Date: 20040108
Docket: IMM-4509-02
Citation: 2004 FC 22
OTTAWA, Ontario, the 8th day of January 2004
PRESENT: THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER
BETWEEN:
JEANINNE GUADALUPE VIZUET PANIAGUA
DEMETRIO JEAFID MARTINEZ VIZUET
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Jeaninne Guadalupe Vizuet Paniagua (Ms. Vizuet Paniagua) is seeking judicial review of a decision by the Immigration and Refugee Board, Refugee Protection Division (the Board), which found that she and her son Demetrio Jeafid Martinez Vizuet are not refugees nor persons in need of protection.
Facts
[2] The applicants are citizens of Mexico. Ms. Vizuet Paniagua said she feared persecution because of her membership in the particular social group of women who were victims of wife battering. The claim by her four-year-old son was based on that of his mother.
[3] There is no doubt that Ms. Vizuet Paniagua was the victim of violence by her husband. The Board found her testimony credible in this respect, although it questioned her testimony about rape, because the applicant had not expressly referred to this in her Personal Information Form (PIF).
[4] In fact, the claim of Ms. Vizuet Paniagua and that of her son were dismissed because she did not convince the Board that her country was unable to protect her.
[5] In this connection, the applicant amended her PIF at the start of the hearing to add a reference to two approaches she made to the Office for Integral Family Development (the IFD) in June 2000 and January 2001. She said at the time that she did not know why these facts had been omitted from the translation of her PIF, and she filed a copy of the report of her interview with the IFD on June 29, 2000, as well as a translation of the document.
[6] In its decision, the Board discussed this amendment and the explanation given by the applicant, but concluded:
[TRANSLATION]
The panel does not believe that the applicant went to see the lawyer. It also does not believe that her husband beat her for laying a complaint against him, as if that had been the case the applicant, who appeared to be conscious of details when she gave a five-page, seventy-paragraph history, would certainly have mentioned it in her PIF, especially as these are factual situations which go to the very heart of the claim.
Moreover, the applicant's credibility is further vitiated by a significant omission. Asked to tell the panel what happened between her and her husband to induce her to lay a complaint against him, on the specific date of June 29, 2000, she answered as follows: "I went to the IFD, because a few days before he beat me, my sister defended me. He then hit my sister. I waited until when he was calm, three or four days after the event, before going to the IFD".
The applicant said nothing when the panel pointed out that it saw nothing about this in her written statement.
. . . In so doing, as we do not believe she filed a complaint against her husband's actions, not only was her subjective fear affected but she thus did not discharge the burden of establishing that the authorities did not want to or could not provide her with adequate protection.
[Emphasis added.]
[7] The Board did not mention the interview report filed by the applicant. Ms. Vizuet Paniagua regarded this as a crucial omission which vitiated the decision. In the respondent's submission, this document proved nothing since it did not indicate the purpose of the meeting (the complaint against the husband); and so no comment was necessary. The Court notes that the original document in Spanish contains notes about the purpose of the interview, but these are not translated in the French document filed by the applicant. That simply indicates [TRANSLATION] "purpose: illegible".
[8] However, as the passage from the decision cited in paragraph 6 indicates (see underlining), the Board's conclusion that the applicant did not complain on June 29, 2000 had an important impact on its assessment of the evidence so far as the government's ability to protect her was concerned.
[9] On this point, the Board went on to conclude:
[TRANSLATION]
Accordingly, in light of the documentary evidence the quotations from which are not exhaustive, there are ways and means by which the applicant could obtain adequate protection.
The provisions of section 97(1)(b) do not apply here, because the evidence amply demonstrated that there were procedures for protecting women who were the victims of wife battering and that the applicant did not make use of them as she ought to have done.
[10] The Board did not have to mention or comment expressly on all the documents filed by the applicant. However, the more relevant evidence is to an important aspect of the claim the more willing the Court will be to infer from the absence of comment in the decision that the evidence was ignored.
[11] In the case at bar, the Court concludes that the Board should have dealt with the interview report filed at the start of the hearing and explained why this evidence, from an independent source and corroborating the applicant's testimony in part, was disregarded. That is a reviewable error which vitiates the decision.
[12] In view of this conclusion, there is no need to consider the other arguments submitted by the applicant. However, the Court notes that when a claimant alleges that despite the existence of many remedies, it was not objectively unreasonable for her not to exhaust all of them before leaving her country, because in fact they were ineffective, it would be very advisable to comment even briefly on the documentary evidence submitted in support of that allegation, so that it will be clear that the Board considered not only whether the government in question wished to, but also whether it could, protect her.
[13] Like the parties, the Court considers that this application does not raise any point of general interest.
ORDER
THE COURT ORDERS THAT:
1. The application for judicial review is allowed. The Board's decision is quashed. The file of the applicant and her son are referred back for consideration by a panel of different members.
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Johanne Gauthier
Judge
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Certified true translation
J. Poirier, Translator
FEDERAL COURT
Date: 20040108
Docket: IMM-4509-02
Between:
JEANINNE GUADALUPE VIZUET PANIAGUA
DEMETRIO JEAFID MARTINEZ VIZUET
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
REASONS FOR ORDER
AND ORDER
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4509-02
STYLE OF CAUSE: Jeaninne Guadalupe Vizuet Paniagua
Demetrio Jeafid Martinez Vizuet
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 15, 2003
REASONS FOR ORDER The Honourable Madam Justice Johanne Gauthier
AND ORDER BY:
DATED: January 8, 2004
APPEARANCES:
Lenya Kalepdjian FOR THE APPLICANT
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lenya Kalepdjian FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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