the necessary context. In Codogan v Canada (Minister of Citizenship and Immigration), 2006 FC 739, [2006] FCJ No
1032, Justice
Teitelbaum highlighted the need to consider the circumstances of an applicant
along with the other evidence (including the application of the Guidelines) and
found at para 32:
In my view, the RPD could not simply refer to the documentary
evidence and determine that state protection would be available to the
applicant. This approach fails to consider the particular circumstances of the
individual. In my opinion, the RPD should have examined the Applicant's
situation, and, with the assistance of the documentary evidence, determined
whether state protection could be available for the Applicant's situation of
having an abusive ex-boyfriend still seeking her. The panel's failure to
consider the Applicant's context in my view amounts to a reviewable error.
[42]
Similarly, in Aurelien, Justice Rennie noted at para 9:
[9]
An applicant need not seek state protection if the evidence
indicates it would not reasonably have been forthcoming. The Officer must
consider whether seeking protection was a reasonable option for the applicant,
in her circumstances. When the relevant circumstances include domestic
abuse, the Supreme Court of Canada has outlined specific considerations that
must be taken into account, including the psychological effects that abuse has
on a victim. The issue as framed in R v Lavallee, [1990] 1 SCR
852, is what the applicant “reasonably perceived, given her situation and her
experience.” The test is thus subjective and objective.
[43]
The
Board focused its inquiry on governmental efforts to address domestic violence
rather than on whether those admirable efforts had resulted in effective state
protection at the operational level. The Board remarked that “the authorities
in Peru are making serious efforts to curb violence against women.” The Board
also noted that various government agencies “have been working to eliminate all
forms of family violence in Peru.”
[44]
Although
the Board stated that it considered the country condition documents and noted
some criticisms of the efforts underway, including that domestic violence
remains a significant problem, that there is no effective punishment, that
processing of complaints is very slow, that few women file police reports due
to a fear of retaliation or due to the expense of doing so, and that police
remain indifferent to domestic abuse “despite the law that mandates otherwise”,
the Board relied on the efforts of agencies other than the police, including
hot lines and services provided by non-governmental organisations.
[45]
The
Board also relied on the fact that the police took at least two reports (and
the applicant’s evidence was that the police took four reports) and equated
that with an adequate police response. While arrests and convictions are not
always possible and are not the measure of adequate state protection, something
more than a police report, which is not acted upon, is needed.
[46]
Where
the evidence before the Board establishes that the serious efforts of the state
have not resulted in operational adequacy and that serious challenges remain,
which in the present case is reflected by the applicant’s own experiences, the
presumption of adequate state protection cannot prevail only because a country
is a democracy and is making such serious efforts.
Conclusion
[47]
The
Board concluded that the applicant did not rebut the presumption of state
protection because she did not do more to avail herself of the protection
offered by Peru, but instead sought the surrogate protection of Canada. The documentary evidence indicates that the police are “indifferent” to such
violence and the applicant’s own evidence supports that the police were,
indeed, indifferent to her reports. The repeated reaction of the police to the
applicant’s reports of sexual and other assaults was to go home and solve her
problems and on the few occasions when the police did take a report, the police
did not charge or arrest Michael nor did they enforce the two summons that were
issued. Given the applicant’s experience and the objective evidence, the
Board’s finding that there was adequate state protection and that the applicant
failed to make reasonable efforts to seek state protection is not supported by
the evidence and is, therefore, not reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed.
2.
No
question is certified.
"Catherine
M. Kane"
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