Date: 20100429
Docket: IMM-5022-09
Citation: 2010
FC 469
Toronto, Ontario, April 29, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
jose luis miramontes-hernandez
silvia elena
severa-cruz
Applicants
and
the minister of
citizenship
and immigration
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a husband and wife who fled Mexico to claim refugee protection
in Canada under both s.96 and s.97 of
the IRPA. The Refugee Protection Division (RPD) rejected the Applicants’
claim on the basis that they failed to seek state protection in Mexico. In so finding, the
credibility of both Applicants was not in issue.
[2]
The
details of the Applicants’ claim and the reasons for rejection are outlined in
the RPD’s decision as follows:
[2] Miramontes
[the husband] and Severa [the wife] fear for their lives at the hands of Pedro
Chavez Gomez (hereinafter referred to as "Chavez"), Severa’s former
boyfriend, a judicial police officer, who in the past, verbally and physically
abused Severa and afterwards physically assaulted and threatened Miramontes.
Severa alleges Chavez verbally and physically assaulted her on a number of
occasions during their thirteen month relationship. After the relationship
ended, Severa met Miramontes and they began a relationship. Chavez found out
about this relationship and threatened both claimants on a number of occasions.
The claimants allege Chavez and another judicial police officer physically
assaulted them in December, 2007. In May2008, Miramontes alleges Chavez with
two other judicial police officers, kidnapped him and beat him and told him to
leave the female claimant, then threatened to kill him, and told him to quit
his job, where he was working with Severa. The claimants fled to Canada on September 9, 2008 and made a claim for refugee
protection that same day.
[…]
[17] In
this particular case, the claimants were questioned as to what efforts they
made to seek state protection before fleeing Mexico.
Severa testified she did not go to the police to report Chavez for physically
harming her, neither during their relationship, nor afterwards, because Chavez
threatened he would harm her if she reported him to the police. Miramontes
testified after he was kidnapped and beaten and his life threatened by Chavez
and two other individuals, who he identified as police officers, he sought
advice from the National Human Rights Commission. Miramontes testified a lawyer
from the Commission interviewed him and was very helpful. Miramontes decided
not to pursue his complaint against Chavez, because he did not have witnesses
who saw Chavez physically assault him and he feared Chavez’s threats against
his life.
[18]
The claimants allege a fear of persecution by Chavez, a member of the Judicial
Police. Other than making one inquiry to the National Human Rights Commission,
the claimants did not attempt to seek state protection at all. Therefore, I
find that the claimants did not make every possible effort to obtain state
protection. When state officials are behind the persecution, the applicant does
not have to exhaust all possible avenues of recourse in the country (Chaves,
Carrillo); however, it is stretching a point to say that he or she no
longer has to seek protection from his country (Singh). A corrupt police
officer does not constitute a situation in which the state itself is the agent
of persecution. The efforts made by the claimant were insufficient. The general
principle that persecuted individuals must seek protection from their state
before seeking protection from another state applied (Ward).
[…]
[20]
The claimants were questioned about their views on state protection in Mexico. Severa testified that due to her fears that Chavez would
carry out his threats against the claimants, and because he was a police
officer who would be protected by his fellow policemen, she did not believe
state protection would be available to her. I found the claimant’s response
regarding the effectiveness of state protection to be not objectively well-founded,
since they were largely unsubstantiated and contradict the documentary
evidence.
[…]
[23]
I find that the claimants, in the circumstances of this case, have failed
to rebut the presumption of state protection with clear and convincing evidence.
Therefore, I am not persuaded that the state of Mexico
would not be reasonably forthcoming with state protection, should the claimants
seek it.
[3]
It is correct that a claimant will not meet the
definition of “Convention refugee” where it is objectively unreasonable for the
claimant not to have sought the protection of his or her home authorities (Hinzman
v. Canada (Minister of Citizenship and
Immigration)
(2007), F.C.J. No. 584 (F.C.A.) at para. 56). However, Counsel for the
Applicants argues that the RPD’s state protection finding is made in reviewable
error because no qualitative analysis was made with respect to whether the
unwillingness of the Applicants to seek state protection was objectively
reasonable. Counsel for the Applicants argues that the claim under s.96 is a
gender-based claim given the relationship between Severa and her violent ex-boyfriend.
I agree with these submissions.
[4]
Counsel
for the Applicants also argues that, as a gender-based claim, the RPD should
have taken the Chairperson’s Guidelines Women Refugee Claimants Fearing
Gender-Related Persecution (November 13, 1996) into consideration,
the relevant feature of which is the following direction:
2. Decision-makers should consider
evidence indicating a failure of state protection if the state or its agents in
the claimant’s country of origin are unwilling or unable to provide adequate
protection from gender-related persecution. If the claimant can demonstrate
that it was objectively unreasonable for her to seek the protection of her
state, then her failure to approach the state for protection will not defeat
her claim. Also, the fact that the claimant did or did not seek protection from
non-government groups is irrelevant to the assessment of the availability of
state protection.
(Applicants’ Book of Authorities, Tab 1,
p. 8 of 19)
While Counsel for the Applicants did not squarely place this
argument before the RPD at the hearing of the Applicants’ claim, nevertheless,
I agree with the submission that the obligation to correctly identify the
essence of the claim produced as a gender-based is the responsibility of the
RPD.
[5]
On this
basis I find that the RPD was required to do a proper analysis of the
Applicants’ reasons for not claiming protection with the Guidelines in
mind. The fear held by the Applicants was a fear of reprisal for making a
report to the police about serious violent crime committed by a member of the
police, and aided by other members of the police. The RPD was called upon to
empathetically determine whether the subjective unwillingness of the Applicants
was objectively reasonable in the circumstances. This requirement was not met.
As a result, I find that the decision is unreasonable.
ORDER
Accordingly, I set aside the
decision under review and refer the matter back to a differently constituted
panel for re-determination.
There is no question to
certify.
“Douglas R. Campbell”
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