Date:
20101105
Docket: IMM‑1510‑10
Citation: 2010 FC 1093
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, November 5, 2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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HANAN HUSSSEIN RAMADAN
EVELYN HAIDAR RESLAN RAMADAN
SIRENA HAIDAR RESLAN RAMDAN
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Applicants
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et
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review filed under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), of a decision of the Immigration
and Refugee Board (the panel) dated February 25, 2010, rejecting the
refugee protection claims of the applicant and her daughters on the ground that
they were not Convention refugees or persons in need of protection.
FACTS
[2]
The principal applicant
is a citizen of Lebanon. In July 1996, she went to Paraguay to join her
husband and lived there for over 10 years. Her two
minor daughters are citizens of Paraguay.
[3]
The applicant alleges
that her family situation deteriorated beginning in 2002, when her husband would
often spend time outside the home, squandering the family’s money on drinking
and gambling.
[4]
She also alleges that
physical and psychological abuse became frequent and that her husband even
tried to use force to make her sign legal documents authorizing him to sell a
property in Lebanon that she had inherited from her father.
[5]
At that point, the
applicant went back to Lebanon, but then returned to live in Paraguay to try to
resolve her problems with her husband.
[6]
When she returned to
Paraguay, she obtained a position as an accountant with the Lebanese embassy,
but her husband continued to squander the money she earned.
[7]
In July 2005, her
husband returned to Lebanon and, in mid‑September, she was told over the
telephone that her husband intended never to return to Paraguay.
[8]
She states that toward
the end of September 2005, she began receiving telephone calls from
persons of Lebanese and Paraguayan origin wanting to speak with her husband.
When she informed them that her husband no longer lived in Paraguay, these
persons demanded money from her that they claimed to have lent him.
[9]
The applicant alleges
that as time went by, the calls became increasingly frequent, abusive and
violent and that she received kidnapping and death threats and had to take
security precautions to protect her children. She also submits that during this
time, her husband telephoned her regularly, insulted her and threatened her.
[10]
She states that Lebanon’s
ambassador advised her to leave the country and told her that it would do her
no good to inform the Paraguayan authorities because she was running a greater
risk, like other families who had been kidnapped and executed.
[11]
In January 2006,
the applicant began selling her possessions to pay off the persons who were
threatening her most. At that time, she asked her brother to help them flee
Paraguay. Her brother sent her a letter of invitation, and the Canadian embassy
issued her a visa.
[12]
On March 5, 2007,
the applicant and her daughters left Paraguay. They claimed refugee protection
in Canada on March 22, 2007.
ISSUES
(1)
Did the panel err in determining that the
applicant and her daughters were excluded under Article 1E of the Convention
Relating to the Status of Refugees (the Convention)?
(2)
Was the panel’s determination that the applicant
and her daughters could have received Paraguayan state protection unreasonable?
APPLICABLE STANDARDS OF REVIEW
[13]
The case law tells us
that two standards of review apply in respect of the exclusion under Article 1E
of the Convention. The correctness standard is used to determine whether the
correct legal test was applied, and the reasonableness standard is used to
ascertain whether the panel correctly applied the facts to the law (Canada
(Citizenship and Immigration) v. Zeng, 2010 FCA 118; Mai v. Canada
(Citizenship and Immigration), 2010 FC 192).
[14]
The panel’s
determination on the matter of state protection is a question of mixed fact and
law and is therefore subject to the reasonableness standard (Hinzman v.
Canada (Citizenship and Immigration), 2007 FCA 171; Rocque v. Canada (Citizenship
and Immigration), 2010 FC 802).
ANALYSIS
(1) Did the panel err in determining that the
applicant and her daughters were excluded under Article 1E of the
Convention?
[15]
Section E of Article 1
of the Convention provides as follows:
This Convention shall not apply to a person who is recognized by the
competent authorities of the country in which he has taken residence as having
the rights and obligations which are attached to the possession of the
nationality of that country.
[16]
According to
section 98 of the IRPA, any person referred to in section E of
Article 1 of the Convention is not a Convention refugee or a person in
need of protection.
[17]
The applicant submits
that the panel erred in its assessment of the evidence and in finding that
there was prima facie evidence that on the day the hearing finished,
February 9, 2010, she had the right to return to settle in Paraguay. The panel
could not require her to renew her documents in Paraguay when she feared for
her and her children’s safety in that country.
[18]
The case law has
developed a framework to determine whether a person meets the criteria of
Article 1E of the Convention. First, the Minister must establish a prima
facie case that the claimant can return to his or her country and enjoy the
rights of the nationals of that country. If that step is completed
successfully, the burden then shifts to the claimant, who must show that he or
she cannot in fact enjoy the rights of his or her residence status (Mai v.
Canada (above); Romero v. Canada (Citizenship and Immigration), 2006
FC 506; Hassanzadeh v. Canada (Citizenship and Immigration), 2003
FC 1494).
[19]
The rights which the claimant
must enjoy in order for this prima facie case to be established have
also been identified in the case law. They are the right to return to the
claimant’s country of residence, the right to work without restrictions, the
right to study and the right to have full access to social services (Vifansi
v. Canada (Citizenship and Immigration), 2003 FCT 284, at paragraph 27).
[20]
Zeng v. Canada (above), at paragraph 34, proposes a
three‑pronged analysis to determine the time at which the claimant has status
in the third country granting him or her rights equivalent to those of
nationals. The claimant must have that status when making his or her claim in
Canada and on the date the claimant’s refugee protection claim is determined.
If that is the case, the exclusion under Article 1E of the Convention
applies. If the claimant did not have that status, the panel must ascertain
whether the claimant could have preserved his or her right to enter the country
or if the claimant had good and sufficient reason for having failed to do so. The
Federal Court of Appeal confirmed this analysis in Canada v. Zeng
(above).
[21]
In its decision, the panel
was of the opinion that in light of the documentary and testimonial evidence, a
prima facie case was established that the applicant met the criteria of
Article 1E of the Convention.
[22]
The panel took into
consideration the information provided by the applicant in her Personal
Information Form, in which she stated that she had permanent residence status
in Paraguay. The panel also relied on the applicant’s testimony at the hearing
that she had had permanent residence status since 1996 and on the objective
evidence that permanent residence in Paraguay grants a right to stay in the
country indefinitely.
[23]
Considering that
evidence and the case law, the panel found that a prima facie case had
been established that on the day the hearing finished, February 9, 2010,
the claimant had “the right to return to her country of residence, the right to
work there freely without restrictions, the right to study there and the right
to access the social services in Paraguay with no restrictions other than those
that apply to Paraguayan citizens”.
[24]
The panel’s finding that
there was prima facie evidence that the applicant was still a permanent
resident of Paraguay was made on the basis of objective and credible evidence,
and the Court must afford the panel deference.
[25]
The panel then
determined that the applicant had failed to rebut the presumption that from the
time she filed her refugee protection claim until the end of the hearing on
February 9, 2010, she was still recognized by Paraguay as having permanent
resident status.
[26]
The applicant did not
submit any evidence that her permanent resident status might have expired. In
addition, when she testified at the hearing, she admitted that she had not enquired
about the validity of her permanent residence status in Paraguay, which her
brother’s testimony corroborated.
[27]
As a result, the
finding that the applicant failed to meet her burden of proving that she was no
longer recognized in Paraguay as a permanent resident and was unable to benefit
from the rights attached to that status is also reasonable.
[28]
Consequently, I am of
the opinion that the panel did not err in determining that the applicant was
excluded under Article 1E of the Convention.
(2) Was the panel’s determination that the
applicant and her daughters could have received Paraguayan state protection
unreasonable?
[29]
In the case at bar, the
applicant submitted that she did not try to obtain Paraguayan citizenship when
she was a permanent resident of that country because she was being threatened
by her husband and his creditors. Yet, at the hearing before the panel, the
applicant even admitted that she had not taken any steps to obtain Paraguayan
state protection.
[30]
After hearing that
testimony, the panel found, in light of the documentary evidence, that although
the human rights situation is not perfect and there are problems of corruption
and violence against women, the objective documentary evidence indicates that
significant efforts are being made to fight against domestic violence and that
it can be reported to various state agencies. There are also a number of
national and international non‑governmental organizations and government‑funded
organizations that specialize in human rights and are active in Paraguay, which
could have assisted or guided the applicant in her efforts.
[31]
The applicant submits
that this finding by the panel is unreasonable.
[32]
Canada (Attorney
General) v. Ward, [1993] 2
S.C.R. 689, at page 725, clearly established that unless there is a
complete breakdown of state apparatus, a state must be presumed capable of
protecting its nationals, and it is necessary to first avail oneself of the
protection measures available in one’s own country before claiming refugee
protection in another country.
[33]
In that respect, the
case law has insisted on the quality of the evidence that had to be presented
in order for the claimant to meet the evidentiary burden necessary to reverse
the presumption:
. . .
The evidence will have sufficient probative value if it convinces the trier of
fact that the state protection is inadequate. In other words, a claimant
seeking to rebut the presumption of state protection must adduce relevant,
reliable and convincing evidence which satisfies the trier of fact on a balance
of probabilities that the state protection is inadequate (Carrillo v. Canada
(Citizenship and Immigration), 2008 FCA 94, at paragraph 30)
[34]
Ward (above), at page 724, tells us that,
in a practical sense, the claimant can “mak[e] proof of a state’s inability to
protect its nationals as well as the reasonable nature of the claimant’s
refusal actually to seek out this protection” in refusing to ask for the
authorities’ protection by advancing, for example, testimony of individuals in a
similar situation for whom the measures taken by the state to assist them were
ineffectual. The claimant could also advance his or her own testimony of past
personal incidents in which the claimant asked for state protection, but it did
not materialize.
[35]
However, the applicant
testified that she took no steps to approach the authorities, whereas had she
done so, she could have shown that the state was unable to ensure her
protection.
[36]
While taking into
consideration the applicant’s vulnerability as a woman separated from her
husband, the panel was of the opinion, in light of the case law, that “her
testimony does not constitute relevant, reliable and convincing evidence that,
in her personal case and that of her minor daughters, rebuts the presumption
that the Paraguayan authorities are capable of protecting their citizens and
permanent residents”. The panel’s view was that in this situation, it was not
unreasonable to expect the principal applicant and her daughters to take steps
to obtain state protection.
[37]
Similarly, in a recent
decision, the Federal Court confirmed that in Paraguay there are currently
services for women who are victims of violence:
It is clear from
the documentary evidence that domestic violence is fairly common in Paraguay,
but the documentary evidence also shows that many victims file complaints and
make use of the services available. Consequently, it was open to the Board to
find that the principal applicant had not rebutted the presumption of her state’s
protection (Ruiz v. Canada (Citizenship and Immigration), 2009 FC 903).
[38]
The Court does not have
to substitute its own assessment of the facts for that of the panel. Taking
into account the facts and law in this case, the panel’s determination regarding
state protection seems to me to fall within the range of reasonable, acceptable
outcomes.
[39]
Furthermore, the
claimant alleged that the children’s fear was founded on her own. The panel
therefore did not err in assessing the children’s fear in conjunction with that
of the principal applicant.
[40]
Accordingly, there is
no basis for the Court to intervene.
JUDGMENT
This application for judicial review is
dismissed.
“Danièle Tremblay‑Lamer”
Certified true
translation
Sarah Burns
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