Date: 19990331
Docket: IMM-2054-98
BETWEEN:
MARIA DEL ROCIO HERNANDEZ DURAN, and
PAOLA PENALOZA HERNANDEZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (CRDD) that the applicant Maria Del Rocio Hernandez Duran and her daughter Paola Penaloza Hernandez are not Convention refugees. Ms. Duran is a citizen of Mexico. Her claim is based on allegations of physical and sexual abuse for which there is no effective state protection.
[2] Ms. Duran's evidence was that she was abused on several occasions between 1993 and 1996 by Mr. Pedro Penaloza Perez. He was her common law husband from 1992 and is the father of her child who was born in 1993. Ms. Duran also alleged that Mr. Perez stalked her and attacked members of her family with whom she sought refuge. She said that she sought assistance from the police on several occasions but they did not act. She believes that Mr. Perez has connections with the police that give him some influence over them, and speculates that he may have bribed them. All of these events occurred in Mexico City. Ms. Duran fled to Canada in 1996 with her daughter.
[3] I take it from the reasons for decision that the CRDD believed most but not all of Ms. Duran's allegations of abuse by Mr. Perez. Nevertheless they formed a negative opinion of her credibility and ultimately concluded that she had failed to establish the lack of state protection and internal flight alternative.
[4] There are numerous factual and logical errors in the CRDD's reasons. Most of these errors relate to the question of Ms. Duran's credibility and are inextricably tied to the CRDD's findings of fact on critical issues. After reviewing those reasons and the record as a whole, I have concluded that the CRDD did not understand or fairly assess the totality of the evidence and reached conclusions that are patently unreasonable. For that reason, this application for judicial review will be allowed.
[5] I do not propose to list in detail all of the errors I identified, but I will mention the most important of them.
The recurso de amparo
[6] The CRDD placed considerable emphasis on a document referred to as a recurso de amparo apparently obtained by Ms. Duran in December of 1995. They thought that it was a non-expiring restraining order, and that its existence established that effective state protection was available to Ms. Duran. She testified that she thought this was a legal device, effective for 30 days, or 90 days with successive renewals, that would and did keep Mr. Perez away from her while it was in force. She thought it could not be renewed past 90 days, but there is objective evidence on the record that a recurso de amparo does not expire.
[7] Apart from the question of duration, the documentary evidence that purports to explain the legal effect of a recurso de amparo is remarkably uninformative. There is, however, considerable evidence in the record that Mexican law does not allow restraining orders in cases of domestic violence. If that is so, then the CRDD was wrong to conclude that a recurso de amparo is a non-expiring restraining order.
[8] To add to the confusion, it appears that the document that the CRDD thought was the recurso de amparo of December 1995 appears on its face to be a written record of Ms. Duran's complaint to the police in August of 1996 (this is referred to in her PIF narrative, paragraph 22). In my view, it was patently unreasonable for the CRDD to make an adverse credibility finding based on Ms. Duran's flawed explanation of the legal effect of a recurso de amparo.
Failure to consult a human rights groups or NGO
[9] The CRDD disbelieved Ms. Duran when she said she had not sought the assistance of any Mexican NGO or human rights group in Mexico because she believed they would require a payment before they would help her. The CRDD characterized this comment as self-serving and implausible because there was no documentary evidence that such groups operate in that fashion. I can find nothing in the record that suggests that there is any NGO or human rights group that could have provided her with effective protection against abuse if the police could not or would not. Ms. Duran's stated reason for not seeking out such a group seems to me to be irrelevant.
Failure to seek medical attention
[10] The CRDD also found it hard to believe that Ms. Duran would not seek medical attention after a particularly brutal attack by Mr. Perez culminating in rape, particularly since that incident had led to intervention by her employer which in turn led to contact with police and a consultation with a lawyer. This led them to doubt that the rape occurred.
[11] I see no logic in this conclusion. The fact that Ms. Duran's employer attempted to help her obtain police protection and some legal advice after that incident is not inconsistent with her failure to seek medical attention. It is common knowledge that rape victims may not seek medical attention if they have reason to believe their complaint will not be taken seriously or that the investigation will result in further shame and embarrassment. Ms. Duran was asked at the hearing to explain her reasons for not seeking medical attention. Her evidence indicates that she was ashamed because of the incident and discouraged by the lack of any result from her previous complaints against Mr. Perez. There is ample evidence on the record to provide an objective basis for such a reaction on her part.
Availability of state protection
[12] Ms. Duran also testified that she had tried to obtain assistance from the police on several occasions but they did not help her. That is consistent with the documentary evidence in the file to the effect that women in Mexico have little hope of legal recourse for domestic abuse. The CRDD chose to cite other documentary evidence that suggests that Mexican authorities "do not ignore domestic violence," and that there are criminal and civil procedures available in Mexico to a victimized spouse. The matter of weighing Ms. Duran's evidence in this regard against the other evidence in the file is solely within the discretion of the CRDD. However, given their flawed assessment of Ms. Duran's credibility, I cannot conclude that they exercised their discretion on a reasonable basis.
[13] The record also indicated that Ms. Duran had obtained some form of legal custody over her daughter in proceedings that were uncontested by Mr. Perez, though he had notice of them. The CRDD noted, correctly, that the record does not disclose whether she has sole custody or whether Mr. Perez has any legal right of access. However, the CRDD stated that the fact that Ms. Duran was able to make use of the Mexican legal system to secure some form of legal custody over her daughter supported its determination that Ms. Duran had state protection and legal recourse to secure redress against her injuries within Mexico. This seems to me to be flawed logic. Even if it is assumed that the Mexican law regarding child custody provides some protection to Ms. Duran's daughter, that affords no basis for concluding that Ms. Duran can expect effective state protection against abuse of the kind she claims to have suffered.
Internal flight alternative -- the psychologist's report
[14] On the question of internal flight alternative, there was before the CRDD a report of a psychologist that afforded some evidence of the harm that might be caused to Ms. Duran if she were compelled to return to Mexico. Counsel for Ms. Duran argued that the CRDD was obliged to accept this report and give it effect in the context of internal flight alternative. I do not agree. The CRDD was obliged to consider the report, and they did that. The fact that a psychologist concludes that a person does not have an internal flight alternative cannot be binding on the CRDD.
[15] Again, however, Ms. Duran gave evidence that she believed that Mr. Perez had sufficient resources to find her if she were to return to any areas of Mexico, and that he likely would do so. That evidence, if believed, could result in a finding that there is no internal flight alternative in Mexico for Ms. Duran. Because her credibility was not properly assessed, this aspect of her claim was not fairly dealt with.
Conclusion
[16] In my view this case does not involve a serious question of general importance.
[17] This application for judicial review is allowed. The decision under review is quashed and the matter is remitted to the Convention Refugee Determination Division for reconsideration by a differently constituted panel.
Karen R. Sharlow
Judge
Ottawa, Ontario
March 31, 1999
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