Date: 20100809
Docket: IMM-4591-09
Citation: 2010 FC 812
Ottawa, Ontario, August 9, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SILVIA
ADRIANA MARZANA GARCIA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the decision of the Refugee Protection Division of the Immigration and
Refugee Board (RPD), dated August 6, 2009 (Decision), which refused the
Applicant’s application to be deemed a Convention refugee or a person in need
of protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of Mexico. She married her husband (Olvera) in 1994 when she was 17. Olvera
became violent in 1995 and beat the Applicant several times to the extent that
medical treatment was required. The Applicant left Olvera in 1998. However, he
followed her, abducted her, beat her, sexually assaulted her, and threatened to
kill her and her family and to take away their children if she did not return
to him. She complied with his demands and returned. Olvera was arrested on
several occasions, but was released and returned to the family home.
[3]
The
Applicant fled Mexico with Olvera and their two
children in November, 2004. The Applicant made an initial refugee claim with
Olvera that was based on fear of harm from their former employer, Bernardo
Ochoa, because the Applicant and Olvera had been successful in launching an
unjust dismissal complaint against Mr. Ochoa.
[4]
The
initial refugee claim cited numerous incidents alleged by the Applicant. For
example, she said that in one instance men dressed as police tried to abduct
her and Olvera. She believed that these men were sent by Mr. Ochoa to
intimidate them into dropping their labour complaint. These men released the
Applicant when private security officers who were nearby came to her assistance.
[5]
Another
incident occurred in which the same men dressed as police attempted to pick the
children up from school. When other police arrived, they spoke to the men but
let them go, and warned the Applicant not to continue her complaint. She
alleges further that two years later her family was forced out of their car at
gunpoint.
[6]
Olvera,
along with the Applicant, made a claim for protection in January, 2005. This
claim was refused but they were granted a new hearing.
[7]
During
this time, Olvera
had
again become abusive. The Toronto Police Service and the Catholic Children’s
Aid Society both became involved in the situation. The Applicant separated and
reunited with Olvera again,
before finally leaving him.
[8]
The
Applicant’s and Olvera’s
claims
for protection were separated, and the Applicant added fear of Olvera to her
fears of returning to Mexico.
DECISION UNDER REVIEW
[9]
In
considering this claim, the RPD referred to the Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution: Guidelines Issued by the
Chairperson Pursuant to Section 65(3) of the Immigration Act (Gender
Guidelines), and determined that the Gender Guidelines should be used to “help
understand and apply the added sensitivities necessary to properly assess
whether any credibility issues are the result of such difficulties or an
attempt to fabricate evidence.”
Section 96 analysis
[10]
In
considering the domestic abuse alleged by the Applicant, the RPD concluded that
the determinative issue with regard to a section 96 analysis was state
protection. The RPD determined that the Applicant had not rebutted the
presumption of state protection. According to the RPD, “while the effectiveness
of the protection is a relevant consideration, the test is whether the
protection offered is adequate.”
[11]
While
the Applicant said she had been attacked by Olvera on numerous occasions, the
RPD noted that she could not provide accurate details or documents for all of
the events. The Applicant was only able to recover a police report from
February 2001 and a medical report from December 1998. However, in considering
the length of time that has passed and the difficulties women may face in
general given these circumstances, the RPD did not draw an adverse inference
from this fact.
[12]
The
Applicant alleged that she went to the police several times and that on some
occasions her attempts to get help were met by crude remarks by the authorities
who suggested that she was to blame for the attacks, or that she deserved them.
On other occasions, the police were not informative with regard to what action
the Applicant could pursue to prevent the continuation of the abuse by Olvera.
[13]
The
RPD noted that Olvera was arrested on numerous occasions, in Cuernavaca, Morelos and Acapulco, Guerrero. The
Applicant alleges that he was released in Cuernavaca, Morelos after his family paid the authorities
a bribe.
[14]
The
RPD determined that “although the claimant believes authorities did nothing to
protect her from Olvera and she may have been disappointed that more could not
be done, the facts suggest that the authorities did act on some occasions.” The
RPD noted further that “sadly, even in countries with the best resourced
police, perfect protection is not possible.”
[15]
While
the Applicant had experienced mixed results when seeking the protection of
authorities in Mexico from 1995-2002, the RPD noted that documentary evidence
indicates that there have been changes with regard to gender violence in Mexico since this time.
According to the RPD, “while protection offered to women victims of violence in
Mexico is far from perfect
there are laws in Mexico to help protect women.”
The RPD then canvassed some laws and programs put into place, including the General
Law on Women’s Access to a Life Free of Violence, which aim to prevent,
punish and eradicate violence against women. According to the RPD, while
progress is slow, the efforts of the state are serious.
[16]
While
the Applicant may feel safer in Canada, the RPD noted that her experiences
which occurred long before Mexico had adopted its new laws showed that the
authorities had offered some protection. Moreover, as a result of the changes
the RPD felt that the situation has [had?] improved, including expansion
of public awareness campaigns and improvement of police training and responses,
legal requirement for advice and counseling and for medical assistance,
protection orders, and an increase in the number of shelters. Indeed, the RPD
determined that, in this instance, considering the changes that have occurred
since the Applicant left Mexico, state protection,
although not perfect, would be adequate and would likely be available to her.
[17]
With
regard to the threats made by Ochoa, the RPD held that the determinative issue was
one of nexus, since victims of crime, corruption or vendettas generally fail to
establish the necessary link between their fear of persecution and one of the
Convention grounds.
[18]
While
the Applicant fears the activities of Ochoa, who continues to seek revenge, this
revenge is not based upon race, religion, nationality, political opinion, or
membership in a particular social group. As such, the RPD determined the
Applicant to be “a victim of a personal vendetta and a victim of crime which
does not provide her with a link to a Convention ground.”
Section 97
analysis
[19]
The
determinative issue with regard to the section 97 analysis was whether the
Applicant faces a prospective fear upon her return to Mexico, and whether
she rebutted the presumption of state protection.
Prospective
fear
[20]
While
the Applicant continues to fear the threats made by Ochoa, the RPD held that the
claimant has also been in touch with her family in Mexico and over the
last four years Ochoa has made no effort to harass or even contact them in an effort
to intimidate or locate her.
Because the matter is settled, Ochoa’s
property has been seized, and he has shown little or no interest in the
Applicant, the RPD held that it was not likely that Ochoa would cause the
Applicant harm upon her return to Mexico.
State
protection
[21]
Even
if Ochoa were still interested in harming the Applicant, the RPD held that
there is adequate state protection available to the Applicant.
[22]
Although
the Applicant contends that she reported the first incident – when the men dressed
as police intimidated her – the RPD determined that her evidence as to what
happed to the report of this incident was inconsistent and unreliable.
[23]
The
Applicant did not produce any copies of police reports for the alleged
incidents. The RPD drew a negative inference from the lack of production of
these documents, and found that the Applicant did not report any of the alleged
incidents.
[24]
According
to the RPD,
It is incumbent upon a claimant to at
least try to obtain state protection where it is reasonably forthcoming and it
would have been reasonable to do so. In this case the claimant believed that
police were involved with Ochoa. However, if the claimant believes corrupt
police were involved there is recourse available in Mexico to address corruption and crime.
[25]
Furthermore,
the RPD found that the burden on the Applicant to seek state protection was
high because Mexico is a
“functioning democracy with democratic institutions, a functioning political
and judicial system and apparatus that provides a measure of protection to its
citizens including a functioning police force and military.”
[26]
Moreover,
the RPD felt that the documentary evidence demonstrates that Mexico is not in a
state of collapse and has been making, and continues to make, serious efforts
to fight crime and corruption. Such efforts include, according to the RPD, a
number of vehicles for reporting crime and corruption as well. What is more,
the RPD noted that state authorities are willing to take steps to protect
victims of crime and corruption. Mexico has also been cooperating
with its U.S. law
enforcement counterparts more than ever in a serious effort to combat its
problems with crime. The RPD concluded on this issue as follows:
There is no doubt that crime and
corruption are serious problems in Mexico.
The challenges faced by Mexico are formidable. However, the
preponderance of evidence indicates Mexico
is making serious efforts to combat crime and corruption and while progress is
not as swift as many would like, there is progress.
As a result, the RPD determined that the
Applicant had not availed herself of state protection, and that it is
reasonable to believe that protection would be forthcoming. As such, if the
Applicant were to return to Mexico, there would be adequate protection available.
ISSUES
[27]
The
Applicant submits the following issues on this application:
1.
Did
the RPD commit a breach of natural justice by making a specific negative
credibility finding about reports to the Mexican police after stating to
counsel at the hearing that credibility was not an issue for counsel to address
in written submissions?
2.
Did
the RPD err in determining that there was adequate state protection available
to the Applicant for each aspect of the claim?
3.
Did
the RPD err in determining that there was no prospective fear with respect to
Mr. Ochoa?
STATUTORY PROVISIONS
[28]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in
need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD
OF REVIEW
[29]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[30]
The
Applicant has alleged that the RPD committed a breach of natural justice. This
is reviewable on a standard of correctness. See Sketchley v. Canada (Attorney General), 2005 FCA
404, [2005] F.C.J. No. 2056 at paragraph 46, and Dunsmuir, above, at
paragraphs 126 and 129. Accordingly, a standard of correctness is
appropriate when determining whether the RPD committed a breach of natural
justice by making a specific negative credibility finding after stating to
counsel at the hearing that credibility was not at issue.
[31]
The
issue of state protection is reviewable on a standard of reasonableness. See Song v. Canada (Minister of Citizenship and Immigration), 2008 FC 467, [2008] F.C.J. No. 591 at
paragraph 6.
[32]
The
Applicant has also alleged that the RPD erred in determining that there was no
prospective fear with respect to Mr. Ochoa. This is an issue concerning the
RPD’s application of the legal test to the facts of the case at hand. As such,
this is reviewable on a standard of reasonableness. See Dunsmuir, above,
at paragraph 164
[33]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
Fear of Mr.
Ochoa
[34]
The
RPD determined that Mr. Ochoa was not as interested in the Applicant because
the labour issue was settled, his properties had been seized, and he had shown
little or no interest in her.
[35]
However,
this finding is contradicted by the Applicant’s evidence that her lawyer told
her that Mr. Ochoa had said that the matter was still not over and that he
would make every effort to recover his property. Hence, the Applicant says there
is evidence that the matter is still a live issue for Mr. Ochoa.
[36]
Moreover,
the Applicant did not live with her parents. As such, it was of no significance
that Mr. Ochoa had not approached them within the last four years. The
Applicant contends that Mr. Ochoa could have used other methods to determine
whether she was present at her parents’ house, such as having the house watched;
or he may have learned through others that the Applicant had left the country.
[37]
The
Applicant submits that the RPD’s finding on this point was a finding of
implausibility. While adverse findings of credibility can be made based on the
implausibility of an applicant’s story where the inferences drawn can reasonably
be said to exist, the Applicant submits that this is not such a case.
Furthermore, plausibility findings should only be made in the clearest of
cases. See, for example, Elezi v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 210, [2003] F.C.J. No. 275.
Natural Justice
[38]
The
RPD determined that the Applicant did not report any of the incidents
concerning Mr. Ochoa to the police and that she did not make an effort to
access state protection.
[39]
The
Applicant says that the RPD’s determination in this regard resulted in a breach
of natural justice, since it was a significant finding of fact based on an
adverse credibility finding, and the RPD told Applicant’s counsel that
credibility need not be addressed in counsel’s submissions. Furthermore,
Applicant’s counsel made the RPD aware that she had relied on his assurance in
her post-hearing written submissions. A similar error was made in the case of Griffith
v. Canada (Minister of Citizenship and Immigration), 171 F.T.R. 240, [1999]
F.C.J. No. 1142 in which it was held that it was a breach of natural justice to
not adhere to a previous representation that credibility was not at issue and
then reject the claim, in part, on grounds of credibility.
Conditions in
Mexico
[40]
The
Applicant submits that country condition documentation does not support the
RPD’s finding that Mexico is a fully-developed
democracy so that the presumption of state protection applies. Rather,
according to the Applicant, the documentation shows that conditions have
“deteriorated in the last two years because of the government’s war with the
drug cartels so that the government’s control is weakened.” She says that, despite
the government’s attempts to fight corruption, the situation has worsened due
to the bold attacks the drug cartels are making on the government and the
police, as well as the infiltration of the authorities by drug cartels. Consequently,
the RPD erred in applying the presumption of state protection in the face of
country documentation to the contrary. As a result, the RPD erred in finding
that state protection is available to the Applicant.
[41]
Moreover,
some Federal Court decisions support the Applicant’s argument that, based on
recent country documentation, Mexico should be considered a less-developed
democracy. See, for example, De Leon v. Canada (Minister
of Citizenship and Immigration), 2007 FC 1307, [2007] F.C.J. No. 1684 and Capitaine
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 98, [2008] F.C.J. No. 181.
[42]
Furthermore,
the RPD erred in finding that the effectiveness of state protection was simply
a relevant factor for consideration, while the appropriate test is one of
adequacy. The Applicant submits that the appropriate test is one of
effectiveness. See, for example, Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, and Hinzman v. Canada (Minister
of Citizenship and Immigration); Hughey v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, [2007] F.C.J. No. 584. The
Applicant contends that consideration of state protection must include “not
only the existence of an effective legislative and procedural framework but the
capacity and will to effectively implement that framework.” See Elcock v.
Canada (Minister of Citizenship and Immigration, [1999] F.C.J. No. 1438 as
cited in Skelly v. Canada (Minister of Citizenship and Immigration),
2004 FC 1244, [2004] F.C.J. No. 1503 at paragraph 45. Further, the presumption
of state protection can be defeated by past personal experience, or the
experience of similarly situated individuals, or other evidence of a lack of
state protection. See, for example, Molnar v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1081, [2002] F.C.J. No. 1425.
[43]
Despite
the large volume of country documentation submitted by the Applicant with
regard to state protection and domestic violence, the RPD only mentioned two
items in its reasons. The Applicant submits that the RPD erred in using the
country documentation selectively and ignoring evidence that contradicted its
conclusions. See Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425.
[44]
The
evidence before the RPD demonstrated that state protection would not be
available for the Applicant with regard to the threats from Mr. Ochoa and his
agents. The Applicant submits that the consequences of the existence of the
powerful drug cartels and corruption in the justice system have weakened the
state’s institutions so that protection is almost non-existent for citizens of Mexico. See, for
example, the 2008 U.S. Department of State Country Reports on Human Rights
Practices (U.S. DOS Report), the Human Rights Watch 2008 World Report, and
Amnesty International’s report titled “Mexico: Laws without justice: Human
rights violations and impunity in the public security and criminal justice
system.”
[45]
The
RPD neglected to discuss the failures of the criminal justice system of Mexico and instead
focused on statistics and the existence of complaint mechanisms for corrupt
public officials. However, it is the criminal justice system itself that is
relevant to the Applicant in her situation with Mr. Ochoa.
[46]
The
RPD erred in ignoring the evidence before it. Although the RPD need not mention
all of the evidence, the Applicant submits that it should at the very least
comment on documentation that supports the Applicant’s position and advise if
the evidence is accepted, or rejected and the reasons why. See Cepeda-Gutierrez,
above.
Domestic
Abuse
[47]
The
RPD also erred in its treatment of the Applicant’s claim based on domestic
abuse. The Applicant submits that the RPD failed to properly consider her
evidence with regard to the involvement of police.
[48]
Despite
the Applicant’s testimony and evidence in her narrative, the RPD determined
that the Applicant could not explain why her husband was released. The
Applicant contends that this is an example of the RPD imposing too high a
standard on her. Moreover, the Applicant also testified that her husband’s family
was wealthy, that money was paid, and that the police are corrupt. Indeed, the
Applicant was aware of the attitude of the police when she made her reports
against her husband. These facts, in combination, provide more than a
reasonable ground to conclude that the police were bribed to release the
Applicant’s husband. Furthermore, the Applicant submits that the arrests were
simply a way to extort money, and were made without any intention of assisting
the Applicant. As such, it was unreasonable for the RPD to find on the facts
that the police provided protection because they “acted on some occasions.”
[49]
Moreover,
the existence of laws in Mexico that theoretically provide protection to
women is not sufficient for a finding that state protection is available. The
Applicant submits that the evidence demonstrates that state protection for
victims of domestic violence in Mexico is ineffective. As a
result, state protection in Mexico is inadequate. The RPD erred in finding
otherwise.
[50]
The
RPD further erred in citing evidence out of context. While the RPD cites the
12% increase in complaints against the police as being a positive indicator of
state protection, the experts within the documents cited take a contrary view
of this evidence. Indeed, in the article “Macho culture stymies help for
Mexican Women,” the president of Mexico City’s Commission on Human Rights
reported that complaints by women of enforcement agencies in Mexico City failing to
respond to complaints rose 12% after the passage of the law. Indeed, the same
article notes that violence against women is engrained in Mexican culture.
According to the Applicant “the very men they turn to for help could themselves
be abusers, so they are more interested in trying to justify abuse than help
the victims.”
[51]
Such
attitudes, and the multiple problems women have in accessing state protection in
Mexico were documented
in detail in the documentary evidence before the RPD. The RPD ignored this
evidence. Moreover, there is evidence in the RPD’s disclosure package that
demonstrates the lack of effective state protection for women who are victims
of domestic violence. See, for example, the 2008 DOS Report, above, the
Immigration and Refugee Board’s 2003 issue paper entitled “Mexico: Domestic Violence
and Other Issues Related to the Status of Women,” as well as the Immigration
and Refugee Board’s 2007 report entitled “Mexico: Situation of Witnesses to
Crime and Corruption, Women Victims of Violence and Victims of Discrimination
Based on Sexual Orientation.” According to Amnesty International’s 2006 report
entitled “Briefing to the Committee on the Elimination of Discrimination
Against Women,”
Official efforts to tackle problems often
appear to be superficial and refer to legal procedures or principles supposedly
guiding institutional conduct, rather than focusing on the actual experience of
women or relatives seeking assistance from the authorities when reporting
violence. These experiences often vary markedly from how such cases are
supposed to be treated.
The same document provides examples of
women who have experienced torture and other form of mal-treatment by agents of
the state:
Amnesty International has continued to
receive reports of women suffering sexual abuse, intimidation and humiliation
while in the custody of state officials as documented in the cases below.
Impunity for human rights violations remains widespread…
The Human Rights Watch World Report 2008
(2008 World Report) also notes that “girls and women who report rape or
violence to the authorities are generally met with suspicion, apathy, and
disrespect.” The result of this is that “sexual and domestic violence against
women and girls continues to be rampant and shrouded in impunity.” See 2008
World Report, above.
[52]
The
Applicant says that the documentation she provided supports her claim and
accords with her personal experiences. However, the RPD failed to address this
evidence. The RPD erred in failing to consider the totality of the evidence
before it. This resulted in the RPD making erroneous findings of fact.
The Respondent
[53]
The
Respondent submits that a procedural fairness error with regard to the RPD’s
state protection finding in relation to the Applicant’s former employer does
not necessarily render the entire Decision invalid. The Supreme Court of Canada
has held that if the outcome of a matter is clear, then the Court should not
overturn a decision simply because of a procedural fairness error. See, for
example, Mobile Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum
Board, [1994] 1 S.C.R. 202, [1994] S.C.J. No. 14. This principle has been
applied by the Federal Court of Appeal in deciding that a matter should not be
sent back for re-determination, even though there was a breach of procedural
fairness, if alternative findings made by the RPD were determinative. See Yassine
v. Canada (Minister of Employment
and Immigration),
172 N.R. 308, [1994] F.C.J. No. 949 at paragraphs 8-11.
[54]
In
the case at hand, the RPD noted that its findings with regard to state
protection were made in the alternative to its findings with regard to
prospective fear. The RPD’s findings with regard to prospective fear were
reasonable. The RPD noted that the Applicant’s former employer has not made any
contact with her family for four years and has made no effort to harass them.
Furthermore, Mr. Ochoa had shown little to no recent interest in the Applicant.
The Respondent submits that this finding was reasonable and that the Court
should not interfere with it.
[55]
The
Applicant has also alleged that the RPD erred by not focusing on the
effectiveness of state protection. However, the onus is not on the RPD in this
instance. The onus is on the Applicant to provide clear and convincing evidence
to establish that state protection is inadequate. See Samuel v. Canada (Minister of
Citizenship and Immigration), 2008 FC 762, [2008] F.C.J. No. 963 at
paragraph 10. The Respondent submits that, based on the evidence before the
RPD, it was reasonable for the RPD to determine that the Applicant had not
discharged this burden. See, for example, Carillo v. Canada (Minister of Citizenship
and Immigration),
2008 FCA 94, [2008] F.C.J. No. 399 at paragraphs 18, 30.
[56]
The
RPD noted that the police had provided assistance to the Applicant on numerous
occasions when she experienced domestic abuse. It then considered that state
protection for victims of domestic violence has improved considerably since the
Applicant fled Mexico. The RPD’s findings in
this regard were reasonable, and it is not the Court’s place to interfere with the
RPD’s weighing of the evidence. See Aguebor v. Canada (Minister of Employment
and Immigration),
160 N.R. 315, [1993] F.C.J. No. 732.
[57]
Moreover,
the failure to mention some documentary evidence is not fatal to the RPD’s Decision,
since the RPD is assumed to have considered and weighed all the evidence before
it unless the contrary is shown. See Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 at paragraph 1, and Velinova
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 268, [2008] F.C.J. No. 340 at
paragraph 21.
ANALYSIS
[58]
I
agree with the Applicant (and the Respondent concedes) that the RPD committed a
breach of natural justice when it made negative credibility findings with
respect to the Applicant’s statements about reporting Mr. Ochoa to the police
after giving assurances to Applicant’s counsel that credibility need not be
addressed in submissions. See Griffith, above.
[59]
However,
the state protection finding regarding Mr. Ochoa is clearly an alternative and
independent ground for the RPD’s rejection of the Applicant’s claim regarding
Mr. Ochoa. The RPD also found that Mr. Ochoa would no longer be interested in
the Applicant and that “on a balance of probabilities, it is not likely Ochoa
would cause harm to the claimant should she return to Mexico.”
[60]
As
regards the fear of Mr. Ochoa, then, the issue becomes whether the finding
regarding prospective fear was reasonable. My review of the Decision and the
transcript of the hearing suggest that the RPD accepted into evidence the
Applicant’s account of the information she had received from her lawyer in Mexico that Mr.
Ochoa had not given up and was still interested in harming her.
[61]
Notwithstanding
the RPD’s acceptance of this evidence it nevertheless concluded that, on a
balance of probabilities, Mr. Ochoa was no longer interested in harming her
because the property dispute had concluded and because “the claimant has also
been in touch with her family in Mexico and over the last four years Ochoa has
made no effort to harass or even contact them in an effort to intimidate or
locate the claimant.” In other words, the evidence from the Applicant’s lawyer,
which was evidence of recent threats by Mr. Ochoa, was trumped by the
conclusion that “Ochoa has shown little or no interest in the claimant” because
he had made no effort to contact her family.
[62]
The
weighing of evidence is, of course, the prerogative of the RPD and the Court
cannot intervene just because it disagrees that the most recent evidence of
threat from Mr. Ochoa should have been given more weight than the failure of
Mr. Ochoa to contact the Applicant’s family in Mexico. However, in
this case, there was no evidence before the RPD that Mr. Ochoa knew of the
Applicant’s parents or where they lived. There was no evidence of any proximity
between Mr. Ochoa and the parents, or that he had the means or the will to find
them. In other words, there was no factual foundation for a finding that Mr.
Ochoa was no longer interested in the Applicant because he had failed to
contact her parents in the last four years, and there was no factual foundation
to balance against the more recent information from the Applicant’s lawyer
(accepted by the RPD) that Mr. Ochoa was still threatening to harm the
Applicant. Hence, the issue here is not the weighing of evidence but a
conclusion reached by the RPD upon a mistake of fact and, in this case, a
highly material and conclusive mistake of fact, that renders the Decision on
prospective risk from Mr. Ochoa unreasonable.
[63]
On
this basis alone, then, I think the matter has to be referred back for
reconsideration and I do not think it is necessary for me to say anything in
detail about the RPD’s state protection analysis, in relation to the threat
from Mr. Ochoa or the domestic abuse risk. What I will say, however, is that
after examining the evidence placed before the RPD against the Decision, I
believe that the Applicant is correct that the RPD’s analysis of state
protection is formulaic, often irrelevant, and is unresponsive to the specifics
of this case and the plight of abused women in Mexico when they
look for help. The RPD simply disregards the voluminous package of
authoritative and trustworthy documentation submitted by the Applicant which
contained evidence that directly contradicted the IRB’s conclusions that Mexico could
provide adequate state protection to the Applicant if she returned. See Cepeda-Gutierrez.
I am not saying, of course, that the RPD was obliged to accept this evidence,
but it had an obligation to refer to it and explain why other evidence was to
be preferred. A reading of the RPD’s state protection analysis in this case
creates the distinct impression that it did not address the contradictory
evidence because that evidence strongly suggests that women such as the
Applicant who face abuse from men in the macho culture of Mexico do not have
adequate state protection.
[64]
In
conclusion, then, I find unreasonable errors arise in this case as a result of
the RPD’s prospective fear analysis in relation to Mr. Ochoa, and in the RPD’s
analysis of state protection.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed, the decision is quashed, and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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