Date: 20100208
Docket: IMM-5647-08
Citation: 2010 FC 126
Toronto, Ontario, February 8, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
CLAUDIA
JACQUELINE GARCIA BAUTISTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of the
Refugee Protection Division dated November 28, 2008, where the Board found
that the Applicant was not a refugee pursuant to sections 96 and 97 of the Act.
[2]
Claudia
Jacqueline Garcia Bautista (the Applicant) is a citizen of Mexico who lived in the
Federal District of Mexico City. In 2000, she began a relationship with her now
ex-partner, Pedro Guerra, when she was 15 years old and he was 23.
[3]
She
was physically abused by her ex-partner in 2006, 2007 and 2008. She came to Canada leaving her two
daughters with her mother and filed a refugee claim upon arrival.
[4]
She fears
that if returned, she will be beaten and killed by this man.
[5]
While
in Mexico, she sought help three
times without success or results.
[6]
The
Board found that the Applicant's testimony was credible for the most part.
[7]
However
it rendered a negative decision based on the existence of state protection in Mexico.
[8]
The
Board relied on its findings that Mexico is a functioning democracy with civil,
administrative and criminal legislation which prohibits domestic violence. It
acknowledged that there was conflicting evidence on the enforcement of the
legislation. However, it did not specify what this evidence was. In reaching
its decision it was important that the Board be satisfied that the protection
offered is more than efforts and attempts at improvement. In weighing the
contradictory evidence, the Board stated at page 7 of its reasons:
There
has been criticism regarding the present levels of enforcement of the new
legislation and hence the effectiveness is somewhat in question. However,
weighed against this is reliable and persuasive evidence which indicates that Mexico candidly acknowledges its past problems, but is taking
active steps to rectify corruption and impunity. Mexico
is making serious and genuine efforts to address the problem of domestic
violence and that police are both willing and able to protect such victims.
[9]
In
evaluating the reasonableness of the decision, the Court must look “into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. … But it is also concerned with
whether the 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
S.C.R. 190, at paragraph 47).
[10]
I
believe that the Board erred on two grounds in coming to its finding. First of
all, it weighed the evidence of criticisms of the effectiveness of the
legislation against evidence on the efforts made to address the problems of
domestic violence. This is not enough to ground a finding of state protection; regard
must be given to what is actually happening and not what the state is endeavoring
to put in place (A.T.V. v. Canada (Minister of Citizenship and Immigration), 2008 FC 1229, 75 Imm.
L.R. (3d) 215 at paragraph 14).
[11]
Secondly,
although the Board does acknowledge the contradictory evidence, it does not
truly address the reasons why it considers it to be irrelevant (Zepeda v. Canada (Minister of
Citizenship and Immigration), 2008 FC 491, [2009] 1 F.C.R. 237 at paragraph
28). The Board does not say how this evidence was weighed against that of the
Applicant that she had sought help at the Public Ministry only to be turned
away for various reasons. Furthermore, many of
the documents relied on by the Board also contain portions which would bring
one to reach a different conclusion, are never truly addressed.
[12]
For
example, one report indicated that domestic abuse occurs in one in three homes
in Mexico and that almost half of the homicides in Mexico can be linked to
domestic violence. The same report indicates that domestic violence is
generally viewed as a private issue and police are reluctant to intervene (Canada, Immigration and
Refugee Board, Mexico: Domestic Violence and Other Issues Related to the
Status of Women (March 2003)).
[13]
Another
report relied on by the Board adds that, while a number of laws have been
adopted to combat violence against women, a gap exists between legal
initiatives and actual practice (Canada, Immigration and Refugee Board, Situation
of Witnesses to Crime and Corruption, Women Victims of Violence and Victims of
Discrimination on Sexual Orientation, (February 2007) at section 4.3.1).
Also, many women do not follow through on complaints to the public prosecutor because
they believe that staff at these offices (mainly lawyers and other public
servants) tend to be insensitive or indifferent to victims of gender violence. Public
prosecutor officials sometimes try to discourage women from registering a
complaint as they believe the victim will withdraw charges following reconciliation
with her partner. The complaint process at the public prosecutor's office is
lengthy, in some cases taking an entire working day (Situation of Witnesses
to Crime and Corruption, Women Victims of Violence and Victims of
Discrimination on Sexual Orientation, (February 2007) at section 4.3.1).
[14]
In
its 2008 Report, Human Rights Watch declared that Mexico lacks adequate legal
protections for women and girls against violence and sexual abuse. Another
report points out that the new law enacted on February 1, 2007, will require at
least one year to be implemented and is greatly dependent on increased funding
to allow for its enforcement. Furthermore, there is insufficient infrastructure,
which will pose a challenge to implementation. (Research Directorate,
Immigration and Refugee Board of Canada, Mexico: The new federal law to
combat violence against women (2007) (7 June 2007)).
[15]
The
Applicant relies in part on the recent decision in Zepeda where this
Court held that there must be a complete analysis of the evidence in order to
determine whether Mexico is able or unable to protect its citizen. "Mexico
is a democracy and generally willing to protect its citizens, its governance
and corruption problems are well documented. This assessment should include the
context of the country of origin in general, all the steps that the applicants
did in fact take, and their interaction with the authorities" (at paragraph
20). All of the examples drawn from the documentary evidence show that there is
strong evidence that protection is inadequate. This evidence should not be
weighed against efforts being made to rectify the situation, but rather against
evidence of actual protection. Furthermore, there is little, to no evidence
that protection is actually adequate and that the resources in place are
effective. The Applicant was not even aware of the existence of many of the
suggested alternatives, which makes one wonder how well known and effective they
truly are. The documentary evidence also shows that corruption is prevalent in Mexico. In addition to this,
the Applicant’s own attempts to seek protection from the Public Ministry were
unsuccessful for reasons that are evoked in the criticisms of the system.
Accordingly, I am not satisfied that the decision falls within an acceptable
range of outcomes.
[16]
In
light of my determination on the issue of state protection, judicial review
will be granted. No question for certification was proposed and none arises.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-5647-08
STYLE
OF CAUSE: CLAUDIA JACQUELINE GARCIA
BAUTISTA v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February
8, 2010
REASONS FOR JUDGMENT
AND JUDGMENT: BEAUDRY
J.
DATED: February
8, 2010
APPEARANCES:
Mr. Daniel Fine FOR
APPLICANT
Mr. Neal Sampson FOR
RESPONDENT
SOLICITORS OF RECORD:
Daniel M. Fine FOR
APPLICANT
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR
RESPONDENT
Deputy Attorney General of Canada
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