Date: 20090507
Docket: IMM-4568-08
Citation:
2009 FC 460
Ottawa, Ontario, May 7, 2009
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
BRAVO TAMAYO Gloria
DELGADO BRAVO Fabiola
DELGADO BRAVO Angela Yosdel
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
[27]
In order to determine whether a refugee protection claimant has discharged his
burden of proof, the Board must undertake a proper analysis of the situation in
the country and the particular reasons why the protection claimant submits that
he is “unable or, because of that risk, unwilling to avail [himself] of the
protection” of his country of nationality or habitual residence (paragraphs 96(a)
and (b) and subparagraph 97(1)(b)(i) of the Act). The
Board must consider not only whether the state is actually capable of providing
protection but also whether it is willing to act. In this regard, the
legislation and procedures which the applicant may use to obtain state
protection may reflect the will of the state. However, they do not suffice in
themselves to establish the reality of protection unless they are given effect
in practice ...
As specified by Justice Luc Martineau in Avila
v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, 295
F.T.R. 35.
II. Judicial proceeding
[2]
This
is an application for judicial review of a decision made on September 22, 2008
by the Refugee Protection Division of the Immigration and Refugee Board (Board)
that the applicants did not qualify as “Convention refugees” or “persons in
need of protection” within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (IRPA).
[3]
This
decision is based on the lack of credibility of the applicants and the existence
of state protection.
III. Introduction
[4]
The
applicants claim that they fear, with good reason, being persecuted in their
country because they belong to a particular social group, specifically women
who are victims of domestic violence.
[5]
Specifically,
they fear the husband of the principal applicant, who allegedly attempted to
rape his daughter in 1999, threatened to kill her and tried to kill her in
2007.
IV. Facts
[7]
The
principal applicant and her daughter, Fabiola, left their country because of
death threats, family violence and attempted rape by the father.
[8]
In
1999, when the father found out that his daughter was pregnant, he basely hit
her, threatened her and insulted her.
[9]
When
the principal applicant tried to protect her daughter, she too was struck.
[10]
When
the father tried to rape his daughter, the principal applicant knocked him out
with a stick and fled the house with the daughter.
[11]
They
sought refuge with their neighbour, Emilio, and refused to return home when the
father came to get them.
[12]
The
father left after a while, hurling insults and threats at the neighbour and his
family.
[13]
Emilio
then took them to the hospital, where they arrived at around three o’clock in
the morning on July 26, 1999.
[14]
On
July 27 and 28, 1999, the principal applicant’s daughter remained under
observation at the hospital.
[15]
The
principal applicant’s daughter was released from the hospital on July 29, 1999 on
condition that she rested and remained under medical supervision.
[16]
Because
the applicants had nowhere else to go, they returned home.
[17]
The
neighbour was waiting and told them that the father had not been back since the
day of the assault.
[18]
Once
the principal applicant’s daughter felt a little better, she and her mother
filed a complaint against her father.
[19]
After
taking their statement, the officer of the Public Ministry examined them and
took down their information. He then told them that they would receive a
summons and a document informing them of the request, but that it would take
time, and that the preliminary investigation would proceed.
[20]
The
principal applicant’s daughter earned a little money babysitting and washing
clothes for neighbours, so they were able to survive without help from the
father, who had still not returned home.
[21]
On
August 18, 1999, the principal applicant and her daughter went to inquire where
things stood with the complaint. The officers made them wait from 9 p.m. to
midnight, only to tell them that the complaint could not be filed for lack of
evidence.
[22]
In
their opinion, since no rape had occurred, there was no tangible evidence
despite the photos of the bruises.
[23]
The
father knew officials at the Public Ministry. At that point the applicants realized
that they could not expect anything from them.
[24]
The
principal applicant and her daughter were very frightened because they no
longer had any work or money with which to rent an apartment. They lived this
way for six months.
[25]
On
February 22, 2000, the principal applicant took her daughter to the hospital so
she could deliver. An hour after the granddaughter was born, the father
arrived.
[26]
The
father told them that he had had them watched the whole time by two men, and
that he knew everything about their daily lives.
[27]
He
congratulated his daughter and told her to watch out for accidents, because
these days children often disappeared.
[28]
He
told her that he was not interested in his granddaughter, and that she was the
one he wanted. She started screaming, and when the nurse came, he left the
premises.
[29]
After
spending the night at the hospital, the applicants decided to return home to
collect a few personal effects and sell what they could so that they could move
somewhere else.
[30]
The
father, who was in the house, surprised them after they had collected personal
documents and effects. The principal applicant left the house with her
grandchild to get help.
[31]
A
few minutes later, the principal applicant returned with their neighbour
Emilio, who had a stick. He told the father to let go of his daughter. The
father left, hurling insults and threats.
[32]
The
applicants sought help at city hall, where they finally got some support. An
agreement was reached between them and the father through city hall.
[33]
They
were to receive money for rent. The father was no longer allowed to approach
them or to have them watched. They were able to live in peace this way for four
years, until 2004.
[34]
They
saved their money so they could move away because the father often hung around near
the house in the company of two men.
[36]
They
lived in Loma Bonita for a year and a half, and when the little girl’s teacher
told them that a stranger had taken photos of the little girl, they moved to
Navarra on June 15, 2006. But here again the principal applicant’s daughter
lost her job.
[37]
A
customer at the stationery store where the principal applicant’s daughter
worked, Martha Cobarrubias, invited them to move in with her in San Miguel
Allende, Guanajuato.
[38]
They
lived there for two months, but left when the father got into the house during
the night.
[39]
He
tried to smother the principal applicant with a pillow over her face. Their
host came to her rescue. They tried to hit her. The neighbours came running and
he fled like a thief.
[40]
The
next day, exhausted, she talked to a friend who suggested that she leave the
country. She told her what she had to do to obtain a passport and the necessary
documents.
[41]
The
applicants sold everything they had and asked for money so they could leave.
They arrived in Montreal on August 13, 2007.
[42]
The
Board raised the issue of state protection and then denied the applicants’
claims.
[43]
After
the birth of her child, the principal applicant’s daughter did not want to risk
moving, so she fled before she could be abused again.
[44]
She
fears for her life and the lives of her daughter and her mother if ever they
return to Mexico.
V. Issue
[45]
Did
the Board make a decision based on erroneous findings of fact and/or
interpretations of the law, without regard to the evidence before it?
VI. Analysis
[46]
The
applicants allege that the Board erred in law because the reasons given by the
Board are unreasonable and not based on the evidence.
[47]
In
Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2
F.C. 302, 1 A.C.W.S. (3d) 167, the Federal Court of Appeal found that when an
applicant swears to the truth of certain allegations, this creates a
presumption that those allegations are true unless there be reason to doubt
their truthfulness.
[48]
In
its analysis, the Board raised the issue of state protection and told the
applicants that they had not rebutted the presumption of protection under the
circumstances of this case.
[49]
Avila
v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, 295
F.T.R. 35, summarizes the main legal principles on the issue of state
protection:
[27] In order to
determine whether a refugee protection claimant has discharged his burden of
proof, the Board must undertake a proper analysis of the situation in the
country and the country and the particular reasons why the protection claimant
submits that he is “unable or, because of that risk, unwilling to avail
[himself] of the protection” of his country of nationality or habitual
residence (paragraphs 96(a) and (b) and subparagraph 97(1)(b)(i) of the
Act). The Board must consider not only whether the state is actually capable
of providing protection but also whether it is willing to act. In this regard,
the legislation and procedures which the applicant may use to obtain state
protection may reflect the will of the state. However, they do not suffice in
themselves to establish the reality of protection unless they are given effect
in practice: see Molnar v. Canada (Minister of Citizenship and Immigration),
2002 FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi v. Canada (Minister of
Citizenship and Immigration), 2003 FCTD 429, [2003] 4 F.C. 771 (F.C.T.D.).
[50]
Monroy
v. Canada (Minister of Citizenship and Immigration), 2006 FC 588, 154
A.C.W.S. (3d) 686, addressed the protection afforded citizens and reviewed the
documents on conditions in the country that should at least be taken into
consideration:
[18] The
Board rendered its decision solely on the basis of facts that would allow it to
reject the applicants’ claim and did not analyze the rest of the evidence.
[19] Relevant
evidence was not considered, and this evidence was clear and convincing. (Fok v. Canada(Minister
of Employment and Immigration), A-881-90, [1993] F.C.J. No. 800 (F.C.A.)
(QL)
[51]
In
its decision, the Board did not demonstrate that the crux of the claim had been
contradicted. The fact that municipal authorities protected the applicants for
more than four years lent credibility to the claim. The fact that this
protection did not extend beyond that time shows, under the circumstances, that
the individuals concerned were at risk.
VII. Conclusion
[52]
The
Board did not take into consideration the evidence before it.
[53]
For
these reasons, the application for judicial review is allowed and the matter is
referred back for redetermination by a differently-constituted panel.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be allowed and the matter be referred back for
a new hearing before a differently-constituted panel.
“Michel M.J. Shore”
Certified
true translation
Brian
McCordick, Translator
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