Docket: IMM-5751-11
Citation: 2012 FC 325
Ottawa, Ontario, March 19,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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LISSETH NOEMI HERNANDEZ CORNEJO
PABLO HERNANDEZ GARCIA
(A.K.A. HERNANDEZ GARCIA, PABLO)
MARIA JULIA CORNEJO DE HERNANDEZ
EDUARDO MORALES AYALA
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Applicants
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and
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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]
The
applicants seek judicial review of a decision of the Refugee Protection Division
of the Immigration and Refugee Board of Canada (the Board), dated August 5,
2011, finding that the applicants were neither Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugees
nor persons in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
The
Court informed the parties at the hearing that the application was granted,
with reasons to follow. The Board’s decision in this case was indefensible
when assessed against the legal principles governing judicial review. The
arguments advanced in its support walked a thin line between those that could
be made and those that should never be made. Four grounds of review were
advanced, any one of which would be sufficient to set the decision aside.
Facts
[3]
The
principal applicant, Lisseth Noemi Hernandez Cornejo (applicant), is a citizen
of El
Salvador. Joined
to her claim were claims by her husband, Eduardo Morales Ayala (the male
applicant), and her parents, Pablo Hernandez Garcia and Maria Julia Cornejo De
Hernandez.
[4]
The
applicant’s claim was based on her fear of her ex-boyfriend, Hugo Chavez (Chavez).
He was a police officer. The applicant started dating Chavez in high school
but ended the relationship due to his abusive and controlling treatment. The
applicant subsequently began her relationship with Eduardo. One day the
applicant and Eduardo encountered Chavez while he was on duty as a police
officer. Chavez took Lisseth away and asked if she had forgotten their time
together, while other officers surrounded Eduardo. Chavez assaulted Eduardo
and told him to leave the Lisseth, and told Lisseth and return to him (Chavez).
[5]
Chavez
continued to harass the couple. Chavez would appear at their workplaces, to
the point that both the applicant and the male applicant lost jobs due to his
harassment. On one occasion, the male applicant was beaten severely and held
at a police station. The applicant states that they were afraid to go to the
police because they are corrupt and protect their fellow officers.
[6]
Chavez
also began to harass the applicant’s parents and threatened them if they did
not tell him where the applicant was. The applicant and her parents came to Canada in late 2009, and claimed
protection on February 22, 2010. The male applicant followed later and made
his claim on January 6, 2011.
Analysis
[7]
As
mentioned above, there were at least four reviewable errors in the Board’s
decision, rendering it unreasonable per Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
[8]
First,
the Board erred by applying a largely irrelevant analysis of state protection
to the claims. The better part of the Board’s reasons relate to the problem of
gang violence in El
Salvador
and the state’s response to that problem. The respondent’s assertion that
Chavez could be reasonably characterized as a gang member (Hugo Chavez and his
gang of police officers), because he often harassed the applicants in concert
with his fellow police officers, is an argument unworthy of serious
consideration. A claim based on threats and harassment by a jealous, abusive
ex-boyfriend who is also a police officer bears absolutely no analogy, in fact
or in law, to a claim based on gang violence.
[9]
A
review of the Board’s reasons makes it clear that the references to gang
violence have nothing to do with the applicants’ claims. The majority of the
reasons was cut and pasted from another decision related to El Salvador. This kind of
boilerplate approach to refugee decisions undermines the seriousness of the
requirement to give reasons.
[10]
Second,
the Board failed to consider the availability of state protection from the
perspective of the applicants’ specific situation. As Justice Russel Zinn
emphasized in Torres v Canada (Minister of Citizenship and Immigration), 2010 FC 234 at para
37, state protection cannot be assessed in a vacuum and the Board must consider
the nature of the persecution and the profile of the persecutor.
[11]
In
this case, the female applicant was harassed and threatened by Chavez in an
effort to coerce the her to resume their relationship, and Eduardo was
intimidated to dissuade him from continuing in his relationship with the female
applicant. Chavez, the central agent of persecution, was the ex-boyfriend of the
applicant and a police officer. The Board’s consideration of the evidence of
state protection makes no mention of the state’s ability to protect people in
these circumstances; rather, it focuses on El Salvador’s “Mano Dura” campaign to combat the relationship
between drugs and crime.
[12]
The
respondent submits that the Board did not need to consider the availability of
state protection for victims of gender-based violence because there was no
evidence that the police failed to protect the applicant because she was a
woman, and furthermore, because two of the victims of persecution are men. This
argument was not, as a matter of law or common sense, open to the Attorney
General.
[13]
A
man’s relentless pursuit of his ex-girlfriend does not cease to be gender-based
persecution simply because that man also harasses her male relatives in an
effort to get her back. Furthermore, the fact that the police did not tell the
applicant they were ignoring her complaint because she was a woman is hardly
fatal; there was evidence before the Board that the police did ignore her
complaints and there was documentary evidence on the general police failure to
respond to gender-based persecution.
[14]
The
third error lies in the Board’s treatment of the applicants’ attempts to seek
state protection. The Board found that their delay in going to the police
undermined their claim of subjective fear. However, this analysis again failed
to take into account that the persecutor is a police officer. The Board
appeared to accept, for example, that on one occasion the male applicant was
arrested, beaten and detained without cause by Chavez and his fellow officers yet,
the Board finds it unreasonable for the applicants to delay between their
attempts to file police reports, of which they filed four.
[15]
As
the applicants submit, the Board could only rely on a delay or failure to seek
protection if such protection might reasonably have been forthcoming: Canada (Attorney General) v
Ward,
[1993] SCJ No 74 at para 49. The applicants explained that they delayed
because they knew the police protect their own, nothing would happen to Chavez
as a result, and they were afraid of the police (understandably so, since the
agents of persecution were themselves police officers). Without a consideration
of these circumstances the Board’s subjective fear findings are unreasonable.
[16]
Finally,
the Board engaged in speculation to explain away the failure of the police to
respond to the applicants’ complaints. The Board states that the police may
not have taken the applicant’s denunciation seriously because it was the first
one filed against Chavez. The Board similarly hypothesized that the police may
have had some good reason not to take seriously the complaint about Chavez and
other officers detaining and beating the male applicant. These statements
amount to conjecture, which “is of no legal value, for its essence is that it
is a mere guess”: Jones v Great Western Railway Co. (1930), 47 TLR 39
at 45 (HL), cited in Canada (Minister of Employment
and Immigration) v Satiacum, [1989] FCJ No 505 (CA). Contrary to the
respondent’s submission, this speculation was clearly relied upon to discount
the evidence that the police failed to protect the applicants even after they
filed denunciations.
[17]
Thus,
for all these reasons, the application is granted, the Board’s decision is set
aside, and the matter is referred back for re-determination by a different
panel.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is granted. The matter is referred back to the Immigration Refugee
Board for reconsideration by a different panel. No question for
certification has been proposed and the Court finds that none arises.
"Donald
J. Rennie"
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