Date: 20090317
Docket: IMM-3381-08
Citation: 2009
FC 278
Toronto, Ontario, March 17, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
CLAUDIA EDITH SALDIVAR SOTO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In the
present Application Ms. Soto claims protection from persecution and risk in Mexico from Raphael Castillo, a
powerful violent predator, who is associated with the police in Mexico. By accepting the credibility
of Ms. Soto, the Refugee Protection Division member (RPD) accepted her version
of events cryptically summarized by me as follows:
March 21, 1999: Ms. Soto met Raphael
Castillo.
February 2000: Raphael insults and
degrades the Applicant when she tells him she is pregnant. He tells her to get
an abortion. She felt threatened and went to the General Attorney’s Office in
Ecatepec municipality, and she is told that it wasn’t a crime, that she didn’t
have proof, and they couldn’t help her.
February 26, 2000: She doesn’t get an
abortion so he takes her in a car to an isolated house out of the state, beats
her, and says he will make her lose the baby; he leaves her there to die. She
was taken to a private clinic.
February 27, 2000: She went to the police
where she tried to file a formal complaint but the police told her that Raphael
had a contact there so it was better to let things cool down and try to fix her
life. She lives at her parents’ house in Ecatepec, State of Mexico, which is
20 minutes by car from Mexico
City.
During the pregnancy she moves to her
aunt’s house in Benito Juarez, which is in Mexico City.
October 2001: She gives birth to her
daughter and moves back to her parents’ house in Ecatepec after giving birth.
April 6, 2006: Raphael is waiting in a
police car outside Ms. Soto’s work and asks about the baby. He hits her in the
face, threatens her, and tells her she has to live with him. He hits her again
and tries to force her inside the police car. He threatens to take her
daughter away. She starts getting death threats over the phone from Raphael.
April 2006: She goes to the Public
Ministry, Attorney General’s Office, in Benito Juarez, in the Ecatepec Municipality but was told
that she was crazy because the police in Mexico are there to protect, not harm people.
April 19, 2006 : The Applicant files a
complaint with the National Human Rights Commission of Mexico.
May 10, 2006: She moves to Leon,
Guanajuato to live with her father’s relatives. Raphael tracks her down. She
gets a threatening phone call from Raphael saying that he knows where she is
and he will find her no matter where she is.
June, 2006: Ms. Soto decides to come to Canada. She leaves her daughter at
her aunt’s house.
[2]
The RPD’s
rejection of Ms. Soto’s application for protection is based on a positive
finding that Mexico
City is an
internal flight alternative (IFA) for her. The RPD is correct in the findings
that are required to reach this conclusion:
The determinative issue in this case is
whether an IFA exists in Mexico
City. IFA arises
when a claimant may have a well-founded fear of persecution in the home area of
his or her country, but can safely relocate to another part of the country. The
test to be applied in determining whether there is an IFA is two-pronged: (i)
there is no serious possibility of the claimant being persecuted or no
likelihood of the claimant being subjected personally to a danger of torture or
to a risk of life or risk of cruel and unusual treatment or punishment in the
proposed IFA area, and (ii) conditions in the IFA area must be such that it
would not be unreasonable, in all the circumstances, for the claimant to seek
refuge there. The second prong of the IFA test may be stated as follows: Would
it be unduly harsh to expect the claimant to move to another less hostile part
of the country before seeking refugee protection abroad? [Footnotes omitted]
(Decision, p. 3)
[3]
The
finding that Mexico
City is an IFA assumes
that Ms. Soto was persecuted and was at risk from Raphael, but that state
protection is available to her in Mexico City if she returns to Mexico. The finding is made contrary
to an objection by Counsel for Ms. Soto who argued that she could not be safe from
her persecutor as follows:
So,
she believed that with the connections which Raphael has, he could be able to
locate the claimant anywhere in Mexico, given the fact that the second time
when Raphael tracked her down, she moved to Guanajuato, but he was still able
to track her down there. And, the claimant believed that he may have been able to
get that information probably through friends at work or family members and she
believes that she can be tracked anywhere in Mexico.
(Tribunal
Record, p. 284)
[4]
It is also
important to note that before the RPD were psychological reports respecting the
poor mental health of both Ms. Soto and her daughter due directly to the
violence of Raphael. The diagnosis of the daughter’s fear of “the evil person”
by a psychologist in Mexico is as follows:
The minor shows herself very tense, when
questioning her about the evil person, her concerns interfere with her
activities, she denies to draw the requested drawings, it is easy to realize
the lack of attention, the minor is in a persistent sadness, constant whining,
desperateness, lack of interest in her favourite activities; or disableness to
enjoy the previous favourite activities, persisting boring and lack of energy,
social isolation, poor communication, low self-esteem and guiltiness for not
having left with her mother, extreme sensibility, increase regarding the
interact difficulty, rage and hostility, difficulty in her relationships,
frequent physical sickness complaints, such as head or stomach ache, poor
concentration, notorious changes in her feeding and sleeping patrons, most of
the time spend it alone and lacks of interest in everything.
Diagnosis: Behaviour Child Disorder, for
Severe Anxiety.
(Tribunal Record, p. 189)
[5]
The
Applicant was also evaluated by a psychologist in Canada resulting in a diagnosis of Post
Traumatic Stress Disorder (PTSD):
During the evaluation, Ms. Saldivar
expressed that she feels safe in Canada;
however, she does continue to suffer from emotional and physiological effects
of the trauma she endured in Mexico. For instance, she is
fearful to leave her house and experiences extreme bouts of sadness because of
what happened to her and her daughter. What is more, she deeply misses her
family and the peaceful life she led before meeting Mr. Castillo. Ruminations
about the uncertainty of her current situation and precariousness of her
daughter’s safety, are causing her initial insomnia and consequently, poor
sleeping patterns. Furthermore, although she doesn’t experience nightmares,
she does occasionally suffer from flashbacks or dreams about the beatings,
which leave her very upset, nervous, and with sweaty hands. She has also
noticed that she has lost weight since the ordeal, because her clothes fit
looser.
As mentioned before, Ms. Saldivar avoids
going out alone or talking about her trauma. She also exhibits hypervigilance
and hyperarousal; feelings of insecurity and the tendency to look over her
shoulder anytime she senses somebody behind her. To make matters more
difficult, she has revealed that intrusive thoughts about her past ordeal and
her daughter’s safety have impinged on her cognitive abilities because she
finds it difficult to concentrate and becomes very forgetful, particularly in
regards to conversations and tasks she has to complete. Fortunately, Ms.
Saldivar explained during the evaluation that she finds comfort in talking to
her daughter over the phone and having friends around, but not for the purpose
of discussing her problems or feelings.
Concluding Remarks
It is my professional opinion that Ms.
Saldivar is demonstrating symptoms of Post Traumatic Stress Disorder (PTSD) as
a result of the traumatic events she experienced in Mexico. At the same time, she is suffering
from a severe depressive episode. Since coming to Canada, however, her symptoms have subsided to
some degree and she has managed to find relative stability and tranquility.
Furthermore, a continuation of therapy and medication, in a safe environment,
will help her recover and restore energy to meet her goals.
Accordingly, I believe that its not in
the best interest of Ms. Saldivar’s psychological state to be sent back to Mexico. If she were forced to
return to a country she associates with harassment and probable death, she
would most likely suffer decomposition. Furthermore, Ms. Saldivar fears that
if she was returned to Mexico, her ex-partner would easily
find and kill her because of his resourcefulness and extensive contacts. She
also believes she “would never be able to have another relationship” because
Mr. Castillo has threatened to do the “most harm” to her if she did. In her
opinion, this would confide her to a life of loneliness and fear, always
anticipating harassment and the possibility of losing her only child.
(Tribunal Record, p. 183-184)
[6]
The RPD’s
IFA finding is as follows:
Given the above analysis, the panel
determines that, based on a balance of probabilities, there is not a serious
possibility that the claimant would be harmed should she return to Mexico and
lives in Mexico
City. This
satisfies the first prong of the test of an IFA in accordance with Rasaratnam.
In accordance with Thirunavukkarasu,
the panel must also consider the second prong of an IFA; whether it would be
unduly harsh for the claimant to move to Mexico City. The claimant has twelve years of
education, with the last three years attending a facility in Mexico City. Although she lived in Ecatepec, Mexico State, she testified
that it was only fifteen to twenty minutes away from Mexico City. In fact, she had worked in Mexico City as provided in her Personal
Information Form (PIF) and she believed that she would be able to find
employment in Mexico
City. Given her
personal circumstances, the panel determines that it would not be unduly harsh
for the claimant to move to Mexico
City. The panel’s decision is in keeping with recent
decisions from the Federal Court.
Since
an IFA exists in Mexico City, the panel finds that there is not a serious
possibility that the claimant will face persecution, should she return to Mexico. [Footnotes omitted]
(Decision,
p. 6)
[7]
In my
opinion, in reaching the conclusion that Mexico City is an IFA for Ms. Soto, the RPD erred in
two respects.
[8]
In
reaching the IFA finding the RPD did not acknowledge the level of risk that
Raphael presents to Ms. Soto. That is, before an IFA can be said to exist, the
level of risk must be determined and considered in order to conclude that protection
exists. In the present case, it is hard to imagine how such a powerful
predator could not find and harm Ms. Soto who would be living merely 20 minutes
by car from the locus of the horrific abuse she suffered at his hand.
[9]
In
addition, the RPD did not acknowledge the truth of Ms. Soto’s mental state, and
her daughter’s mental state, in reaching the conclusion that it would be
reasonable for Ms. Soto to live in Mexico City
with or without her daughter. Indeed, the evidence runs contrary to this
possibility.
[10]
As a
result I find that the RPD’s decision is made in reviewable error.
ORDER
Accordingly, I set aside the
RPD’s decision and refer the matter back for reconsideration before a differently
constituted panel.
There is no question to
certify.
“Douglas R. Campbell”
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