Date: 20090408
Docket: IMM-3639-08
Citation: 2009 FC 354
Ottawa, Ontario, April 8,
2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
RUTH
ARELY DURAN MEJIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
a Board of the Refugee Protection Division of the Immigration Refugee Board
(Board), dated July 21, 2008 (Decision) refusing the Applicant’s application to
be deemed a Convention refugee or person in need of protection under section 96
and section 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 23-year-old citizen of Mexico, who resided in San
Juan del Rio, Querentaro,
Mexico.
She is a university graduate with a degree in marketing.
[3]
The
Applicant worked for her uncle (her mother’s brother-in law), Jaime Rico
Venegas, for eight months starting in November 2005 at R.R. Real Estate in San
Juan del Rio, Querentaro. Between May 2006 and July 2006, she says her uncle
made sexual advances and tried to rape her three times. However, he was
unsuccessful. The Applicant alleges that this abuse occurred both at work and
at her home.
[4]
The
Applicant sought help from the Family Development Institute (DIF) after the
first incident with her uncle and she received psychological help from the DIF until
July 2006. In July 2006, the Applicant resigned from her job and then left Mexico in September
2007.
[5]
The
Applicant alleges that she discovered that her uncle had engaged in fraudulent
real estate transactions. He threatened that, if she ever revealed anything
about this discovery, her family would be harmed.
[6]
The
Applicant claimed refugee protection on the grounds that she would suffer
persecution at the hands of her uncle.
DECISION UNDER REVIEW
[7]
The
Board concluded that the Applicant was not a Convention refugee or person in
need of protection.
State
Protection
[8]
The
Board considered the Applicant’s oral and written testimony, the Woman
Refugee Claimants Fearing Gender-Related Persecution: Update (Gender
Guidelines), the representations of counsel and all of the evidence
provided. The Board also examined the documentary evidence pertaining to
violence against women, corruption and criminality, as well as evidence about
the police, the availability of mechanisms for lodging complaints and the
general level of democracy in Mexico.
[9]
The
Board found that state protection existed for individuals like the Applicant in
Mexico. The Board also
found that the Applicant had not met the burden of establishing “clear and
convincing” proof of a lack of state protection for individuals like her in Mexico.
[10]
The
Applicant testified that she feared her uncle and nobody else. She indicated
that she worked as a receptionist for R.R. Real Estate, which belonged to her
uncle. The Board found that the Applicant had not provided any documentary
evidence to corroborate her allegations that she worked for her uncle at R.R.
Real Estate. Since her problems stemmed from her employment at R.R. Real
Estate, documentary evidence to corroborate her employment (such as payslips or
bank statements) would be central and material to her claim. Her psychological
report also did not indicate where the Applicant worked or why she needed
psychological help. The Board found that the Applicant had had ample time to
obtain documents relating to her employment. Question 31 of her Personal
Information Form (PIF) instructed her to do so. The onus was on the Applicant
to establish her claim. The Board was not persuaded that the Applicant had worked
for her uncle.
[11]
In
relation to the sexual abuse, since the psychologist’s report did not indicate
anything about sexual abuse and the perpetrator of the abuse, the Board did not
believe that the Applicant was sexually abused by her uncle at R.R. Real Estate
as she alleged. The Board found that the Applicant had fabricated the story for
the purposes of her refugee claim. Therefore, the Applicant did not have an
objectively well-founded fear of persecution at the hands of her uncle should
she return to Mexico.
[12]
The
Board further held that, even if it were to believe the Applicant’s story that
her uncle sexually assaulted her, there was adequate state protection for
individuals like her in Mexico.
[13]
The
Applicant had sought and received help from the DIF. She had not sought medical
help from a physician, nor made any effort to report her uncle to the police or
other state institutions that deal with sexual abuse. The Applicant testified
that she did not seek medical help because she did not wish any physician to
touch her. She also claimed that she did not seek help from the police and
other state institutions because her uncle had contacts within state
institutions. She said that help from the police would not be forthcoming.
[14]
The
Board did not accept the uncle’s contacts within state institutions because he had
once been jailed for not paying alimony to his ex-wife. He had been released
from jail only after signing and paying a bond to the authorities. This indicated
that the authorities had taken action against him.
[15]
The
Applicant knew that the General Law on Women’s Access to a Life Free of
Violence was in force while she was in Mexico. She did not
seek legal action against her uncle because she said she lacked the financial
resources to do so. The Board found that the Applicant’s explanation of a lack
of finances was not reasonable since she earned 1,000 pesos per week from her
job and lived with her parents. She had the financial resources to seek legal
help. She could have used the money she used to come to Canada to retain a
lawyer.
[16]
The
Applicant also knew about the existence of the National Institute for Women and
the 24-hour telephone assistance provided for females. It was through the
National Institute for Women that she had sought help from the DIF and she
could have retuned to the National Institute for Women to seek additional help,
but she had not done so.
[17]
The
Board also found that the Applicant had not sought help from state authorities
to deal with the corruption she suspected between the police and her uncle. The
Applicant testified that she did not seek help from the Federal Agency of
Investigations (FAI) because she did not have sufficient evidence against her
uncle. However, the Board considered this explanation unreasonable because she
had a psychological report from the DIF that she could have relied upon to
obtain help from the FAI.
[18]
The
Applicant also had knowledge of the Secretariat of Public Administration, where
complaints regarding misconduct and corruption of Federal employees are
reported. She said she had not sought help from this source because she felt
her uncle had contacts with the authorities. The Applicant had further
knowledge of the existence of the Human Rights Commissions that deal with
complaints about police misconduct and situations where citizen’s rights are
violated. She said she had not sought their help because she did not wish her
aunt, who was having difficulties in her pregnancy at that time, to lose her
baby.
[19]
The
Board also found that the Applicant had the ability to, but had not elected to,
seek out and avail herself of state protection from state agencies other than
the police in Mexico. The Board
found that the Applicant lived in a democracy, that she had not reasonably
exhausted all courses of action open to her in obtaining state protection in
Mexico, and that she had not discharged the onus of showing clear and
convincing proof of the state’s inability or unwillingness to protect her.
[20]
The
Board concluded that the documentary evidence contrasted with the Applicant’s
allegations of a lack of state protection for persons like her in Mexico. The Board
gave more weight to the documentary evidence than the evidence of the Applicant.
The Board did not disagree that crime against women, including rape,
corruption, kidnapping, drug trafficking, and impunity continue to be problems
in Mexico. However,
based on the totality of the evidence, the Board was not persuaded that the
Applicant would not receive state protection against her uncle if she returned
to Mexico.
Internal
Flight Alternative (IFA)
[21]
The
Board also found that the Applicant had a viable IFA in Mexico City and that
there was no persuasive evidence before the Board that the Applicant’s uncle
had been looking for her after she left Mexico or that he
had any interest in harming her. Therefore, there was not a serious
possibility that the Applicant would face persecution, risk to her life, a
danger of torture, or a risk of cruel and unusual treatment or punishment
should she return to Mexico.
ISSUES
[22]
The
Applicant raises the following issues on this application:
1)
Whether
the Board erred in law by placing too much emphasis on the lack of
corroborating evidence;
2)
Whether
the Board erred in its assessment of credibility and state protection by not
considering the gender-specific dimension of the abuse suffered, and how an abused
woman would react in such circumstances;
3)
Whether
the Board erred in law by making an inference, which was not substantiated by
the evidence before it;
4)
Whether
the Board erred in law by failing to consider evidence before it, dealing with
the issue of state protection, which applied to the Applicant’s specific
situation;
5)
Whether
the Board erred by treating the same piece of evidence in contradictory ways;
6)
Whether
the Board erred by failing to consider that the agent of prosecution was a
family member when concluding that the Applicant had an available IFA.
STATUTORY PROVISIONS
[23]
The
following provisions of the Act are applicable in this proceeding:
|
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 themselves 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
themselves 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
[24]
Pre-Dunsmuir, the standard of patent
unreasonableness has been applied to issues of credibility: Perera v. Canada
(Minister of Citizenship and Immigration) 2005 FC 1069 (Perera). As
long as the inferences drawn are not so unreasonable as to warrant the
intervention of the court, such findings are not open to judicial review: Aguebor
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 732 (F.C.A.) (Aguebor).
[25]
On
the issue of state protection, the Federal Court of Appeal has determined that
the standard of review is reasonableness: Carillo v. Canada (Minister of
Citizenship and Immigration), [2008]
F.C.J. No. 399
at paragraph 36.
[26]
In
relation to the standard of review for an IFA, the Court in Diaz v. Canada
(Minister of Citizenship and Immigration), [2008] F.C.J. No. 1543
(F.C.) summarized the case law at paragraph 24 as follows:
…Ortiz v. Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 1716, summarizes the features of IFA determinations in judicial review, “[Justice Richard] held
at paragraph 26 that Board determinations with respect to an IFA deserve deference
because the question falls squarely within the special expertise of the Board.
The determination involves both an evaluation of the circumstances of the
applicants, as related by them in their testimony, and an expert understanding
of the country conditions” from Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1994]
F.C.J. No. 2018. In light of these issues, this Court has found the standard of review to be patent
unreasonableness pre-Dunsmuir above. See for instance: Nwokomah v. Canada (Minister of
Citizenship and Immigration), [2005]
F.C.J. No. 1889, Chorny v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 1263, Nakhuda v. Canada (Minister of Citizenship and Immigration), [2006]
F.C.J No. 882. As Justice de Montigny stated in Ako v. Canada (Minister of
Citizenship and Immigration), [2006]
F.C.J. No. 836 at paragraph 20:
It is trite law that questions of fact falling within a
tribunal's area of expertise are generally reviewed against a standard of
patent unreasonableness. More particularly, this Court has consistently found
that this is the proper standard to apply with respect to the existence of a
viable internal flight alternative [...]
Thus, it was well-settled that this Court should not
disturb the Board's finding of a viable IFA unless that finding was patently unreasonable. The standard of review, therefore, is
reasonableness as a result of Dunsmuir above.
[27]
In Dunsmuir v.
New Brunswick, 2008 SCC 9,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[28]
The Supreme Court of Canada in Dunsmuir also held that the
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.
[29]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issues of credibility, state protection and an IFA to be
reasonableness. 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.”
[30]
Any
procedural fairness issues will be considered under a standard of correctness: Lecaliaj
v. Canada (Minister of Citizenship and Immigration), [2009] F.C.J. No. 150
(FC) at paragraph 32; Thomas v. Canada (Minister of Citizenship and
Immigration, [2007] F.C.J. No. 1114 at paragraph 14 and Adu v. Canada
(Minister of Citizenship and Immigration), 2005 FC 565 at paragraph 9.
[31]
Errors
of law will also be considered under a standard of correctness: Singh v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 798 (F.C.T.D.) at paragraph 22.
ARGUMENT
The Applicant
Corroborating Evidence
[32]
The Applicant submits that corroborative evidence is persuasive
but is not required. By making an adverse credibility finding based on nothing
more than a lack of corroborative evidence, the Board committed an error in law.
[33]
The
Applicant submits that her place of employment was incidental to her claim and
that the agent of persecution was both the Applicant’s uncle and her employer.
The abuse occurred at both the Applicant’s home and at work.
[34]
The
Applicant says that the Board placed too great of an evidentiary burden on her
and, in doing so, committed an error of law. The Applicant relies upon Nechifor
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.
No. 1278 (F.C.) at paragraph 6 which states that “[i]t is settled law that a
panel cannot make negative inferences from the fact that a party failed to
produce any extrinsic document corroborating its allegations.”
[35]
The
Applicant submits that the Board did not suggest that the Applicant’s testimony
was inconsistent or implausible. If there were no other factors giving rise to
an adverse credibility finding, then the Applicant’s testimony is credible. Testimony
given under oath is presumed to be true unless there is a reason to doubt its
truthfulness: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C.
302 at paragraph 5.
[36]
The
Applicant cites Chan v. Canada (Minister of Employment and Immigration),
[1995] S.C.J. No. 78 (S.C.C.) at paragraph 137 which states that “[w]here
[the] evidence is not available in the documentary form, the claimant may still
be able to establish that the fear was objectively well founded by providing
testimony with respect to similarly situated individuals.”
[37]
The
Applicant points out that a psychological report from Canada about the Applicant and
a police report filed by the Applicant’s aunt indicating that the aunt had been
a victim of violence at the hands of the uncle were not referred to in the Board’s
reasons. A letter confirming that the Applicant had received psychological
counseling in Mexico was referred to in the
Board’s reasons, but as a “psychological report.”
Gender Specific Claim
[38]
The
Applicant submits that she had a well-founded fear of persecution due to her
membership in the “women who have suffered gender-based violence” social group.
She says that the Board failed to give due consideration to her testimony about
the abuse she had suffered and closed its mind to the potential truthfulness of
her allegations. Specifically, the Board failed to consider how a woman in the
position of the Applicant would respond. As Garcia v. Canada (Minister of
Citizenship and Immigration) 2007 FC 79 at paragraph 24 stated, “[it] is
necessary to understand what actions can be realistically expected of a woman
who has suffered violence.”
[39]
The
Applicant also cites and relies upon R. v. Lavallee, [1990]
S.C.J. No. 36 (S.C.C.) which states at paragraphs 38 and 51 for the following:
If
it strains credibility to imagine what the “ordinary man” would do in the
position of a battered spouse, it is probably because men do not typically find
themselves in that situation. Some women do, however. The definition of what is
reasonable must be adapted to circumstances, which are, by and large, foreign
to the world inhabited by the hypothetical “reasonable man.”
…
The
issue is not, however, what an outsider would have reasonably perceived but
what the accused reasonably perceived, given her situation and her experience.
[40]
The
Applicant submits that it was unreasonable, in light of the Gender Guidelines,
for the Board to suggest that not leaving her place of employment after the
first incident of sexual assault demonstrated a lack of subjective fear. Her
continued presence at the office was a testament to her continued fear of her
uncle and what he would do to her family. The Board’s conclusions on this issue
were unreasonable.
Improper Inference
[41]
The
Applicant submits that the Board erred in law by making an inference based on
evidence that was not before it. Specifically, the documents did not provide
any evidence about legal expenses in Mexico and how they compared or contrasted with the
salary of the Applicant or the cost of a plane ticket to Canada.
[42]
The
only evidence before the Board was the Applicant’s testimony that legal fees in
Mexico would have been too
expensive for her to afford. There was no reason to doubt that testimony and it
should be presumed to be true. The Board overstated what options the Applicant
would have had in seeking state protection.
State Protection
[43]
The
Applicant submits that she sought state protection on one occasion. The
evidence before the Board showed that while the DIF provided the Applicant with
psychological counseling, it did nothing further to offer substantive
protection. Mexico is only a developing
democracy: De Leon v. Canada (Minister of Citizenship and Immigration) 2007
FC 1307 and Zepeda v. Canada (Minister of Citizenship and Immigration) 2008 FC 491 at paragraph
20. The Applicant says that the Board failed to give a full reading to the
documentary evidence, which was an error in law: Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(F.C.).
Treatment of Evidence
[44]
The
Applicant says that the Board also erred in its treatment of the Mexican
confirmation of psychological counseling (referred to as the “psychological
report” by the Board). The Board treated this piece of evidence in a
contradictory fashion. The Board used the psychological report to say that it
was not convinced that the Applicant was a victim of crime. Then, later on, the
Board stated that the Applicant should have used the report to obtain state
protection and her failure to do so defeated her claim for protection in Canada. The Board erred in its
use of this document. By twisting the evidence within the same document to suit
its purposes the Board demonstrated bias.
Internal Flight
Alternative
[45]
The
Applicant further argues that the Board erred in finding that she had a
reasonable IFA in Mexico. The Board did not
consider the fact that the agent of persecution was a member of the Applicant’s
family. This is relevant because the inability to contact one’s family is a material
consideration for determining if an IFA is available.
[46]
The
Applicant has kept in contact with her family and they know where she is
located. Since the agent of persecution is a member of the Applicant’s family,
he will have access to the information of her whereabouts. It is unreasonable
to expect the Applicant to sever ties with her family: Huerta v. Canada
(Minister of Citizenship and Immigration) 2008 FC 586 at paragraph 29. The
Applicant concludes that, in the absence of severing all family ties, her uncle
will find her anywhere in Mexico. The Board’s failure to consider this factor was an error
in law.
The Respondent
Refugee
Protection is Surrogate Protection—Onus on Applicant
[47]
The
Respondent submits that refugee protection is meant to be a form of surrogate
protection to be invoked only in those situations where a claimant has
unsuccessfully sought the protections of their home state: Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689 (Ward) at page 709 and Hinzman
v. Canada (Minister of Citizenship and Immigration) 2007 FCA 171 at paragraph
41 (Hinzman).
[48]
The
Respondent says that, absent a complete breakdown of state apparatus, it should
be assumed that the state is capable of protecting an applicant. To rebut this
assumption, the applicant must deduce “clear and convincing confirmation of a
state’s inability to protect”: Ward at pages 724-725 and Hinzman
at paragraphs 43-44. The Board is not required to establish the existence of
state protection: Samuel v. Canada (Minister of Citizenship and Immigration) 2008 FC 762 at paragraph
10.
[49]
The
Respondent submits that an applicant must satisfy the evidentiary burden by
introducing evidence of inadequate state protection. To satisfy the legal
burden, an applicant must convince the tribunal, on a balance of probabilities,
that state protection is inadequate. The quality of the evidence required to
rebut the presumption of state protection must be reliable and of sufficient
probative value: Carillo v. Canada (Minister of Citizenship and Immigration)
2008 FCA 94 at paragraphs 18, 20 and 30.
[50]
The
burden of proof that rests on an applicant is directly proportional to the
level of democracy in the state in question: Hinzman at paragraph 44; N.K.
v. Canada (Minister of
Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532 at page
534 (F.C.A.) and Nava v. Canada (Minister of Citizenship and Immigration) 2008
FC 706 at paragraphs 21-22. If an applicant cannot deduce clear and convincing
evidence to rebut the presumption, they cannot be found to be a Convention
refugee or person in need of protection: section 97(1)(b)(i) of the Act.
[51]
State
protection only needs to be adequate, not perfect: Ward, Samuel at paragraph
13; Ortiz v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1365 at paragraph 53; Blanco v.
Canada (Minister of Citizenship and Immigration) 2005 FC 1487 at paragraph
10 and Canada (Minister of Employment and Immigration) v. Villafranca, [1992]
F.C.J. No. 1189 (F.C.A.).
[52]
The
Respondent further points out that Mexico has been recognized on many occasions
by this Court as being a democratic state and presumed to be able to protect
its citizens, even if the persecutor is a member of a police force or the
government: Valdes v. Canada (Minister of Citizenship and Immigration) 2005
FC 93 at paragraph 4; Filigrana v. Canada (Minister of Citizenship and
Immigration) 2005 FC 1447; Guzman v. Canada (Minister of Citizenship and
Immigration) 2008 FC 490 at paragraph 12 and Sanchez v. Canada (Minister
of Citizenship and Immigration) 2008 FC 66 at paragraph 12.
Adequate State
Protection Available
[53]
The
Respondent submits that the Board understood the relevant jurisprudence and
applied the evidence to the appropriate legal test. The Board was aware that
the Applicant received psychological help from the DIF, but the evidence showed
that the Applicant had not sought protection from the police or other state
institutions that deal with sexual abuse. Nor had the Applicant sought help
from the state authorities that address corruption, or attempt to move
elsewhere in Mexico. The Applicant’s one-time
approach to the DIF was insufficient to discharge the burden upon her: Canseco
v. Canada (Minister of Citizenship and Immigration) 2007 FC 73 at paragraph
15, citing Kadenko.
All Evidence Considered
[54]
The
Respondent submits that the Applicant is engaging in a microscopic assessment
of the Board’s reasons in order to demonstrate a reviewable error. When read as
a whole and in context, the Board’s reasons are clear and show that the Board
engaged in a full analysis of the availability of state protection in Mexico
and the various recourses and avenues that the Applicant had at her disposal: Wijekoon
v. Canada (Minister of Citizenship and Immigration) 2002 FCT 758.
[55]
The
Respondent says that although the Applicant may be able to point to excerpts
from the documentary evidence which she thinks the Board should have mentioned,
a one-sided presentation of the evidence will not show that the Board’s
weighing of all of the evidence was unreasonable: Johal v. Canada (Minister
of Citizenship and Immigration), [1997] F.C.J. No. 1760 at paragraphs
10-11.
[56]
In
the Respondent’s view, the Applicant has established no error with respect to
the Board’s consideration of the evidence and the Board is assumed to have
weighed and considered all of the evidence presented to it unless the contrary
is shown. The fact that the Board’s reasons do not fully canvass the contents
of the numerous documents entered into evidence before it, does not indicate
that the Board did not take documents into account, nor is it fatal to the
Decision; Florea v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 598 (F.C.A.) and Hassan v. Canada (Minister of Employment and
Immigration), [1992] F.C.J. No. 260 (F.C.A.) (Hassan) at page 318.
It is open to the Board to decide which evidence it prefers or which it
attributes more weight to. The issue of country conditions is a question of
fact within the jurisdiction and expertise of the Board and is to be accorded
significant deference: Jahan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J.
No. 987 (F.C.T.D.) and Chorny v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1263 (F.C.T.D.).
Internal Flight
Alternative (IFA)
[57]
The
Respondent submits that the legal determination of whether a reasonable IFA is
available to a refugee applicant is a question squarely within the special
expertise of the tribunal and should be accorded significant deference: Sivasamboo
v. Canada (Minister of
Citizenship and Immigration), [1995] 1 F.C. 741 (F.C.T.D.) at paragraph
26. The Respondent says that the Board properly applied the test for an IFA in
this case. The Applicant has failed to demonstrate that the Board’s IFA
determination was perverse and capricious or made without regard to the
evidence.
[58]
To
find an IFA, the Board was required to be satisfied on a balance of
probabilities that: (a) there was no serious possibility of the Applicant being
persecuted in Mexico City and; (b) that in all the circumstances, conditions in
Mexico City were such that it would not be unreasonable for the Applicant to
seek refuge there: Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706 (F.C.A.) and Thirunavukkarasu v.
Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589
(F.C.A.) (Thirunavukkarasu).
[59]
There
is a very high threshold for finding that it would be unduly harsh for an
applicant to move to an IFA: Canada (Minister of Citizenship and
Immigration) v. Ranganathan, [2001] 2 F.C. 164 (F.C.A.) (Ranganathan)
& Thirunavukkarasu. It requires nothing less than the existence of
conditions which would jeopardize the life and safety of an applicant in
traveling or temporarily relocating to a safe area. It also requires actual and
concrete evidence of such conditions: Ranganathan at paragraph 15.
[60]
The
Respondent submits that, once the Board raised the issue of an IFA, the onus
was on the Applicant to show that she did not have an IFA in Mexico City. The Applicant has not
demonstrated that the Board’s IFA findings were unreasonable or that the Board
committed a reviewable error: Rasaratnam at paragraphs 7 and 12; Thirunavukkarasu
at paragraph 2 and Tjuhanda v. Canada (Minister of
Citizenship and Immigration) 2008 FC 152. The Respondent goes on to cite
cases in which IFAs in Mexico have been upheld.
All Evidence Provided by
the Applicant Fully Considered
[61]
The
Respondent points out that the Board stated in its reasons that it had considered
the Applicant’s oral and written testimony, the Gender Guidelines, the
representations of counsel and all of the evidence provided. The Board is
presumed to have taken all of the evidence into consideration, whether or not
it indicates having done so it its reasons, unless the contrary is shown. The
fact that all of the documentary evidence is not mentioned in the reasons of
the Board is not fatal to its Decision; nor does it indicate that the Board
failed to consider or ignored certain evidence: Florea; Hassan at
p. 318 (F.C.A.); Ortiz v. Canada (Minister of Citizenship and Immigration)
2002 FCT 1163 (F.C.T.D.) and Ali v. Canada (Minister of
Citizenship and Immigration) 2003 FCT 242 (F.C.T.D.).
[62]
The
Board can refer or not refer to reports, and weigh them, as it sees
appropriate: Gosal v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J. No. 346 (F.C.T.D.); Danailov v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 1019 (F.C.T.D.); Chukwuka
v. Canada (Minister of Citizenship and Immigration) 2002 FCT 532 and Nasreen
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J.
No. 1376 (F.C.T.D.).
[63]
The
Respondent says that the reasons of the Board demonstrate that it had a grasp
of the pertinent issues and of the relevant evidence.
Credibility Finding
Reasonable
[64]
The
Respondent also says that it was reasonable for the Board to find that the
Applicant had failed to submit supporting evidence that could have been
obtained. Regardless, the Board states that even if it believed the Applicant’s
story, there is adequate state protection for individuals like her in Mexico.
Gender Guidelines
[65]
The
Respondent reminds the Court that the Gender Guidelines provide guidance to the
Board to assist in determining whether or not an applicant’s claim fits within
a Convention ground, since “gender” is not specifically an enumerated ground.
As well, they provide guidance on how to sensitively cope with the various difficulties
faced by a gender-based claimant regarding evidence and testimony. The Gender
Guidelines are not binding on the Board but are intended to be considered by
members of the Board in appropriate cases: Fouchong v. Canada (Secretary of
State), [1994] F.C.J. No. 1727 (F.C.T.D.).
[66]
While
the Gender Guidelines are intended to be considered in the context of a
gender-based claim, they are not intended to serve as a cure for all
deficiencies in an applicant’s claim or evidence. The “Guidelines cannot be
treated as corroborating any evidence of gender-based persecution so that the
giving of the evidence becomes proof of its truth”: Newton v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 738 at paragraph 18.
[67]
The
Respondent concludes that the Board gave due consideration to the Gender
Guidelines.
ANALYSIS
[68]
The
Applicant appears to be a somewhat troubled and fearful young woman who is
deserving of sympathy. However, this does not necessarily mean that the Board
committed a reviewable error in assessing her claim.
[69]
The
Applicant has chosen to isolate herself and her troubles from her family and
she has made no real effort to contact the police or avail herself of other
supportive organizations in Mexico. She has given reasons for taking this approach but those
reasons were examined by the Board and found wanting.
[70]
Essentially,
she says that Mexico provides no protection
for women like her who find themselves the victims of sexual abuse. The problem
with this assertion is that it is highly subjective and the Applicant has
supplied little in the way of objective support for her personal experiences or
for her assertion that state protection and an IFA are not available to her.
[71]
Notwithstanding
the Board’s credibility findings, it concluded that state protection and an IFA
were the determinative issues. The Applicant has sought various ways to suggest
that the Board’s findings and approach to these issues was unreasonable and/or
incorrect.
[72]
To
begin with, I agree that the Gender Guidelines were applicable to this case and
the Board applied them. However, as Justice Layden-Stevenson pointed out in Canseco
v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 115 at paragraph 10, “the
gender guidelines do not necessarily absolve applicants from seeking the
protection of the state.”
[73]
The
Board provided a detailed analysis of state protection in Mexico that identified its
shortcomings, but reasonably concluded that police and legal protection would
be available to the Applicant if she chose to access it. The Board did not just
look at the theoretical framework and expressions of good intention; it
examined actual practice on the ground.
[74]
Against
this background, the Board also examined what the Applicant herself had done to
avail herself of protection. All she did was take DIF psychological counseling
which, according to her PIF, was of significant assistance to her. But she did
nothing else.
[75]
Her
explanation that she did not go to the police about her uncle because she felt
he had connections was considered and reasonably rejected by the Board.
[76]
There
were many options available to her but she chose to use none of them. Her
various explanations were considered by the Board and were found to be
unsatisfactory. According to her own testimony, she knew of the existence of
relevant agencies but she simply chose not to seek the help of the police or
any other means of assistance apart from the psychological counseling which,
when she tried it, obviously worked for her. As Justice Snider pointed out in Judge
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1089, at
paragraphs 8 and 10, it is not sufficient for an applicant to simply believe
that state protection is not available.
[77]
The
Applicant has not given the Mexican police and the Mexican state an opportunity
to help her.
[78]
As
regards the Applicant’s criticism of the Board’s handling of the documentation,
I have to agree with the Respondent that the Applicant is simply complaining
about the weighing of evidence. The Board fully acknowledged the shortcomings
of state protection in Mexico but reasonably
concluded that, should she choose to call upon them, the police and other
organizations would be there to assist.
[79]
There
is also nothing unreasonable about the Board’s analysis of a possible IFA.
There was no evidence that the Applicant was being pursued by her uncle or that
he would be likely to seek her out in Mexico City, or that he had the temperament or the
ability to do so. Once again, the Applicant’s explanations were considered but reasonably
rejected by the Board. The Applicant’s subjective beliefs on this point were
entirely speculative. She testified herself that she could get a job. She also
demonstrated that she is well aware of the agencies of protection available to
her. The Board also considered the psychological evidence but reasonably
concluded that it demonstrated nothing except subjective fear.
[80]
The
issues raised in this application are familiar ones and have been considered by
the Court in numerous cases. In my view, it is possible to disagree with this
Decision, but there is nothing that takes it outside of the reasonableness
criteria set out in Dunsmuir. I can also find no procedural unfairness
or error of law that would warrant interference by the Court.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This application is
dismissed
2. There is no question for
certification.
“James
Russell”
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