Date:
20090717
Docket: IMM-410-09
Citation: 2009 FC 730
Vancouver, British Columbia, July
17, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
SILVIA
BECERRIL GUTIERREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Becerril Gutierrez has been a victim of domestic violence ever since she
married in 1976. She finally fled Mexico in November 2006 and
two-and-a-half months later sought refugee status here.
[2]
The
Refugee Protection Division (RPD) of the Immigration and Refugee Board found
that she was not a refugee within the meaning of the United Nations
Convention or a person otherwise in need of Canada’s
protection. The panel did not believe she had a subjective fear of persecution
in Mexico and that in
any event adequate state protection was available. Her application for leave
and judicial review of that decision was dismissed by this Court.
[3]
The
next step was a pre-removal risk assessment (PRRA) under sections 112 and
following of the Immigration and Refugee Protection Act. An applicant
may only present new evidence that arose after her claim was heard or was not
reasonably available or that she could not reasonably have been expected in the
circumstances to have presented. Although the PRRA Officer accepted new
evidence, the application was dismissed on the basis that adequate state
protection is available to her in Mexico. This is the judicial
review of that decision.
Ms. Becerril Gutierrez’
Case
[4]
There
are two prime submissions advanced. The first is that the reasons given are
inadequate. She was entitled to an articulate set of reasons which would allow
her to understand why her claim was rejected. The second is that even if the
reasons are comprehensible, they do not fall within the range of reasonable
outcomes considered in a judicial review (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, 304 D.L.R. (4th) 1).
[5]
It
must be borne in mind that the PRRA is not a fresh refugee hearing. The record
is limited to what is new, as defined above. The burden rests with the
Applicant. There is a presumption that the state is capable of protecting an
applicant and it is not incumbent upon the PRRA Officer to establish the
existence of state protection (Duran Mejia v. Canada (Minister of
Citizenship and Immigration), 2009 FC 354, at para. 48). The reasons
must be read and considered as a whole.
[6]
There
is one statement within the reasons which, if taken out of context, is somewhat
jarring. In speaking of Ms. Becerril Gutierrez’s unsuccessful claim for refugee
status, the PRRA Officer said:
The RPD stated, “The applicant has not
demonstrated either that state protection would not have been reasonably
forthcoming, or that it would have been objectively unreasonable for any other
reason for her to approach the state authorities in Mexico.” I am not bound by the RPD’s decision,
and have decided this application independently of its findings.
[7]
Read
alone, one might think the PRRA Officer intended to re-assess country
conditions as they were at the time of the RPD hearing. That is not the purpose
of a PRRA. However, in context that statement favours the Applicant. The PRRA
Officer accepted that she was suffering from post-traumatic stress disorder (PTSD).
Although a psychologist’s report had been before the RPD, no finding had been
specifically made, but the implication is that Ms. Becerril Gutierrez was found
not to have PTSD. This relates to the fact that in her original Personal
Information Form (PIF) she only mentioned seeking state protection once, in
1980. She later amended the PIF to say that she had also unsuccessfully sought
state protection in 1986 and 2004. Since the finding that she did suffer from
PTSD was “new”, the PRRA Officer was apparently prepared to accept that she sought
state protection on three occasions and not just one. In other words, there was
a reasonable explanation why she had originally failed to mention the second
and third visits to the police. Nevertheless, the PRRA Officer also came to the
conclusion that adequate state protection was available.
[8]
The
obligation to give reasons devolves from procedural fairness. The reasons
before me are not simply a summary of the evidence followed by conclusions.
There is a thread of reasoning with respect to state protection which can
easily be followed (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R.
869, North v. West Region Child and Family Services Inc. 2007 FCA 96, 362
N.R. 83).
[9]
Turning
now to the second issue, that of state protection, in my opinion the findings
of the PRRA Officer were not unreasonable. They fell within an acceptable range
of outcomes (Dunsmuir and Khosa above).
[10]
The
officer is accused of a “good news” analysis. I do not see how that submission
is justified. Reference was made to very recent documentation on country
conditions, including documentation submitted by the Applicant.
[11]
It
is suggested that the RPD’s decision was forward-looking in that new laws
respecting domestic violence had come into force in Mexico in February 2007,
but that the new evidence before the PRRA Officer reveals that they have not
been effective because old societal attitudes that domestic violence is a
private matter remain strongly entrenched. The hearing before the RPD was in
November 2007 and the decision was rendered in February 2008. However, there is
no specific reference to the February 2007 law, and I cannot read into that
decision that it played a factor in the rejection of Ms. Becerril Gutierrez’s
claim.
[12]
Although
domestic violence was and continues to be a grave matter in Mexico, Mexico is a democracy
and clear and convincing evidence was required to rebut the presumption of the
availability of state protection. This point was re-emphasized by the Federal
Court of Appeal in Florez Carrillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636, a
case which dealt with domestic abuse in Mexico before the
coming into force of the new law.
[13]
Apart
from there being no basis for the allegation that the analysis by the PRRA
Officer of country conditions was not even-handed, more particularly, the
Amnesty International Report submitted by the Applicant was specifically
considered. Counsel notes that this report of August 2008 states “Amnesty
International’s research has shown that although there have been improvements
in the legal framework in most states, these are often not adequately enforced
and as a result do not translate into effective protection for women.”
[14]
However,
on the page before that statement it was acknowledged that Mexican authorities
have been active in raising public awareness about violence against women and
on the following page we find:
Amnesty International welcomes the 2007
General Law and accompanying legislation as a positive advance. It is now vital
that this is backed up with political commitment, resources, training and
accountability to ensure gender perspectives are effectively integrated into
the policies and activities of key institutions.
[15]
Ms.
Becerril Gutierrez’s submissions are result-oriented but the reasons of the PRRA
Officer are not. While the situation may or may not have improved in Mexico since the
RPD’s decision, it certainly has not deteriorated. That is what the PRRA had to
take into account.
[16]
It
is also submitted that the decision was unreasonable for not giving due weight
to a letter from Ms. Becerril Gutierrez’s daughter, which states that her husband
is still looking for her, with mayhem in his heart, and that he has the ways
and means of finding her anywhere in Mexico. As I read it, no particular weight
was given to the supporting evidence with respect to the friends in high places
he was supposed to have. In any event, the issue before the PRRA Officer was
not whether or not there would be pursuit by the husband. In actual fact the
presumption is that there may well be malevolent intentions, but that the state
is in a position to protect her.
[17]
It
may be hard for Ms. Becerril Gutierrez to return to Mexico. That is an issue
to be considered in a humanitarian and compassionate application, not a PRRA.
Email this Content