Docket:
IMM-8267-12
Citation: 2013 FC 1027
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, October 10, 2013
PRESENT: The
Honourable Mr. Justice Montigny
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BETWEEN:
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ANA CECILIA RODRIGUEZ AGUIRRE
ANNA SOPHIA CASTILLO RODRIGUEZ
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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, Ana Cecilia Rodriguez Aguirre
and her daughter Anna Sophia Castillo Rodriguez, were found not to be Convention
refugees or persons in need of protection under sections 96 and 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 7 (the Act) by the Refugee
Protection Division of the Immigration and Refugee Protection Board (the RPD).
Relying on subsection 72(1) of the Act, they are now applying for judicial
review of that decision. For the following reasons, I feel that this
application for judicial review must be dismissed.
I. Background
[2]
The applicant claims to have been the victim of
violence at the hands of her ex-husband, Uzziel, whom she met in 1998, and
fears the violence will continue if she were to return to Mexico, her country
of origin. The applicant reported many violent incidents in her Personal
Information Form (PIF) and during her testimony.
[3]
In November 1999, the applicant learned that she
was pregnant and left Mexico to live in the United States, where her daughter
was born. She returned to live with her daughter in San Luis Potosi in January 2001.
In May 2001, the applicant moved to Cuautitlan Izcalli to go to university and
she asked Uzziel to come live with her and her daughter, but he refused. After
completing her studies and getting a job in Leon, in the State of Guanajuato, she
informed her husband that she was moving. He then allegedly insulted her,
accused her of having a lover in Leon, and made death threats.
[4]
Starting in June 2005 and until May 2007, Uzziel
made it a habit to go to the applicant's home in Leon and stay for a few days.
He regularly asked her to return to San Luis Potosi and threatened her when she
refused. Then, on August 2, 2007, the applicant learned that Uzziel was in a
detox centre.
[5]
On November 20, 2007, Uzziel allegedly went to
Leon to the applicant's home to ask her to return to San Luis Potosi with him. When
she refused, Uzziel slapped her. He went back to the applicant's home on
January 21, 2008, and made death threats to her and their daughter. He pushed
the applicant to the ground and said he would be back. The applicant claims to
have called the police, who never showed up. A similar incident allegedly
occurred on February 18, 2008; hit in the face, the applicant did not go to the
hospital, claiming that she was ashamed.
[6]
The next day, she went to see a lawyer in Leon
and asked him to help her file a complaint against Uzziel. The lawyer allegedly
replied that he could not help her because Uzziel did not live in the city of
Leon. He suggested that she go see one of his colleagues who worked in San Luis
Potosi, which she did. However, that lawyer indicated that she should file the
complaint in Leon, the applicant's place of residence.
[7]
The applicant then went to the Integral
Development of Women (IDW) office in San Lui Potosi, where she was allegedly
told that she had to go to the IDW in Leon. There, she was told they could not
help her because the attacker did not live in Leon, and she was allegedly
advised to go to the Municipal Institute for Women in Leon.
[8]
At the applicant's request, her husband agreed
to meet with a mediator at the Institute on March 14, 2008. Unhappy with the way
the meeting was going, he decided to end it and ordered the applicant to follow
him. When they arrived at the applicant's home, he began to insult, threaten
and hit her. The applicant decided to take refuge at a friend's house, but
again refused to go to the hospital, despite her friend's advice, because she
was embarrassed. That same day, the police noted that Uzziel had left the
applicant's house.
[9]
On April 18, 2008, Uzziel again went to the main
applicant's home. Again, he hit her, threatened to kill her and tried to
strangle her. She nonetheless managed to escape to a neighbour's house, where
she called the police. When the police commander arrived on site 20 minutes
later, he took the applicant to the hospital after noting that her husband was
no longer on the premises.
[10]
After she left the hospital, the applicant sought
shelter at her paternal grandparents' home in Puruandiro on April 21, 2008; after
she learned that her husband had been seen in the village and was looking for
her, she fled to her aunt's in Cuautitlan Izcalli. Uzziel found her again and
showed up at her aunt's on June 22, 2008; when the police arrived on site after
the applicant's call, Uzziel was already gone. The applicant then sought
shelter at another aunt's in Concepcion, but Uzziel tracked her down again and
threatened her by phone. This was when she decided to flee Mexico and come to
Canada. The applicant arrived on June 30, 2008, and applied for refugee protection
the same day.
II. The
impugned decision
[11]
The RPD found that the applicant was not
credible and had not succeeded in reversing the presumption that the protection
offered by Mexico is adequate.
[12]
With regard to the issue of credibility, the RPD
explained that the applicant did not provide probative evidence of the treatment
she allegedly received at the hospital after the assault by her ex‑husband.
Additionally, the RPD considered it unlikely that two lawyers could have told
her it was impossible to file a complaint for assault when the attacker and the
victim did not live in the same state, considering the documentary evidence
that indicated a complaint can be transferred to the competent state if not
filed in the correct place.
[13]
With regard to state protection, the RPD began
by stating that the Mexican state is presumed to be capable of protecting its
population and that the applicant cannot meet the burden of showing that the
protection is inadequate based on her subjective reluctance to seek out the
State's protection. After referring to certain documents from the National
Documentation Package describing the protection offered to women in the Federal
District and the implementation of a new general law on women's access to a life
free of violence, the RPD concluded that the applicant did not make enough
effort to seek the protection offered by the Mexican authorities.
III. Issues
(A) Was the
RPD's conclusion regarding the applicant's credibility erroneous?
(B) Is the
RPD's state protection finding reviewable?
IV. Analysis
[14]
The appropriate standard of review for both
issues raised in this case is not challenged. It has been well established that
issues of credibility and state protection are reviewed on a standard of
reasonableness. The question, therefore, is whether the RPD findings with regard
to the two above-noted issues fall within the range of "possible,
acceptable outcomes which are defensible in respect of the facts and the
law": Dunsmuir v New Brunswick, 2008 SCC 9, para 47, [2008] 1 SCR
190; Soto v Canada (Minister of Citizenship and Immigration), 2011 FC
360 (available on CanLII).
A.
Was the RPD's conclusion regarding the
applicant's credibility erroneous?
[15]
The applicants claim that the RPD did not
consider the explanations given about the lack of evidence regarding her
hospital visits. The applicant submitted to evidence an e-mail exchange with
the hospital where she was treated, and it seems from these emails that the attestation
requested cannot be provided since there was no surgical procedure and the
payment invoice cannot be found because the tax inventory was done three years
ago.
[16]
The RPD considered these emails and specifically
referred to them in its reasons, but still came to the finding that they did
not corroborate the applicant's account that she was treated following abuse
she suffered at the hands of her ex-husband. In my opinion, the RPD findings on
this are questionable at the very least. Under section 7 of the Refugee
Protection Division Rules, refugee claimants who cannot provide the RPD
with acceptable documents to establish their identity and other information in
the claim must provide a reason and indicate the measures that were taken to
get the documents. This is exactly what the applicant did, and the RPD cannot
make a negative finding regarding her credibility on this ground, unless it
questions the authenticity of the email from the hospital that was submitted to
evidence, which it did not do: see Amarapala v Canada (Minister of
Citizenship and Immigration), 2004 FC 12 at para 10, 128 ACWS (3d) 358; Dundar
v Canada (Minister of Citizenship and Immigration), 2007 FC 1026 (available
on CanLII). It is true that the documents the hospital could have provided
would not necessarily have established that the treatment received was for
physical abuse or that this abuse was inflicted by her ex-husband. However,
since it is impossible to obtain such documents, this is pure speculation. This
RPD finding seems unreasonable to me.
[17]
The applicants also note that the RPD cannot
question the applicant's credibility on the basis that it seems unlikely that
two lawyers would make mistakes and provided contradictory information as to
where a complaint may be filed. In the applicant's eyes, this element is not
significant enough to undermine the main applicant's credibility.
[18]
First, I must note that the RPD did not
correctly summarize the applicant's statements, stating that she said the two
lawyers she visited indicated [translation] "that she could not file a
complaint if the victim herself did not reside in the same state as the persecutor".
Her testimony and her PIF indicate that the lawyer from Leon believed that the
complaint should be filed in the city where the aggressor lives, whereas the
lawyer in San Luis Potosi told her the opposite. Despite this error, it is
reasonable for the RPD to be surprised not only that two lawyers gave
completely opposite opinions, but that these opinions were contrary to the
documentary evidence consulted. It is well established that the panel is
entitled to prefer documentary evidence to the testimony of a refugee claimant
in its assessment of the evidence. As a result, the RPD could reasonably
consider that the applicant's credibility was affected, at least with regard to
this aspect of her testimony.
B. Is the RPD's
state protection finding reviewable?
[19]
The applicants claimed that the RPD committed a
number of errors in its assessment of the protection offered by the Mexican
State. First, the applicant feels that the RPD erred by criticizing her for not
asking for police protection in writing, insomuch as such a requirement does
not exist and she sought police assistance many times to no avail. With regard
to her visit to the IDW offices in two different locations, and the fact she
never asked to see a supervisor when her complaint was not accepted, the main
applicant claims that the IDW is a government organization that helps families
and its mission is not to offer state protection; at any rate nothing would
have come of this as they did not want to help her.
[20]
The applicants also rely on the documentary
evidence indicating that the general law on women's access to a life free of
violence, adopted in March 2008, still was not in force in August 2010 in the
state of Guanajuato where the applicant lived (it does appear that the law was
in force in the Federal District and in 29 of 31 of Mexico's states). Lastly,
the applicants add that the RPD erroneously relied on a document reporting on
the protection offered in the Federal District, because they did not live in
the Federal District and possibility of internal refuge there was not
considered.
[21]
It is true that tab 5.18 of the National
Documentation Package of Mexico on the adoption of the general law on women's
access to a life free of violence, dated August 12, 2010, states that the Law
for the Prevention, Intervention and Eradication of Violence adopted by the
State of Guanajuato is different from the general law because is does not
specifically address violence against women such as femicide, sexual harassment
and sexual violence, and it was criticized because it does not adequately take
the general law into consideration. Although this law may be imperfect, the
fact remains that the applicant did not meet her burden of proving that she
could not benefit from the protection of her country. As the Federal Court of
Appeal noted in Carillo v Canada (Minister of Citizenship and Immigration),
2008 FCA 94 at para 30, [2008] 4 FCJ 636:
... a claimant
seeking to rebut the presumption of state protection must adduce relevant,
reliable and convincing evidence which satisfies the trier of fact on a balance
of probabilities that the state protection is inadequate.
[22]
In this case, the main applicant justified her failure
to file a complaint with the police by claiming she did not trust the police
and that if she filed a complaint, [translation]
"it would take a long time". However, as the RPD noted, the police
came to her assistance on many occasions when she called them. The case law is
clear that subjective reluctance is insufficient to refute the presumption that
a democratic state is able to ensure the protection of its citizens: see, for
example, Moczo v Canada (Minister of Citizenship and Immigration), 2013 FC
734 (available on CanLII); Gomes Sousa v Canada (Minister of Citizenship and
Immigration), 2011 FC 63, 96 Imm. L.R. (3d) 338. The main applicant had the
obligation to show that she had offered the Mexican authorities a real
opportunity to intervene before legitimately being able to claim that her
country was unable to provide the protection she required. Although she
received help from the police when she called for their assistance, the
applicant did not find it relevant to file a formal complaint against her ex‑husband.
In the circumstances, the RPD could reasonably find that she did not refute the
presumption of state protection.
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